Appeal Ref: APP/C4615/A/07/2049906 Land at Hall Street, Dudley

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  • The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.
  • The appeal is made by Dudley Muslim Association against the decision of Dudley Metropolitan Borough Council.
  • The application Ref. P07/0053, dated 12 January 2007, was refused by notice dated 1 March 2007.
  • The development proposed is described as the development of a community, training and enterprise centre and a mosque.
  • Summary of Decision: The appeal is allowed and outline planning permission granted in the terms set out in the Formal Decision below. Procedural matters 1. The application form indicated that the development is as described above. However, the Council’s decision notice described the proposal as ‘the erection of a community training and enterprise centre (sic) and mosque including two flats and associated parking (outline) (access to be considered with all other matters reserved for subsequent approval)’. This latter, fuller description is also contained in the Statement of Common Ground (SoCG), agreed between the appellant and the Council, and it was confirmed at the Inquiry that it is on this basis that I was being asked to determine the appeal. This is what I have done.

2. The application was in outline with all matters other than access being reserved for subsequent approval. I have treated the accompanying site layout and floor plans as being for illustrative purposes only. The SoCG lists the plans comprising the application. However, two further plans - Refs. 3325-OPL-08A and 3325-OPL-10D - have also been submitted. The latter shows minor variations to the site’s Hall Street junction. For the avoidance of doubt, I have taken these into account in reaching my decision.

Main issues 3. From all I have seen, read and heard I consider the main issues in this case are:

  • The impact on the economic vitality of the Borough that could result from the potential loss of a site allocated within the Dudley Unitary Development Plan (UDP) as a Local Employment Area under Policy EE2.
  • The impact of the scheme on highway safety, parking and the free flow of traffic.
  • Reasons General background 4. The appeal site comprises overgrown wasteland and two redundant and dilapidated former commercial buildings. It has been vacant since 1997 when the Council secured the site to assist with the construction of the Dudley Southern Bypass. The proposal has two principal elements: a new mosque which would provide worship areas for up to 600 people, ancillary facilities and flats for an on-site manager and a religious leader; and a Community, Training and Enterprise Centre (CTEC) providing facilities including a sports hall, community hall, crèche, fitness suite, seminar rooms, information technology suites, lecture theatre, workshops, administration spaces, café and exhibition area. It is suggested that up to 112 jobs would result from the development. There would be on-site parking for both elements, with principal access being from Hall Street, access from Blackacre Road being limited to service and emergency vehicles.

5. The site has been subject to a land exchange with the Council, the appellant having originally owned land at Trindle Road/Claughton Road within the town centre. It was decided that this was unsuitable for its needs for community and religious facilities and the Council wished to acquire this site to allow the assembly of a larger area for future redevelopment. The appeal site was declared surplus to requirements by the Council in 2000 following completion of the Southern Bypass. An exchange of its ownership was agreed, the land passing to the appellant on a 99-year lease and the Trindle Road/Claughton Road site passing to the Council, transfer taking place in May 2003.

First main issue – Economic vitality 6. It is clear that there are development plan policies of relevance in considering the proposals. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that if regard is to be had to the development plan for the purposes of any determination, the determination must be made in accordance with the plan unless material considerations indicate otherwise.

7. The development plan comprises the Regional Spatial Strategy for West Midlands 2008 (2001-2021) (RSS) and the Dudley Unitary Development Plan, adopted in 2005 (UDP). The RSS is subject to ongoing review with Phase 2 Preferred Option 2006-2026, relating to housing, employment, waste and transport, subject to formal consultation. This seeks to ensure an adequacy of available land for housing and employment. The Council and appellant agree that pending the outcome of an Examination in Public the RSS phase 2 Preferred Option should be afforded only limited weight.

