Appendix 6b
Appendix [1] Review of UK Grocery Sector
(i)
Introduction
1.1
This appendix provides commentary on grocery retailing and the different
market segments and individual operations within it, as well as the different
requirements and functions of each operation.
(ii)
Grocery Retailing Overview
1.2
The grocery retailing sector in the UK is a diverse retail sector with numerous
retailers playing a role in catering for people’s everyday convenience (food
and household good) retailing requirements. It is rapidly expanding and is
now a significant contributor to the UK economy in terms of GDP,
commercial investment and employment.
1.3
The sector is dominated by the four principal retailers (Asda, Morrisons,
Sainsbury’s and Tesco) and supported by a wide variety of other retailers
serving different roles in the market place. These include the following:
1.
Waitrose which operates in both a primary and secondary
supermarket role catering for a specific high earning
demographic aswell as those on more restricted incomes.
2.
Aldi, Lidl and Netto which cater for the discount food retail
market.
3.
A range of convenience goods retailers providing principally a
‘top-up’ or specialist shopping role. This includes Marks and
Spencer Simply Food, Co-Op, Spar, Londis and the Tesco and
Sainsbury’s Express and Local formats.
(iii)
Market Segmentation and Formats
1.4
In broad terms, the grocery retailing market is split into four distinct types of
store:
1. Superstores
1.5
Superstores are almost exclusively operated by the four largest operators
mentioned above. They are generally places where consumers undertake
their ‘main’ food shopping trip. The former PPS 4 defined a superstore as a
store with a trading floor area (i.e. net sales floor area) in excess of 2,500 sq.
m, but modern stores typically have a gross floor area ranging from 4,000 sq.
m to 10,000 sq. m. They offer a comprehensive product range of both food
and non-food goods and are typically located in edge or out-of-town
locations (given their scale). To meet the requirements of customers they
have dedicated car parking provision and are located in accessible locations.
1
6b.1
2. Large Supermarkets
1.6
Secondary supermarkets including Waitrose, M&S and Co-op generally
comprise the middle segment of the market. Stores are typically smaller
than those operated by the largest four retailers generally ranging in size
from between 500 sq. m and 3,000 sq. m (GIA). They offer a smaller range of
products and less choice than superstores and a reduced range of ancillary
comparison goods.
1.7
These stores attract a wide variety of shoppers and perform various
functions in the market, in particular, Waitrose and M&S sell a higher
order/value product and are aimed at a specific social demographic. They
can be used as a primary, bulk food shop and also perform a ‘top up’ role for
consumers who do not wish to visit a superstore, but require extra products
during the week. Given their more limited size they are more likely to be
capable of being located on the edge of existing centres.
3. Discount Retailers
1.8
The discount sector of the grocery market has developed significantly over
the last ten years, with particular growth in popularity during the last three
years as the UK has experienced an economic downturn. The main discount
retailers, or Limited Assortment Discounters (LADs), include: Aldi, Lidl and
Netto.
1.9
LAD stores are generally between 929 and 1,500 sq. m (GIA). They offer a
significantly reduced product range (between 1,500 and 2,000 items) than
superstores and only a limited range of ancillary comparison goods
(approximately 5 – 15% of net sales).
1.10
The business model of large format, national multiple discount food retailers
is based on attracting consumers with very low prices which are achieved
through own brands or bulk buying of a core range of product lines. They are
often used as a primary shop, but also perform a ‘top up’ role for consumers
who do not wish to visit a superstore, but require extra products during the
week.
4. Convenience Stores and Specialists
1.11
Convenience stores trade from much smaller floor plates, typically no more
than 500 sq. m (gross). They are located in city centres, neighbourhood
centres, local parades and stand alone units. The sector can be split into two
principle groups: major supermarkets trading their small ‘express’ formats
and independent retailers.
1.12
Outlets such as Tesco Express, M&S Simply Food and Sainsbury’s Local have
set new standards for convenience stores but need high footfall to operate
successfully. They are typically located in well populated district or town
centres or prime locations on busy arterial routes. There is also stronger
2
6b.2
emphasis on food for convenience and prepared meals with more single
person households.
1.13
Other specialist formats include frozen food retailers (such as Iceland and
Farmfoods) and these meet a very niche sector of the overall grocery
market.
1.14
Independent stores typically rely upon the convenience of their premises in
relation to the immediate resident population as they have to operate a low
turnover, high margin model.
5. E-commerce
1.15
E-commerce involves all of the three sectors described above. It is still only a
small percentage of the overall grocery market. Tesco is the most successful
operator generating sales of approximately £2bn. in 2008 (Mintel Retail
Rankings 2010).
1.16
Due to the problems associated with shopping for grocery goods over the
internet (i.e. replacement of products not available at the time of order), it is
not expected to become a significant threat to the traditional supermarket.
Moreover, the main supermarkets who have an online facility typically serve
the online offer through local stores so e-commerce merely represents an
alternative media for payment rather than a competing offer, and has not
impacted on retailer demand or need for more floorspace.
1.17
Retailing in general has suffered significantly as a result of the global
economic crisis. The grocery sector however has been relatively unaffected
as the majority of spending within the sector is not discretionary (i.e. the
purchase of food and everyday essential items). The four major
supermarkets and smaller retailers such as Waitrose, Co-op and Marks and
Spencer Simply Food are all experiencing continuing upward trend in both
year on year sales and profit margins. In 2009, the top four and Waitrose
enjoyed significant positive growth in sales of between 6% and 10%.
1.18
The majority of grocery retailers are relying on expanding their range of
stores to increase sales growth and increase or protect market share. For
example, over the period 2007/08 – 2008/09, eight of the top ten grocery
retailers expanded their store portfolios. The top four and Waitrose
expanded their portfolios by increasing their sales areas by approximately
450,000 sq. m in 2009 alone, with a further 510,000 sq. m. planned over by
2012. Morrisons has announced plans to create 7,000 new jobs in 2012. This
is to the benefit of the UK economy and is one of the few genuine growth
sectors contributing to economic development during the current recession.
1.19
The NPPF consistent with PPS4 now includes retail (Class A1) within the
definition of sustainable, economic development and this is recognised as a
significant component of economic growth. The grocery sector therefore
constitutes a significant component of the UK economy.
3
6b.3
1.20
In summary research by BCSC in 2009 found that the retail property industry
currently employs over 7 million people across the UK, with 2.8 million
employed within retail functions and 4.5 m in property services. Over a
quarter (27.6%) of all employment within the UK is within the retail property
industry. Food retailing is a significant contributor to this with the top four
food retailers alone providing jobs for approximately 730,169 people in
2009. In line with anticipated floorspace growth in the sector, these
numbers are expected to significantly increase. If the top four and Waitrose
expand their portfolios in line with company statements it is forecast that
this will create an additional 26,892 jobs within the stores alone over the
course of the next two years.
(iv)
Future Spending Trends
1.21
The growth in the convenience retail sector should be read in the context of
the revised spending estimates, which have been released by the leading
research companies, MapInfo and Experian. Initially, both companies
forecasted a reduction in expenditure per head on convenience goods
although both have since revised their analysis taking into account the
financial performance of the leading players in the industry. It is
questionable whether the growth estimates provided by MapInfo and
Experian are in line with the recent success of the grocery industry.
1.22
Experian in its Retail Expenditure Guide 2011/12 (September 2011)
estimates that between 1964 and 2010 convenience goods expenditure
increased by approximately 0.45 per annum. This is also equivalent to
shorter term trends between 2000 and 2010. Comparison goods growth in
per capita expenditure was significantly greater averaging over 4.5% per
annum. Forecasts for the future based on Oxford Economic Forecasting
suggest an annual increase of 0.5% on convenience goods in the period
2010-2021 and around 4% per annum on comparison goods. These forecasts
are however below any of the rates achieved since 1964.
