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Town centres and retail – implications of the amended PPG
The overdue update of the PPG does not radically change the approach to town centres and retail but there is a clear shift in emphasis. Restricting out-of-centre development is not the key to saving town centres and high streets, they need to change and evolve to respond to structural changes in the economy. Minor amendments to the PPG tighten the wording of advice relating to the sequential and impact tests but limited further clarification is provided. There is no mention of disaggregation when applying the sequential test, but the availability of alternative town centre sites within a reasonable period of time should take account of scale and complexity of the proposed scheme i.e. it’s open to debate. A key change is the Government’s response to the Solo Retail Limited v Torridge District Council (March 2019) judgement, which indicated the PPG relating to the impact test “cannot and should not be interpreted and applied in an overly legalistic way as if it was setting out mandatory requirements.” The diagram highlighting the steps that should be followed when carrying out impact assessments has been deleted. This change should allow applicants more flexibility when producing proportionate impact assessments. The relevance of the list of indicators of a centre’s health and vitality have been downgraded from “are relevant” to “may be relevant”, although new indicators include: the balance between independent and multiple stores, barriers to new businesses and the evening/night time economy. The main shift is the increased support for town centres to adapt and change, by providing a wide range of complementary uses, evening and night time activities. The PPG refers to town centres developing their own unique brand and offer services beyond retail. The creation of hubs or groups of particular uses in centres e.g. restaurants and leisure use in encouraged. Local planning authorities can still define primary and secondary retail frontages but this is not mandatory. The use of frontages and policies to control the mix of uses need to be justified i.e. where it clearly supports the vitality and viability of a centre. This change implies a more flexible and location specific approach to the protection of retail uses. Finally, the need for a collaborative partnership approach between local authorities and other parties is reiterated and expanded, with a list of relevant stakeholders provided. A note of caution, the Solo Retail Limited v Torridge District Council judgment is still a reminder not to interpret the new PPG too legalistically.

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Lichfields’ expert witness aids win in long-awaited retail inquiry

Lichfields’ expert witness aids win in long-awaited retail inquiry

Neil Goldsmith & Georgia Crowley 17 Jul 2019
An important inquiry involving an Appeal and three applications at Handforth Dean Retail Park, which were called-in by the Secretary of State, has been concluded. Neil Goldsmith (Senior Director at Lichfields) represented Orbit Investments (Properties) Ltd on the Appeal, which was granted permission. The outcome has interesting implications for those active in town centres and retail development, as sequential and retail impact matters were key in the decision making. The Orbit Appeal application, for five non-food retail units and two café/ takeaways (planning application LPA ref. 15/0400M) was refused by Cheshire East Council in March 2016. Issues had been raised over the loss of employment land and retail concerns brought by objectors. The Appeal was recovered and granted by the Secretary of State, in line with the reasoning of the Inspector. Three applications by CPG Development Projects Limited were also decided, in agreement with the Inspector’s report. An application for 2,320 square metres of retail floorspace (Phase 1b at the Land at Earl Road) was approved. Two further ‘Phases’ for significantly more retail floorspace were both refused. Source: Handforth Dean Retail Park Town centre fragility and retail impact One of the key factors in the decisions was how town centre health is measured, in the context of considering retail impact. Evidence was presented regarding a number of town centres. In particular, Stockport was considered to perform well against some criteria and less well against others. This is determined by considering a range of indicators, including vacancies, commercial rents, type of shops and current and planned investment. Vacancy rates can sometimes show a bleak picture of town centre health. In Stockport, the vacancy rate was more than double the national average (2017 data shows 24.1% and updated 2018 survey shows 21%). Whilst some objectors highlighted the fragility of the town centre, the Inspector acknowledged the former BHS was quickly re-let to Poundland, the main linear shopping street has a good range of shops and appears moderately vibrant, and recent development should have a positive impact on the town. This decision highlighted an important point when undertaking town centre health checks elsewhere; one figure alone (for example, vacancy rate) does not present an accurate representation of the health of the town centre: “… health check indicators are ‘an indication’ and nothing more – they are not a cumulative formula or calculation and they should not be taken in isolation. Rather, a rounded assessment and a measure of judgement is required…” (Inspector’s Report Conclusions, Section 9.158) The impact levels of the Appeal proposal did not represent a ‘significant adverse’ impact on the vitality and viability of the relevant centres. Evidence presented in the Inquiry substantiated this claim. Site flexibility and the Sequential Test In relation to the sequential test, a key point raised against Orbit’s development by a Rule 6 party, was the availability of a former Toys R Us, Unit 6 of the Peel Centre in Stockport. Unit 6 was dismissed by the Inspector as not providing “a reasonably or closely similar alternative to that which is proposed by Orbit” (Inspector’s Report Conclusions, Section 9.193). The Secretary of State has expressly endorsed that sequentially preferable sites must be ‘closely similar’ to proposal sites (derived from the Tollgate decision), however the Inspector claimed this is not a policy test. For Handforth Dean, the Inspector appears to have used the test ‘reasonably or closely similar’ and this wording is supported by the Secretary of State in granting permission. The Orbit proposal covers 6,000 square metres (gross internal area) and has 7 units. Unit 6 covers 5,393 square metres and has permission for subdivision into 5 units. The sites may seem relatively comparable in size, however Unit 6 was considered not ‘reasonably or closely similar’ based on the differences in unit size and configuration, prominence and servicing, even “taking into account of the need for reasonable flexibility” (Inspector’s Report Conclusions, Section 9.193). Importantly, this draws attention to the level of flexibility and similarity that is required to be applied to proposals when undertaking sequential analysis. Following the Inquiry, information was received that Unit 6 has now been let to the Range, signaling investor confidence in Stockport and conclusively removing it as a sequentially preferable site. Overall, a strong case for the Orbit proposal was made during the Appeal and objections were given limited weight. Expert evidence corroborated that there would be no unacceptable impact on existing or committed investment, nor significant adverse impact on the vitality and viability of any relevant town centre. Lichfields is able to prepare and present specialist evidence at inquiries, hearings, examinations and other litigation proceedings. Our experts have in depth knowledge of such procedures and a proven track record of providing this quality service to our clients.  

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