Planning matters

Our award winning blog gives a fresh perspective on the latest trends in planning and development.

We all knew it but now the evidence is there – our town centres are changing
Much of my career to date has been in town centres and retail planning. I have amassed extensive experience in completing retail evidence base studies for local planning authorities and project managing planning applications for major town centre, mixed-use proposals. As such, I have a keen interest in the future of our town centres. Lichfields was recently commissioned by Harborough District Council to update its retail evidence base. This was an update to a retail study that Lichfields had completed in 2013. This update, alongside the many other retail studies that Lichfields completes year-on-year, provides clear evidence that nationally, the composition of our town centres is changing over time. I have taken this analysis further and considered how our town centres have changed over the past decade, based on data set out in Experian Goad category reports, which cover UK town centres. A number of key trends emerge from this research: Convenience (food retail) There has been a recent increase in the proportion of town centre units occupied by convenience retailers on a national average basis. Between 2005 and 2014, the proportion of convenience units has stayed constant at around 8-9%. However, more recently there has been an increase of 2 percentage points to 11% in 2016.  This general trend is replicated in the proportion of town centre floorspace occupied by convenience retailers, albeit there has been a greater increase in the proportion of convenience floorspace. In fact, between 2005 and 2016, the proportion of convenience floorspace has almost doubled, increasing by 10 percentage points. It is expected that the proportion of convenience floorspace may fall in the future as foodstore operators continue to consolidate their position and focus their requirements on key strategic locations, albeit this may not be reflected in the proportion of convenience units, as these might increase as the focus on quality fresh food leads to more independent convenience shops returning to many areas.  Comparison (non-food retail) On a national average basis, the proportion of town centre units occupied by comparison retailers has reduced. In 2005, the national average proportion of town centre units used by comparison retailers was 47%. This proportion reached a low of 41% in 2012, during the global financial crisis. Whilst there has been a small increase in this proportion as the economy has improved, over the eleven years from 2005 to 2006, the proportion of comparison units has reduced to 43% (a fall of 4%). This change is significant and is mirrored in the proportion of comparison floorspace, with the proportion falling by 4% over this eleven year period.  Based on current and likely future retail and leisure trends, Lichfields considers that this overall trend is unlikely to be reversed, with department stores and high street retailers generally seeking less floorspace, but maintaining or seeking a presence in larger town and city centres.   With this change in mind, Lichfields has looked deeper into changes in the composition of comparison retail units, and there are some that are key. In 2005, ‘clothing & footwear’ accounted for 27% of all comparison goods retail units nationally. By 2016, this figure had fallen to 25%. The traditional sector of ‘booksellers, arts, crafts, stationers’ also fell sharply, by 4% over the same period. Class A3 (restaurants and cafes) and A5 (hot food / take-away) uses The converse to the decline in comparison retail businesses is that the proportion of food and drink uses in town centres has increased nationally. The proportion of food and drink units accounted for 14% of town centre units in 2005. In 2016, this proportion had grown by 2 percentage points to 16%. The general trend for an increase in the proportion of food and beverage uses in town centres has been well-documented and is likely to continue.  Looking into this further, it can also be seen that ‘hairdressers/ beauty parlours’ now account for 26% of all units occupied by service uses in town centres nationally, up from 22% in 2005. Likewise, the proportion of ‘restaurants/ cafes/ takeaways’ has increased over the same period, albeit by a lesser amount. Composition summary Why the changes? This confirms what everyone perceives - that town centres have fewer clothing and book retailers and more leisure and service- orientated uses such as restaurants and health and beauty parlours. There are many reasons for this trend in the UK, such as: People choosing to spend more on eating out and other ‘experiences’ rather than on traditional goods; The continuing increase in online shopping which affects clothing and book retailers in particular. According to Experian, in 2016 the proportion of sales in special forms of trading (i.e. non-store retail activity such as mail order sales, some internet sales and so on) as a proportion of comparison sales was 13% and this is projected to rise to 17% by 2035; Although there has been a recent resurgence in book sales, overall, the popularity of electronic books (or ebooks) has led to less demand for town centre floorspace for booksellers, whilst many booksellers with a physical presence in town centres have sub-let part of their floorspace to cafes and coffee shops, further reducing the amount of town centre floorspace occupied by booksellers. The concentration of national multiple clothing & footwear retailers in larger town centres, rather than seeking a presence in all town centres. The general trend is for clothing & footwear retailers to occupy larger units, however, the amount of floorspace occupied by clothing & footwear retailers overall in town centres is down; The pre-recession rise in disposable income and the ongoing popularity of eating out; and Vacant floorspace being filled by lower value uses such as takeaways, charity shops and pay day loan shops. Why Choose Lichfields? Lichfields is at the forefront of advising on town centre and retail development. We are town centre and retail experts and act for numerous clients with an interest in retail, leisure and town centre development, including developers, investors, operators and councils. We understand the changing town centre environment and the increase in popularity of leisure uses within town centres. Lichfields has a track record in assisting in the delivery of town centre re-developments and regeneration. We are keen to assist both new and existing clients further. To discuss any town centre planning-related requirements, please contact us. Image credit: Joe Okpako