Summary of the UK Sector
1.23
The above provides a detailed review on the grocery retail sector within the
UK. In summary it is:
1.
A diverse retail sector with numerous retailers playing a role in
catering for people’s food retailing requirements.
2.
An expanding retail sector, with many retailers continuing to
look to increase or protect market share. The big four and
Waitrose expanded their portfolios by increasing their sales
areas by approximately 445,920 sq. m in 2009 alone, with a
further 510,950 sq. m planned over the next couple of years.
3.
A significant contributor to the UK economy in terms of
investment and jobs. The top four food retailers alone provide
jobs for approximately 730,169 people. This is estimated to
continue to grow with an additional 26,892 jobs created within
4
6b.4
the stores at the top four and Waitrose alone over the next two
years.
5
6b.5
6b.6
Appendix [2] Catchment zones associated with Retail and Commercial Leisure Study (2005).
6b.7
6b.8
Procedural matters
4. In reaching this position the Secretary of State has taken into account the
Environmental Statement which was submitted under the Town and Country
Planning (Environmental Impact Assessment) (England and Wales) Regulations
1999. The Secretary of State is content that the Environmental Statement
complies with the above regulations and that sufficient information has been
provided for him to assess the environmental impact of the application.
Matters arising after the close of the inquiry
5. The Secretary of State is in receipt of the post inquiry correspondence from Terry
and Eileen Woodward (23rd August 2010), and from David Hodgson (11th January
2011). The Secretary of State has carefully considered this correspondence and
he does not consider that it raises any new issues which would either affect his
decision, or require him to refer back to parties prior to determining the appeal. A
copy of this correspondence is not attached but may be obtained on written
request to the above address.
Policy considerations
6. In deciding the appeal, the Secretary of State has had regard to section 38(6) of
the Planning and Compulsory Purchase Act 2004 which requires that proposals
be determined in accordance with the development plan unless material
considerations indicate otherwise.
7. In this case, the development plan comprises the East Midlands Regional Plan
(2009), which is the Regional Strategy (RS) for the East Midlands. The Secretary
of State considers that the development plan policies most relevant to the appeal
are those set out by the Inspector at IR3.1 - 3.2.
8. Following the judgement of the Court on 10 November 2010, the Secretary of
State has made clear that it is the Government’s intention to revoke RSs, and the
provisions of the Localism Bill which is now before Parliament reflects this
intention. Whilst he has taken this matter into account in determining this case
he gives it limited weight at this stage of the parliamentary process.
9. Bassetlaw’s Local Development Framework (LDF) is at a relatively early stage.
The Secretary of State considers that the most relevant policies in the Preferred
Options Core Strategy and Development Management Policies (CSDMP) are
those identified by the Inspector at IR3.5 and 3.6. He sees no reason to disagree
with the parties that the LDF carries little weight (IR3.5).
10. The Secretary of State has had regard to the Bassetlaw Local Plan 2001 as a
material consideration, and he considers that the most relevant policies are those
referred to by the Inspector at IR3.4. Like the parties, the Secretary of State
considers that this Plan attracts little weight (IR3.3).
11. Other material considerations which the Secretary of State has taken into
account include Planning Policy Statement (PPS) 1: Delivering Sustainable
Development; the PPS1 Climate Change supplement; PPS4: Planning for
Sustainable Economic Growth; and the guidance Planning for Town Centres:
Practice Guide on Need, Impact and the Sequential Approach (PG); Planning
6b.9
Policy Guidance Note (PPG) 13: Transport; PPG17: Planning for Open Space,
Sport and Recreation; PPG23: Planning and Pollution Control; and PPS25:
Development and Flood Risk.
Main issues
12. The Secretary of State considers that the main issues in this case are those set
out by the Inspector at IR10.3.
Retail capacity
13. Having had regard to the Inspector’s comments and analysis at IR10.4-10.16, the
Secretary of State agrees with the Inspector’s conclusion that there is capacity in
the study area for convenience goods expenditure of about £23.5m in 2014,
suggesting that the available expenditure within the catchment would not support
a superstore of the size proposed (IR10.17). Like the Inspector, the Secretary of
State has borne in mind that, whilst this broad conclusion on retail capacity
informs the examination of the main considerations in this case, such an analysis
is not an exact science, and depends instead on the application of a range of
assumptions which have varying margins of error such that wholesale reliance on
the conclusion would be misplaced (IR10.17). In considering the issue of retail
capacity, the Secretary of State has also borne in mind that the proposed Tesco
extension attracts only limited weight (IR10.90).
Sequential approach to site selection
14. The Secretary of State has given careful consideration to the Inspector’s
comments at IR10.18 – 10.23. He agrees with the Inspector (IR10.22) that, taken
as a whole, PPS4 and the PG make clear that there is a strong preference for incentre and edge-of-centre sites, but if these are not available, the policy objective
is best met by out-of-centre sites which contribute most to these objectives, and
that a comparison of the relative extent to which out-of-centre sites satisfy the
policy objectives, as expressed in PG paragraph 6.8, is necessary. He also
agrees with the Inspector’s view that any conflict with the sequential approach in
policy EC17.1 would have to be weighed against the economic development and
regeneration benefits of the package of proposals, having regard to policy EC10
and any other material considerations (IR10.23).
15. The Secretary of State sees no reason to disagree with the Inspector’s
conclusion that there is no available, suitable and viable edge-of-centre site for a
superstore of the size proposed, or for a superstore of a reduced size (IR10.24).
In relation to alternative out-of-centre sites, for the reasons given by the Inspector
(IR10.25 – 10.29), the Secretary of State agrees with the Inspector’s conclusion
that the Kilton Road site is a sequentially preferable site in terms of PPS4 policy
EC15 and the PG, as interpreted in the round, and that the superstore element of
the appeal proposal conflicts with the town centre objectives of PPS4 (IR10.29).
He further agrees with the Inspector that, given this, under PPS4 policy EC17.1a
there is a strong presumption against the grant of planning permission for the
superstore, but that that this is not necessarily fatal because of the need to weigh
in the balance town centre considerations against the economic and regeneration
benefits of the proposal (IR10.29). For the reasons given by the Inspector
(IR10.30), the Secretary of State shares his view that the Kilton Road site’s other
locational advantages include its position on the east side of Worksop close to
6b.10
extensive residential areas and much closer to areas of deprivation. In relation to
the Carlton Road site, the Secretary of State sees no reason to disagree with the
Inspector’s reasoning at IR10.31 – 10.32.
16. Having had regard to the Inspector’s remarks at IR10.33 – 10.34, the Secretary
of State agrees with him that there is little doubt that sequentially preferable incentre or edge-of-centre sites exist for the non-retail main town centre uses,
which thereby fail the test of PPS4 policy EC17.1a (IR10.34). The Secretary of
State further agrees with the Inspector, for the reasons he gives, that the fact that
the land required for offices has not been included in the sequential analysis does
not amount to a significant shortcoming in the application of PPS4 to this
proposal (IR10.35).
Impact on Worksop town centre
17. In relation to the diversion of convenience trade, for the reasons given by the
Inspector at IR10.37 – 10.40, the Secretary of State agrees that it is reasonable
to conclude that a figure of over 10% for the impact on town centre trade is robust
(IR10.40). Having had regard to IR10.41 – 10.43, the Secretary of State further
agrees with the Inspector’s conclusion that overall the vitality and viability of
Worksop town centre is about average for a centre of its size and role in the retail
hierarchy (IR10.43). The Secretary of State has taken account of the Inspector’s
remarks about town centre investment, including that fact that the detailed and
up-to-date Worksop town centre Health Check commented on a limited leisure
and office market including a poorly developed evening economy, and a
significant amount of retail floorspace in out-of-centre locations (IR10.41 and
IR10.44). He agrees with the Inspector that it is likely that the provision of
restaurants and an hotel on the appeal site would have an adverse impact on the
prospect of securing similar uses for the town centre (IR10.45). He further
agrees that the fact that within Worksop itself a very high proportion of
convenience trade goes to out-of-centre superstores represents a weakness in
the town centre shopping offer and that this would be exacerbated substantially
by the proposed superstore (IR10.46).