8. Reference has been made to several policies of the UDP. The approach as to how these should be addressed and weighed was subject to discussion at the Inquiry and I turn this below. It is undisputed, however, that the appeal site is designated as a Local Employment Area under the site-specific Policy EE2. This refers to types of uses defined under the terms of the Town and Country Planning (Use Classes) Order 1987 (as amended) that would be acceptable employment uses on such sites. These are research and development and light industry (B1), general industry (B2), warehousing, storage and distribution (B8), and those commercial uses which are not pure retail. Certain ancillary uses will be permitted including food and drink and care facilities whose scale, nature and location would serve the immediate needs of the Local Employment Area. All other uses are to be resisted under the policy. The proposals would for the most part not fall within these acceptable use classes, being predominantly Classes D1 and D2, respectively non-residential institutions and assembly and leisure uses. There would thus be conflict with this policy.

9. The appellants draw attention to several other UDP policies with which it was accepted at the Inquiry the proposals would accord or not conflict with. These include Policies S1, S2, S12, S14 and S15. These variously seek to ensure that developments promote social inclusion, equal opportunities and social wellbeing; create a more sustainable borough; promote and encourage the Central Employment Zone (CEZ) (an area of employment growth opportunity) with the aim of maximising employment opportunities for the Borough’s residents; encourage community development and promote new and improved sport, leisure and recreation facilities. Additional support is claimed from Policies UR1, CS2 and CS3. These seek to encourage and support development within the CEZ which create jobs, look favourably upon the provision of social care facilities and support community facilities where they meet a recognised need and are located within a community they are intended to serve.

10. The appellant acknowledges that the proposal does not strictly accord with UDP Policy EE2, though it is claimed that it is not at variance with the development plan as a whole, and there are also other material considerations in terms of significant community benefits that justify a departure from the policy.

11. The Council’s approach to considering the matter accords with the judgement in the case of Laura Cummins and others (Case Ref. CO/2003/2001). In this it was considered that where policies pull in different directions it may be necessary to decide which is the dominant policy; whether one policy compared to another is directly, as opposed to tangentially, relevant, or should be seen as one to which greater weight is required to be given. Support for this approach is found in my colleague Inspector’s decision on a development in Croydon (Ref. APP/L5240/A/07/2036071) where he opined that an areaspecific policy – seemingly akin to Policy EE2 – should have precedence over a more general supportive policy. In dealing with the appeal application the Council’s approach was clearly to consider Policy EE2 as particularly pertinent: it is not a flexible policy in that it does not allow exceptions to the range of uses identified within it and is firm in safeguarding Local Employment Areas for industrial/commercial employment use. If alternative uses are proposed then the onus is placed on the applicant – or in the case of an appeal, the appellant – to demonstrate that material considerations exist whereby a departure from the policy might be justified.

12. The appellant suggests that the judgement in the Cummins case is at most a permissive approach and that assessing the development plan as a whole it may be necessary to look at one or some policies and accord them greater weight than others; this does not obviate the primary need to look at the development plan as a whole. The judgement in R v Rochdale Metropolitan Borough Council ex parte Milne (Case Ref. CO/292/2000) suggests that to be acceptable a development should accord with the development plan as a whole and that it does not have to accord with each and every policy of it.

13. Setting aside for the moment the Council’s introduction within the context of the Inquiry its view that the proposal would be in breach of Policy DD5 (relating to development in industrial areas), Policy EE2 is the only UDP policy with which the scheme would conflict. This is a site-specific and agreed relevant policy that brooks no exception to the range of particular uses that would be considered acceptable. In this regard, the appellant argues that the indoor sports component of the scheme would not in itself conflict with the policy since the policy would permit commercial uses which are not pure retail. It was accepted by the Council’s planning witness that non-retail commercial uses would include leisure uses such as the indoor sports component. A sequential test in line with advice in Planning Policy Statement 6 Planning for Town Centres was undertaken at the application stage to see whether there would be more appropriate locations for this disaggregated element within the town centre (the appeal site occupying a location on the edge of the town centre as defined in the UDP). This indicated there to be none, a conclusion accepted by the Council’s professional officers. Although the appellant has queried the requirement for such a test to be carried out, because of the limited scale of the proposed leisure component, a second study within the context of the appeal was done. This also found no sequentially preferable sites. Whilst criticised because of lack of proper consideration of a number of Council-owned sites within the town centre, no substantive evidence has been provided by the Council to contradict this conclusion.

