A recent DPEA appeal decision highlights the issues arising when a unit expands part of its business beyond the scope of an existing consent, in this case a Certificate of Lawful Use for a shop with ancillary seating for the consumption of snacks and beverages.

Coincidentally, the premises on Byres Road are only a couple of minutes' walk from Nardini's ice cream parlour, which I blogged about last summer in relation to similar issues about ancillary café use for sit-in customers.

Policy SC10 in Glasgow City Plan 2 requires units in the Byres Road area to maintain the proportion of Class 1 shop units at 70% or more, and that non-retail uses should not result in (a) more than two adjacent non-Class 1 units within a street block and (b) 30% of the Class 1 shop frontage being in non-retail use. 'Hybrid' uses are regarded as sui generis and thereby non-retail.

The appellant had operated an artisan deli shop with bakery products and café area since 2004.

The appellant contends that the Council had conducted retail surveys in the Byres Road Secondary Retail Area every year since then. The percentage of non-retail units had far exceeded the 30% limit every year since 2005

The appellant had a Certificate of Lawful Use from June 2004, which provided for use of the premises as a shop with ancillary seating for 20 seats for the consumption of snacks/beverages. The Council had included the premises as a Class 3 use in the retail survey since 2005, presumably because it was considered to be a hybrid use.

The issue in this appeal was that the appellant sought to add a further central seating area for 8 covers and a further seating area for 3 stools in the shop window.

Previously both the central area and window space were used for the display of goods. While not totally replacing the retail element, it was accepted that the additional seating would create an emphasis on food consumption rather than retail sales.

The Reporter concluded that while proposal did not meet the terms of the Policy SC10, the following factors indicated that its terms should be interpreted with an element of flexibility:

  • For many years the premises had been included in the retail surveys as a non-retail unit;
  • There would be little change in the outward appearance of the premises;
  • An element of retail trade would still continue;
  • The result would be 2 adjacent non-retail units but this had already occurred in the street so that the retail character had already been compromised;
  • The premises were not preventing retail opportunities as there were other vacant units nearby.

Ultimately the Reporter determined that there would be no detrimental impact on the vitality and viability of the retail area and granted consent for the increased seating areas.

While this is a useful case study for those trying to identify flexibility within the planning system to adapt or expand their business, it only serves to emphasise that while certain factors - floor space, existing consents and the Council's previous treatment of the premises - are all useful indicators, the application of these factors is complex and highly site-specific, particularly once you add in consideration of any specific retail development plan policies.


Victoria Lane

Senior Associate