18. In conclusion, and having taken account of the Inspector’s remarks at IR10.47 –
10.48, the Secretary of State agrees that the proposed superstore would
undoubtedly have an adverse impact on the town centre (IR10.47) but whether
that impact would be “significant” in terms of PPS4 policy EC17.1b is arguable
(IR10.48). He sees no reason to disagree with the Inspector that, whilst the
proposal would come close to that level of impact, it does not fail that particular
policy test (IR10.48). The Secretary of State agrees with the Inspector, however,
that the adverse impact on the town centre nevertheless remains a material
consideration to be weighed in the overall balance (IR10.48).
Qualitative retail need
19. The Secretary of State has had regard to the Inspector’s analysis at IR10.49 –
10.53 and he agrees with the Inspector’s conclusion that, overall, consideration of
the indicators of qualitative need boils down to the advantages of improved
consumer choice and competition and the disadvantages arising from
convenience goods provision in an out-of-centre location which is less accessible
than both the town centre and a potential alternative location which is much
6b.11
closer to areas of deprivation. Like the Inspector, the Secretary of State does not
consider that the benefits outweigh the adverse effects, so qualitative
considerations do not add materially to the case for the proposed retail
development (IR10.54).
Regeneration, employment and other benefits
20. The Secretary of State has considered the Inspector’s comments at IR10.55 –
10.56 and he sees no reason to depart from the approach suggested by the
Inspector. In relation to regeneration and employment land, the Secretary of
State agrees with the Inspector’s analysis at IR10.57 – 10.61. Like the Inspector,
he considers that the provision and marketing of serviced employment land would
be a significant benefit from the scheme and that, provided it was delivered, the
speculative premises would be a further benefit (IR10.60). The Secretary of
State has also had regard to the appreciable number of jobs which would be
created by the scheme. He sees no reason to disagree with the Inspector’s
conclusion that there is not such a shortage of available land or premises in
Worksop to justify the argument that there is a pressing need for this proposed
employment scheme in the short term (IR10.61).
21. The Secretary of State has had regard to the other benefits to which the
Inspector refers at IR10.62 – 10.63, which include the offer of land at a
peppercorn rent to Worksop Town Football Club.
22. He has also given careful consideration to the Inspector’s analysis on viability
and enabling development (IR10.64 – 10.74). He sees no reason to disagree
with the Inspector that, although there are doubts about whether a 5,500m² store
would be built, there is not sufficient evidence to conclude that it would not, and
the Council’s argument that the scheme proposes more by way of nonemployment development than is necessary to enable the serviced employment
land to be delivered, is not disproved (IR10.70). He agrees with the Inspector
that, given the policy concern about the loss of employment land, the amount of
enabling development is pertinent because, irrespective of the excess profits
argument, more non-employment development than is necessary reduces the
amount of land that is left for Class B employment use, which is the objective of
the enabling process (IR10.74).
Balance of considerations
23. In relation to the proposed superstore, the Secretary of State agrees with the
Inspector’s reasoning at IR10.77 – 10.80 on the town centre impacts. He
Secretary of State has concluded at paragraph 13 above that the available
expenditure within the catchment would not support a superstore of the size
proposed. He has also concluded that the Kilton Road site is sequentially
preferable and that, consequently, under PPS4 policy EC17.1a, there is a strong
presumption against the grant of planning permission for the proposed superstore
(paragraph 15 above). As set out at paragraphs 17 and 18 above, in relation to
the diversion of convenience trade, the Secretary of State has concluded that the
proposed superstore would result in the loss of over 10% of such trade and that
this impact is a material consideration to be weighed in the balance. The
Secretary of State has concluded that sequentially preferable sites exist for the
6b.12
proposed hotel and restaurants, which fail the test of PPS4 policy EC17.1a
(paragraph 16 above), and he agrees with the Inspector’s remarks at IR10.81.
24. Turning to the regeneration and other impacts, the Secretary of State sees no
reason to disagree with the Inspector’s summary at IR10.82 – 10.84. He agrees
with the Inspector that, assessed against the impact considerations of PPS4
policy EC10.2, the outcome for the non-town centre elements of the proposal is
favourable (IR10.82). The Secretary of State has concluded that the scheme’s
benefits include the provision and marketing of serviced employment land and,
potentially, speculative premises, albeit that the need for these is not pressing
(paragraph 20). The potential jobs and the offer of land at a peppercorn rent to
Worksop Town Football Club are also matters which the Secretary of State has
taken into account as benefits arising from the scheme (paragraphs 20 and 21
above). The Secretary of State’s conclusions on viability and enabling
development are set out at paragraph 22 above, where he makes clear his view
that it has not been shown that the scheme proposes no more by way of enabling
development than is necessary to enable the serviced employment land to be
delivered.
The relationship of the proposal to the development plan and to PPS4
25. The Secretary of State has had regard to the Inspector’s comments at IR10.85 –
10.89 and, having had regard to all material considerations, he agrees with the
Inspector that, whilst the scheme offers a number of immediate and significant
benefits (IR10.86), its adverse effects on Worksop town centre are likely to be felt
over a longer period (IR10.87). He agrees with the Inspector (IR10.88) that the
harm to the town centre objectives of PPS4 outweighs the regeneration,
employment and other benefits of the scheme, and that removing the hotel and
restaurant uses from the equation does not change that judgement. He further
agrees that, in relation to ERMP policies, the regeneration and employment
policy objectives are outweighed by conflict with policies aimed at protecting the
retail role of Worksop town centre (IR10.89).
Conditions
26. The Secretary of State has considered the conditions at Annex A of the IR and
the Inspector’s comments on conditions at IR9.1 – 9.4. He is satisfied that the
conditions at Annex A of the IR are reasonable and necessary and meet the tests
of Circular 11/95. However, these conditions do not overcome the Secretary of
State’s reasons for dismissing the appeal.
Obligation
27. The Secretary of State has considered the planning obligations and the
Inspector’s remarks at IR9.5 – 9.6 and he is satisfied that the obligations comply
both with circular 5/2005 and the 2010 Community Infrastructure Levy
Regulations.
6b.13
Overall Conclusions
28. The Secretary of State concludes that the appeal is not in accordance with the
development plan. He also concludes that the application is not in accordance
with national policy in PPS4. Overall the Secretary of State concludes that the
material considerations are not of sufficient weight to determine the appeal other
than in accordance with the development plan.
Formal Decision
29. Accordingly, for the reasons given above, the Secretary of State agrees with the
Inspector’s recommendation. He hereby dismisses your client's appeal and
refuses planning permission for mixed use regeneration including offices, light
industry, storage/distribution, food store, hotel, restaurants, petrol filling station
and safeguarded community land in accordance with application number
02/09/00033, dated 9 February 2009.
Right to challenge the decision
30. A separate note is attached setting out the circumstances in which the validity of
the Secretary of State’s decision may be challenged by making an application to
the High Court within six weeks from the date of this letter.
31. A copy of this letter has been sent to Bassetlaw District Council. A notification
letter has been sent to all other parties who asked to be informed of the decision.
Yours faithfully
Christine Symes
Authorised by Secretary of State to sign in that behalf
6b.14
RIGHT TO CHALLENGE THE DECISION IN THE HIGH COURT
These notes are provided for guidance only and apply only to challenges under the
legislation specified. If you require further advice on making any High Court
challenge, or making an application for Judicial review, you should consult a
solicitor or other advisor or contact the Crown Office at the Royal Courts of Justice,
Queens Bench Division, Strand, London, WC2 2LL (0207 947 6000).
