Baba Restaurant, Promenade, PENZANCE, TR18 4NP

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision Site visit made on 15 November 2022 by S Harrington MA MRTPI an Inspector appointed by the Secretary of State Decision date: 07 December 2022 Appeal Ref: APP/D0840/W/22/3296070 Baba Restaurant, Promenade, Penzance TR18 4NP • 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 Steven Rahman against the decision of Cornwall Council. • The application Ref PA21/09846, dated 29 September 2021, was refused by notice dated 15 February 2022. • The development proposed is demolition of existing restaurant and construction of coffee shop, cafe and bar on ground floor with holiday lets and owner's accommodation above. Decision 1. The appeal is dismissed. Preliminary Matters 2. I have taken the description of development in the banner heading above from the application form, however as ‘outline application with all matters reserved’ is not an act of development, I have removed this element. 3. The application was made in outline with all matters reserved for future consideration.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision I have dealt with the appeal on that basis, treating any details of reserved matters shown on the plans or mentioned in the description of development as being illustrative only. Main Issues 4. The main issues are: • whether any harm resulting from the demolition of a non-designated heritage asset would be outweighed by public benefits; and • whether the proposal would comply with policies that seek to steer new development away from areas at the highest risk from flooding. Reasons Loss of heritage asset 5. The appeal site contains a two-storey detached building, previously identified as a non-designated heritage asset, located on Western Promenade Road. The site is encircled and dominated by modern development including a supermarket and associated carpark, petrol filling station and a block of flats, which emphasise the traditional appearance and proportions of the appeal building. https://www.gov.uk/planning-inspectorate

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision Appeal Decision APP/D0840/W/22/3296070 6. My attention has been drawn to a previous appeal decision relating to the appeal site. Although in relation to a differing proposal, I am aware that the previous Inspector noted that the building is of relatively substantial heritage interest, as a non-designated heritage asset, with the significance of this interest being in both the traditional appearance, and in terms of its association with being the last remaining building of Wherry Town after the Ash Wednesday storm of 1962. I also note the appellants’ Heritage Impact and Capacity Assessment places the buildings’ heritage value principally in its function as a memorial to the community and storm event, as opposed to architectural value due to these having been very heavily damaged by the replacement of historic fabric. 7. Although I agree that the historic fabric has been much altered, I find that the building retains its traditional appearance, to which some heritage value can be attributed given its context in more modern surroundings emphasising the historic appearance of the building, as well as the undisputed value in its historic association with the community and storm event.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision However, I accept that customers may not engage with the business because of the historic ties to Wherry Town, but even so, the current buildings use does not diminish the heritage value of the building. 8. As the appeal building is a non-designated heritage asset, para 203 of the National Planning Policy Framework (Framework) advises that in weighing applications that directly affect a non-designated heritage asset, a balanced judgement will be required having regard to the scale of any harm or loss and the significance of the heritage asset. Furthermore Policy 24 of the Cornwall Local Plan 2010-2030 (LP) requires that any harm to the significance of a non- designated heritage asset must be justified, with proposals causing harm weighed against the substantial public, not private, benefits of the proposal, and whether it has been demonstrated that all reasonable efforts have been made to sustain the existing use, or mitigate the extent of the harm to the significance of the asset. 9. The appeal proposal would provide a coffee shop, cafe and bar, holiday lets, and owner's accommodation.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision Given the application is in outline the exact scale and form is not certain, however the proposed development would result in the demolition of the existing building. To enable the appeal site to continue to portray its historic value, a memorial plaque is proposed which would provide some reference to its previous existence which I agree would somewhat reduce the scale of harm to the significance of the non-designated heritage asset. 10. The existing building is in a poor condition, and my observations at my site visit accord with the findings of the appellant’s Building Survey Report (BSR). However, while the BSR states that there are wide ranging issues with the structure, and that it would be simpler to rebuild, it does not state that the building is structurally unsound. Therefore, although I understand that substantial works would be required to remedy the issues identified with the building, no information has been presented to evidence that it would be unviable to renovate the existing structure, and bring the building back into use with the associated public benefit flowing from an active commercial use of the existing building. 11.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision The appellant has provided a Socio-economic Impact Assessment (SeIA) which provides indication of the likely social and economic benefits of the proposed https://www.gov.uk/planning-inspectorate 2

