How terribly underwhelming!

A slapping of granite instead of blacktop - that is taking it to the next level of innovation.

A really good opportunity goes a begging!

1. Reduce the business rates. There are only so many over priced charity shops needed on one street.

2. Good to see cycle lanes have been included in this version. Trying to promote cycling in Scotland's buggers city without including cycle lanes on one of the most important thoroughfares would have been crazy.

3. Plant trees that make a difference. Too often leafy trees are planted which offer n8othing to the wildlife. Plant rowans or other berry heavy trees.

4. If fancy paving is going down stop with the black top and white stones now - it's wasting money!

It looks like Byres Road with more balloons.

As the Council are about to embark upon a £9 million redevelopment scheme of Byres Road it is important that if the public are to have confidence in the expenditure of such a large amount of public money that planning decisions are carried out impartially, and not in favour of some businesses on Byres Road at the expense of others who do not have the favour of Council employees and at the expense of the amenity & quality of life of local residents.

The following comment which appeared on the Council's Planning Portal earlier this month suggests that suggests that the public should be very worried indeed:-



"Sandra White MSP in an email to Glasgow City Council dated 13th March 2013 regarding planning permission states: - "It would appear that DRS takes an inconsistent approach depending on who runs the shop."

It would be a travesty to refuse the planning application of the cafe at 223 Byres Road for a flue which would allow them to cook responsibly and to protect the amenity of their neighbours who live in the residential property above from cooking odours, when the Council allow the cafe at 291 Byres Road (Turadh, previously called Avenue Coffee under the same ownership) to open cook in 2 kitchens (an illegal basement kitchen and the café floor kitchen) with zero extraction to deal with fumes i.e. not even a domestic kitchen hood !!!


The representation below, which was submitted to the Council in favour of the unsuccessful Class 3 planning application of 280 Byres Road in April 2018 shows that Sandra White has a point and that this and other Byres Road cafes has been treated very differently from the neighbouring cafe at 291 Byres Road, which appears to have a considerable amount of "Pull" with the Council. I believe the evidence below shows that Council's inconsistent behaviour on how it treats planning applications depends, as Sandra White MSP stated, "on who runs the shop". To date "Dai Pai" at 280 Byres Road & Nardini's at 215 Byres Road has been treated very differently by the Council's Planning department than the cafe at 291 Byres Road for no apparent reason other than "who runs the shop". Disturbingly, it can be seen from the Council's online planning portal that the same Council Planning Department enforcement officer discussed in my representation below dealt with both 215 Byres Road and 291 Byres Road after these cafes were reported to the Council (by a representative of Byres Road cafe and restaurant owners in 2012) for operating as a Class 3 businesses with only Class 1 permission. Yet the outcome of this has to date been very different for 215 & 280 Byres Road than 291 Byres Road. Both have been denied Class 3 status, while the cafe at 291 Byres Road was granted Class 3 status without the restrictions the Council ALWAYS place on the type of cooking that can take place on commercial premises without extraction or a flue, despite the fact that the Council's Planning Department were fully aware that open cooking had been taking place onsite at 291 Byres Road in both its illegal basement kitchen and cafe floor kitchen since 2012. The Council's Planning Department also suppressed an Environmental Health report that they themselves had requested, which stated that the cafe at 291 Byres Road would require an external flue if cooking were to take place on site. Freedom of Information requests also show that senior staff at the Council's Planning Department and the owner of the cafe at 291 Byres Road have a history of emailing each other in "chummy" first name terms.

An important Material Consideration in this case is the manner in which the Council has treated planning matters regarding the café at 291 Byres Road in comparison with other Byres Road cafes.

When considering the planning application by 223 byres Road, the inconstant behaviour by the Council in dealing with Byres Road planning applications should be fully considered. After all, it would be reasonable for other owners of Byres road cafes to expect to be treated in the same manner as 291 Byres Road, & if not to be given a full explanation as to why his planning applications to date have been treated very differently to the similar business at 291 Byres Road.

Therefore, a major Material Consideration in this current planning application is that the Council to date have not treated planning applications of other Byres Road cafes fairly and with consistency. Compared with the Council Planning Department's treatment of 291 Byres Road it would be reasonable for other Byres Road applicants to feel that they are being discriminated against by the Council and that the DRS's inconstancies outlined below form a Material Consideration in this application:-


"By far the most important Material Consideration when a Class 3 application is being considered, as I have personally discovered, is "Smells and fumes". As this application has been to Glasgow City Council's Planning Department (DRS) a very important Material Consideration is the Council's past failure to protect the amenity of local residents from cooking "smells and fumes."

A Material Consideration in support of the Class 3 application of 280 Byres Road is their following submission with their Class 3 application:-


"The 'hot food' element is reheated food which have been supplied off site suppliers - various daily deliveries to enable the fresh supply.

The use of microwave, bain-marie and rice cooker is the only equipments used to reheat. All other products are served in room temperature or cold prep (sushi, etc - which is similar to sandwiches) which require fridges for the cold salads and selection of sushi meats.

1 x microwave
1 x bain-marie
3 x self contained rice cooker (counter freestanding units)
possibly soup kettle also."

This contrasts with the cafe across the road at 291 Byres Road (Turadh, formerly Avenue Coffee and still under the same ownership) ) , which the Council granted Class 3 status to in 2014. The premises at 291 Byres Road have zero ventilation or extraction to deal with cooking odours.

If DRS (the Council's Planning Department) attach a condition to any Class 3 permission granted restricting the type of cooking this will prevent residents living above the shop unit at 280 Byres Road finding themselves in the situation that the Council's Planning Department deliberately put me in by allowing the cafe at 291 Byres Road, which is underneath my residence, to open cook on site without as much as a cooker hood to deal with the resultant cooking odours. This was despite my objection to Class 3 status being granted to the cafe on the grounds of cooking odours I had been experiencing and the Council being aware that the cafe at 291 Byres Road had been open cooking in an illegal basement kitchen (as it still does) , which lacks a building warrant and in the cafe floor kitchen since 2012.

A Material Consideration in this case is the evidence that the Council are apparently "hell-bent" on protecting the profitability of the cafe across the road from 280 Byres Road at 291 Byres Road. I believe that this policy will lead to discrimination against the applicant at 280 Byres Road. The Council's Planning Department are far less likely to behave in an underhand manner when considering this case if they are aware that the issues of their past behaviour have been commented on & aired in the Class 3 planning application process for 280 Byres Road. By sharing some of my experience of how the Council's Planning Department have failed to protect my amenity, with regards to the cafe located below my residence, I hope to ensure that the amenity of my neighbours who live above 280 Byres Road is not overlooked.


I believe that if someone had submitted similar comments when the cafe at 291 Byres Road applied for Class 3 status I would have been spared years of having to suffer the unventilated cooking odours from this cafe, which the Council has and still allows the cafe to produce with impunity. The manner in which the Council dealt and continues to deal with the cafe at 291 Byres Road is in itself an important Material Consideration which should be taken into account at every stage of this planning application to protect the amenity of residents who live above a shop unit applying for Class 3 status so that local residents have advance warning of how the Council may behave and can take steps to have input on the planning process beforehand. This will hopefully prevent residents finding themselves in the situation that the Council's Planning Department deliberately put me in by allowing the cafe underneath my residence to continue to open cook on site without as much as a cooker hood to deal with the resultant cooking odours, despite my objection to Class 3 status being granted to the cafe on the grounds of cooking odours I had been experiencing.