14. Notwithstanding the above, the leisure component is but one element of the overall scheme which, taken in the round, would not strictly accord with Policy EE2, as acknowledged by the appellant. I consider that in this case the approach that should be taken is to assess what harm would flow from the non-compliance with Policy EE2 and see if there are advantages of the scheme which would amount to material considerations that would outweigh this specific conflict and count in the proposal’s favour. It is the assessment of these to which I now turn.

15. The designation of Local Employment Areas is to assist in providing a balanced portfolio of sites of different sizes and quality that contribute to the distinctiveness of the Borough and to sustainable development objectives. The appellant argues that the loss of the 0.93ha site would cause no material harm to the supply and availability of such land. The land has not been marketed for employment use (the appellant’s interest in the land for the present proposal stretching back to 2001). There was no contradiction of the Council’s evidence that the site is suitable for employment use (subject to the normal range of site investigations); has no major constraints; and if the land was to be offered to the industrial/commercial market that it would be likely to be attractive to small/medium businesses and be developed, so assisting in addressing the acute deprivation experienced in this part of Dudley. The Council argues that the loss of the site to alternative use would result in material harm both in terms of the UDP and its Economic Strategy unless there is an abundance of similar land with similar characteristics such that the loss of this small site is unlikely to impact on the wider picture.

16. The appellant, on the other hand, argues that the Council’s Annual Monitoring Report (AMR) indicated at December 2007 that there was a total of almost 43 hectares of available employment land in Dudley and that the report states that the majority of the Borough’s employment land supply is unconstrained in terms of B1, B2 and B8 employment uses. It therefore concludes that there is little cause for concern regarding meeting employment land requirements at the present time. The Council has not withdrawn or disavowed this document and the SoCG sets out the agreement of the availability of nearly 43 hectares of employment land. Having regard to the employment land requirements of 80 ha from 2001 up to 2011, the end period of the UDP, and based on historic take-up rates of land, this level of provision would be adequate to cater for the Borough’s needs. However, within the Inquiry the Council’s planning witness sought to challenge the degree of up-to-date readily available land by reference to the Regional Employment Land Supply Document (RELS), a survey of all scheduled employment sites over 0.4ha in the West Midlands. According to the definition used within RELS there is a lack of such land for employment development within the CEZ; the 43ha referred to in the AMR is not ‘readily available’ because it has one or more problems of physical condition or infrastructure, is not on the market or the owner is unwilling to sell.

17. There are clearly differences between the Council’s and the appellant’s witnesses on the assessment of the amount of employment land available based on the criteria defining ‘readily available’ within the RELS survey. Some 11.48ha of employment land is currently under construction and as such does not fall within the readily available category in RELS. Nevertheless, from the evidence, and as I noted on my site visit, some of this is on the market and would therefore appear, de facto, to be available for employment use. Furthermore, public investment has assisted sites such as the Claughton Road development site, which had major problems, to come forward to contribute to the employment land portfolio. There is the possibility that this could apply to other sites, which could make future contributions to employment land supply within the UDP plan period. The appeal site does not feature in the RELS data. Even if the appeal was to be dismissed this would not necessarily mean that the site would automatically become ‘readily available’ within the RELS definition since it is uncertain what the appellant, as leaseholder, would wish to do and it would not necessarily come to the market.

18. Additionally, there is undisputed evidence that there is an up–to-date figure of some 73,019m2 of employment space available in the present local industrial market for sites between 92m2 and 5,573m2, and over 222,000m2 of total space available. The Council’s planning witness conceded at the Inquiry that there is no shortage of space available to accommodate putative employers looking to come into the district and that such putative entrants would not as a consequence be frustrated and have to go elsewhere. There is no suggestion that employment opportunities in the Borough have been lost by reason of any purported shortage of readily available land. Against this background I find it difficult to believe that the employment land supply situation has deteriorated so rapidly from the acceptable situation identified in the AMR to the bleak picture painted by reliance on the specific criteria of RELS. In my view the assessment of the AMR is to be preferred. Nor do I believe that it would materially upset the ‘careful balance’ identified in the Inspector’s 2004 report into objections to the UDP between maintaining the industrial base of the Borough and accommodating some diversification. I conclude that the strict non-compliance with the terms of Policy EE2 in terms of mployment generating uses would not undermine the economic prospects of the area.