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision The appellant has provided a Socio-economic Impact Assessment (SeIA) which provides indication of the likely social and economic benefits of the proposed https://www.gov.uk/planning-inspectorate 2

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision Appeal Decision APP/D0840/W/22/3296070 development to the area from tourism and spend generated by future users of the development. The SeIA focuses on the provision of two businesses within the proposed development, those being holiday lets and a café development. The report indicates up to 13 FTE jobs per year could be created, tourism spend of some £210k a year and a construction investment of £0.8m. 12. I have been made aware of a number of LP Policies, objectives and paragraphs of the Framework which place a strong emphasis on tourism development, economic growth, community needs and sustainable development. The effects on tourism in the area due to Covid-19, and unemployment figures in the area have also been brought to my attention. 13. I have no doubt that the suggested benefits of the proposal would also bring public benefit to the wider area due to increased use of services and facilities and therefore also employment, both at the site and in the wider area. However, although the existing building is currently unused, the use of this building would also contribute to employment in the area.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision Furthermore, the SeIA is based on four self-catering two-bedroom flats, although no floor area for the café business is quoted. As the application is in outline form, there is no certainty that the final development would retain the indicative quantum of tourism units or café floorspace and therefore predicted benefits. 14. Against this background, I am required to balance the scale of any harm or loss against the public benefits. The provision of a memorial plaque, which could be the subject of a planning condition, reduces the harm of the proposal on the significance of the heritage asset. However, given that the traditional appearance and proportions of the existing building also contributes to the overall significance, I find this reduction to be limited. Furthermore, while elements of the existing design could be incorporated into a final proposal, I give this matter limited weight due to the uncertainty of a final design given the outline nature of the application. 15. The appellant has provided details of a range of benefits associated with the development.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision Notwithstanding, the use of the existing building could also provide some benefit, and given the evidence before me, I find it has not been demonstrated that the public benefits would be of a scale to justify the harm to the non-designated heritage asset. 16. Consequently, I conclude that the harm resulting from the demolition of a non- designated heritage asset would not be outweighed by public benefits, in conflict with LP Policy 24 which seeks, amongst other things, to ensure that all reasonable efforts have been made to sustain the existing use, and ensure any harm or loss to the significance of a heritage asset is justified and outweighed by public benefits. The proposal would also therefore conflict with para 203 of the Framework. Flood risk 17. The appeal site lies within Flood Zone 3 and therefore has a high probability of flooding. In such a location, the proposal falls to be assessed against the requirements of LP Policy 26, and the provisions of the Framework in relation to planning and flood risk.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision These require that a sequential test should be undertaken and planning permission should not be granted if there are reasonably available sites appropriate for the proposed development in areas with a lower probability of flooding. https://www.gov.uk/planning-inspectorate 3

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision These require that a sequential test should be undertaken and planning permission should not be granted if there are reasonably available sites appropriate for the proposed development in areas with a lower probability of flooding. https://www.gov.uk/planning-inspectorate 3

