Town centres & retail planning news, December 2018


Town centres & retail planning news, December 2018

03 Dec 2018



Headline news


Project to link landlords of vacant retail units with community groups launched

The Secretary of State has launched an Open Doors project, which is intended to link landlords of vacant retail units with community groups that offer vital services.
The funded pilots will run in five areas and will have the following objectives:
  • Support community groups to deliver much needed services to young adults and older people who are greater risk of suffering from loneliness;
  • Raise the profile of community uses on high streets;
  • Increase footfall in high streets and town centres;
  • Help to build socially and economically stronger communities;
  • Encourage meanwhile use to help support landlords struggling to cover business rates, utility bills and other costs;
  • Provide new uses for empty properties on high streets.
The charity Meanwhile Foundation will act as a broker to match landlords and community groups in order to deliver the pilots.  Meanwhile Foundation will receive the majority of the funding and will hold the leases on behalf of the community groups.
The Open Doors project is a strand of the government proposals aimed at support the 'transformation' of High Street set out in the Budget, with other strands including the consultation on planning reform and potential changes to main town centre use classes and permitted development rights.
Launching the project the SoS said that there 27,000 vacant premises in town centres, and suggested that "if just a fraction of these vacant premises were turned into homes, thousands more people could have a roof over their head".  This is either an observation not directly related to the project, because Open Doors project uses are intended to be temporary, or suggests that the community groups would provide housing as well as community facilities, for which planning permission or prior approval would be required.
In planning terms, premises taking part project might benefit from the proposed extension to temporary flexible changes of use for certain main town centre uses, depending on the nature of the temporary proposed use.
Lichfields' guide to changing ‘main town centre uses’ via existing and proposed permitted development rights shows the relevant temporary and permanent changes of uses that benefit from permitted development rights, and those currently being consulted on.
Applications must be submitted by 31 December 2018, with the decisions due in early 2019 and the spaces coming into use during the 12 month period that follows.

Open Doors pilot: call for landlordsSecretary of State's full speech to the Locality Convention 2018Lichfields' Guide to changing ‘main town centre uses’ via existing and proposed permitted development rights



Quote of the month

[…] And it is to the role of the architect I wish to turn. You are the guardians of quality […] What I know is we need more of your expertise involved in how we build and create communities, not less.

And ultimately, for me at least, that is why we build. To create communities. To create great places to live, work and spend time in. To create places we are proud to call home. To create that connection between the built environment and our identity.

At the core of this should be an aspiration for beauty. Whilst we may debate its precise nature, its existence is beyond doubt. And our spaces and places should embody this value.

As Secretary of State for Housing and Communities, these issues are an important part of my role. And something I will be returning to in the coming weeks.’

Secretary of State James Brokenshire. speaking at the Royal Institute of British Architects Stirling Prize award ceremony, 10 October 2018


A section 73 permission that varies a description of development can be lawful

A recent High Court judgment has considered the lawfulness of a section 73 planning permission that necessitates a variation to the terms, or description of development, of the original (or an earlier) planning permission.
In Finney v Welsh Ministers, Carmarthenshire resident John Finney sought an order quashing a section 73 planning permission granted on appeal for (amongst other things) two wind turbines with a 125m blade height.  The description of development of the original 2016 planning permission begins “25 year operation of two wind turbines, with a tip height of up to 100m […]”.
The claim was made on the ground that:
“the Inspector should not have allowed the appeal because she had no power under section 73 to amend a condition pursuant to which a prior planning permission had been granted which had the effect of directly contradicting the description of the development permitted in that earlier permission. Further or alternatively, the Claimant asserts that the Inspector failed to consider at all (as she should have done in accordance with established legal principles) whether the application before her constituted a "fundamental alteration" of the prior permission”.
Judge Sir Wyn Williams considered leading authority R v Coventry City Council, ex p. Arrowcroft Group plc (2001) and also more recent (2017) cases; Wet Finishing Works v Taunton Deane BC (2018), and R (Vue Entertainment Ltd) v City of York Council.  He discussed the interpretation of and potential inconsistencies between these cases concluded that both 2017 cases applied the reasoning in Arrowcroft; notably ‘the Arrowcroft principle’ that under a section 73 application a local planning authority:
"is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application".
The judge decided:
“that the only proper interpretation of the judgment in Wet Finishing Works, is that a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application”
And that he was not minded to depart from this “persuasive authority”.  To accept the claimant’s argument would “lead to an over-technical and inflexible approach to the application of section 73”.
The judge also concluded that the Inspector had considered whether the s73 application constituted a fundamental alteration to the original proposal, but that even if she had not, the Inspector had set out the major points of difference between the two proposals so meticulously that had she considered whether they constituted a fundamental alteration she would have concluded that they did not.
The application for judicial review failed.

Finney v Welsh Ministers and others

Final report of Raynsford Review published

‘Planning 2020’, the final report of the review of the English planning system, commissioned by the Town and Country Planning Association (TCPA) and led by former Housing and Planning Minister Nick Raynsford, has been published.
The final version of the 16-month review, which primary focus was a holistic appraisal of the planning system that England will need from 2020 onwards, builds and expands on the nine propositions included in the interim report (published in May 2018) to provide a set of 24 detailed recommendations on actions necessary to deliver the propositions.
Specifically, the Review makes recommendations on the purpose of the planning system; the need to deliver an effective and ‘people-centred’ planning; increasing community role in planning; supporting an outcome-focused system; simplifying the planning structures and aligning public agencies; tackling betterment values; and encouraging a visionary and creative role for planners.
Among the recommended actions, the Review supports a stronger legal status for development plans; returning control on conversions of offices and commercial buildings to local authorities; the publication of a new national building code; and the introduction of a ‘community right to challenge’ planning decisions that departure from the local development plan.

Town and Country Planning Association, Planning 2020 – Raynsford Review of Planning in England, Final Report



The Lichfields perspective

A recent court case has clarified the principles for determining the acceptability of a section 73 planning permission that results a planning permission with a different description of development to the permission being amended. This is most helpful and hopefully will make for easier discussions between developers and local authorities where this issue arises.
Ian Kettlewell, Planning Director


Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116