I will show in my comment in support of this application for Class 3 status that the Council's Planning Department is NOT impartial in the way it deals with both Planning Permission applicants and local residents whose amenity may be directly affected by any Planning application. Sandra White MSP in an email to Glasgow City Council dated 13th March 2013 regarding planning permission states: - "It would appear that DRS takes an inconsistent approach depending on who runs the shop." The owner of the cafe at 291 Byres Road wrote to me in a letter dated 16th June 2015 referring to his cafe's Class 3 application:- "the council (who were actually on the side of the cafe businesses on Byres Road)".


The evidence in this representation will show that the Council's Planning Department (DRS) does indeed treat certain applicants in an inexplicably favourable manner which is afforded to them for unknown reasons (although one can speculate the reasons for this seemingly corrupt behaviour) & allows certain business people to operate in a way which calls into question if the Council's Planning Department is actually fit for purpose. The 280 Byres Road applicant should be fully aware of this, as DRS's past behaviour constitutes a Material Consideration. This will enable the applicant to ensure that he is not disadvantaged by not having the same "Pull" with DRS staff as some others have.

Although it seems obvious that a restaurant with open cooking taking place on-site would require extraction, in Glasgow this cannot be guaranteed as I live above a former Class 1 shop unit being operated as a restaurant and take away in Byres Road, which the Council granted Class 3 status to with no restrictions on the type of cooking that can take place on site, despite my objection on the grounds that I had been experiencing cooking odours from the cafe located at 291 Byres Road, located directly below my residence. The only requirements made on this former newsagents at 291 Byres Road to operate as a busy restaurant & take away was that it restricts its opening hours between 8am and 8pm and that it has refuse and recycling storage areas.

Despite the fact that the Council's Planning department have admitted that they were fully aware that open cooking had been taking place on-site in both the cafe's illegal basement kitchen and cafe floor kitchen since 2012, and were in possession of an Environmental Health Department report before Class 3 status was granted, which the Council's Planning Department themselves had requested. This report stated that an external flue would be required if cooking were to take place in the cafe. No conditions to protect residents living in the same Victorian tenement building as the cafe at 291 Byres Road were placed on the cafe/restaurant when it was granted Class 3 status in June 2014 by the Local Review Committee of elected Councillors.

This is despite the fact that the Council's planning department told the Council Ombudsman that Class 3 use has only been granted in the past where the method of cooking has been restricted to "sealed unit cooking", which is taken to be low odour methods of cooking, such as microwaves, panini toasters and soup tureens".


Yet the Council's Planning Advisor to the Local Review Committee which granted the cafe at 291 Byres Road Class 3 status in June 2014 told the Local Review Hearing that conditions on cooking methods "was not required in his professional opinion."


This contrasts with the conditions placed by the Council on Starbucks at 254 Byres Road when it was granted Class 3 permission. Starbucks at 254 Byres Road is located between the underground station and a public house & with no residential property above it. Yet the Class 3 permission granted to Starbucks restricts the first floor to serving coffees, teas, related beverages, cold drinks, and cold foods such as sandwiches, cakes and pastries and which states that "no hot food of any description shall be sold for either consumption on the premises or for carry out" and condition 7 of 01/00308/DC restricts the ground floor to the sale of hot and cold beverages and drinks and cold food. The reason given by the Council for these conditions is that they were imposed to protect local amenity !!!!!

Whereas the cafe 291 Byres Road is located in a residential Victorian tenement block and is directly underneath my residence. Yet when Class 3 status was granted to 291 Byres Road no restrictions were imposed on the type of cooking which could take place on the premises despite the fact that I objected to the granting of Class 3 Planning permission on the grounds of cooking odours that I was experiencing from the cafe.




The Council Ombudsman wrote to me on 7th December 2015 stating :- "I recognise the serious and detrimental impact this issue is having upon the quality of your life and the enjoyment of your home" & "I do consider that investigating the actions of Council staff in dealing with and responding to your complaints about this issue is a matter my office should consider further".

In August 2016 the Council wrote to the Ombudsman who was investigating its failure to deal with my complaints regarding the cafe at 291 Byres Road, stating that all cafes and restaurants would require some form of ventilation system.


The Council appear to allow the cafe at 291 Byres Road to have a "Do what thou wilt shall be the whole of the Law" mode of operation as the cafe have not only been allowed to ignore the three letters the Council sent them over 2017, giving them 28 days to obtain planning permission for their outside seating, but have been rewarded by the Council for ignoring these letters by having their Annual Street Cafe Agreement renewed on 1st April 2018, despite blatantly breaching most of the terms they agreed to in this agreement with Environmental Health since it was first granted in 2012. The cafe are also still operating their illegal basement kitchen despite being given 28 days by the Council 14 months ago in February 2017 to revert the basement to the last approved Building Warrant. A Freedom of Information request shows that the owner admitted to the Council last year that the cafe cooks soup in this basement, which is probably the strongest source of cooking odours from the cafe. He also admitted that cafe washing tasks take place in the basement. (From a freedom of information request I obtained an internal Council DRS email sent on 14th July 2017 referring to the last Building warrant obtained by the current owner of the cafe at 291 Byres Road in 2010 showing that the cafe have illegally turned the toilet in the basement into a kitchen. This was also done without planning permission as the cafe totally omitted the basement from its Class 3 application.).

When the cafe was last inspected by Food Safety in 2013 Environmental Health ordered the cafe to put a sign on the only sink in this basement kitchen stating that it was to be used for the washing hands only. The Council's Food Safety inspectors told the cafe owner during their last visit in 2013 that the sink in the basement kitchen can only be used ONLY for hand washing and yet the cafe owner recently has told the Council himself that this sink is used for kitchen duties as well. It seems obvious that this sink is being used for the source of all the water for the cafe's basement kitchen requirements and this will continue to be the case as long as the Council allows the cafe owner to ignore its instructions to stop using this basement.


It is also significant that Freedom of Information requests show that DRS are on "chummy" first name terms with the cafe owner (in contrast DRS's attitude to me is very different as they ignore my emails and do not reply to them), and have never brought up the fact that the cafe broke the law by lying in its Class 3 submission to the Planning Local Review hearing in 2014, or considered taking legal action against the cafe for doing so or indeed for ignoring DRS's numerous emails giving him 28 days to apply for planning permission for the cafe's pavement seating or for his failure to revert the basement in accordance with Building Standards or for ignoring the condition on opening hours that was attached to the cafe's Class 3 status by the LRC (Local Review Committee) in 2014!!!

The cafe have ignored these requirements with the impunity they have come to expect from Glasgow City Council, despite the fact that the illegal basement kitchen has dangerously exposed pipes, a low ceiling and the stairs/ladder which the cafe owner makes staff risk injury on by making them carry food prepared in the location of a former toilet, which has been turned into a kitchen without a Building Warrant.

