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Lichfields’ Expert Witness Aids Win in Long-awaited Retail Inquiry

Special Reports

by Neil Goldsmith & Georgia Crowley

An important inquiry involving an Appeal and three applications at Handforth Dean Retail Park, which were called-in by the Secretary of State, has been concluded. Neil Goldsmith (Senior Director at Lichfields) represented Orbit Investments (Properties) Ltd on the Appeal, which was granted permission. The outcome has interesting implications for those active in town centres and retail development, as sequential and retail impact matters were key in the decision making.

The Orbit Appeal application, for five non-food retail units and two café/ takeaways (planning application LPA ref. 15/0400M) was refused by Cheshire East Council in March 2016. Issues had been raised over the loss of employment land and retail concerns brought by objectors. The Appeal was recovered and granted by the Secretary of State, in line with the reasoning of the Inspector.

Three applications by CPG Development Projects Limited were also decided, in agreement with the Inspector’s report. An application for 2,320 square metres of retail floorspace (Phase 1b at the Land at Earl Road) was approved. Two further ‘Phases’ for significantly more retail floorspace were both refused.

Town centre fragility and retail impact

One of the key factors in the decisions was how town centre health is measured, in the context of considering retail impact.

Evidence was presented regarding a number of town centres. In particular, Stockport was considered to perform well against some criteria and less well against others. This is determined by considering a range of indicators, including vacancies, commercial rents, type of shops and current and planned investment.

Vacancy rates can sometimes show a bleak picture of town centre health. In Stockport, the vacancy rate was more than double the national average (2017 data shows 24.1% and updated 2018 survey shows 21%). Whilst some objectors highlighted the fragility of the town centre, the Inspector acknowledged the former BHS was quickly re-let to Poundland, the main linear shopping street has a good range of shops and appears moderately vibrant, and recent development should have a positive impact on the town.

This decision highlighted an important point when undertaking town centre health checks elsewhere; one figure alone (for example, vacancy rate) does not present an accurate representation of the health of the town centre:

“… health check indicators are ‘an indication’ and nothing more – they are not a cumulative formula or calculation and they should not be taken in isolation. Rather, a rounded assessment and a measure of judgement is required…” (Inspector’s Report Conclusions, Section 9.158) The impact levels of the Appeal proposal did not represent a ‘significant adverse’ impact on the vitality and viability of the relevant centres. Evidence presented in the Inquiry substantiated this claim.

Site flexibility and the Sequential Test

In relation to the sequential test, a key point raised against Orbit’s development by a Rule 6 party, was the availability of a former Toys R Us, Unit 6 of the Peel Centre in Stockport.

Unit 6 was dismissed by the Inspector as not providing “a reasonably or closely similar alternative to that which is proposed by Orbit” (Inspector’s Report Conclusions, Section 9.193). The Secretary of State has expressly endorsed that sequentially preferable sites must be ‘closely similar’ to proposal sites (derived from the Tollgate decision), however the Inspector claimed this is not a policy test. For Handforth Dean, the Inspector appears to have used the test ‘reasonably or closely similar’ and this wording is supported by the Secretary of State in granting permission.

The Orbit proposal covers 6,000 square metres (gross internal area) and has 7 units. Unit 6 covers 5,393 square metres and has permission for subdivision into 5 units. The sites may seem relatively comparable in size, however Unit 6 was considered not ‘reasonably or closely similar’ based on the differences in unit size and configuration, prominence and servicing, even “taking into account of the need for reasonable flexibility” (Inspector’s Report Conclusions, Section 9.193). Importantly, this draws attention to the level of flexibility and similarity that is required to be applied to proposals when undertaking sequential analysis.

Following the Inquiry, information was received that Unit 6 has now been let to the Range, signaling investor confidence in Stockport and conclusively removing it as a sequentially preferable site.

Overall, a strong case for the Orbit proposal was made during the Appeal and objections were given limited weight. Expert evidence corroborated that there would be no unacceptable impact on existing or committed investment, nor significant adverse impact on the vitality and viability of any relevant town centre.

Lichfields is able to prepare and present specialist evidence at inquiries, hearings, examinations and other litigation proceedings. Our experts have in depth knowledge of such procedures and a proven track record of providing this quality service to our clients.

Lichfields been at the forefront of planning and development in the UK since the company was founded in 1962. And now, half a century later, we're the most successful consultancy in the field.

We have offices nationwide, please see; www.lichfields.uk


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