The attached decision is final unless it is successfully challenged in the Courts. The
Secretary of State cannot amend or interpret the decision. It may be redetermined by the
Secretary of State only if the decision is quashed by the Courts. However, if it is
redetermined, it does not necessarily follow that the original decision will be reversed.
SECTION 1: PLANNING APPEALS AND CALLED-IN PLANNING APPLICATIONS;
The decision may be challenged by making an application to the High Court under
Section 288 of the Town and Country Planning Act 1990 (the TCP Act).
Challenges under Section 288 of the TCP Act
Decisions on called-in applications under section 77 of the TCP Act (planning), appeals
under section 78 (planning) may be challenged under this section. Any person aggrieved
by the decision may question the validity of the decision on the grounds that it is not within
the powers of the Act or that any of the relevant requirements have not been complied with
in relation to the decision. An application under this section must be made within six weeks
from the date of the decision.
SECTION 2: AWARDS OF COSTS
There is no statutory provision for challenging the decision on an application for an award
of costs. The procedure is to make an application for Judicial Review.
SECTION 3: INSPECTION OF DOCUMENTS
Where an inquiry or hearing has been held any person who is entitled to be notified of the
decision has a statutory right to view the documents, photographs and plans listed in the
appendix to the report of the Inspector’s report of the inquiry or hearing within 6 weeks of
the date of the decision. If you are such a person and you wish to view the documents you
should get in touch with the office at the address from which the decision was issued, as
shown on the letterhead on the decision letter, quoting the reference number and stating
the day and time you wish to visit. At least 3 days notice should be given, if possible.
6b.15
Report to the
Secretary of State
for Communities and
Local Government
The Planning Inspectorate
Temple Quay House
2 The Square
Temple Quay
Bristol BS1 6PN
GTN 1371 8000
by Martin Pike BA MA MRTPI
an Inspector appointed by the Secretary of State
for Communities and Local Government
Date: 20 December 2010
TOWN AND COUNTRY PLANNING ACT 1990
BASSETLAW DISTRICT COUNCIL
APPEAL BY
DOOBA DEVELOPMENTS LIMITED
Inquiry held on 3-6 August and 21-23 September 2010
Land at former Vesuvius UK Works, Sandy Lane, Worksop, Nottinghamshire S80 3EX
File Ref: APP/A3010/A/10/2124458
6b.16
Report APP/A3010/A/10/2124458
Vesuvius Works, Worksop
CONTENTS
Page
Glossary and Abbreviations
2
1.
Procedural Matters
3
2.
The Site and Surroundings
6
3.
Planning Policy
7
4.
The Proposals and Agreed Matters
9
5.
The Case for Dooba Developments Limited
11
6.
The Case for Bassetlaw District Council
29
7.
The Case for Interested Persons
41
8.
Written Representations
45
9.
Conditions and Obligations
45
10.
Conclusions
48
11.
Recommendation
68
Appearances and Document lists
70
Annex A – Conditions
76
Page 1
6b.17
Report APP/A3010/A/10/2124458
Vesuvius Works, Worksop
GLOSSARY AND ABBREVIATIONS
BDC
Bassetlaw District Council
BLP
Bassetlaw Local Plan
BRS
Bassetlaw Retail Study
BW
British Waterways
CSDMP
Bassetlaw Preferred Options Core Strategy and Development
Management Policies
DAS
Design and Access Statement
DPD
Development Plan Document
EH
English Heritage
EMRP
East Midlands Regional Plan
ES
Environmental Statement
KFC
Kentucky Fried Chicken
LDF
Local Development Framework
ONS
Office for National Statistics
PCA
Primary Catchment Area
PG
PPS4 Practice Guide: Planning for Town Centres
PPG
Planning Policy Guidance
PPS
Planning Policy Statement
PSA
Primary Shopping Area
RICS
Royal Institution of Chartered Surveyors
RSS
Regional Spatial Strategy
S106
Section 106 Planning Obligation
SCA
Secondary Catchment Area
SCG
Statement of Common Ground
SUDS
Sustainable Drainage System
WTFC
Worksop Town Football Club
Page 2
6b.18
Report APP/A3010/A/10/2124458
Vesuvius Works, Worksop
File Ref: APP/A3010/A/10/2124458
Land at former Vesuvius UK Works, Sandy Lane, Worksop, Nottinghamshire
S80 3EX
•
The appeal is made under section 78 of the Town and Country Planning Act 1990 against
a refusal to grant outline planning permission.
The appeal is made by Dooba Developments Limited against the decision of Bassetlaw
District Council.
The application Ref: 02/09/00033, dated 9 February 2009, was refused by notice dated 11
January 2010.
The development proposed is mixed use regeneration including offices, light industry,
storage/distribution, foodstore, hotel, restaurants, petrol filling station and safeguarded
community land.
•
•
•
Summary of Recommendation: The appeal be dismissed.
PROCEDURAL MATTERS
1.1
At the inquiry an application for costs was made by Bassetlaw District Council
against Dooba Developments Limited. This application is the subject of a
separate Report.
Planning application and appeal matters
1.2
The planning application is in outline with all matters reserved for subsequent
approval. It is accompanied by a single plan 1 which denotes the site and the
adjoining land that is owned by the applicant. The drawings in the Design
and Access Statement 2 (DAS) are for illustrative purposes only.
1.3
The application was accompanied by an Environmental Statement (ES) 3
prepared in accordance with the Town and Country Planning (Environmental
Impact Assessment) (England and Wales) Regulations 1999, as amended.
The Council is satisfied that the ES meets the statutory requirements, and
confirmed that the appropriate procedures had been followed. In arriving at
my recommendation I have taken into account the environmental information
contained in the ES and presented at the inquiry, and the comments about
the likely environmental effects of the proposed development.
1.4
The appeal was recovered for the decision of the Secretary of State by a
direction dated 7 April 2010. The reason given for the direction is that “the
appeal involves proposals which involve any main town centre use or uses (as
set out in paragraph 7 of the introduction to PPS4) where that use or uses
comprise(s) over 9,000 sq m gross floorspace (either as a single proposal or
as part of or in combination with other current proposals) and which are
proposed on a site in an edge-of-centre or out-of-centre location (as
described in Annex B of PPS4) that is not in accordance with an up-to-date
development plan document.”
1
2
3
Plan A
CD18
CD19
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1.5
The inquiry sat for 7 days between 3 August and 23 September 2010. I
carried out a visit to the site (accompanied) and the surrounding area
(unaccompanied) on 23 September, and made various unaccompanied visits
to the wider locality before and during the inquiry. 4
1.6
Two draft planning obligations (one an agreement with the Council and the
other a unilateral obligation), prepared under S106 of the 1990 Act, were
submitted by the appellant at the opening of the inquiry. 5 Negotiations on
both the substance and the detailed wording of the obligations took place
between the appellant and the Council during the proceedings in response to
matters that arose in evidence and my comments. Completed obligations
were submitted before the end of the inquiry, 6 though they excluded the
provision of a bus service, the details of which were substantially amended
late in the inquiry. As a result, the bus service became the subject of a
separate agreement which was only available as a final draft during the
proceedings. 7 I kept the inquiry open to allow time for a completed bus
service agreement to be submitted, 8 after which I closed the inquiry by letter
dated 12 October 2010.
1.7
At the time the Council refused planning permission, the East Midlands
Regional Plan (EMRP) 9 was the sole component of the development plan for
Bassetlaw. On 6 July 2010 the Secretary of State used s79(6) of the Local
Democracy Economic Development and Construction Act 2009 to revoke all
regional strategies. Consequently, at the inquiry it was assumed that the
EMRP was no longer in force and that there was no development plan.
