D53 Zoning

Our clients, Resource Property Investment Fund Plc., welcome the preparation of the Draft Kilkenny City & Environs Development Plan 2014-2020 and the opportunity to make a submission at this stage in the process
The subject of this submission is the proposed policies and objectives relating to the development of service stations in the City and, with reference to these, the specific policies pertaining to the two existing Topaz Service Stations on the Castlecomer Road.
The two Topaz Service Stations to subject of this submission are located on the Castlecomer Road, a key distributor route into the City Centre from the north.
The service station use on both sites has been established and permitted for an extended period.
The first of the stations as you enter the city from the north is the Castlecomer Road Service Station located on the western side of the road at the junction of Greens Hill. It is the larger of two sites with a ‘restore’ store service available including a deli counter, toilets, car wash and ATM services. It operates a one way enter exit access.
The second station is the Park Service Station located further south along the Castlecomer Road near the New Road Roundabout, also on the western side of the road. This has a smaller ‘express’ store service and has two access points onto the road.
Both service station sites, despite their long established and permitted commercial nature, are proposed to be zoned residential.
Residential Zoning of Castlecomer Service Station
Residential Zoning of Castlecomer Service Station
The objective of this zoning is as follows:
To protect, provide and improve residential amenities.
Service stations are not listed as a permitted use within the zone, nor are they identified as being open for consideration. Indeed, service stations area only permitted within two zoning objectives for the entire City: the Industrial / Warehousing zoning and the Agricultural Trade zoning.
Section of the Draft Plan addresses Non-Conforming Uses and states:
Throughout the City and Environs there are uses which do not conform to the zoning objectives for the area. Extensions and improvement of premises accommodating these uses may be permitted where the proposed development would not seriously injure the amenities of the area or prejudice the proper planning and development of the area. In some cases, the Planning Authority may encourage relocation of permitted incompatible uses, for example by exchange of sites.
Section 11.16 addresses Petrol and Gas Filling Stations. It states:
A petrol station may include the following: petrol pumps, diesel pumps, gas dispenser, storage tanks, hose pipes and other vehicle services i.e. car washing, oil, water and air. It may also include the sale of goods related to motor trade, a cash kiosk, and a canopy over the pumps and provision of minor repairs, oil and tyre changes.
Ancillary retail uses may be permitted such as small convenience type shops with a floor area generally not exceeding 100 sq metres of sales space. However, planning applications for the provision of such shops shall be applied for specifically. The layout of the station forecourt should be arranged to allow dedicated parking for those shopping at the shop.
The most suitable location for petrol filling stations and associated commercial developments is on the outskirts of the city and within urban speed limits. They will not be permitted at locations where because of their appearance, noise, fumes etc. they would be injurious to the amenities of the area, nor will they be permitted in areas where there are traffic hazards or where hazards might be likely to arise.
Any application for a new petrol filling station should provide sufficient road frontage, clear visibility, two points of access, sanitary convenience for public use, and the surface of the forecourt shall be graded, surfaced with bitumen macadam or other suitable material and drained to the satisfaction of the planning authority. A petrol/oil interceptor trap shall be fitted to the surface water drainage system.
4.1 Policy and Legislative Context
We submit that the Borough Council should take the opportunity in the preparation of the final Development Plan to rectify any inconsistencies with the Department of Environment’s Guidelines that has the potential to impact on Topaz operations across the City.
In doing so, we refer the Council to Section 28 (1) of the Planning and Development Act, 2000 which states
28. —(1) The Minister may, at any time, issue guidelines to planning authorities regarding any of their functions under this Act and planning authorities shall have regard to those guidelines in the performance of their functions.
The Planning and Development 2010, also requires that all Development Plans should be consistent with national guidelines.
We also refer the Council to section 8.14 of the DoEHLG’s Development Management Guidelines in referring to Bord Pleanála appeal decisions states that:
Any decision of the Board should be carefully examined by the planning authority to see whether it raises any policy issues in relation to the development plan
4.2 Strategic Review of Topaz Assets
The subject service stations are in the ownership of Resource Property Investment Fund Plc. (RPIF). Topaz acquired Irish Shell and Shell Northern Ireland in July 2005 and then went on to purchase Statoil Ireland in October 2006. These businesses now operate as Topaz Energy Group Ltd (Topaz). Topaz is now the largest service station operator in Ireland and is looking to build on that position in the coming years.