19. Within the context of the appeal the Council has sought for the first time to cite conflict with UDP Policy DD5. This policy requires that in industrial areas development proposals will be required to safeguard the viability and environmental quality of adjacent industrial and commercial areas. The basis for supposed conflict is that noise-sensitive uses on the appeal site, in particular the two residential flats associated with the mosque, could impose constraints on the operation of the adjacent Alan Nuttall Ltd factory. Nuttalls is a large premises employing some 300 people engaged in store fitting, manufacture and supply and operates with the benefit of an uncontrolled pre-1947 use. However, the Council has produced no technical or acoustic evidence indicating the background and ambient noise levels or those generated by the existing factory. It was accepted at the Inquiry that it would be possible to design buildings on the site to prevent noise intrusion and the Council’s Environmental Protection Officers recommended at the application stage the imposition of a condition to protect noise-sensitive rooms from adjacent industrial and traffic noise.

20. The flank elevation of the existing factory where it directly abuts the appeal site has substantial high solid walling with no apertures to it. The factory also abuts an existing residential area and I have seen no evidence to suggest that the factory’s operation result in noise conflict there. Nor have I noted any representations from Nuttalls suggesting that the appeal proposal could unacceptably constrain present or future operations. I agree that if the proposal was to impose restrictions or limitations on the operation of this factory this could be significant in terms of its employment ability. However, from the evidence, and what I saw on site, I do not consider that the scheme would be likely to impose any such constraints and would not undermine the viability of this adjacent commercial site. It would not therefore conflict with Policy DD5.

21. There is no dispute between the Council and the appellant that there is a need for a new mosque as existing facilities are outdated and are unable to cater for the needs of worshippers. It is also agreed that there is a need for initiatives aimed at delivering better access to employment opportunities. The appeal site lies within St Thomas’s ward, the ward with the highest Asian or Asian British ethnic group in the Borough. This together with adjacent wards of St James, St Andrews, Castle and Priory, and Netherton and Woodside are some of the most deprived, with high levels of unemployment, low skills and low academic attainment, St Thomas’s ward being amongst the 4% most deprived wards nationally and the third worst in the Borough. The proposed CTEC would provide facilities for training, education, leisure, social care and community integration, the intention being to address inequalities and disparities evident within this and adjoining wards.

22. Support for the type of initiative proposed is found in Government strategies including the Home Office’s Improving Opportunity, Strengthening Society: The Government’s Strategy to Increase Race Equality and Community Cohesion and Communities and Local Government guidance Preventing Violent Extremism Pathfinder Fund. These both show the importance of community-based initiatives particularly involving sport and cultural opportunities for building community cohesion. Planning Policy Statement 1 (PPS1) Delivering Sustainable Development also highlights the Government’s aim of promoting community cohesion. At the local level this is advanced through the aspirations of the Dudley Community Strategy 2005-2020, developed by the Dudley Community Partnership, including public, private, voluntary and community bodies. The Council’s Cabinet reports of October and December 2007 identified the need to do more to tackle deprivation at the neighbourhood level, with a focus on the wards referred to above. They follow the Audit Commission’s observations that Borough-wide providers wish to deliver their services more efficiently and effectively, together, at a neighbourhood level to improve the quality of life in the most deprived areas.

23. I have no doubt that, if developed, the suite of facilities proposed could make a valuable contribution to these aims, a point not denied by the Council. Whilst there are existing initiatives and facilities aimed at delivering education, training and community development within Dudley I have seen no convincing evidence to suggest that the proposed CTEC linked with mosque provision would not be an important complementary adjunct to these. Nor is there any substantive evidence to suggest that those initiatives or facilities which exist, including the St Thomas’s Community Network, would be seriously undermined or harmfully compromised should the proposal come to fruition.

