The operator of two Stirling takeaways running without planning permission has had an appeal over an enforcement notice turned down.
Black Rooster Peri Peri and ChurrosNChill began operating in spring 2021 at the former Falcon Bar premises in Borestone Road.
Planners turned down a subsequent retrospective planning application for the subdivision and change of use from a pub to class three restaurant and takeaway, installation of flue and formation of outdoor seating area (retrospective) and installation of flue.
Upstairs neighbours Don Ritchie and Carol Ann Marshall, who have lived in their Borestone Crescent flat since the 1990s, point out that they are regularly disturbed by a loud rumbling sound from a large flue and customers shouting in the rear car park as well as cooking smells.
The enforcement notice sought to remedy the planning breach and detrimental residential amenity.
It required the use as a restaurant/takeaway to stop, the removal of the flue, including fixtures and fittings, and the removal of the tables and chairs from the outdoor area to the rear of the appeal property.
Operator Richard Wilmot argued in the appeal that the enforcement notice exceeded what is necessary to remedy any planning breach or injury to amenity.
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Mr Wilmot further stated there had previously been a flue at the rear of the premises, a kitchen and restaurant in the pub, and a beer garden – and that the Reporter should ‘suspend or set aside the enforcement notice pending the determination of an amended retrospective planning application which is currently before the council.’
But in a determination Scottish Government Reporter Fortune Gumbo stated that the flue, which has a different position and design to a previous one, was a new development.
He added: ‘This development requires planning permission and no such permission had been granted at the time the enforcement notice was issued.
‘To remedy the allegation...I do not consider that it is an excessive requirement for the council to require the removal of the flue in its entirety and its associated fixtures and fittings.’
The Reporter further pointed out that while a kitchen may have been part of the former public house, it was ‘incidental’ to its primary use as a bar and continued: ‘In any event the [enforcement] notice does not require the use of the kitchen to cease in isolation, but is focused on the alleged unauthorised use of the appeal property as a whole.
‘The first requirement of the notice is clear and proportionate and goes to the heart of the allegation.
‘The cessation of the unauthorised use would simultaneously deal with the breach of planning control and injury to amenity set out in the reasons for issuing the enforcement notice. Therefore, this requirement is not excessive.’
It was further stated that if a beer garden had existed beforehand, it was part of the lawful use of the premises as a public house.
The Reporter also rejected a suggestion by Mr Wilmot of a deficiency in the enforcement notice, as it only refers to Black Rooster and not ChurosNChill.
He added: ‘My observations, based on the council submissions and observations at the site inspection are that the public house was a single planning unit and had the address 45 Borestone Crescent. The property was then subsequently subdivided to form two different businesses with Black Rooster at number 45 and ChurosNChill at number 47. This subdivision was done without the knowledge of or permission from the council. ’
The latest, amended, planning application submitted in February – use of part of public house as restaurant (Class 3) with repositioning/replacement of kitchen ventilation flue and new air conditioning condenser; use of part of public house as a hot food takeaway (sui generis) and ice cream parlour and installation of flue liner within chimney to serve canopy over donut cooking equipment, new air conditioning unit and retention of seating area for use by Churros Open - has still to be determined.
A number of submissions have been made in support of this application from people in St Ninians and Bannockburn.
The Reporter said of the latest application in his ruling: ‘The appellant requests that I suspend or set aside the enforcement notice pending the determination of the amended retrospective planning application which is before the council.
‘There are no legislative provisions which give me the powers to do so.
‘Should the application be approved, depending on the contents of that application, it may override the enforcement notice but that is not something within my gift and my decision on this appeal does not fetter the council from deciding on that application.‘