The Council's Planning Department were fully aware that the cafe at 291 Byres Road had been illegally cooking in this basement since 2012. Their acceptance of the cafe's lies in their Class 3 application combined with the fact that the Council's Planning Department allowed the Planning Local Review Committee, which granted Class 3 status to the cafe at 291 Byres Road, to be kept unaware of the existence of this basement kitchen, and the fact that Freedom of Information requests show the Council have never brought up the matter with the cafe owner of the cafe's Class 3 application basically being a tissue of lies, strongly indicate complicity of the Planning Department with the cafe in deceiving the Local Review Committee. The cafe owner was fully aware that the Council knew of his cafe's open cooking activities in both the cafe floor & basement kitchens as the Council Planning Department had placed the cafe under notice of section 33A of the Town and Country Planning Act BEFORE the cafe applied for Class 3 status for illegally operating as a restaurant. It seems inconceivable that the cafe would have blatantly lied in their Class 3 application & appeal without reassurance that this would be overlooked by the Council's Planning Department, as to act in this manner without such assurances would be insane.

Whatever the reason it does seem that 291 Byres Road have been given permission by the Council to act outwith the rules and regulations that apply to other cafes and restaurants.


The case of 291 Byres Road demonstrates that there is a serious problem within the Council's Planning Department (DRS) and this itself would be a Material Consideration in any future appeal to the Planning Local Review Committee by the applicant. Also the fact of simply making the applicant and public aware of DRS's behaviour in the past make it much more likely that this case will be dealt with in a proper & correct manner by the Council.


I initially believed that the case of 291 Byres Road may well have been a classic case of incompetence within the Council. But the sheer volume of irregularities and the evidence that has been uncovered by myself and the SPSO, (not all of which has been mentioned in this representation), & the Council's continual ignoring of fresh complaints accompanied with evidence showing that the cafe is endangering the health & safety of the public and cafe staff lead me to believe that it is far more likely that corruption has been a factor in this case. The cafe has seemingly a level of "pull" and influence with the Council, or at least some of its employees, that other similar businesses do not enjoy.




I will qualify my statement above by going into the case of the Council's Planning Department (DRS) and the cafe at 291 Byres Road under its current ownership in a bit more detail.


The owner of the cafe has admitted to me in writing that the following cooking takes place on-site at 291 Byres Road without any ventilation or extraction equipment since opening in 2011:- Breakfast, which consists of bacon, sausages, black pudding and eggs, baking scones, croissants and bread, cooking savoury tarts and their fillings, cooking the cafe's Soup of the Day on-site and pre-cooking bacon on site.

The Council was fully aware of the cafe's basement kitchen at the time of its Class 3 planning application in October 2013, yet allowed it to totally exclude any mention of this kitchen from its floor plan or any other part of the cafe's planning application. The entrance to the stairway to the kitchen basement is simply misleadingly referred to as "Access to store" in the cafe's Class 3 Planning application drawings.

Through a Freedom of Information request I obtained a document that shows the Council was aware that open cooking was taking place in the cafe floor kitchen and in the basement kitchen before Class 3 status was granted or even applied for. However the Local Review Committee's decision document granting the cafe Class 3 status makes no mention of this.

The notes that Council's Planning Advisor took with him to the Local Review Committee (LRC) of elected city councillors, which granted the cafe at 291 Byres Road Class 3 status in June 2014 (which I obtained through a Freedom of Information request) clearly state that open cooking took place in the premises and "Full kitchen in basement, open cooking on ground floor". Yet this information does not seem to have been passed to the LRC.

The "Material Considerations" put forward by the Council's Planning Advisor to the LRC made no mention what so ever of my objection to Class 3 status being granted on the grounds of cooking odours that I had been experiencing from the cafe. All the Material Considerations were those put forward by the cafe in their Class 3 application appeal.
These included:- "We are not a restaurant, never have been and have no intention of being a restaurant in the future". In fact, the cafe was advertising as a restaurant on 23rd December 2013 at the time of their class 3 application:-(http://glasgow.stv.tv/articles/257686-glasgowsavenue-g-restaurant-has-some-great-food/ ) The DRS did not challenge the false Material Considerations submitted by the cafe when they were presented to the Local Review Committee in 2014
i.e.
"We purchased a lease on a kitchen unit to take away the food preparation offsite". Yet the cafe owner admits that bacon has been pre-cooked in their basement kitchen since 2011.
&
"We have reduced the amount of "restaurant" style cooking on the previous operator and simplified the menu".
This is a complete lie, as I have lived above 291 Byres Road for over 20 years I can vouch that apart from one brief period in December 2006 - January 2007 when baking took place (quickly brought to a halt by Environmental Health) all previous operators of the premises have cooked with a microwave oven & sold predominately cold food with any hot food heated by microwave.

The drawings submitted by the cafe in its Class 3 application failed to show the cooking equipment that was actually in use in the cafe floor kitchen. The drawings submitted with the cafe's Class 3 planning application made no mention of the large basement kitchen and the Council's Planning Advisor at the appeal hearing did not draw this to the attention of the Local Review Committee, despite this information being in the notes that he took with him to the LRC hearing in June 2014. Thus the LRC seem to have been totally unaware of the existence of the cafe's large basement kitchen or of the use of the cafe floor kitchen for anything other than what was indicated in the plan drawings submitted by the cafe i.e. a sandwich preparation area, coffee machine, sink, grinder, water boiler and fridge. No mention was made of the grills in use in the cafe floor kitchen, which a member of the public drew to the attention of the Council before the Class 3 application had even been submitted.



The Council's Planning Advisor did not seek the Environmental Health (LES) report regarding 291 Byres Road which stated that the cafe would require an external flue if cooking were to take place on site. This report had been requested by DRS when the cafe put in its Class 3 application. The internal Council email dated 10th August 2016 (obtained through a Freedom of Information request), shows that the Council's Planning Advisor claimed that he did not seek the Environmental Health consultation because the Town & Country planning regulations indicate that additional information that was not available to the planning application case officer can only be accepted by the Planning Local Review Committee in particular circumstances, hence he did not attempt to obtain the response.

However the SPSO's (Scottish Public Services Ombudsman) decision letter of 21st December 2016 stated with reference to the advice given to the SPSO by a Planning Advisor which the SPSO consulted on this case:-

"The Adviser reviewed the details of the case including the planning documentation. In relation to the Planning Officer's handling of the request for consultation in the first instance, the Adviser firstly noted that there is no requirement in law that requires planning authorities to await consultation responses before proceeding to determine an application. However, the Adviser said that, in the circumstances, they would have expected the planning officer to have awaited the technical consultation feedback from LES before proceeding with the determination of the application - or least to have chased their earlier written request for a response from LES. The Adviser said that the consultation response was particularly relevant in this case given that you lodged an objection to the application citing food odours and loss of amenity.
The Adviser noted that the consultation response from LES had been received in February 2015, and considered that this was well in time for the LRC to consider it, given that the review was not determined until 4 June 2015. The Adviser said, based on the circumstances of the case, including the fact that you had raised concerns about food odours, they would have expected the LES consultation to have been drawn to the attention of the LRC by Council officers, and would have expected any input from LES to have been a material consideration in the assessment prior to reaching their decision."