1.8
On 10 November 2010, the High Court judgement in the case of Cala Homes
(South) Ltd v Secretary of State for Communities and Local Government and
Winchester City Council (CO/8474/2010) found that the decision to revoke
regional strategies was unlawful. As a consequence the EMRP has been reestablished as part of the development plan. On the same day a Ministerial
statement was issued which re-affirmed the Government’s intention
(announced in May 2010) to abolish regional strategies; the statement
further advised that this intention was a material consideration to be taken
into account in any decisions being taken.
1.9
The main parties were invited to comment in writing on the implications of
the Cala Homes judgement. Neither party felt the need to make further
substantive representations, simply referring instead to the list of relevant
EMRP policies included in the Planning Statement of Common Ground
(SCG) 10 . Notwithstanding this lack of comment, it has been necessary for me
to reflect, in the report, the reinstatement of the EMRP as the sole component
of the development plan. In so doing I have amended the cases of the main
parties (sections 5 and 6) to remove references made at the inquiry to the
non-existence of a development plan, but in the absence of specific
observations from them on reinstatement I have not ‘added-in’ any
4
See DDL27 for locations visited
DDL4 and DDL5
6
DDL31 and DDL33
7
DDL32
8
DDL39
9
CD9
10
INQ1
5
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references to relevant EMRP policies in these sections of the report. I have,
however, included consideration of the EMRP in my conclusions (section 10).
1.10
Cala Homes (South) Ltd has commenced a second action against the
Secretary of State on the grounds that the Ministerial statements are
unlawful in their assertion that the intention to repeal regional strategies is a
material consideration. An interim action which stayed the effect of the
Ministerial statements was set aside by the Courts on 3 December 2010.
Until the outcome of the second Cala Homes action is known, decision makers
are advised to consider whether the existence of this challenge, and the basis
of it, affects the significance and weight which they judge may be given to
the Secretary of State’s statements.
Request for Inspector’s ruling
1.11
During the adjournment between the August and September sessions of the
inquiry, both main parties submitted a series of Notes on a wide range of
matters. While most were direct responses to requests for information made
by me (or responses of the opposing party to that information), some were
unsolicited offerings intended, it was said, to assist the inquiry. The Council
took strong exception to one such document, a Note on Land Value submitted
by the appellant (DDL16), and I was asked to rule on whether or not it should
be admitted. I report below the main arguments of the Council, the
appellant’s response, and my decision on the matter.
1.12
The Council contended that Mr Miles’ Note on Land Value introduced wholly
new evidence after the inquiry had heard from the two viability witnesses.
The Note proposed a new approach which was contrary to the Viability SCG
and which had not been discussed with the Council’s witness, Mr Balch. In
cross examination Mr Miles had agreed the approach adopted in the English
Heritage (EH) guidance, which is that any allowance for planning permission
being obtained should be excluded. The Council argued that it was most
unsatisfactory to have this agreement on approach contradicted by new
evidence. It was a blatant attempt to repair a damaged case and should not
be admitted to the inquiry; moreover the new evidence was contrary to the
guidance issued by the Planning Inspectorate. The Council intended to make
an application for Costs as a result of the Note. If it was to be allowed, the
Council should be granted time to take proper instructions from Mr Balch and
then to further cross examine Mr Miles.
1.13
The appellant submitted that there was nothing improper in the way that the
Note on Land Value had been produced. It was no different to some
documents put in by the Council to extend its case in the form of
supplementary evidence which assisted the inquiry (for example, BDC18).
The Note had two sources – the cross examination and re-examination of Mr
Miles on Mr Balch’s table 2, and the viability gap appraisal. The assumptions
in the Viability SCG assumed a retail planning consent, without which the
land would not have had such a high value. The use of employment land
values instead was an expression of a residual land valuation, and much of it
was already agreed. The Note flowed from evidence given – it was certainly
not some reprehensible, back-handed way of trying to go behind evidence
already prepared. Furthermore, the Council had not demonstrated, by
reference to notes taken of the proceedings, how this was an attempt to
circumvent the evidence.
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1.14
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Inspector’s Note: I gave the following ruling after considering the arguments
above, as put by the parties, and reviewing the notes I had taken of the cross
examination and re-examination of Mr Miles.
I acknowledged that the effect of the grant of planning permission was, in
general terms, brought out in re-examination. But I did not believe it was an
argument that was developed, as it could have been, in evidence in chief. I
decided that the Note on Land Value included an analysis which took the
argument substantially further than could be assumed from the evidence, and
therefore represented a new line of reasoning. I considered not allowing the
Note to be admitted, but I believed it was important that, if it was to form
part of the appellant’s case, both I and the Secretary of State were aware of
the new line of reasoning and its implications. This would have necessitated a
recall of the viability witnesses to ensure that the new evidence was properly
tested and appropriate weight could be given. I advised the inquiry that the
Note would be accepted on these terms. I recognised that, because Mr Miles
was not available during the September sitting days, a further adjournment
would be necessary if the appellant wished the Note to remain as evidence.
1.15
The appellant subsequently stated that the Note on Land Value was to be
withdrawn. It respected my ruling that the viability witnesses would have to
be recalled, but as it could not produce Mr Miles, it decided to withdraw the
document. It follows that the Council’s response to this Note, BDC23, was
also withdrawn. These documents no longer form part of the evidence before
the inquiry and have not been given any weight in my conclusions or
recommendation.
THE SITE AND SURROUNDINGS
2.1
The appeal site lies on the western side of Worksop and extends to some
17.75 hectares. Formerly a brickworks, the site was until 2006 occupied by
Vesuvius UK, a company that manufactured refractory products. A large
industrial building in the centre of the site and a variety of other buildings
have all been demolished down to slab level and, apart from scattered piles
of bricks, rubble and other waste, the site has been cleared. Much of the site
comprises made ground, deepest in the backfilled clay pits in the southern
half of the site. Significant contaminants have been proven on the site,
mainly inorganic and hydrocarbon compounds. A small, steep sided surface
water lagoon in the eastern part of the site collects contaminated run-off; its
highly alkaline water is treated and pumped from the site periodically. Apart
from a small hand car wash operation on the Shireoaks Road frontage, the
site is currently vacant.
2.2
The central, southern and western parts of the site are hardstanding and thus
largely devoid of vegetation. In the south-eastern corner, where the
research buildings once stood, are rows of trees and the remains of a
landscaped garden. Recently made ground in the east supports semiimproved neutral grassland with scattered scrub. Beyond the rough
grassland and scrub in the north-east corner is an embankment which is part
of the railway line that abuts the site. Centrally positioned in the north of the
site, separated from the hardstanding by a line of Poplar trees, is a former
company sports ground. A strip of land in the north-west corner is Tranker
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Wood Marsh local wildlife site, a former football pitch that has been left
unmanaged and supports unimproved grassland.
2.3
To the north-west, between the appeal site and the railway, is Tranker Wood
local wildlife site, an area of ancient broad-leaved woodland. This aside, the
surrounding land comprises the Sandy Lane industrial estate. Immediately to
the west is a household waste recycling facility, beyond which are relatively
modern industrial units fronting Shireoaks Road. To the east is a plastics
recycling operation in a factory previously occupied by Ardagh Glass, south of
which is a sports ground. To the south are more industrial uses and, across
the Chesterfield Canal, a public house and a roundabout junction with the
A57 dual carriageway Worksop bypass. Across the A57 to the south west is
the High Grounds industrial estate, which includes a Sainsbury’s superstore
and petrol filling station and a McDonalds drive-through restaurant.
2.4
Apart from a few scattered houses and a row of dwellings on Sandy Lane, the
appeal site is relatively detached from sizeable areas of residential
development. The site is about 1,250m by road from the town centre,
though slightly longer using the footpath and cycle route alongside the canal.
