I blogged in Sequential Test: Still Testing (23 September 2016) on the uncertainties of the “town centres first” sequential test in the NPPF and in particular how much flexibility needs to be shown by a prospective developer in looking for more central sites before being granted permission in an edge or out of town centre location. At the time I wrote, the most recent judgment was that of Ouseley J in the Aldergate case. I included in my blog post extensive quotes from the judgment where he set out his views on the flexibility required in determining whether a site would be suitable.
The issue is seldom easy. If too little flexibility is required, it is too easy for the promoter of an out of centre scheme to demonstrate that the scheme can’t fit anywhere more central. On the other hand, if too much flexibility is required, economic activity, often generated by specific trading models or retailer requirements, that would not be likely to take place in a more central location can end up being unnecessarily stifled. And what does flexibility mean? How similar would the scheme on the town centre site need to be? What if the scheme could be split (“disaggregated”) onto more than one site? How immediately available does the town centre site need to be?
The issue has come to the fore again in two recent planning appeals.
By his decision letter dated 20 December 2017 inspector Robert Mellor dismissed an appeal in relation to a proposed retail development on an edge of centre site in Kingswood, Hull. He found that the proposal failed both the sequential and impact tests in the development plan (which had been adopted during the course of the inquiry) and in the NPPF, supplemented by the PPG. He also found that the proposed development would be inconsistent with the site’s allocation for employment and community uses in a 2016 area action plan. The decision letter is interesting for the analysis that the inspector gives to each of these issues but in this blog post I want to continue to focus on the question of how the sequential test is to be applied.
The inspector was faced with an outline proposal for the erection of class A1 and class A3/A5 units totalling 11,148 sq m together with associated works on a greenfield site. The site would allow for large retail units and there was to be provision for “ample surface car parking which is likely to be free to use and which would take up a large proportion of the site“. There were two candidate alternative sites to be considered in Hull city centre, namely the Albion Square and Myton Street sites.
First the inspector considered what flexibility was required: “there is dispute as to how alike the sites and schemes need to be for the in-centre site or sites to be considered suitable. In particular there is dispute as to the interpretation of the Framework phrase: ‘demonstrate flexibility on issues such as format and scale’, as that wording does not itself explain what degree of flexibility is appropriate.”
The appellants argued for “the use of wording which would require the development to be implemented only on one site and which would require the development, in that and other regards, to be ‘closely similar’ to the appeal proposal. In effect this could mean seeking to insert a retail park style of development with on- site parking and a main road frontage into only one city centre site.”
The inspector did not consider “that the term ‘closely similar’ provides a useful and readily applicable definition of the limits of flexibility that is capable of wider application. In particular it is difficult to distinguish its meaning from the term ‘not precisely similar’ which is the approach that the PPG expressly seeks to exclude. Moreover the strict application of such a term as ‘closely similar’ would risk making the sequential approach unworkable for the same reasons as set out in the Tesco v Dundee case.”
He noted that the scheme was speculative without identified occupiers. “Thus the question of an individual retailer or corporate personality does not arise.” He noted that “whilst the appeal scheme is for a single terraced building, the Appellants’ witnesses did not object to the subdivision of the development into separate buildings and there is no obvious reason why those would not be suitable for the intended occupiers“. He noted that the appellants maintained that a 10% overall reduction in floorspace would provide adequate flexibility but did not justify that figure and he assumed that it could be achieved in various ways, whether by for instance removing at least one unit or generally reducing their size. He noted that flexibility by way of form or format could include “whether the proposal can be provided in one or more buildings: whether space is on one or more levels; how individual units are laid out; and how and where parking and servicing provision is made.”
The inspector then turned to the two potentially sequentially preferable sites.
He concluded that the Albion Square site “would have the capacity to accommodate all, or most, of the retail floorspace and food and beverage units sought in the appeal proposal together with on-site parking. However this would be likely to require some revisions to the layout in order to create all the large retail units on 2 levels which the appeal scheme proposes and to optimise the scheme’s attractiveness to potential occupiers. That in turn could affect how and where the residential and ice arena elements of the Council’s most recent proposals are accommodated and how much car parking could be provided. However a city centre site would be attractive to retail occupiers seeking a range of unit sizes. Some flexibility should be expected in unit scale and format. A 929sqm minimum size for all units would not be necessary on a city centre site. The Appellants had previously been satisfied with a smaller minimum unit size at Kingswood.”
He concluded that the Myton Street site was “not of sufficient size to provide all of the floorspace in the appeal scheme together with full on-site surface parking. It could provide much of the floorspace if reliance were to be placed on use of the adjacent multi-storey car park. However it would then be less attractive to retailers than the Albion Square site due to its weaker pedestrian links to the rest of the Primary Shopping Area.”