Topaz sold the majority of their property assets in November 2007 to RPIF plc. Topaz leases those assets from RPIF Plc and continues to operate them as service stations and terminals.
RPIF Plc has progressed a comprehensive review of its portfolio of Topaz service stations in the Republic of Ireland. The purpose of this review is to arrive at an informed strategy for each location. In some cases, that strategy will be the redevelopment of the service station, in others, it may be a disposal while it is expected a large number will remain unchanged in their current format. Planning policy, and the hierarchy of plans at the strategic, regional and local level, will be a key determining factor in informing more detailed proposals for each service station, particularly in priority business areas such Kilkenny City.
Having regard to the provisions of the Draft Kilkenny City Development Plan, and taking into account the ideas arising from the strategic review of the Topaz property portfolio, the focus for RPIF Plc in respect of their Topaz property interests at Kilkenny is likely to be on the retention of the existing stations on the Castlecomer Road in commercial use as service stations, with potential for further redevelopment and expansion where feasible.
It should be noted that the service stations are established commercial uses, with the benefit of planning permissions, located within the development boundary of a designated settlement which is a specified growth centre in the National Spatial Strategy. They are employment generating uses.
Our client’s are concerned that proposals within the Draft Plan may impact negatively on the continued operation of these existing businesses and on their future development potential. They expect that the outcome of the planning process in this instance will not have a negative impact on same.
4.3 Changing Nature of Forecourt Retailing
The nature of petrol forecourt retailing has changed dramatically in recent years with a noticeable lack of service stations within inner urban areas, a trend that is already established in cities such as Dublin and mainly a result of the asset value of service station sites significantly outweighing the asset value of the business
According to the Irish Petroleum Industry, in the decade 1998 to 2008, the number of service stations in the Republic of Ireland approximately halved, standing at 1,027 sites in 2008, from 2,218 in 1998. Tighter margins on petrol exist as new forms, such as forecourt retailing in large supermarkets, put downward pressure on prices. This has resulted in increased dependence on non-fuel related retailing for survival. With regard to the marked trend towards a lack of service stations within inner urban areas, between 2003 and 2004 alone more than 200 filling stations closed down.
The lack of service stations within urban area has clear implications for the quality of the associated road network in those areas. Of those that remain, it is also important to highlight that the vast majority are located in long established built up urban areas within existing residential neighbourhoods.
We submit that the number and range of stations that have closed in recent years within urban locations is evidence of the need to provide clear policy support for their continued presence in established locations.
The changing nature of petrol retailing is also been driven by consumer choice and expectation which sees the customer being able to get petrol while also being able to get top up convenience goods. Service stations, by commercial necessity, have now also become local convenience stores.
Therefore, in addition to their contribution to the effective operation of the road network by providing necessary services to road users, the service stations on the Castlecomer Road also provide a local top up shopping function.
While it is clear that the primary role of service stations is the sale of petrol, we wish the Final Plan to acknowledge the changed nature of such stations, the range of permissions that have been granted recently to reach this position, the role and function of such stations as local service providers and the commercial realities to ensure that they can continue to existing within sustainable urban locations in close proximity to the populations they serve.
The stations on the Castlecomer Road for example are strategically located relative to existing and proposed population and employment areas, are extremely accessible by car and on foot and, as inner urban stations in a sustainable location, have an important neighbourhood convenience retailing function. It is clear that both sites provide for this neighbourhood top up shopping function for local residential communities given the lack of any other significant convenience retailing stores in the area.
From a land use perspective this adds significant value and importance to the commercial operations carried out on the sites.
In effect, they are more than just service stations and conform to the definition of local shopping, as envisaged by the Department of Environment’s Retail Planning Guidelines:
Shopping at the most local level is provided by a mixture of neighbourhood shops in suburban areas and village stores/post-offices in rural areas.