The other major shopping opportunities in Worksop outside the town centre
are relatively close by: across the railway to the east of the appeal site is a
Tesco superstore on Gateford Road, while the Sandy Lane Retail Park to the
east includes B&Q, Currys, Comet and Carpet Right.
PLANNING POLICY
3.1
The development plan currently comprises the East Midlands Regional Plan
(EMRP). Among the core objectives of policy 1 are improved economic
prosperity and employment opportunities through the availability of good
quality land and premises in sectors targeted for growth, a reduction in the
causes of climate change – and improved accessibility – by ensuring major
traffic generating development is located so as to reduce the need to travel,
and a reduction in social exclusion by reducing inequalities in the distribution
of employment and other services. Policy 7 seeks to regenerate the Northern
Sub-area by significantly strengthening the Sub-Regional centre of Worksop
(amongst others) by providing new jobs, houses and services in and around
its urban area. The Northern Sub-area is identified in policy 19 as a regional
focus for regeneration because of its concentration of economic, social and
environmental problems.
3.2
EMRP policy 22 seeks to promote the vitality and viability of existing town
centres by, amongst other matters, bringing forward opportunities for retail
and other town centre functions based on identified need. Within the
Northern Sub-area, policy Northern SRS2 seeks to sustain and enhance the
role of Worksop Sub-Regional centre by locating retail and other town centre
uses predominantly in or on the edge of the centre.
3.3
The Bassetlaw Local Plan 2001 11 (BLP) was subject to a local plan inquiry in
1998 and the Inspector’s Report was received in May 1999. It was approved
by the Council for development control purposes in October 2001, but was
11
CD10
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not formally adopted as part of the development plan because of an
unresolved issue concerning housing allocation. Consequently no policies
have been ‘saved’ under the transitional arrangements. Although the
introduction to the BLP states that the plan should be afforded significant
weight as it followed all the necessary procedures up to adoption, it is a nonstatutory document which does not have the status given by section 38(6) of
the Planning and Compulsory Purchase Act 2004. The Planning SCG 12
acknowledges that the BLP can only be afforded little weight.
3.4
The BLP Proposals Map identifies the appeal site as part of an existing
employment area which policy 2/13 seeks to retain in employment use unless
the current use produces unacceptable traffic or environmental problems that
would be alleviated by the proposed use, or unless the site is no longer
capable of satisfactory employment use. Of the other parts of the BLP that
are material to this appeal, as listed in the Planning SCG, the most significant
concern the delineations of Worksop town centre, the retail core and the
primary shopping area on the Proposals Map, and policy 3/9, which aims to
prevent development which would significantly erode or conflict with the
retailing function of the retail core.
3.5
Preparation of the Bassetlaw District Local Development Framework (LDF) is
at a relatively early stage, with the Preferred Options Core Strategy and
Development Management Policies (CSDMP) document being published for
consultation in May 2010. Policy CS1 promotes the role of Worksop as a subregional centre and the main focus for new housing and employment growth
in the District. The policy supports new convenience and comparison goods
floorspace that is within or immediately adjacent to the town centre boundary
and which is in line with the Council’s most recent retail study, and requires
town centre impact assessments to accompany proposals for large edge-ofcentre or out-of-centre retail developments.
3.6
CSDMP policy DM7 seeks to protect existing and former employment sites for
economic development purposes unless they are indicated for release or they
are no longer capable of accommodating employment uses for locational or
viability reasons. The policy indicates that proposed changes of use for
viability reasons should be for mixed use development, ensuring that the
minimum amount of non-economic development is proposed to support and
deliver the redevelopment of the site for economic development purposes.
Because its policies are yet to be finalised and then tested for soundness at
an examination, the Planning SCG acknowledges that the LDF should carry
limited weight.
3.7
The most significant national planning policy statements are Planning Policy
Statement (PPS) 1: Delivering Sustainable Development and PPS4: Planning
for Sustainable Economic Growth; the guidance which accompanies the latter,
Planning for Town Centres: Practice Guidance on Need, Impact and the
Sequential Approach (PG) is also highly material. Other relevant national
policy includes the PPS1 Climate Change supplement; Planning Policy
Guidance (PPG) 13: Transport; PPG17: Planning for Open Space, Sport and
Recreation; PPG23: Planning and Pollution Control; and PPS25: Development
and Flood Risk.
12
INQ1
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THE PROPOSALS AND AGREED MATTERS
4.1
The application proposes a superstore of 6,500 sq m gross intended for Asda,
two restaurants totalling 360 sq m, one of which would be a drive-through for
Kentucky Fried Chicken (KFC), a hotel of 2,050 sq m with Travelodge as the
likely operator, and 17,520 sq m of Class B floorspace of which 740 sq m
would be for offices. The notional site layout in the DAS shows a central
access spine road with the superstore taking up most of the eastern half of
the site, a petrol filling station in front of the store close to the proposed
access roundabout, and the hotel and a restaurant on the western side of the
access. The main employment uses would occupy most of the western half of
the site and land at the rear of the superstore; the offices would form a
buffer between the hotel and the main employment uses.
4.2
Four Statements of Common Ground (SCG) were prepared before and during
the inquiry, the intentions being to establish what could be agreed and to
identify the matters in dispute. These address general Planning matters
(INQ1), Viability (INQ2), Retail (INQ5) and Employment Land (INQ4). The
key matters included in these documents are noted below.
Planning
4.3
The following matters are agreed:
•
Highway Considerations – Planning permission has already been
granted for junction improvements to provide access to the site. The
approved vehicular access is appropriate to serve the appeal scheme.
•
Sport and Recreation Considerations – The proposed development
would not adversely affect the quantity and quality of playing pitches or
open space and is therefore consistent with the objectives of PPG17,
provided a mechanism is in place to deliver replacement open space.
•
Amenity Considerations – The proposal would not harm the amenity of
those living or working in close proximity to the site. Instead, given the
numerous benefits associated with the site’s visual enhancement,
remediation and regeneration, the proposal would enhance the amenity
value of the site and surrounding area.
•
Environmental Considerations – The proposal would create no
environmental harm and would provide benefits as set out in the ES.
Viability and enabling development
4.4
Certain key assumptions were made by the parties when preparing viability
appraisals:
•
The industrial nature of surrounding uses means that the site is not
suitable for residential development.
•
A land cost of £50,000 per acre should be included to reflect the costs
that a developer would occur in acquiring the site now or in the future.
•
The cost of site remediation works and infrastructure, including on- and
off-site highway works and utilities, is £5.69m.
•
A profit level of 20% on costs is reasonable given the risk profile of the
developments involved. Other standard fees and costs, including
finance costs, are mostly agreed.
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•
Grant funding is not considered to be a likely alternative means of
enabling the site for development in view of short to medium term
public sector funding restrictions.
•
Receipts from land sales for the proposed development would be £12m
for the supermarket (the price agreed with Asda), £300,000 per acre for
the hotel and restaurant, £250,000 per acre for the drive-through
restaurant, and £150,000 per acre for the employment land.
Employment land
4.5
The Employment Land SCG identified which sites in the Worksop area and
beyond should be included in the land supply assessment, but there was very
little agreement about the suitability of those sites for development. Sites
were placed in one of three categories: Green - available and deliverable,
Amber – compromised, Red – constrained and not available.
4.6
The appellant assessed as available/deliverable 1 site (0.98ha) in the
Worksop area and 1 site (8.24ha) in the wider area (20 minute drive time).
The corresponding figures for the Council are 8 sites (5.69ha) in the Worksop
area and 1 site (8.24ha) in the wider area.