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision Appeal Decision APP/D0840/W/22/3296070 18. The appellant has undertaken a sequential test which considers whether there are any opportunities to locate the development within Flood Zones 1 and 2. The sequential test concludes that there are no sequentially preferable sites at present. However, there is disagreement between the parties as to the area the test has been applied due to the sequential test being limited to a search of sites in the adopted Cornwall Sites Allocations Development Plan Document (DPD). Although the DPD is not focused on the provision of commercial and tourism accommodation, it does provide a basis for the consideration of development sites within the town and outside of Flood zone 3. 19. Although the previous appeal Inspector, and it appears the Council, had previously considered the DPD sites as being an appropriate area, and I accept the undertaken test has examined all available DPD sites, I note the findings of the sequential test discount sites for reasons including conflict with allocation policies and the appeal proposal being too small in relation to the large scales of the allocated sites and proposed uses.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision It is also put to me that given the unique nature of the mix of use classes proposed, any reasonably available sites that are identified outside of the scope already assessed would be unsuitable. 20. The Planning Practice Guidance (PPG) provides guidance on the application of the sequential test and states that the area to apply the test will be defined by local circumstances relating to the catchment area for the type of development proposed. Furthermore, the PPG1 also states that the ‘planning authority’ will need to determine an appropriate area of search, based on the development type proposed and relevant spatial policies. 21. While the Council and previous Inspector may have taken a different approach to the area of the sequential test as part of its consideration of the previous proposal, the Council now consider a wider area to be appropriate. Further sites have been explored within the appellant’s appeal statement, although these are restricted to sites listed for sale as opposed to vacant sites.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision The PPG2 provides guidance on ‘reasonably available’ sites, and states sites should be in a suitable location for the type of development with a reasonable prospect that the site is available to be developed at the point in time envisaged for the development, although does not go as far as to indicate that the site has to be actively marketed. 22. Although the waterside location is clearly a benefit for the business, it does not follow that the uses proposed fundamentally require such a location. Accordingly, this factor attracts limited weight and does not demonstrate that the search for reasonably available sites should be so restricted to sites on the Promenade. Furthermore, as there is no requirement for a site to be actively marketed, although I accept this could be a useful indication as to if they are available, I have been provided with insufficient evidence as to why vacant sites that are not marketed at a particular point in time, may not be available if pursued further. 23. I am therefore not persuaded, on the evidence before me, that the proposal is of such a unique nature as to indicate that any other sites are unsuitable for the type of development proposed.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision Similarly, whilst I accept that the additional sites that have been explored within the appellant’s appeal statement may not 1 Paragraph: 029 Reference ID: 7-029-20220825 2 Paragraph: 028 Reference ID: 7-028-20220825 https://www.gov.uk/planning-inspectorate 4

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision Similarly, whilst I accept that the additional sites that have been explored within the appellant’s appeal statement may not 1 Paragraph: 029 Reference ID: 7-029-20220825 2 Paragraph: 028 Reference ID: 7-028-20220825 https://www.gov.uk/planning-inspectorate 4

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision Appeal Decision APP/D0840/W/22/3296070 be suitable for the development proposed, I am not persuaded, on the evidence before me, that all reasonably available sites have formed part of the sequential test, and therefore it has not been adequately demonstrated there are no suitable sites for the proposed development in areas of lower risk of flooding. 24. I note that the appellant’s Flood Risk Assessment (FRA) indicates that proposed development will be safe and that it would not increase flood risk elsewhere. I further note that the Environment Agency has not raised any objection, subject to a suitable planning condition imposed concerning flood mitigation. However, this does not negate the requirement for the sequential test to be passed. As I find that the proposal fails the sequential test, the requirements of the Framework have not been met, and I do not need to consider the exception test. 25. For these reasons, I conclude that the proposal would not comply with policies that seek to steer new development away from areas at the highest risk from flooding, including LP Policy 26 and paragraphs 159, 161 and 162 of the Framework. Other Matters 26.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision A Bat and Barn owl survey has concluded that there is no evidence of bats or barn owls were present at the site and that biodiversity would not be adversely affected by the proposed development, however this would be a neutral factor in the planning balance. 27. Third party comments have been made in relation to the effect of the proposal on the character and appearance of the area. The application was made in outline with plans being only indicative. Therefore, I have not considered this matter further. Planning Balance 28. There is no doubt that the benefits of the proposal include benefits in terms of employment opportunities during the construction phase, with further economic benefits through employment in the operational phase, and the spend of customers within the local economy. The appellant has also outlined various benefits of the proposed development within the planning and appeal statements, including the convenient location of the site close to services and facilities, the potential positive visual contribution to the street scene, effective use of land, as well as social and environmental benefits. 29.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — Appeal Decision Notwithstanding these, I find that the benefits of the proposed scheme would be limited in scope and scale. In my view, such matters either individually or in combination do not outweigh the identified harm and the associated development plan conflict described above. https://www.gov.uk/planning-inspectorate 5 Appeal Decision APP/D0840/W/22/3296070 Conclusion 30. For the reasons given above, I find that the proposal would conflict with the development plan, read as a whole. No material considerations, individually or cumulatively, indicate that a decision should be taken otherwise than in accordance with it. Therefore, the appeal is dismissed.

Baba Restaurant, Promenade, PENZANCE, TR18 4NP — Cornwall Council — S Harrington INSPECTOR https://www.gov.uk/planning-inspectorate 6