Glasgow City Council has the same legal duties and obligations as other Councils throughout the UK.
These are clearly outlined in the West Lothian Council website :-
https://www.westlothian.gov.uk/media/2493/SPG-Class-3-restaurant-uses-and-hot-food-takeaways/pdf/rest-takeaways.pdf
"Ventilation Systems
An effective system for the extraction and disposal of cooking odours will be provided for all Class 3 uses and hot food takeaways where the method of cooking is likely to cause smell or fumes. Details of this ventilation system shall be submitted with any planning application and the application will not be determined by the Council until the feasibility of the proposed system has been established to the satisfaction of the
Development and Building Control Manager in consultation with the Environmental Health and Trading Standards Manager.

Conditions will be applied to a planning permission for a Class 3 and hot food takeaway uses to ensure the effective ventilation system described above is installed before any business opens and that it is operational at any time thereafter when the premises are in use. Alternatively, if no effective ventilation system can be provided, a condition will be imposed to restrict the form and means of cooking so that no fumes are
created.
Any proposed ventilation system will be designed to accord with the following points:
- The ventilation system for the kitchen shall be capable of achieving 30 air changes per hour and the cooking odours will be ducted to an exhaust point agreed with the Development and Building Control Manager in consultation with the Environmental Health and Trading Standards."


Every UK Council website I have looked at states that they will only grant Class 3 Permission to a premises that has no effective ventilation if conditions are imposed to restrict the form and means of cooking so that no fumes are created.

Yet the Council refuses to investigate the reasons the cafe at 291 Byres Road is allowed to circumvent these rules and regulations, despite the fact that the Council was fully aware that the cafe was open cooking on site 2 years before Class 3 status was granted.
From a Freedom of Information request I have obtained the response a DRS manager drafted and sent to colleagues in an email dated 11th August 2016 to the following question by the Council Ombudsman's office:-
"Please explain what process/criteria LES use in making a decision about whether a Cafe/restaurant requires an extraction/ventilati
on system (Please provide any relevant policy or guidance related to this)"
Mr Fraser Innes provided the following response to the above question by the Council Ombudsman:-
"The officer will use professional judgement and experience in accessing planning proposals for cafes/restaurants or any other food businesses to access the likelihood of cooking odours affecting nearby properties. Particular attention would be given to premises, which are on the ground floor with flats above, due to the close proximity of dwellings. Ventilation by means of high level flue is preferred for hot food restaurants and takeaways/class 3 use. Other forms of ventilation may be acceptable, for example, where it is not possible to erect a high level flue, or where the cooking use is restricted. Class 3 use has been granted in the past where the method of cooking has been restricted to "sealed unit cooking", which is taken to be low odour methods of cooking, such as microwaves, panini toasters and soup tureens".

"Reference may also be made to DEFRA guidance "Guidance on the Control of odour and Noise from Commercial kitchen Exhaust Systems".


This is a damning statement as Glasgow City Council are admitting that the cafe at 291 Byres Road is unique in being granted Class 3 Permission with no restrictions while other cafes/restaurants without ventilation have only been granted Class 3 permission with restrictions which only allow them to use low odour methods of cooking.

Shockingly, Class 3 status WITHOUT any restrictions was granted to the cafe situated at 291 Byres Road despite the Council being fully aware that open cooking was taking place in the basement cafe and the cafe floor kitchen.

This contrasts with the strict conditions the Council imposes on other cafes in Glasgow that have residential property directly above them.

The Council Ombudsman recently discovered while investigating my recent complaints against Glasgow City Council that before Class 3 status had been granted to the cafe at 291 Byres Road, Environmental Health had produced a report for DRS stating that an external flue would be required if cooking were to take place in the cafe. Yet the Council have allowed the cafe, which openly admits to cooking soup and pre-cooking bacon etc, as well as baking in its basement kitchen, to operate with no ventilation or extraction whatsoever.

In December 2016 the Council Ombudsman upheld the following two of my complaints:-
"the Council's Land and Environment Services department (LES) did not respond reasonably to your correspondence about odours in your flat"
&
"the Council did not respond reasonably to your complaints about the service you received from LES and DRS".


The Council Ombudsman criticised the Council for not making the Environmental Health report, which stated that the cafe would require a flue if cooking were to take place on site, available to the Local Review Committee of elected Councillors who granted the cafe Class 3 status. The Local Review Committee had been misled as the cafe had told them that cooking took place off-site.

The Council Ombudsman consulted an independent planning consultant & stated the following in his decision document:-

"In response to your complaints, the Council advised that LES are responsible for assessing whether a flue is required. The Council have since informed SPSO that LES were consulted by DRS, and they advised that a high level flue was required. Despite your extensive contact with LES regarding ventilation you were not informed of this. I am critical of this, and I appreciate that this may have contributed to your feeling that the Council's actions were not reasonable. Although the Council have provided reasons why the consultation response was not brought to the LRC's attention, the Adviser said that they would have expected the LES consultation to have been drawn to the attention of the LRC by Council officers, and would have expected any input from LES to have been a material consideration in the assessment prior to reaching their decision".

I initially made a written complaint about the cooking odours from the cafe at 291 Byres Road to Environmental Health in January 2015. They did not so much as acknowledge my letter. I then wrote to DRS in March 2015 informing them of the situation. I received a letter from a DRS Enforcement Officer, dated 30th March 2015, which stated she had visited the cafe and :-

"there is no evidence of open cooking being carried out, with pre-cooked foods being reheated on the premises. In addition pre-prepared bakery goods are finished in a sealed bake-off oven."

I sent the following reply this DRS Enforcement Officer on 2nd April 2015 :-

"I have been pondering your comments in your letter dated 30th March, in which you state that on your visit to Avenue G "there is no evidence of open cooking being carried out with pre-cooked foods being re-heated on the premises."
How on earth do they prepare bacon & eggs , which is on their menu , by re heating pre-cooked food?
In my initial letter to your department dated 3rd March I stated "As you will see from the cafe's website at http://avenue-g.com/menu/ "our soup and scones are made in-house".
Why are you writing to me to tell me that their soup is not prepared in-house when the cafe clearly states in their menu that it is ?
I am considering referring this matter the Council Ombudsman, but before I do I will give your department another opportunity to deal with this matter.
All I want is for the smell nuisance that I am experiencing from Avenue G to end, as the disgusting cooking smells from Avenue G in the morning are taking over my living space & making my life a misery. My complaint to the Environmental Health department in January was ignored and I did not even receive an acknowledgement from them.
I am therefore , not surprisingly, very disappointed & upset by the way I have been treated by the council regarding this matter.
Yours sincerely"

The DRS Enforcement Officer replied on 7th April 2015 :-

"I refer to your emails and regret that you remain dissatisfied.
Most premises of this nature bring food in pre-prepared and reheat using microwave ovens, bain-maries and soup urns. Croissants and scones are often pre-prepared and baked in a sealed oven on the premises. Bacon and scrambled eggs can be re-heated in a microwave oven and poached eggs cooked in a bain-marie. None of this equipment constitutes "open cooking". I would ask you to note that whilst a premises may make certain claims in their advertising, these may not be strictly representative of the situation."