24. The linkage between the proposed mosque and CTEC is considered important in order, amongst other things, to promote interaction between the Muslim and other communities, provide a positive contribution towards Dudley’s community cohesion agenda and allow the Muslim community access to service provision from one location. The leisure use elements of the scheme are seen as a main vehicle for attracting young people to the centre; the majority of Muslim youth is said not to access mainstream leisure provision. The proposal would offer opportunities for more constructive activity, contribute to social interaction between different groups and assist in community cohesion, a factor underlined in advice in Planning Policy Guidance 17 Planning for Open Space, Sport and Recreation.

25. The question of linkage of the mosque and the CTEC provision on the same site was not a point at issue with the Council in its consideration at the application stage, the Officer’s report to the committee determining the application accepting that it was integral to the scheme that the project is delivered from a single site rather than being split. There was criticism within the Inquiry as to why the two principal elements of the scheme could not be accommodated on separate but closely-related sites. Similarly, the one kilometre radius defined area of search for sites has been queried. However, this was the search area agreed with the Council at the application stage. The appeal site is within one of the most deprived wards in the country and it seems reasonable to me that an appropriate scheme aimed at alleviating problems of deprivation should be geographically well related to it. I do not consider that existing facilities such as the Dudley Leisure Centre, on the opposite side of the town centre, would assist in effectively fulfilling the same purposes. No potentially suitable alternative sites have been suggested and I am not convinced that the claimed advantages of linkages for the uses on the same site would be likely to be replicated by split sites.

26. It is suggested that the proposal would provide up to 73 full-time and 39 parttime jobs on the site. This is based on a detailed breakdown provided by the appellant of employment associated with the different components of the scheme. Although this figure has not been independently assessed it was not challenged by the Council in its consideration of the proposal at the application stage. The appellant conceded at the Inquiry that these would not be necessarily all new jobs; some could be existing jobs transferred from facilities and operations that might relocate to or share premises within the CTEC. It was also conceded that no breakdown of the likely proportion of new compared with transferred/relocated jobs could be given. Therefore the net additional employment provision that might result must be open to some degree of speculation. The Council sought to undermine the veracity of the overall quantum of jobs to be created by suggesting that there was no evidence as to where the funding would come from to service what would be an annual wage bill of in the region of £2 million. There has been no detailed financial appraisal or evidence as from where the ongoing funding would be delivered, although it is suggested that it is likely that many of the jobs would be funded by organisations which would use space within the CTEC and who would generate rental income.

27. The qualitative nature of the jobs that might be created has also been queried, there being no Class B research and development and light and general industrial or warehousing jobs. Draft PPS4 Planning for Sustainable Economic Development, has been referred to by both the Council and the appellant. Because of its draft status only limited weight can be afforded to its guidance as it may alter as a result of consultation. Nevertheless, it does provide a guide to the direction of Government thinking in planning for industry and employment, to update the aging PPG4. The draft confirms that for its purposes economic development covers a wide range of developments not just those covered by Class B uses. The proposals would comprise employment generating uses as well as education and training facilities which in turn could help attract other employers into the locality. In this regard the scheme would help further the Council’s Economic Strategy for 2008/09, which includes amongst its strategic aims the optimisation of opportunities for local people and those from deprived areas to develop and improve their skills and obtain local jobs; skills improvement being a recurrent theme of the Strategy.

28. By contrast, the Council’s case is centred on the notion that by ensuring the site is available for the types of uses stipulated in Policy EE2 substantial job opportunities would be likely to arise of the sort that would not be forthcoming with the appeal proposal. As already noted, it may be the case that if the land was available for industrial use it might be attractive, particularly to small-scale uses. However, there could be no guarantee of this nor could there be any certainty that the number of jobs that might arise would equate either quantitatively, or qualitatively (in whatever terms this might be assessed), with those that may result from the present proposal. Indeed, the number of jobs created by industrial development at Ionic Park, which the Council accepted could be typical of those which that might be attracted to the appeal site, may indicate, pro rata, that only in the region of some 13 jobs could result with similar development. Whilst this may be somewhat pessimistic, overall, in terms of likely job creation, I consider the balance has to lie in favour of the proposal which has been detailed as opposed to the more speculative possibilities of alternative B class uses.

