An irreverent look at some of the hot topics in planning. All commentary is given in good faith but does not constitute advice! For specific help on planning matters, please contact us.

Crossing the threshold

January 9th, 2019

It is well established in national planning policy, through both the original NPPF and now NPPF2 (at paragraph 89) that development plans must indicate a proportionate, locally-set threshold for assessment of the impact of new retail development and if it does not, then the national threshold of 2,500 sq m applies.

The National Planning Practice Guidance (“NPPG”) is even clearer as to the Government’s policy on this. It says in answer to the question “When should the impact test be used?” that “..the impact test only applies to proposals exceeding 2,500 square metres gross of floorspace unless a different locally appropriate threshold is set by the local planning authority.” (Our emphasis).

Against this guidance the position is reasonably clear. Impact is only a test and only needs to be assessed by an applicant where a proposal exceeds either an adopted development plan threshold, or absent such a threshold, the national threshold of 2,500 sq m.

I note for example the decision of the senior Inspector Clive Hughes in the June 2016 decision at Colchester (Appeal Decisions APP/A1530/W/15/3139492, APP/A1530/W/15/3139491) where he opined (at Paragraph 25) “Paragraph 26 of the Framework says that when assessing applications for leisure development outside town centres, which are not in accordance with an up-to-date local plan, the authority should require an impact assessment if the development is over a locally set floorspace threshold. In this case there is no such threshold so the default figure of 2,500 sq m applies. The combined schemes have a total floorspace below this figure so no impact assessment is required.”

The apparent objective of policy being drafted in this way is that if a Council wants to exert more control over issues of town centre impact then it must get a shift on with preparing an up to date development plan with an evidence based local threshold. It is also implicit in setting the default threshold at 2,500 sq m that individual proposals below this level ought not as a rule to give rise to significant adverse impacts.

Rather than rise to this challenge, however, it does seem that some Councils who have been rather lethargic with their plan preparation are forcing developers to force them to submit impact assessments where they are not actually required, for example refusing to register planning applications without a retail impact assessment even though it is not a validation requirement.

Why are they doing this when the test “obviously” would not apply anyway on the context of the NPPF2 and NPPG? Some might argue that they are seeking to defend a gaping hole left in the defences of allegedly vulnerable town centres by national policy. Others might argue that even after all the economic turmoil, Councils are failing to grasp the realities of the changing retail sector and its implications for town centres and are seeking to put a block on any development that might have any effect on existing town centre retail. This is despite the growing evidence that the biggest threat to the high street is internet shopping and the state of the economy generally, not new ‘bricks and mortar’ floorspace.

There appears to be two “angles of attack” being adopted to circumvent the objectives of the NPPF2 and NPPG.

Firstly, if a Council is able to persuade a developer to submit a retail impact assessment, even one that is a ‘light touch’ or described so as not to mention the ‘I’ word, it is then argued that the submitted information is material to the determination of the planning application. This is plainly absurd. Common sense would suggest that information insisted upon that is not formally required ought to be given little weight.

However that was not the approach adopted by the Inspector in the rather left-field appeal decision in Edwinstowe earlier this year. In reaching his rather surprising view of significant adverse impact on a healthy district centre by a small convenience store, the Inspector in that case took the view (contrary to that set out in the view of Leading Counsel that was provided by the appellant to address this issue), that even though there was no policy requirement for an impact assessment, as one had been provided then it could make the issue of impact material.

It is perverse that having been instructed to submit a retail assessment by the Council for which it was accepted that there was no formal requirement, that submission opened up the issue that the Inspector then used against the appellant to argue that a development of a scale one-tenth of the national threshold (and below the threshold set in the emerging plan, interestingly) would have a significant adverse impact.

The second tactic being adopted is giving weight to retail impact policies of the development plan even where the policies don’t comply with the NPPG and NPPF requirements. Aid is prayed in this regard from the judgment of Ousley J in Aldergate Properties. This has been interpreted by some parties as an opinion that sets aside the guidance of the NPPF and NPPG in assessing impact.

It is certainly the case In the Aldergate Properties judgment that Ousley J underscored the primacy of the development plan and that while the absence of a local threshold would be material to the weight afforded to the development plan’s retail impact policies it did not negate the need to consider compliance with those policies in the first instance.

However the judgment went beyond this. At paragraph 64 Ousley J opined that while impact may still be material, the threshold removed the burden of doing a proper, researched, assessment. Furthermore he endorsed the common sense view of the NPPF in that “adverse impact is unlikely below the default threshold unless a local authority has decided that a lower threshold is relevant.”

The effect of this is that while impact may still be a technical policy consideration for any retail proposal falling within the scope of the development plan’s policies, then a) there is no requirement at all for an applicant to prepare a retail assessment to support an application below the requisite threshold; and b) adverse impact is unlikely to arise from a proposal below that threshold.

The overall approach therefore would appear to be that if a proposal falls below a local threshold in an adopted development or the 2,500 sq m default threshold in the NPPF2, then a) no impact assessment is required; and b) absent the submission of a retail impact assessment by the applicant, the onus falls on the Council to rebut a presumption of there being no significantly adverse impact.

What is happening on the ground however is that Councils are now applying pressure to developers that do not want to go to the cost and expense of preparing a retail impact assessment where one is not required by policy, that they will be refused permission if they do not submit one.

The NPPF2 and the costs advice in respect of appeals requires Councils to have clear evidence to support any refusal. However, the mere threat of delay and the cost of an appeal is enough to frighten some developers to give in to these unjustified requests. In acquiescing, they then effectively turn the presumption around, placing the onus to prove no significant impact back on the applicant.

These tactics to quite obviously defeat the purpose of national planning policy and guidance illustrates that positive planning has yet to enter the lexicon of some decision makers. These tactics undermine the objectives of Government to create certainty and clarity for developers and investors in the ‘bricks and mortar’ retail sector, which is a real worry in this fragile economy.

In years gone by this issue would have been flushed out very quickly through consideration of retail schemes at public inquiry, but the slow death of the retail development market has meant that this issue has not been properly aired.

In the meantime the general advice* is simple. If there is no local threshold or a proposal falls below it, do not be co-erced into submitting a retail impact assessment or even a document of similar effect with a different title, it can only bring problems down the line.

*For advice on any specific projects we would be happy to provide detailed advice!