However a few weeks later an Environmental Health Officer let slip that the DRS Enforcement officer had discovered that the cafe were open baking on-site during her visit. After I emailed her several times asking:-

"On your visit to Avenue G on 24 March 2015 & your discussion with the owner , did you discover that the cafe was openly cooking with an oven to make their in-house scones , as I was informed you did by Mr REDACTED & did you ask the owner if they made their soup in-house?"


The DRS Enforcement Officer replied on 21st April 2015:-

"I refer to your emails and would confirm that I was aware that Avenue G were using an oven to bake their scones and other such bakery products on site. In addition I was advised that the soup is pre-prepared off site and heated in the cafe in a soup urn. Please note that the use of these items of equipment does not constitute open cooking."

Thus the DRS Enforcement Officer admitted that she had lied to me in her letter dated 30th March 2015 !!!!



Through a Freedom of Information request I discovered that the same DRS Enforcement Officer had told a previous complainer in 2012 that the cafe at 291 Byres Road was not cooking when it actually was.
The previous complainer wrote to the same DRS Enforcement Officer & in the last paragraph of his email dated 21st December 2012 referring to the cafe at 291 Byres Road and another cafe that was operating without Class 3 status on Byres Road stated:-

"An issue we will be raising in our forthcoming meeting with Councillors is how can it happen that on two occasions we were told by the staff of DRS that there was no hot food use at these two locations and yet now you are taking action because you have identified a hot food use in both these premises that has not received and would not receive planning consent."

This complainer in 2012 also pointed out that hot food is the primary purpose of the cafe situated at 291 Byres Road. The complainer also states that the DRS:-
"seem to be paying only lip service to the policy. In my experience with other clients the policy has been applied rigorously".

This backs up my claims that the cafe at 291 Byres Road is being treated with favouritism and is exempt from the rules that apply to other cafes & restaurants. In fact, as far as I am aware, the cafe situated at 291 Byres Road, Glasgow is the only cafe/restaurant in the entire UK situated underneath residential property that is allowed to cook & bake on site with no ventilation whatsoever, with the full knowledge of the local Council.


I later discovered through a third party that Environmental Health had visited my back court in February 2015 in response to my complaint letter of January 2015. Environmental Health could smell cooking odours on one of their two visits. However the Council Ombudsman discovered that the DRS Enforcement Officer contacted Environmental Health on 16th February 2015 and asked them to halt their investigation claiming that there was a DRS investigation into the cafe in progress. However I did not write to DRS until 3rd March 2015, thus there was NO complaint from myself to DRS in February 2015. My letter to DRS dated 3rd March 2015 was the first time I had contacted DRS since December 2013, when I objected to the cafe's application for Class 3 permission, on the grounds of cooking odours that I had been experiencing in my flat from the cafe. There is no record of the existence of an investigation being opened until they received my letter to DRS dated 3rd March 2015 on 4th March 2015. DRS have themselves told the Council Ombudsman that they have no record of the existence of an investigation into the cafe in February 2015.


Through a Freedom of Information request I obtained a letter dated 22nd May 2013 which was sent by the Head of Planning & Building Control, Glasgow City Council to Councilor Martha Wardrop which incorrectly informs her that cooking has now ceased at 291 Byres Road, stating "where necessary heating is carried out on the premises by microwave. However the menu is predominantly cold foods".

This was not true as in October 2013 the cafe was put under notice of section 33A of the Town and Country Planning Act as the Council had found that the cafe's claims which had initially been backed up by the same DRS Enforcement Officer, as mentioned above, that cooking had stopped on site and it had ceased to operate as a restaurant were found by a DRS line manager to be untrue.

According to a document I obtained through a Freedom of Information Request the Council told the cafe that it would not enforce the notice while the cafe's Class 3 application was ongoing.
From the decision document granting the cafe's appeal for Class 3 status the Local Review Committee seem to have been totally unaware that the cafe had had a Section 33A Notice imposed on it by the Council and the Council Planning advisor's notes contain no mention of the section 33A notice.



From a freedom of information request I have obtained an email dated 18th April 2013 from Councillor Martha Wardrop to DRS in which she writes to DRS regarding three cafes on Byres Road, including the cafe at 291 Byres Road, which had been found by the Council to be operating illegally as Class 3 businesses as they only possessed Class 1 status. In this email Councillor Wardrop states :-

"Several of the businesses have been in contact to express their serious concerns about consequences of investigations for their business operations.
They fear they will close as a consequence of the recommendations made to ensure they comply with planning conditions"

"I would not want closure to result for any of these businesses"

Councillor Martha Wardrop seems to have lobbied the Council to allow the cafe to have Class 3 status without having any annoying & costly planning conditions imposed on them such as restrictions on the type of cooking they could carry out without ventilation that would protect my amenity. Martha Wardrop after all does not live above the cafe and neither do DRS enforcement staff & managers or indeed the cafe owner.

DRS also continue to ignore the fact that the cafe installed an Inlet Vent at the its back wall without planning permission. In the correspondence I received from the owner of the cafe he admits to installing this vent in the summer of 2014, which sucks air into the cafe mezzanine to cool it down. The Environmental Health Department incorrectly claimed that this was an extraction fan and the Environmental Health Department continued their mantra of claiming that this was an extraction vent even after I had sent the Council the correspondence between myself and the cafe owner which in which the cafe owner discusses this inlet vent !!!!

As Glasgow City Council Environmental Health Department wrote a report for DRS stating that a flue would be required if cooking were to take place at 291 Byres Road they have a duty to visit the cafe and ascertain if the cooking currently taking place fits the criteria for which a flue is required.
The Local Review Committee stated in their decision report granting the cafe Class 3 status under the heading Assessment Against Policy:-

"The LRC noted that should the use of the unit intensify or alter whereby open cooking would take place on site then that operation can be controlled as provision of a flue would be subject to planning permission."

I have sent all the correspondence between myself and the cafe owner to the DRS, which clearly shows the level of cooking taking place on site and that it had intensified massively from what the Local Review Committee had been led to believe would take place and that open cooking is taking place on site, yet the Council allow the cafe to continue unhindered.
If the cafe does not need any ventilation to deal with the resultant cooking odours from its open cooking activities I have previously suggested that the late Professor Stephen Hawkins should have been informed, so that he could have come to Byres Road to study this anomaly in the physical Universe.

I would also point out that the Council have also
ignored video evidence sent to them in January 2017 of
the cafe at 291 Byres Road pouring bacon fat down the outside drain that serves the adjoining close. In this video a member of the cafe staff is shown pouring a substance down this drain. The video also shows the same staff member standing at the back entrance of the cafe's basement kitchen admitting that the thick substance around & on the drain itself is bacon fat from the cafe.