The Draft Plan fails to acknowledge this function, not just for the subject service stations but for service stations throughout the City.
The following extract from the Guidelines is also of import:
Local retail units such as corner shops or shops located in local or neighbourhood centres serving local residential districts perform an important function in urban areas. Where a planning authority can substantiate the local importance of such units in defined local centres, they should safeguard them in development plans, through appropriate land-use zoning.
The proposed zoning of the existing service stations on the Castlecomer Road for residential uses, disregards this advice. Our client’s are faced within the potential that even small redevelopment proposals to enhance the service stations would not have the support of policy and could face significant objection on this basis.
This, we submit, is not appropriate. Our clients will not accept the adoption of land use or transportation proposals that will undermine the operation of their business and request a final plan be presented with clear and appropriate policy objectives that support the continued operation of the existing service stations.
On this basis we request that the proposed zoning of both sites be amended to a General Business’ zoning and that this zoning allow for the development of service stations in principle.
The protection residential amenity should remain a central consideration in the assessment of any development proposal. Our clients do not have a difficulty with this being retained in any future policy objective for the sites as they are confident that development proposals can successful comply with same.
They ask however that policies for the protection of residential amenity be carefully balanced with continued policy support for the operation of the existing service stations.
4.4 General Policies for Service Stations
In relation to the general objectives set out in the Draft Plan in relation to service stations, our clients do not disagree with the majority of commentary provided. However they wish the Planning Authority to note that the proposed reference to a general 100sqm limit on retail floorspace is a clear misinterpretation of national policy guidance as set out in the Department of Environment’s Retail Planning Guidelines, which is as follows:
The floorspace of the shop should not exceed 100 M2 net; where permission is sought for a floorspace in excess of 100 M2, the sequential approach to retail development shall apply, i.e. the retail element of the proposal shall be assessed by the planning authority in the same way as would an application for retail development (without petrol/diesel filling facilities) in the same location. (Our Emphasis)
The National Guidelines thus do not preclude retail developments in excess of 100sqm net, rather, they state that in respect of any development in excess of 100sqm net the sequential approach will apply, and the retail element should be assessed in the same way as would an application for retail development.
The policy set out in the Draft Plan is therefore an incorrect interpretation of the Retail Planning Guidelines, as the Guidelines envisage shops over 100sqm, and provides for larger shops in certain circumstances subject to the sequential approach.
Substantial Bord Pleanála precedence exists which support this view.
Appeal Ref: PL 29N.130795
I would comment that the 100 square metres level given in the Retail Planning Guidelines is not a maximum limit but merely the limit after which the sequential test applies, i.e. that the retail element of the development should be assessed as if it were independent of the petrol station.
Appeal Ref: PL 04.227597
The Retail Guidelines states that retail outlets in excess of 100 sq metres when associated with petrol filling stations should be subject to the sequential test. As it is located on a main street within a village, I would consider that it passes such a test.
Appeal Ref: PL. 28.228775
In this respect, I would concur with the appellant that the development plan policy is inconsistent with the national guidelines. Firstly, the national guidelines, at paragraph 97 do not preclude retail developments in excess of 100sqm net, rather, they state that in respect of any development in excess of 100sqm net, the sequential approach will apply, and the retail element should be assessed in the same way as would an application for retail development (without petrol filling facilities) in the same location. The development appears to contravene development plan policy E27 insofar as it exceeds the 100sqm floorspace ceiling in the Policy. The importance of a robust retail hierarchy and policy suggests that such a contravention could be seen as material. However, insofar as that policy is inconsistent with national policy, I consider that such a conflict would not prevent the Board granting permission (under section 37(2)(b)(iii) of the 2000 Act) if it were considered that the development satisfied the relevant provisions of the Retail Planning Guidelines relating to sequential and other retail considerations. I do not thus consider a material contravention issue arises in this case.
Appeal Ref: PL 29N.130795
I would comment that the 100 square metres level given in the Retail Planning Guidelines is not a maximum limit but merely the limit after which the sequential test applies, i.e. that the retail element of the development should be assessed as if it were independent of the petrol station.