4.7
The appellant assessed as compromised 6 sites (9.3ha) in the Worksop area
and 3 sites (80.51ha) in the wider area (20 minute drive time). The
corresponding figures for the Council are 4 sites (53ha) in the Worksop area
and 4 sites (87.25ha) in the wider area.
Retail
4.8
The original Retail SCG was revised following my request for clarification of
the parties’ retail assessments and a fuller explanation of the differences
between them. Most of the critical figures are disputed and form part of the
respective parties’ cases. The few areas of agreement are noted below:
•
Base and Design Years – 2010 and 2014 respectively.
•
Price Level – 2007.
•
Population and spending information is based on Experian estimates
and projections.
•
The Study Area is agreed, as is the disaggregation of this area into four
postcode derived sub-zones. Zones 1 and 3 form the Primary
Catchment Area (PCA) for Worksop for both broad goods categories and
zones 2 and 4 form the Secondary Catchment Area (SCA).
•
Vacancies - 45 units (11.6%) in the town centre were vacant in April
2010, reducing to 39 (10.05%) in September 2010. This compares with
a national average of 11.23% (April) and 11.34% (September).
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THE CASE FOR DOOBA DEVELOPMENTS LIMITED
Introduction and Context
5.1
The application was refused by a majority of the Planning Committee against
the recommendation of officers on one ground only. It is said that because of
its size and out-of-centre location, the proposal would have an unacceptable
impact on the vitality and viability of Worksop town centre. The reason for
refusal relied upon PPS4 policies EC10, EC14, EC16 and EC17. No reference
was made to the sequential tests in policy EC15. The officers had expressed
satisfaction with the appellant’s sequential evidence, for the sites to be
considered had been agreed and analysed. The minutes of the Committee
meeting do not reveal any disagreement on that issue from the members.
5.2
Since the December 2009 decision, the Council has sought to extend its case.
A Statement of Case raising the sequential test as an issue was put to
members in April 2010 for their approval. However, members were not
asked to consider any sequentially preferable sites or to express views on
other sites such as Kilton Road. Even at this late stage members were not
asked to revisit the issue of need for employment development. This has
been raised by the Council’s viability witness without any indication from the
local planning authority that it is something it would subscribe to.
5.3
A number of key points are common ground between the Council and the
appellant; these are set out in the four Statements of Common Ground.
Ultimately the appeal turns on the impact issue, but firstly the matters raised
in the extended case presented by the Council at the inquiry are addressed.
Planning Policy
5.4
Since its reinstatement as a result of the Cala Homes judgement, the
statutory development plan comprises solely the East Midlands RSS.
5.5
It is agreed that relevant policies from the Bassetlaw Local Plan 2001 13 should
be given little weight because the BLP was never formally adopted and none
of its policies have been carried over under transitional arrangements. The
Bassetlaw LDF – Preferred Options Core Strategy and Development
Management Policies 14 also carries limited weight. Key points from that
document are:
(i)
Worksop will grow into its role as a sub-regional centre;
(ii) Strategic objectives include provision of a range and choice of
employment sites in Worksop and protecting and enhancing its town
centre;
(iii) Its older employment sites will be regenerated, and new business
locations will be established along the town’s main approach roads;
(iv) At least 36 ha of new employment land will be allocated in Worksop in
addition to existing employment land supply;
(v) There should not be a set figure for the amount of new retail floorspace
in the town.
The appeal proposals accord with the regeneration and employment
13
14
As set out in Mr Tapley’s evidence (DDL1/1 paras. 6.62 to 6.85)
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objectives of this emerging document and do not conflict with the retail
objectives for Worksop.
Interpretation of PPS4
5.6
Given the lack of any local planning policy documents to which weight could
be given, the main parties agree that the key policies for this appeal are
contained in PPS4. The proposed mix of uses comprises economic
development, while the proposed foodstore, hotel, restaurants and offices are
main town centre uses. Policy EC10 requires planning authorities to adopt a
positive and constructive approach towards proposals for economic
development. Applications which secure sustainable economic growth should
be treated favourably. The proposal is to be assessed against the “impact
considerations” in EC10.2, including the limiting of CO2 emissions over the
lifetime of the development, accessibility by a choice of means of transport,
securing design objectives, economic and physical regeneration, and impact
on local employment. Those factors are applied under policy EC17.2.
5.7
Policy EC15 sets out the specific requirements for a sequential assessment for
a planning application for a main town centre use which is not in a centre and
not in accordance with an up to date development plan. It is important to
note that policy EC17.1 refers back to the sequential approach as defined in
policy EC15, and does not refer to policy EC5.2, the latter being concerned
solely with the application of the sequential approach when selecting sites for
inclusion in a development plan (under the heading “Plan making policies”).
5.8
There are clear differences in the wording of policies EC5.2 and EC15 which
are not accidental. Policy EC5.2 refers to in-centre sites, edge-of-centre
locations and expressly to out-of-centre sites. Policy EC15 makes no
reference to out-of-centre sites or how they should be treated at all. Where
the Secretary of State has intended to replicate in EC15 the approach taken
in EC5 then that has been done in explicit terms (see EC5.2b and EC15.1c).
5.9
Policy EC5.2 requires sites to be identified in plans in the order specified:
(i)
in-centre locations available, or likely to be available during the plan
period;
(ii)
edge of centre locations, with a preference for those well-connected to
the centre for pedestrians;
(iii)
out-of-centre sites, with a preference for sites well served by a choice of
means of transport, closest to the centre and with a higher chance of
forming links with the centre.
A plan-making process would not, however, be expected to appraise all the
site-specific considerations which would arise on specific planning
applications. Instead, policy EC5.2 gives guidance which is fit for the
purpose of the more limited exercise involved in plan-making.
5.10
Policy EC15.1b requires all in-centre options to be thoroughly assessed before
“less central sites are considered”. If it is demonstrated that there are no
town centre sites for the proposed development, then preference is given to
“edge of centre sites which are well connected to the centre by means of easy
pedestrian access”. However, unlike policy EC5.2, policy EC15.1 does not go
any further into the sequential hierarchy. Having stated that the first
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connected edge-of-centre sites, policy EC15.1 does not express any further
preferences and, in particular, does not express any preferences as between
out-of-centre sites. The remainder of policy EC15.1 (sub-paragraph (d)) and
policy EC15.2 is concerned instead with the proposal itself, as regards
flexibility and disaggregation.
5.11
The distinction between EC5.2 and EC15.1 is linked to the way in which
decision-making is structured under EC17.1 and EC17.2 when determining
applications for permission for main town centre uses not in a centre. Policy
EC17.1 identifies two circumstances where permission may be refused:(a)
a failure to demonstrate compliance with the sequential approach in
EC15;
(b)
“clear evidence” that the proposal is likely to lead to “significant adverse
impacts” under any of the matters listed in EC10.2 and EC16.1.
Thus EC17.1 only deals with certain defined detriments. It does not cover all
other impacts and it does not deal with any of the benefits of a proposal.
Those matters are all left to EC17.2. Where no significant adverse impacts
under EC10.2 or EC16.1 have been identified under EC17.1, applications are
to be decided by taking account of:•
positive and negative impacts under EC10.2 and EC16.1
•
any other impacts or material considerations
•
the likely cumulative effect of recent permissions and developments
(including projects under construction).
The key point is that if a proposal fails to comply with EC17.1, then strictly in
terms of the policy itself, the decision-maker does not reach the stage of
weighing the positive benefits of that proposal. EC17.1a operates as a filter
which is based solely upon EC15 and not EC5.2.
