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Nimby threat to retail development

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Getting on board with a major global retail brand is an enticing prospect for many landlords and aspiring franchisees, but navigating the planning system can be a major headache where it is necessary to obtain planning consent, such as a change of use, before a new store can start trading.

There are hidden dangers because whilst the planning system does not differentiate between different retail brands, the local community may perceive a huge difference.

For example, a planning proposal submitted by a small independent coffee shop owner might be roundly welcomed, whereas the same application made on behalf of a well-known brand could just as easily arouse vociferous objections.

We are seeing increasing examples of this working against the major brands, such as one case in Bristol where local protestors are claiming that a proposal for a new Costa Coffee outlet would “undermine the viability of independent shops” in the area. This type of resistance is a particular risk in areas which possess a strong local identity, where planning opposition can gain swift traction.

The ultimate consequences of this can sometimes be violent and extreme, and go beyond lawful limits, as witnessed in the Bristol riots of April 2011 after the Council had granted permission for what was only later revealed to be a new Tesco Express store, in a culturally ‘bohemian’ part of the City on Cheltenham road.

In the current economic climate of austerity and “localism”, elected councillors are faced with difficult political choices when having to decide such planning applications.

There is a prevailing mood of doing what is reasonably possible to give local business a boost, but this can lead to ‘protectionist’ thinking when an application is submitted on behalf of a global retail name which attracts widespread objection.

It is natural that some councillors will be swayed by strong local feeling. We have seen a tendency for whole planning committees to bow to concerted opposition by refusing permission in contentious cases, preferring to have the matter taken away on appeal.

This can happen even where the officers have recommended approval and where the planning justification for refusing consent is patently lacking. Resulting planning appeals lead to frustrating delays for business, whilst fighting them is also a wasteful drain on Council resources.

Where the proposed planning use would involve a loss of prime retail frontage authorities will sometimes be able to point towards development plan policies designed to guard against this.

Typically, these policies will place limits on the allowable percentage of non-retail floorspace, or might even constitute a complete embargo. This does not mean that refusal will always be justified.

In cases where the development plan is absent, silent or relevant policies are out?of?date, the new ‘presumption in favour of sustainable development’ brought in under the National Planning Policy Framework (NPPF) will support positive proposals.

Equally, where town centres are in decline, the NPPF encourages local planning authorities to “plan positively for their future to encourage economic activity.”
It is for applicants to extol the potential benefits.

The opening of a big brand store can vitalise a run-down shopping area, for example the role of coffee shops in creating a ‘cafe culture’, which can aid the overall shopping experience and hence the ability to generate additional footfall in support of town centres.

There are already countless examples of cases where refusals have been successfully overturned on appeal where insufficient weight has been given to such factors. It is generally a good idea for applicants to enlist professional advice, including help from a specialist planning law advisor who can put the authority’s decision under close scrutiny, and guide the appeal process.

There are risks even where the Council has granted consent. Unpopular applications might be vulnerable to judicial review challenges by disgruntled campaigners.

This was the situation in Bristol when Tesco, amidst scenes of civil unrest, sought to build upon the original consent by seeking permission for an outside refrigerator unit that was required as part of its intended operation. The process eventually survived scrutiny of the legal challenge, but not without several months delay together with the painful cost of High Court proceedings.

The application process is fraught with many potential legal pitfalls which can lead to permissions being quashed by the courts. The general lesson is that risk can be reduced by prudently monitoring the Council’s handling of the planning process, for example to check that the committee report and draft notice of consent are free from actionable legal errors.

The future presents fresh challenges for big name brands. Local communities are being empowered under the new Localism Act to shape their own neighbourhood plans, whilst the guiding principles of the NPPF will now “promote competitive town centres that provide customer choice and a diverse retail offer and which reflect the individuality of town centres.”

In time we may therefore see plans emerge which present barriers to the established brand name players, with a new emphasis on diverse independent retailing with local connections.

Exactly how this will play out in practice still remains to be seen, but it is interesting to see how a similar policy strand introduced in the most recent Department for Transport policy for motorway service areas, which encourages the provision of “products sourced from local providers wherever possible”, is being interpreted in practice.

The Gloucestershire Gateway MSA development on the M5 near Gloucester will pioneer a new approach, by guaranteeing minimum volumes of goods and produce sourced locally and regionally via commitments enshrined in the form of s106 planning obligations. The usual brand name retailers will be no-where to be seen.

Ben Garbett is a Planning Lawyer at Keystone Law

Published on Friday 13 April by Editorial Assistant

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