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A ‘Minor Material’ clarification

A ‘Minor Material’ clarification

Robert Dibden 13 Jul 2017
The recent judgment of the Supreme Court in relation to Suffolk Coastal District Council v Hopkins Homes and Richborough Estates v Cheshire East Borough Council raised a number of wider implications for planning, not least concerns regarding the role of the courts in planning decision-making and the over-legalisation of the planning process. For a number of years now, developers and landowners have used the judicial review process as a means of holding planning decision- makers to account, and ensuring the rigour of the planning system generally. Lichfields’ Newcastle office’s latest first-hand experience of the process in action offers helpful insight into both the workings of, and interrelationship between, England’s planning and legal systems, and the idiosyncrasies of a particularly well-used provision of the Planning Acts. The case centred on the use of Section 73 (s73) of the Town and Country Planning Act 1990, which allows applicants to seek permission for a minor material amendment (‘MMA’) to a previously approved scheme. In this specific case, a developer in York had obtained planning permission for a mixed use development described as: Erection of 8,000 seat community stadium, leisure centre, multi-screen cinema, retail units, outdoor football pitches, community facilities and other ancillary uses... Planning permission was granted subject to a number of conditions, including a requirement for the development to be in accordance with various approved plans. A short time later, the developer sought to update these plans by way of an MMA application. Amongst other amendments, the MMA application included increasing the capacity of the cinema by around 20%, and increasing the overall amount of floorspace made up of town centre uses by around 40%. Lichfields were subsequently appointed by an existing cinema operator in York to review the s73 application, in light of the potential adverse impact on their own business. During the course of this process it became apparent that the key question for the local planning authority to consider was whether, in fact, an alteration of this scale to the approved scheme could lawfully be approved (or indeed validated and then determined) by way of an MMA application. National Planning Practice Guidance advises : There is no statutory definition of a ‘minor material amendment’ but it is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved. The local planning authority contended that the proposed amendments were acceptable in this context, and proceeded to approve the application. During the six week judicial review challenge period following the grant of planning permission, Lichfields worked with Counsel to review the appropriate case law and primary legislation. This process indicated that guidance on the issue is less than clear. Whilst Planning Practice Guidance acknowledges there is no statutory definition of an MMA it is, by definition, inferred that the changes sought by such an application must constitute ‘minor’ alterations. High Court Judge Mr Justice Collins agreed that our client’s case was arguable, and a hearing at the Queen’s Bench Division in London was scheduled for January 2017. At the hearing, Counsel put forward the cases for the claimant and defendant respectively; each essentially focusing on v Coventry City Council Ex p. Arrowcroft Group Plc (2001). In summing up, Justice Collins contended that Arrowcroft established that, whilst there was no statutory definition of an MMA, the key principle is that it is not open to the local planning authority to vary a condition if that variation means that the precise terms of the original permission (i.e. the description of development) were changed by it. This reflects the wording of s73 itself, which states only that: "(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. (2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and— (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and (b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application." In part, this reflects the retro-fitting exercise undertaken by Government in utilising s73 to regularise the format in which applicants seek post-permission amendments to schemes. In itself, however (and possibly at odds with Planning Practice Guidance), s73 fails to limit the extent of changes sought through MMA applications in terms of how ‘minor’ or indeed ‘substantial’, they are in practice. In York, the description of development for the original scheme was sufficiently vague, such that no reasonable change to the scale or capacity of the cinema in isolation could negate the appropriate use of s73. This in itself is an important lesson for applicants, and ensuring local planning authorities don’t tamper with a description of development prior to the validation of an application could be key to retaining the future flexibility of a planning permission. Nevertheless, the whole judicial review process proved invaluable in untangling policy guidance which was admittedly never intended as a purpose-made solution. For planning consultants, this relationship between the legal and planning systems plays an integral role in assuring applicants of the robustness (and indeed lawfulness) of their planning decisions. Without these checks and balances in place, it is arguable that the whole planning process could become less fair and balanced, particularly given the fragmented nature of much current planning policy. For our client, this meant challenging a questionable decision through the courts over a period of six months or so. It is to everyone’s benefit within the planning sector that such a process exists, and can be utilised where necessary.  

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