A photo of this drain and surrounding area covered in bacon fat was first sent to the Council in 2015 and of course ignored.

It is illegal to pour bacon fat down drains under Section 111 of the Water Industry Act 1991, which makes it illegal to permit any substance, which may interfere with the free flow of the sewerage system, to pass down any drain or sewer connecting to a public sewer. This will include fats, oils and grease. It is also unhygienic & a public health risk to have rancid bacon fat splattered all over the area, especially next to a restaurant kitchen and residential property.

The cafe owner fully admits open cooking without extraction (it is only the Council that have claimed that the cafe does not open cook). The cafe owner has written to me fully detailing his cafe's activities (I have sent this material to the Council numerous times in the last 3 years). I also have sent witness statements to the Council and the cafe's reviews on Tripadvisor and Yelp i.e. the following Yelp review by a customer of the cafe dated 29th October 2016:-
"I always end up either papped oot to a wobbly table on the pavement outside, or wedged-in and perched awkwardly on the cramped highstools along the front edge of the mezzanine (which is always, ALWAYS, regardless of the season, blinking roasting and thick with that hot fat smoky smell of the brunches cooking in the open kitchen below, that smell that sticks to your clothes and stings your eyes), or just getting my coffee to take away because I can't face that dang miserable cramped and smelly mezzanine experience."
The following Avenue Coffee Tripadvisor review appeared in January 2018:- "There was a really awful burnt oil type smell coming from the kitchen area, having no extractors to take the cooking smell away really makes me feel a bit yucky"
&
"Toilets were disgusting also. Yellow gunge on the bin so had to open it with my foot... usually the thing goes 'if their toilet's not clean, neither is their kitchen'.
We were sitting on the upper level and if you're sitting at the breakfast bar type area and facing the street there's tons of thick dust hanging from the ceiling and light fittings, it's all face level. Worst thing about that is it's right above the kitchen, so who knows what could be in the open pots of soup etc.
Just shows complete lack of care from top to bottom."

This comment raised a Food Safety issue regarding the cafe floor kitchen. The edge of the mezzanine balcony is right above the open pots of soup etc in the cafe floor kitchen and as customers are sitting on seats looking towards the window, anything they drop would fall into the open pots etc. These customers are often talking to each other while gazing towards the window so spittle etc from these customers will be constantly falling into the open pots below and when a customer with a cold sneezes , no doubt lumps of phlegm also fall into the cafe's soup and contaminate the food below.
The following Tripadvisor review for the cafe (now called Turadh, under the same ownership) appeared in February 2018:-
"the smell coming from the kitchen - or behind the counter where they make the food is really not nice. They could do with an extractor or something..."
I have previously sent the Council photos of burnt bacon lying in pans outside the cafe back door. I have sent the Council a photo taken on Saturday 17th March 2018 showing partially incinerated potato scones which were in a frying pan outside the cafe's back basement door. The scones had obviously been on fire. This has of course been ignored!!!
I would like LES to explain how potato scones that have obviously been in fire would not cause smoke that travels upwards in a Victorian tenement. Perhaps Glasgow City Council believes that magic deals with such problems at 291 Byres Road.
LES have not even visited the cafe kitchens even though they have been made aware the cafe are open cooking & frying their all day breakfast without as much a domestic kitchen hood & regularly have open fires in which the food combusts in an illegal basement kitchen with no fire prevention equipment in place.
As the Council are about to embark upon a £9 million redevelopment scheme of Byres Road it is important that if the public are to have confidence in the expenditure of such a large amount of public money that planning decisions are carried out impartially, and not in favour of some businesses on Byres Road at the expense of others who do not have the favour of Council employees and at the expense of the amenity & quality of life of local residents.


Another disturbing aspect of the strange case of the Council and the cafe at 291 Byres Road, which lends support to my believe that a Material Consideration in this case and indeed all planning cases in Glasgow, is that the Council's Planning Department (DRS) are not fit for purpose.

The Council allow the cafe at 291 Byres Road have seats & tables on the pavement, while other businesses in Glasgow have to apply for planning permission and abide by the Street Cafe Agreement which must be signed & submitted to the Environmental Health Department. This is unfair to other businesses on Byres Road and indeed in the rest of Glasgow, who are made to comply with the law. The fact that the Council reserves the right to terminate the use of the extended area by seven days written notice but has not done so in this case reinforces my local MSP's opinion that the Council takes an inconsistent approach depending on who runs the shop.


External seating without planning permission is yet another issue in which Glasgow City Council has shown unprecedented favouritism to the cafe at 291 Byres Road and allow the owner to conduct his business in a manner no other cafe/restaurant in Glasgow or indeed the rest of the UK would be permitted to do so.

The SPSO have opened a new case in March 2018 regarding the Council and the cafe at 291 Byres Road.
The complaints that the SPSO have recently accepted and have written to the Council for their comment on are that Glasgow City Council:-

1. Are aware that the cafe has not applied for planning permission for outdoor seating and have failed to reasonably address this within a reasonable period of time.

2. Are aware that the cafe has breached the Street Cafe Agreement in relation to several points and have failed to reasonably address this within a reasonable period of time.

3. Have failed to take reasonable steps to enforce building standards in relation to the cafe's basement kitchen within a reasonable period of time.

4. Are aware of health and safety breaches in relation to the basement kitchen (which were not covered under complaint 201507720) and have failed to reasonably address these within a reasonable period of time.

The referred to SPSO Complaint 201507720 upheld two of my previous complaints in December 2016."

Mr Bajetha, you need to get your hole mate.

^longest comment ever award.

Well, under no circumstances will I be reading that.

Utter crap as usual from GCC. This will do little to improve Byres Road as it will still be dominated by motor vehicles. I don't want to sit outside any cafe there because of all the noise and pollution, not to mention the ridiculously narrow pavements.

Frankly Byres road should be pedestrianised, but as that will almost certainly never happen, the carriageway should at least be halved in width (perhaps even made one way or access only/no through road for delivery and local residents), with priority given to pedestrians and cyclists (in that order). Wider pavements to allow outdoor seating and fully segregated cycle lanes are a must.

What is shown here is simply a token gesture of 'ooh pretty road surface and look! Trees!' and minimally demarcated cycle lanes, which will no doubt double as 'I'm just nipping into the shop for some milk' parking spaces or delivery lay-bys thus rendering them useless.

Also, pavement surfaces must continue across side street and minor road junctions, along with a tabletop as shown in that second image, otherwise motor traffic will continue to treat junctions with priority, pretty road surface or not.

As ever it seems, the car in Glasgow is king.

#4 - 8,500 words. That's halfway to a feature film or a full-length play.

Bonkers to blow £s on nice stone finish to a public road.

Mr Batheja tell us what you really think

Mr Batheja, I disagree.

#8

While I'm not sure that it needs pedestrianised (though I'm sure there is a good argument to be had), they could have at least offered a better arrangement for cyclists at the expense of the car.

The council need to prove that they are taking cycling seriously. The south city way is a start but it seems to me that this scheme offers no suitable protection for cyclists with no segregation or raised kerb, rather it prioritises the cars passing through and one would assume then also the parking arrangements. Some fancy paving doesn't change that.