29. The Council accepts that it would be appropriate for the CTEC to be sited in an accessible location in relation to those areas where social and economic deprivation is recognised. The scheme would provide the opportunity to re-use a currently redundant, unkempt and neglected but prominent previously developed site, potentially enhancing the immediate environment. Given the site’s location on the edge of the town centre, within St Thomas’s ward, and the acknowledgement that the site has good transport links, served well by several bus services, I consider that that the proposal would represent a highly sustainable form of development.

30. Consideration of the proposal cannot in my view be wholly divorced from the history of the Council’s dealing with the appellant and its proposal. There can be little doubt that in agreeing the land swap with the Council it was a clearly understood position that the site was proposed to be used for a mosque and community facility, as made clear in the terms of the Council’s long lease to the appellant with restrictive covenants. The land swap took place prior to adoption of the present UDP in which the site became designated for employment use under Policy EE2 but in respect of which the appellant made no representations as the plan passed through its adoption process. The appellant is not suggesting that the Council was unable to take the decision to refuse permission that it did and is not pursuing any case based upon estoppel. It also accepts that the appeal process is not the appropriate forum to pursue a case based upon the doctrine of legitimate expectation. In dealing with this case I consider this matter can but offer only a background context to the position and it does not weigh in my consideration of the planning issues.

31. In terms of this first issue I conclude that the proposal would not undermine the thrust of employment policy of the UDP or RSS, would not have a harmful impact on the economic vitality of the Borough and that the advantages it would bring outweigh conflict with UDP Policy EE2.

Second main issue - highways and parking 32. Objections have been raised by petitioners and individual objectors on the basis that the proposals could lead to highway problems and parking congestion. This is not a matter contended by the Council, which was, and remains, satisfied that subject to the imposition of appropriate conditions the scheme would have no detrimental highway impact.

33. A Transport Assessment accompanied the proposals. This addresses matters of traffic generation, distribution and its impact on the surrounding road network, peak on-site parking demand and the need for a Travel Plan. The principal access to the site would be from Hall Street. Subject to modifications within this road, which could be effected through the imposition of a condition attached to a permission, I have no reason to doubt that this would be satisfactory.

34. Access from Blackacre Road would be limited to delivery and emergency vehicles only. A considerable amount of on-site parking would be provided, which the Transport Assessment concluded would be adequate to cater for normal weekly peak parking demand. It does acknowledge, however, that for some special events such as religious festivals demand might exceed supply and parking within adjacent streets could result. A specific car parking study identified available on-street parking which could provide for such demand. In addition, the site is within ready walking distance of the public Flood Street car park and the requirement to produce a Travel Plan, to promote ‘greener’, more sustainable travel, would also assist in reducing the likelihood of excessive car parking demand by promoting alternative transport modes. Whilst acknowledging the concerns of objectors on this front, I have seen no technical or substantive factual evidence to contradict the conclusions of either the Transport Assessment or that of the Council that the proposal would result in no material harm to highway safety, parking or the free flow of traffic.

Other matters 35. I have taken account of all other matters raised. These include expressed concerns by certain objectors that the design of the mosque, particularly the possibility of the incorporation of a tall minaret, would be out of context with the buildings of Dudley’s town centre and the historic castle. I accept that the site is fairly prominent but its closest neighbours are industrial premises and, across the dividing Dudley Southern Bypass, modern buildings with no particular architectural pretensions, and open areas of car parking within the town centre. The appeal site is considerably removed from the castle such that any building on it would not materially intrude on its setting. Furthermore, this is an outline application with matters of design and appearance reserved for subsequent approval and over which the Council would have future control should applications be made.

