Agenda item - Request to Vary the Heads of Terms of Deed of Variation, Former Wholesale Market, Circus Street, Brighton (Circus Street Development)

Report of the Head of Planning (copy attached)

57.1    The Committee considered a report prepared by the Head of Planning requesting that they consider a request to vary the Heads of Terms of the Deed of Variation to the Section 106 Agreement dated 18 March 2016 in connection with planning permission BH2013/03461 to remove the clause requiring that 750 sq.m of the office space to be affordable flexible B1 space which should be managed by the applicants.

57.2    A detailed presentation was given by the Principal Planning Officer, Mick Anston, by reference to site plans, elevational drawings and floor plans detailing the scheme which related to a large development site of 0.8 ha. close to the centre of Brighton, under construction for 3 years which would provide a mixed use development. The original permission had included a requirement to necessitate 750sqm of affordable managed business floorspace pre-occupation. However, this was no longer considered viable. In the interim whilst the development was being constructed several other providers had filled that gap in the market and therefore this specific policy requirement appeared to be out of date. There had been on-going difficulties in identifying an operator and these had been delaying progress with the remaining larger element. Heads of Terms had been agreed with an occupier for the upper 4 floors in November 2019 on a pre-let basis, but agreement for occupation had not been completed due to the S106 requirement. This delay was having a negative impact and was giving rise to a significant delay in provision of a significant number of jobs and for this reason it was considered that an exception to policy was justified and that the proposed Deed of Variation was acceptable.

          Questions for Officers

57.3    It was explained in answer to questions that the property had been marketed on a multi-tenure basis since late 2018 and that “affordable” workspace providers (such as co-working businesses and serviced office providers) had been targeted as well as more traditional local and national businesses for the wider building. An existing company had shown that it wished to expand into this entire space and given that no interest had been shown in this smaller use it was considered appropriate to sublet the entire space to one organisation.

57.4    Councillor Yates queried whether the variation proposed would invalidate other elements of the permission and sought clarification of the evidence of marketing which had been provided to support this proposed change. In answer to further questions, the Legal Adviser to the Committee, Hilary Woodward confirmed that all of the necessary requirements attached to the original permission would remain in place with the exception of the element for which the Deed of Variation was being sought, if agreed.

57.5    Councillor Janio also sought clarification of the implications of the Deed of Variation on the remainder of the permission should the proposed change be agreed, and whether the recommendation required any further amendment to reflect that. It was explained that the change would impact only on the allocation of the 750sqm of affordable managed floor space; all other requirements of the S106 still needed to be met. It was also confirmed that the recommendation as framed was sufficiently robust and dovetailed with the original permission.

56.6    Councillor Osborne sought clarification regarding the precise location of the floorspace area in question within the context of the overall development and the potential impact on it overall. The Planning Manager, Jane Moseley, explained that potential providers had been approached but had not expressed an interest in this space, and information received from the applicant was supported by the Economic Development Team. It appeared to have been marketed appropriately but that the use was no longer viable as the market had moved on.

57.7    Councillor Childs asked whether neighbouring residents had been consulted in respect of these proposals, particularly the Tarner Nursery and residents of Kingswood and Milner Flats. They had suffered from noise nuisance and other disruption during the course of the protracted building works and had not been engaged with by the developer. The Head of Planning, Liz Hobden explained local residents had not been consulted in respect of the current Deed of Variation request and that there was no statutory requirement to consult, but consideration could be given to reviewing this in future.

          Debate and Decision Making

57.8    Councillor Yates stated that he could not support the report recommendation as he did not consider that it would not be possible to let this small office space as a separate discrete unit, or that there was not necessarily a need for a small affordable space of this type, citing similar space which had been required and provided within the Preston Barracks development.

57.9    Councillor Childs concurred with that view stating that he was also of the view that this was a major development and integral to community cohesion and central to that was the need to consult with and include the local community; regrettably this had not happened and when viewed in the context of Circus Street and other development in that part of the city would be detrimental.

57.10  Councillor Osborne stated that he considered that in view of the uncertainties and delay with progress with the larger remaining element that had arisen and the fact that this element appeared to have been marketed appropriately in this instance exception to policy was justified.

57.11  Councillor Theobald stated that as it appeared that extensive marketing had taken place and that an end user had been found for all four floors of the building set aside for this use it seemed sensible to agree the variation suggested.

57.12  Councillor Janio stated that he considered that the issue was one of supply and demand, the market changed and agreeing to the Deed of Variation would remove any delay to the development.

57.13  A vote was taken and on a vote of 8 to 2 Members agreed to grant the Deed of Variation Requested.

57.14- RESOLVED – That the Committee has taken into consideration and agrees with the reasons for the recommendation set out in the report and resolves to GRANT a Deed of Variation to the S106 Agreement dated 18 March 2016 related to planning consent ref BH2013/03461.