Town centre planning: what’s the point?
Spring has sprung, lockdown’s gradually easing, and life’s almost starting to resemble the old days. You know. When we’d leave the house. Every now and then. And isn’t it exciting! My 1st haircut in months. Interacting with other human beings. In real life. SHOPPING. Real shopping. Well. Whatever else life brings us after lockdown, one thing’s for sure: our high streets won’t look the same. It’s a sad farewell to Debenhams, Topshop, Oasis, Thorntons. And for thousands of small retailers, these are serious and perilous days. Another brutal cost of an unimaginably brutal year.
What’s all of this to us #planoraks? How should our planning system respond to the crisis on our high streets?
Well, for donkey’s years successive Governments have made the planning system its vehicle for a “town centre first” approach. Take golden oldies like PPS6. The Government’s “key objective” - it tells us - is to promote the vitality and viability of town centres. Lots of good stuff in there about enhancing consumer choice, supporting innovative retail, leisure, tourism, all sorts, and doing it in a way that is accessible. Of course, right? That’s what all of this should be about. Promoting social inclusion. Regenerating deprived areas. Promoting economic growth. Delivering more sustainable patterns of development. Come on, folks - that’s a list of planners’ greatest hits. And all of those marvellous aims were given voice through policies which promote the health and prosperity of our town centres.
Yes, things were pared back in 2012 by the National Planning Policy Framework, but even now we’ve a nice pithy section on town centres which covers much of the same ground, and kicks off with the idea that “planning policies and decisions should support the role that town centres play at the heart of local communities, by taking a positive approach to their growth, management and adaptation”. Yes. Amen.
There are two really important ways that national policy tries to restrict desirable uses from flooding out of our town centres:
For “main town centre uses” - defined here - there’s a sequential test which means they should be located in town centres, then in edge of centre locations; and only if suitable sites are not available, “out of centre” - for more info, see the PPG here.
For retail and leisure schemes outside town centres which don’t accord with an up-to-date plan - if the scheme’s large enough (the default is over 2,500m2) - you need to assess the impact of the proposal on “town centre vitality and viability, including local consumer choice and trade in the town centre and the wider retail catchment”.
Those are national policy tests, but the local plans are where the magic’s supposed to happen. The PPG tells us that “local planning authorities can take a leading role in promoting a positive vision for these areas, bringing together stakeholders and supporting sustainable economic and employment growth”. Can they, indeed! Well that sounds promising. Policies need to “define a network and hierarchy of town centres and promote their long-term vitality and viability”, and they do that by allocating “a range of suitable sites in town centres to meet the scale and type of development likely to be needed, looking at least 10 years ahead”. Try predicting 10 days into the future in this climate, let alone 10 weeks or months. 10 years is a tall order indeed.
And it’s a particularly tall order when you reflect on a key limitation of the planning system. A limitation which goes right to the heart of things. Back to square one. After the 2nd world war, the Government decided to nationalise the right to develop land. And here we are. What does development mean? This is what is means: section 55 of the Town and Country Planning Act 1990. In a nutshell, we’re talking about “operational” development (e.g. building works) on the one hand, and material changes in the use of land on the other. But that’s it. That’s all the planning system gets to regulate. If it ain’t “development”, it’s somebody else’s job.
Now in the end, it’s the Ministry who decides what development means. They can bring things into that statutory definition. But they can kick things out too. And one of the big ways the law excludes changes of use from the definition of development is through the Use Classes Order: see here for more info. And that, of course, is what Class E is all about. It kicks lots of material changes of use outside the definition of development, and so takes them outside the scope of planning control.
All of which is why, as I’ve banged on about before in these pages:
Last year’s “Class E” was one of the most significant rollings back of regulatory control in the planning system for decades: see here.
Class E drives a coach and horses through lots of the big ideas in our national policy on town centres: see here.
And the proposed permitted development right to change use from Class E to residential without applying for planning permission was 2020’s most radical idea for reform (in a pretty crowded field): see here.
Well, that permitted development right is upon us now. Class MA - see my quick primer here, and Simon Ricketts’ more detailed look here. And for a proper chin-wag about it, you are cordially invited to join me and good folks at Town Legal (including the one-and-only Mr Ricketts himself!) for a no-frills briefing on ”The Commercial To Residential PD Right: How It Works (Or Doesn’t)” - this Wednesday 28th April at 5.30pm. Be there or be square: registration here.