36. I have also borne in mind the considerable volume of opposition to the scheme, particularly that raised in the context of the original application and including petitions with over 22,000 names. The substance of those objections are matters covered in my considerations above. The sheer volume of opposition alone is not a ground for refusing permission unless it is founded upon valid planning reasons as made clear in The Planning System: General Principles, which accompanies PPS1. For the reasons given, I consider that this is a case where planning permission should not be withheld.

Conclusions 37. It is therefore my overall conclusion that the proposal would not harmfully impact on the economic vitality of the Borough through the loss of a site allocated as a Local Employment Area within the UDP. Indeed, its provision could result in considerable benefits in terms of general economic, social and community well-being and cohesion as a result of the facilities, employment and training it would be likely to bring. These advantages, which would accord with the thrust of many policies of the UDP, are material considerations which in themselves outweigh any conflict with UDP Policy EE2. Furthermore, the proposal would not give rise to material harm to highway safety, parking congestion or the free flow of traffic. Accordingly, subject to the imposition of necessary and reasonable conditions, which I discuss below, I consider the scheme to be acceptable.

Conditions 38. So far as conditions are concerned, I have considered those suggested and discussed at the Inquiry in the light of advice in Circular 11/95 The Use of Conditions in Planning Permissions. I shall impose the usual conditions attached to outline permissions requiring the submission of details of the matters reserved for subsequent approval. The Design and Access Statement submitted with the appeal application set out the broad layout and disposition of the buildings on the site and to ensure a satisfactory standard of development a condition is suggested tying the reserved matters to be in general accordance with the Statement. I agree. For the same reason a condition relating to the agreement of boundary treatments is necessary.

39. Because of the possible presence of contamination on the site a condition is necessary requiring a site investigation strategy to be submitted and approved. In order to minimise the risk of noise pollution, conditions are necessary relating to the use of electrical amplification equipment and external plant and machinery. To protect the living conditions of the occupants of the two proposed flats and obviate any possible conflict with the adjacent industrial use, I shall impose a condition regarding sound insulation. For reasons of highway safety and traffic flow conditions are required restricting the Blackacre Road access to emergency and service vehicles and the need for off-site works to be completed in Hall Street. To reduce the reliance on car use and to promote more sustainable modes of transport the submission and approval of a Travel Plan is necessary. In order to assist in the protection of residential amenity in nearby streets a condition is necessary restricting the hours of operation of the CTEC. For the same reason, and in the interests of protection of the public amenity generally, I shall impose a condition regarding the approval of waste storage and disposal/recycling facilities.

40. To ensure that the CTEC is built in conjunction with the mosque a condition is required regarding the phasing of construction. The Council wishes to see a condition which would require the CTEC to be completed before the first use of the mosque, whereas the appellant considers this to be too onerous; whilst recognising the need for a condition that would ensure the provision of the CTEC it would prefer to see one along the lines of that contained in PPG15 Planning and the Historic Environment, which would limit the use of the mosque until a contract had been let for the construction of the CTEC. In my view a condition simply requiring the submission to and approval by the Council of a phasing plan and its subsequent implementation, without reference to completion before the first use of the mosque, would provide both an acceptable positive safeguard that the CTEC would come to fruition and more flexibility for the exact timing of construction works.

41. A condition has also been suggested requiring the submission and approval of a scheme to ensure that the CTEC facilities are available to the whole community. I agree that such a condition is necessary as it is on this basis that the proposal is justified and is a matter raised by certain objectors. The requirement for the submission of a scheme (within which details of how the CTEC would be made available) would, in my view, be sufficient to render the condition sufficiently precise, certain and reasonable.

Formal Decision 42. I allow the appeal, and grant planning permission for the erection of a Community, Training and Enterprise Centre and mosque including two flats and associated parking (outline) (access to be considered, with all other matters reserved for subsequent approval) at land at Hall Street, Dudley in accordance with the terms of the application, Ref. P07/0053, dated 12 January 2007, and the plans submitted with it, subject to the following conditions: 1) Details of the appearance, landscaping, layout, and scale, (hereinafter called "the reserved matters"), shall be submitted to and approved in writing by the local planning authority before any development begins and the development shall be carried out as approved.