The inspector then went on to consider whether the floorspace in the appeal scheme should be disaggregated for the purposes of determining whether it could be accommodated more centrally. He concluded yes:
“In this case there is no particular evidence that it would be commercially or functionally necessary to accommodate a variety of individual and as yet unidentified comparison goods retailers either in only one building or on only one site in the City Centre. I therefore conclude that in addition to the option to accommodate all of the appeal proposal on the Albion Square site, they could all be readily accommodated in the city centre, and at the same unit size, if the development were to be sub-divided with approximately half of the floorspace at The Albion Square site and half at the Myton Street site. In that event there would also be the possibility of more generous surface parking provision at Myton Street if that was considered necessary to make that scheme more attractive to some types of retailer.”
Then the inspector considered whether the alternative sites could be said to be available:
“I consider it would be unreasonable to exclude sites as non-available where there is a reasonable prospect that they will be both vacant and in single ownership within a matter of months.”
He accordingly concluded that the scheme had failed the sequential test.
The appellant’s submissions in Hull that development on a town centre on town centre site would have to be “closely similar” in order to be sequentially preferable were based on the conclusions of an inspector in relation to a partly edge of centre retail scheme at Tollgate, Colchester, accepted in a decision letter from the Secretary of State dated 4 August 2017. The inspector put it like this:
“The sequential test therefore means that whilst a sequentially preferable site need not be capable of accommodating exactly the same as what is proposed, it must be capable of accommodating development which is closely similar to what is proposed“.
(This conclusion was perhaps strange given that it followed an earlier passage:
“In this case there is no evidence that the proposed format is necessary or fundamental to the proposal. Whilst the proposal is in outline, not a single retailer has been identified, and the size and location of units within the site has not been established and there is no defined timescale or phasing. It is difficult to conceive of a more open ended proposal. The parameters established by plans show a greater level of gross floor space than permission has been sought for. Most importantly the Appellants have themselves disaggregated within the appeal site with three distinct zones. DZ1 and DZ3 are some distance apart. In these circumstances disaggregation within the sequential test would be justified.”)
The inspector found that the town centre sites put forward by the council and objectors were not suitable or available. The appeal was allowed.
But surely, as the inspector identified in Hull, a test of “closely similar” would risk making the sequential test unworkable? The main objectors to the Tollgate appeal challenged the Secretary of State’s decision to allow the appeal. Permission was first refused on the papers by Lang J, who commented that “closely similar” was a fair summary of Ouseley J’s guidance in the Aldergate case. The objectors then renewed their challenge at a hearing on 19 December 2017 before none other than Ouseley J. Whilst Ouseley J also refused permission, his reasoning should be noted by anyone dealing with the sequential approach. His judgment was ex tempore and there is not yet an official transcript but, according to colleagues’ notes, his comments during the course of the hearing included the following:
* “If I had meant ‘closely similar’ I would have said ‘closely similar’.”
* If the developer has committed to no specific details in its scheme, then the sequential test should not require the sequential sites to meet a test which the application scheme itself could not pass.
* With reference to his statement in Aldergate, Ouseley said: judges may use particular language, but this language is not a substitute for the policy itself. Instead, the language is applying the policy in a particular context. There is a danger that people think that judges are providing a substitute for policy.
* The words of NPPF 24 are simple and meant for application in a wide range of circumstances.
* “In Aldergate, I had in mind something broader than ‘closely similar’.”
I draw a few conclusions from this tangle:
– There are real conceptual difficulties in being too specific about the necessary elements of a scheme which is speculative without, for instance, retailers on board with specific requirements.
– Without a requirement to show ‘need’, the only constraint on the scale of an out of centre or edge of centre scheme is the risk of being refused permission on the basis that there would be an unacceptable impact to nearby centres – aside from that, the bigger the scheme, the less likely there are to be sequentially preferable sites if there is not allowed to be a significant degree of flexibility.
– There are dangers in rigidly applying case law or previous appeal decisions across the board. Each case turns on its circumstances. Equally there are dangers in relying on paraphrasing by courts or inspectors of what policies say – go back to the wording of the policy itself.
– In particular, take care over relying on the Colchester decision.
– The guidance could be clearer (indeed it used to be!)
Simon Ricketts, 22 December 2017
Personal views, et cetera
(Town acted for separate groups of town centre investors in relation to the Hull and Colchester appeals. Thank you to Town colleague Ricky Gama in particular for his work on those cases and for his notes quoted above).