It's frankly disgraceful that the car lobby and city traffic engineer's are allowed to get away with it.

#13: completely agree. It's so frustrating to see a 1970s era of thought still applied to our streets and roads.

UPDATE

In January 2019 the Scottish Public Services Ombudsman (SPSO) upheld the first three of the complaints it was investigating and found fault on the part of the Council’s approach to the café situated at 291 Byres Road, Glasgow.

This makes a total of five complaints to date that have been upheld by the Scottish Public Services Ombudsman (SPSO) with regard to the Council’s approach to the café situated at 291 Byres Road, Glasgow :-




· That the Council are aware that the café has not applied for planning permission for outdoor seating and have failed to reasonably address this within a reasonable period of time. ( upheld);
· That the Council are aware that the café has breached the Street Café Agreement (‘SCAA’) in relation to several points and have failed to reasonably address this within a reasonable period of time. (upheld);
· That the Council are have failed to take reasonable steps to enforce building standards in relation to the café’s basement kitchen within a reasonable period of time. (upheld);

With regard to the fourth complaint :-
· That the Council are aware of health and safety breaches in relation to the basement kitchen at 291 Byres Road (which were not covered under complaint 201507720) and have failed to reasonably address these within a reasonable period of time.

This complaint relates to breaches regarding the stairs to the basement which the Council ordered a bannister be fitted to in 2013 and again in 2018, the pipework, the low height of the ceiling and the single sink which Food Safety ordered in 2013 should be used for the washing of hands only. Yet it is used as the single sink in the basement kitchen in which the café’s soup is made from scratch, salad is washed and pots and pans cleaned.
However the Scottish Public Services Ombudsman’s decision letter of January 2019 stated:-
“The council have clarified their position on the health and safety matters relating to the kitchen. They do not intend to address these under the complaints handling process. This is because they have taken the view that their aim is to have the basement kitchen removed and basement restored in line with the plans dated 1965. If the kitchen is returned to these plans then the health and safety matters you have raised should no longer exist.
This approach would appear to be reasonable based on the view that the council will take action to get the basement returned to the original plans. There would be no point in seeking compliance with health and safety issues in the basement if the council do not consider the café owner has permission to use the basement as a kitchen.
At present the council have tried to seek the owner’s compliance with their request to remove the kitchen from the basement. As stated at complaint (c) above this has been going on for a considerable period of time. The council are entitled to exercise discretion. The council are therefore required to either accept that the café is allowed to operate as it does and confirm why they will accept this; or take relevant enforcement action. If the council decide to exercise discretion and not take enforcement action then it would be required to refer the health and safety breaches you have mentioned to the relevant department so that the relevant department can take a view on the issues raised.
I have not upheld this complaint. The council have not stated that the breaches are acceptable to them. They do, however, require to make a decision regarding complaint (c) before they can be determined if the council need to seek further compliance with the health and safety matters you have raised.”

On 6th February 2019 the Council served a rarely used Building Warrant Enforcement Notice under Section 27, Building (Scotland) Act 2003 on the café situated at 291 Byres Road, Glasgow. This will make it an offence to use the basement for any use other than storage.

The Council had ignored complaints since the end of September 2018 informing them that the café manager had been cooking in the basement, operating a procedure whereby they cook one night a week (a Monday) or during the day on a Tuesday. Anyone who has walked by the apparently closed café at 291 Byres Road on a Tuesday will have noticed that despite seeming empty the café window on Byres Road has been streaming with condensation caused by the café cooking the following week’s soup etc in the totally unventillated basement kitchen which does not have as much as a domestic cooker hood to deal with the odours with no regard to the odour nuisance their cooking is causing the café’s residential neighbours.

This is how the Scottish Public Services Ombudsman in its decision letter of January 2019 described the events leading up to the Enforcement Notice being served :-