2) Application for approval of the reserved matters shall be made to the local planning authority not later than three years from the date of this permission. The development hereby permitted shall begin not later than two years from the date of approval of the last of the reserved matters to be approved.

3) The reserved matters relating to layout and scale shall be in general accordance with the Design and Access Statement submitted in support of the outline application.

4) Development shall not begin until a comprehensive written site investigation strategy (in a form to be agreed by the local planning authority) has been submitted to and approved in writing by the local planning authority. The strategy shall facilitate the identification of contaminants and permit a risk-based assessment of the development site. Where the investigations identify the presence of contamination, development shall not begin until a scheme to protect the development from the effects of such contamination has been submitted to and approved in writing by the local planning authority. Such a scheme shall include provision for validation monitoring and sampling, be implemented in accordance with the approved details before the development is first occupied and be retained throughout the lifetime of the development.

5) Before the development is brought into use details of any plant and machinery to be located on the external fabric of the proposed buildings shall be submitted to and approved in writing by the local planning authority. The installation of the equipment shall be in accordance with the approved scheme.

6) The residential flats hereby permitted shall not be occupied until a scheme for providing sound insulation between the dwellings and from external noise sources has been submitted to and approved in writing by the local planning authority; all works which form part of the approved scheme shall be completed before the residential flats are occupied.

7) No electrical amplification equipment shall be used on the site which would be audible at the boundary of the site.

8) The vehicular access from Blackacre Road shall be restricted to use by emergency vehicles and service vehicles delivering to the Community, Training and Enterprise Centre hereby approved. Prior to the commencement of development details of the physical means of Appeal Decision restricting this access shall be submitted to and approved in writing by the local planning authority and the agreed details shall be implemented on site prior to the commencement of the use of the Centre. The measures contained within the agreed details shall remain in place/operation for the lifetime of the development unless otherwise agreed in writing by the local planning authority.

9) Prior to the commencement of the use/occupation of the development hereby permitted a Green Travel Plan shall be submitted to and approved in writing by the local planning authority. The agreed plan shall be implemented in accordance with the approved details for the lifetime of the development unless otherwise agreed in writing by the local planning authority. The Travel Plan shall include measures relating to both the mosque and the Community, Training and Enterprise Centre. Annually, on each anniversary of the commencement of the use hereby permitted, the Travel Plan and its programme of implementation shall be reviewed and any revisions agreed in writing by the local planning authority.

10) The Community, Training and Enterprise Centre hereby approved shall not be open to the public outside the hours 07.30 - 23.00 Monday to Saturday or 08.30 – 22.00 on Sundays, Bank or Public Holidays.

11) No development shall commence on site until a detailed scheme for highway works within Hall Street in connection with access provision to the site has been submitted and approved in writing by the local planning authority and the approved works have been fully completed.

12) Prior to the commencement of development, details of the boundary treatments of the site and a programme of implementation shall be submitted to and approved in writing by the local planning authority. The agreed scheme shall be implemented in accordance with the agreed programme and thereafter retained.

13) Prior to the commencement of development details of waste storage and disposal/recycling facilities on the site shall be submitted to and approved in writing by the local planning authority.The agreed details shall be implemented prior to the use of the development hereby permitted and thereafter exclusively retained for their authorised use.

14) Prior to the commencement of development a detailed phasing plan shall be submitted to and agreed in writing by the local planning authority to control the timing of construction of the mosque and the Community, Training and Enterprise Centre. Construction shall take place in accordance with the agreed phasing plan.

15) Before the Community, Training and Enterprise Centre hereby permitted is brought into use, a scheme shall be submitted to and approved in writing by the local planning authority to ensure that the facilities to be provided are accessible and available to the whole community. The Centre shall be operated in accordance with the agreed scheme.

P J Asquith, INSPECTOR