One question I’ll be talking about with is where all of this leaves town centre policy? If you no longer need permission to change uses within Class E, or then to change from Class E to residential… doesn’t that rather pull a rug out from under local planning authorities trying to do the things they need to do to promote the vitality and viability of town centres? What’s the point of a policy which allocates a site for (say) retail if planners have no control over whether the building ends up (in the end) as an office? Or a flat? Without the need to apply for planning permission? What’s the point of the sequential test if we can apply for (say) an out-of-town medical centre, bag our planning permission, and then – with no further need for planning permission – change the building’s use to restaurant or retail?
This is tricky stuff. It’s hard to square the desire for flexible high streets on the one hand, whilst trying to retain and support “main town centre uses” on the other. That’s the thing about “flexibility”. By definition, really. It can’t be planned. The lack of plan-led outcomes isn’t a bug. It’s a feature.
So where are we left? After Class E and Class MA, what’s the point of planning for town centres? If there is one left at all?
There’s a few big things to say:
Class MA’s about changes of use. Not operational development. So if you need a new building, or if you need to change an existing building in a way which isn’t permitted development - well then you may yet need an old-fashioned planning application, and town centre policies could be important factors then when it comes to finding a planning basis for imposing conditions e.g. to limit use to (say) retail. So is there still any point in planning for town centres? Well. In a word. Yes.
Another point is that to adopt a local plan, it needs to be sound (for now anyway - unless and until the planning White Paper has its way) - see my take on soundness here. But one thing a sound plan needs to deliver is a strategy to meet its needs for - among other things - town centre uses which includes defining a network and hierarchy of town centres. So another good reason to keep on planning for town centres. If you don’t at least try to do it, your plan won’t get adopted.
That said, if we’re talking about changing use from Class E to residential - let’s be clear. Local and national policies fall away. We’re into the brave new world of the prior approval procedure. For my screed on that, have a look here. The key headline is that prior approval isn’t planning permission. Permission’s already granted. The scope of issues material to our prior approval application is fixed and fixed exclusively by the terms of the order. There is no free-standing requirement to think about the development plan. Or other material considerations more generally. Or even the NPPF – unless of course the order tells us to think about the NPPF.
Class MA is subject to some interesting conditions - we’ll be talking about them on Wednesday. But what is not there? There’s no test for considering the impacts on the vitality and viability of the town centre in relation to (say) losing existing uses to residential. The closest we come is a requirement, when you’re considering ground floor development in conservation areas, to consider “the impact of that change of use on the character or sustainability of the conservation area”. We’ll have to find out together what “sustainability” is supposed to mean in that sentence. I suppose it might just be vague enough to squeeze in a discussion about retail impact. Time will tell.
But here’s the real kicker: for pure changes of use under Class MA, all of that national policy on town centres. The PPG. The sequential test. Retail impact tests. Allocation policies. Local and national policies telling us to focus on the vitality and viability of town centres. The good old-fashioned PPS6-style greatest hits. Well. It takes us nowhere. Those policies aren’t engaged because the prior approval exercise doesn’t need them.
So there we are. In the end, we do still have to keep on writing planning policies to cover our town centres. For now. To accord with the requirements of the NPPF. But let’s be clear. A casualty of this drive for “flexibility” on our high streets is the ability to actually achieve a plan-led outcome in town centres. Now some of you might think that sounds wonderful. You might be thinking: isn’t it about time planners got out of the way and let the high street thrive. Well. Yes. OK. You may be right. We’ll find out together.
But let’s at least be clear about the journey we’re about to embark on. A profound deregulation of land uses in and around our town centres. A departure from decades of plan-led “town centre first” strategising. I mean look. It may work wonderfully. Let’s hope it does.
But at the same time: let’s not pretend to know whether this is going to work or not. We can’t. Not yet. That’s what flexibility is all about. The inability to plan for what’s coming next.
In the meantime, whether you’re a townie or not, I hope you’re safe, well and getting out and about in the sunshine. Do come along on Wednesday evening if you can spare an hour. And, of course, #keeponplanning.