“What happened?
In 2014 there is evidence that the café was cooking on-site and operating as a Class 3 premises although planning permission had only previously been granted for a Class 1 premises. In 2014 a planning application was submitted to the council for a change of use from Class 1 to Class 3. You objected to the change of use from a Class 1 to a Class 3 premises at the time.
This change of use application was initially refused by DRS on the basis that it was not in keeping with the Local Development Plan because of the number of Class 3 premises in the area.
A request was made for a review of this decision by the café owner at that time. A decision was made by the Local Review Committee in 2014 to overturn the refusal of planning permission.
Planning permission was granted on the basis there was no open cooking on the premises and that food preparation and cooking had been moved to an off-site kitchen.
Planning permission was also accepted on the basis drawings titled 10/0902 and date stamped DRS 24 October 2013 constituted the approved development of the cafe. The drawings submitted did not include a kitchen in the basement of the café but a ground floor preparation area.
The Local Review Committee stated if use of the unit intensified or altered whereby open cooking took place on site then that operation could be controlled as the provision of a flue would be subject to planning permission.
You have stated that the basement of the premises was altered to include a fully operational kitchen by the current owner.
You raised your concerns with the council regarding the use of the basement of the café as an operational kitchen where food was cooked. You have stated the basement is in operation as a full kitchen and that this appears to be without a building warrant. You stated that the planning permission in 2014 was granted on the basis that food was cooked off-site and that this is contrary to the terms of the permission granted.
You provided documentation you received under a Freedom of Information request to the council which showed that there was a significant amount of correspondence between the council and the café owner during 2017 on this matter. I have provided details of this below to show what steps the council took to seek compliance.
On 26 April 2017 the council wrote to the café owner to say that reinstatement of the basement should be carried out to the specification of the last approved plans and building warrant otherwise the works would be unauthorised.
The café owner stated on 26 April 2017 they had made arrangements to get the basement returned to the state of use when they took over the property. He asked if the council wanted to arrange a date for another officer to view the property so the issue could be closed.
On 2 June 2017 the council wrote to the café owner to ask if the required work had been done. On 6 June 2017 the café owner responded to the council and asked for confirmation when the inspector was going to visit from the council. This was to ensure that the manager was present and could show the inspector the basement area.
The council wrote back to the café owner to say that it was not clear from the email of 6 June 2017 if the re-instatement work had in fact been carried out.
On 10 July 2017 the council wrote to the café owner to say that a visit would be required from their staff to confirm the unauthorised kitchen works had been removed and the property reinstated to its previous layout. The council stated it was not clear from previous correspondence if the works had been carried out. The council asked for confirmation of when the works would be carried out; if these had not already taken place.
On 13 July 2017 the café owner confirmed that the unauthorised works had not yet been removed. He confirmed that they had closed another business and asked if he could have until August to make the changes.
In an email dated 19 July 2017 the café owner stated that they intended to return the basement area to a store room, as it was when they took over the business 7 years ago.
On 24 July 2017 there was an inspection of the basement. The café owner was asked to remove the unauthorised kitchen works and the council allowed the owner until August 2017 to carry this out.
In September 2017 the café owner wrote to the council to say that if they were forced to close the basement area completely they would go out of business. The owner confirmed they would at least require to use the area for storage of goods, equipment and fridge storage. The owner acknowledged that there was no point in trying to obtain a building warrant for the basement kitchen as this would fail on the grounds of head height. The café owner wanted to discuss the way forward.
A meeting was arranged on 4 October 2017 to discuss the basement so that the council could clarify the options available to the café owner. Prior to the meeting the cafe owner tried to establish what was the last known use of the basement and if, and when, there was a building warrant granted for its use.
The council spoke to the café owner on 24 January 2018 and reached an agreement regarding the basement kitchen which stated the kitchen required to be returned to the layout in terms of the last building warrant granted.
The layout of the existing basement and proposed alterations was set out in a plan dated 21 September 1965. The original plan shows a sink and a hatch above the basement with a stair leading upstairs. The proposed plans which were approved on 12 November 1965 show an alteration to the location of the stair to the basement and a stock room. There is no reference to any kitchen facilities in the basement.
On 26 January 2018 the café owner said they would install a hatch cover and revert the basement into storage. The café owner asked if the council would allow him until the end of July 2018 to get the changes made.
On 7 February 2018 the council replied to say the timescale in which to carry out the changes appeared excessive. The council identified that there were two issues: the basement being used as a kitchen and the works required to remove unauthorised works.
The council considered the kitchen could be removed quickly. It was understood from a meeting with the café owner that the food preparation would now be carried out off-site. The council suggested that a reasonable timescale was the end of the month. The council stated the works to revert the basement to storage should be completed afterwards by the end of March.
The letter stated Building Standards had worked with the café owner over a number of months to explore options to rectify the unauthorised basement works. The council stated this could not continue much longer and the timescales suggested were realistic. The café owner was asked to confirm if the proposal was acceptable to him.
The café owner responded to say that the construction work was not difficult to do but moving the kitchen off site could take a long time as they would have to find a suitable location for off-site cooking. They were also looking at other options that may lead to a quicker turnaround and may not result in their operations being moved off site.
The café owner asked if they could have until the end of April 2018 as an absolute deadline.
The council agreed to this approach asking the café owner to keep them informed.
On 16 April 2018 an interview was conducted with the café owner and the building inspector was advised that breakfast and lunch were being cooked from raw. Staff were currently in the process of closing off half of the basement and that all preparation and cooking would be carried out upstairs.
The council confirmed that Building Standards visited the premises on 1 May 2018 and stated at the time of the inspection the basement did not appear to be in operation other than for storage.
The council wrote to the café owner on 8 June 2018 and asked him to contact a surveyor to arrange another inspection. This was because there was a complaint on 6 June 2018 that the basement had been converted back to a kitchen. Concerns about health and safety had also been raised.
According to further correspondence you have sent to this office the building standards surveyor visited the café premises again on 25 June 2018 and found that the basement was still being used for cooking. You received correspondence from Mr Trotter dated 19 October 2018 in which he confirmed that the area was again being used for other than storage purposes. He confirmed that a referral to Environmental Health about how the kitchen operated was not discussed with the café owner as it was hoped by engaging with the owner that it could be resolved. The focus of the council was on removing the kitchen rather than seeking compliance from the owner with health and safety for the basement kitchen.
You have written to the council and this office to state that from September 2018 the café have been operating a procedure whereby they cook one night a week (a Monday) or during the day on a Tuesday. This effectively means the basement is still being used as a kitchen to cook from raw at these times. You have pointed out to the council that there is a notice on the café door on a Tuesday which states ‘ We are closed today due to essential internal work taking place’. You have stated that at these times the café is closed but cooking is going on in the basement.”



A Freedom of Information response shows that the Council emailed the café owner on 21st December 2018 stating:-

“It had been brought to my attention that the occupation of the “basement” area of the above premises, for cooking purposes and possibly also for staff has been reestablished yet again.
If this is so, it shows blatent disregard for operating the “basement” in a way, that you are fully aware off, does not have the required Building Warrant approval.”

On 6th February 2019 the Council finally served a rarely used Building Warrant Enforcement Notice under Section 27, Building (Scotland) Act 2003 on the café situated at 291 Byres Road, Glasgow This will make it a offence to use the basement for any use other than storage.

The leasehold café at 291 Byres Road has been for sale for about 6 months. The sale is being marketed by Bruce & Co, Edinburgh :-

https://www.primelocation.com/for-sale/commercial/details/48492872

Under the heading of “Building Internal” the property at 291 Byres Road is described thus:-

”The basement level is currently used as storage, but would offer excellent potential to install a full commercial kitchen, allowing more seating on the ground floor.”

As the Scottish Public Services Ombudsman’s decision letter of January 2019 points out :-

“In September 2017 the café owner wrote to the council to say that if they were forced to close the basement area completely they would go out of business. The owner confirmed they would at least require to use the area for storage of goods, equipment and fridge storage. The owner acknowledged that there was no point in trying to obtain a building warrant for the basement kitchen as this would fail on the grounds of head height.”

Also on 19th February 2019 the café owner appealed the Building Services Enforcement Notice to the Scottish Government Planning & Environmental Appeals Division :-

https://www.dpea.scotland.gov.uk/CaseDetails.aspx?ID=120247

This appeal was made by the café owner on behalf of Zenyx Ltd which purportedly owns the business. The appeal was closed as having “No Remit”.

As the SPSO pointed out in its decision letter, in September 2017 the café owner wrote to the council admitting that that the café basement cannot be used for anything other than storage as he states in his appeal to the Scottish Government Planning & Environmental Appeals Division in February 2019 :-

“The problem is that the notice to make alterations
to the basement away from storage would be impossible due to the dimensions of the basement area. There is no way of passing any current regulations to ensure that the area can be used as anything but storage.”

I state that the business at 291 Byres Road is “purportedly” owned by Zenyx Ltd as according to the Mint UK database available at Glasgow city libraries the business at 291 Byres Road is an unincorporated business owned solely by the café owner.


A complaint was made to the Scottish Public Services Ombudsman that there was a failure on the part of DRS (the Council’s Planning department) to advise Trading Standards that in advertising the café for sale the current café owner was mis-selling the café on the basis that a new owner may decide to operate a commercial kitchen there, as they are required to under the Planning Enforcement Charter.

However the Scottish Public Services Ombudsman stated they would not be opening a file on this for the following reason:-

“ you have pointed out that the advert states that a commercial kitchen could be opened up by a new owner of the café premises. Any future purchaser of the café would require to satisfy themselves of the validity of statements made in an advert for sale before proceeding with the purchase. It would be reasonable to expect that they, or their legal adviser, would clarify the position before purchasing the business to establish if planning permission or a building warrant was in place or could be obtained. If they considered comments to be misleading and they relied upon them then there are steps any purchaser affected can take. As there are appropriate checks for a future purchaser to take and there is legislation to cover any alleged misrepresentation I do not consider that it would be proportionate for this office to investigate this particular matter.”



Therefore it is CAVEAT EMPTOR as far as the sale of this business is concerned.

If the new owner continues the antisocial behaviour of the current owner in showing a total disregard for the amenity of their neighbours and continues to cook without ventillation an Abatement Order will be sought !!!!