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Town centres, retail and leisure: left on the shelf?

The character of retailing has changed substantially in the 6 years since the NPPF was first published.

The character of retailing has changed substantially in the 6 years since the NPPF was first published. Amazon is now the UK’s 5th largest retailer according to Verdict and the continuing shift in consumer shopping and leisure habits has meant the High Street continues to change fast.

A reasonable expectation might have been that the draft new NPPF would recognise this and promote a pro-active and innovative response. Also since 2012 the Supreme Court and other judgments have been used to clarify the interpretation of retail guidance in the NPPF, such as the sequential test.

And so the possible changes in the draft NPPF have been awaited with great interest in the retail and leisure industry...

In terms of the headlines:  

  • The general thrust of policy has not changed; the town centre first approach remains.
  • In terms of the sequential test, availability of more central sites “within a reasonable period” now needs to be considered. This has not been defined and care is needed for schemes not in a town centre.
  • Despite important Secretary of State decisions, the approach to ‘disaggregation’ in the sequential test has not been further clarified by the draft NPPF.
  • In terms of the impact assessment, out-of-centre office developments are no longer to be subject to an impact assessment. Perhaps a response to encouraging new offices in light of substantial loses via PDR?
  • As before, a hotel use is not included within the glossary’s definition of a retail or leisure use, and hence out-of-centre hotel developments are not subject to an impact assessment.

As such, it is largely ‘business as usual’ in terms of the tests to be applied when promoting retail, leisure, hotel and other town centre type schemes, but we think caution is needed in the proposed change to the sequential test wording – read on.

Reasonable period

Paragraph 87 of the draft NPPF now states the following, with the new wording underlined:

“...main town centre uses should be located in town centres, then edge of centre locations; and only if suitable sites are not available (or expected to become available within a reasonable period) should out of centre sites be considered.”

Whilst there is no definition of ‘reasonable’ contained within the draft text, it may relate to the specific development programme of a proposed scheme, or indeed it may be that occupier requirements set these parameters based on their operational model. The probability is that it will need to be defined on a case-by-case basis and so could be a renewed area for the courts to decide.

This needs to be set within the context of the Mansfield judgement, where the identity and personal or corporate attitudes of a particular retailer or developer were less relevant. This being said, in terms of the practicalities of the sequential test, experience has taught us that it can be more straightforward to robustly address the test with a named operator on board.

Overall

It seems the biggest effort in revising the NPPF has gone into other matters, housing in particular. So, the thrust of guidance for retail, leisure and town centre uses is largely left unchanged.

Despite the draft NPPF not attempting to reflect the significant changes taking place in the retail and leisure sectors, there is at least comfort in being familiar with the key tests we have to deal with in promoting sites and schemes.

Two areas where Turley will be watching closely are new cases defining what a ‘reasonable period’ means in practice, but also whether the accompanying NPPG tightens up on how MHCLG wants the sequential test (and possibly impact test) applied.

Get in touch

For more information on any of the issues raised in the article please contact Paul Keywood or David Wetherill.

Further Turley commentary on the draft revised NPPF is available here.

14 March 2018

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