Appeal Ref: PL 17.204464
Regarding the increase in the floor area of the retail unit, it should be noted that it presently has a gross floor area of 101.5sqm with an estimated retail floor space of 71.05sq.m. Whilst the current Meath County Development Plan limits the floor area of retail units associated with petrol stations to 40sq.m, the Retail Planning Guidelines for Planning Authorities issued by the Department of the Environment and Local Government, in December 2000, under section 97 recommends a cap of 100sq.m of net retail sales area associated with petrol filling stations…I do not agree with the Planning Authority that the proposed development is contrary to the Retail Planning Guidelines in terms of its scale nor do I consider the additional traffic generated would cause a traffic hazard.
Appeal Ref: PL13.224145
While the Bord inspector noted: This is a finely balanced case as the extension is quite small and relatively innocuous. ....The overall commercial and ancillary use is well in excess of the 100 square metres stated in the development plan and the Guidelines and this proposal will exacerbate the problem, so much so that the commercial use arguably would not be ancillary to the main petrol station use.
The Board disagreed and concluded: Having regard to the limited scale of the proposed extension, it is considered that, subject to compliance with the conditions set out below, the proposed development would not have a significant impact on shopping in the area, would not seriously injure the amenities of the area, would be acceptable in terms of traffic safety and convenience and would be in accordance with the proper planning and sustainable development of the area.
In deciding not to accept the Inspector's recommendation to refuse permission, the Board considered that the relatively marginal increase in the scale of the shop would not result in an over-concentration of commercial development on this site, that it would not impact significantly on traffic movements and that the shop could still be regarded as ancillary to the petrol station use.
An Bord Pleanála have therefore consistently recognised the differing nature of retail activity at services stations. We submit however that it is not the consideration of individual planning applications which one should look to in addressing the proper planning and sustainable development of an area but to the planning policies set out in the relevant development plan.
We therefore submit that the Draft Plan’s proposal for retail floorspace at service stations should be amended to include reference to the option for justifying floorspace over 100sqm on a sequential basis.
Our clients also request that the reference to the appropriate locations for service stations along with the zoning objectives they are permitted in, as set out in the Draft Plan, be further considered and expanded
On the basis of the above discussions, and in light of the Draft Plan’s aim to position the City for sustainable economic growth and employment, we ask that the Council in the preparation of the Final City & Environs Development Plan to:
• Recognise that the nature of the petrol service station market has evolved considerably and accept the various forms and locations of service stations, particularly within urban areas.
• Support the important local retail service function performed by urban service stations and the sustainability of those stations already established in residential neighbourhoods.
• Recognise that although the retail uses may remain secondary to service stations, non-fuel related business is becoming increasingly important to the viability of these businesses and is now linked to customer expectations.
In doing so, we request Kilkenny Borough Council to make the following amendments to the Draft Development Plan:
• To amend the Council’s planning policy with regard to the size of shops within service stations to ensure consistency with the Department of Environment’s Retail Planning Guidelines, 2012
• To rezone both Topaz Service Stations on the Castlecomer Road to a ‘General Business’ zoning so as to support their continued operation and to better reflect their permitted and long established commercial nature, their employment provision and their sustainable location and function as local neighbourhood services.
• To amend the permitted uses within the General Business zone to allow for the development of services station to be permitted in principle.
Our clients welcome the preparation of a new Development Plan for the City & Environs Area of Kilkenny City and the opportunity to make a submission to the Draft Plan.
The purpose of the submission is to respond to the specific policy objectives and land use proposals set out in the Draft Plan which impact on the existing service stations with specific reference to the two existing Topaz Service Stations on the Castlecomer Road.
Our client’s expect that the outcome of the planning process in this instance will not impact negatively on their property rights or the operation of their existing business operations in the City. They also expect that policies and objectives for services stations in the final plan will be fair, reasonable and proportional.
On this basis they request changes to both the proposed zoning of their service station sites on the Castlecomer Road and to the policy objective pertaining to service stations in the City.
Our clients request a meeting with the project team to discuss the matters raised in the submission.
It is trusted that the submission will be seen as a constructive and productive contribution to the preparation of the final Strategy.
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Resource Property Investment Fund Plc
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