5.12
The Council is attempting to give a broad effect to the filter in EC17.1a by
applying the sequential approach under EC5.2 rather than EC15. It contends
that an out-of-centre proposal should be rejected on a sequential test alone,
even if it has been demonstrated that there are no suitable in-centre or wellconnected edge-of-centre sites, merely because another out-of-centre site
would be suitable and available and has to some degree the locational
advantages identified in EC5.2(c). That interpretation of the policy does not
make any sense. First, the extent of that locational advantage would not
even need to be assessed. Second, there would be no opportunity to put in
the balance any other factor, including the absence of any adverse impacts
(under EC10.2 and 16.1) and any positive impacts resulting from the
proposed site. The proposal would be refused merely because one
alternative site, no better than out-of-centre, is said to be in some degree
better located solely in terms of the criteria in EC5.2c.
5.13
In this appeal it is common ground that there is no in-centre or edge-ofcentre site suitable to accommodate a food store of the size proposed. The
Council merely relies on one out-of-centre site, Kilton Road. Because that
site is closer to the centre than the appeal site and more buses pass by (prior
to the implementation of the S106 bus contribution), there is said to be a
sufficient basis for refusal. The Kilton Road site is still 717m from the
primary shopping area, however, well beyond any sensible walking distance
for shopping purposes and along an unattractive route with barriers to
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pedestrian movement. Yet on the Council’s interpretation, no comparison
would need to be made at all between the two sites as regards other factors,
such as the delivery of regeneration and further employment development.
5.14
There is no justification for the Council to impose such a straightjacket on
EC17. Instead, a proposal should only fail EC17.1a if there is a suitable incentre or well-connected edge-of-centre site available (EC15). If, however,
the only alternative available is an out-of-centre site, then any locational or
other advantages it may have over the proposal are to be weighed with all
other relevant factors under EC17.2.
5.15
The Council has also attempted to give a very restrictive meaning to the
encouragement in PPS4 of competition and choice for the consumer. Based
upon paragraph 10, it argues that this is limited to encouraging new
development, and thereby competition, solely within town centres. It is said
that Government policy does not encourage competition between out-ofcentre (and presumably edge-of-centre) retailing. But there is no logical
reason not to promote competition, in the public interest, between retail sites
properly permitted as out-of-centre locations. The broader and correct
approach is confirmed by policy EC16.1b and by the Practice Guidance 15 .
5.16
The PG also recognizes 16 that need for a sequential site assessment can be
location or even site specific. The appellant’s view is that that concept
includes regeneration and employment needs, being material considerations
under EC10.2. The Council’s interpretation that only “retail” needs are
relevant is too restrictive. On any view “needs” would have to encompass
factors relevant to all the main town centre uses listed in paragraph 7. The
appellant submits that PPS4 does not indicate that needs should be “read
down” in the way suggested by the Council. There is no justification for
excluding positive benefits falling within EC10.2. The upshot is that when
carrying out a sequential assessment it is relevant to consider what are the
needs of a retail-led development to deliver regeneration and other
employment development.
Need for employment development and regeneration
5.17
15
16
17
With increasing pressure for mixed-use developments (focused mainly on
housing) on key employment sites, and in the absence of a clear planning
policy framework within which to assess such proposals, the Council in
November 2008 agreed general principles for strategic development sites.
These principles are:(i)
Regeneration is a “Flagship Project” focusing on the key centres of
Worksop, Retford and Harworth. That remains the case whatever
happens to the RSS, and will be taken forward in the Core Strategy;
(ii)
Economic development is one of the Council’s primary ambitions. The
East Midlands Northern Sub-Region Employment Land Review 17 forms
part of the evidence base for the LDF and recommends the allocation of
79.5 to 92.5 ha of employment land in the District for 2006 to 2026 to
meet the projected demand for employment growth;
CD4 paragraph 3.13
CD4 paragraph 6.52
CD34
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(iii)
5.18
Vesuvius Works, Worksop
The Sandy Lane site is a key strategic development site.
The regeneration and employment benefits of the appeal proposal were
identified in the officer’s report to Committee in December 2009, 18 which
stated:
(i)
The provision of employment development is supported and is a
priority;
(ii)
In the light of the Arup report 19 the Sandy Lane site scores highly in
sustainability terms. It is not recommended for release for other uses,
particularly given the projected high levels of demand for employment
land in the District over the next 15-20 years;
(iii)
The Sandy Lane site is unlikely to come forward without enabling
development. The area is not suitable for housing and the only other
candidate would be retail;
(iv)
The opportunity to regenerate the site for employment purposes must
carry significant weight, even when balanced against retail impact on
the town centre.
5.19
The Council’s retail witness, Mr. Tonks, stated at the inquiry that the planning
authority had not authorised any suggestion that the regeneration benefits of
the proposal, or the need for employment development, were any less than
had been stated in the officer’s report to Committee. Yet despite these
matters the Council’s viability witness, Mr Balch, suggested that there “is no
pressing need to bring forward the development of the site in employment
terms”. 20 He based this conclusion on three reports he had reviewed, namely
the Arup report, the DTZ report and the Nathaniel Lichfield report for
Bassetlaw DC. 21 He accepted that his own work had focused on the likelihood
of employment development coming forward on the appeal site, including the
rate of take up, and not on the issue of need.
5.20
The suggestion that there is little pressing need for employment development
was not supported by the points Mr Balch drew from those three reports. On
take up rates, he agreed employment land sales from the appeal site of
0.69ha per annum. 22 He accepted that the Nathaniel Lichfield report showed
a take up rate of 3.18 ha per annum for the Borough and that this would
conceal pent up demand, so that the long term take up rate would be even
higher. He also agreed that the proposal in the Preferred Options Core
Strategy to allocate an additional 36 ha, equivalent to 2.4 ha per annum, lay
within the range of past take up rates and was reasonable. The take up rate
used in the analysis for the appeal site can therefore be taken to be robust.
5.21
The sites currently available suffer from two problems: (a) many are subject
to constraints and/or need some form of higher value development to
overcome site development costs, and (b) there is a lack of quality sites for
smaller uses. The Council does not dispute these problems – indeed, on the
first point, Mr. Balch himself pointed out that the High Grounds Industrial
Estate was an example of employment development brought forward in
18
19
20
21
22
CD27
CD34
Mr Balch proof paragraph 3.17
CD34, CD16 and CD44
Viability SCG, INQ2
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cross-subsidy from higher value uses, in that case the Sainsbury’s foodstore.
As long ago as 2008, Arup’s stated that Bassetlaw had only a moderate
supply of employment land compared to other Districts and that the supply
would be insufficient for a 20 year plan period, given past take up rates. The
disparity between supply and projected demand was made worse by the
constraints on a number of identified sites. Arup also stated that there is
strong demand around Worksop, particularly along the A57, for B8 uses,
some manufacturing and to a lesser extent offices.
5.22
From the Nathaniel Lichfield report it can be seen that there are instances of
existing businesses not being able to find suitable industrial premises to
expand or move into, particularly in Worksop and Retford. The main gaps
are a need for more industrial land readily available for development, along
with more modern industrial premises. There is an obvious shortage of small
scale office development to cater for local demand. John Mann MP gave
convincing evidence in support of those conclusions. Demand for industrial
premises is primarily for small units below 465 sq m driven by the small
owner-occupied sector, particularly specialist engineering and manufacturing
companies. The majority of office demand in Bassetlaw is from small,
indigenous companies seeking premises of less than 465 sq m. Worksop has
the strongest demand for office and industrial space in the District.
5.23
In recent years Worksop has captured 69% of the District’s take up of
employment land but has only a quarter of the District’s forward supply;
using those take up rates, the present supply would only last for 7 years, as
Mr Balch accepted. He also agreed that 7 years was not a long duration
given the time needed to remediate sites, provide infrastructure and to make
them available. He accepted that the Council was not putting forward any
other alternative locations as a key strategic site which could meet the needs
for which the appeal site is suitable. Therefore there is no substance at all in
his tentative suggestion, unsupported by the local planning authority or by
evidence, that there is “no pressing need”.
5.24
There has also been no real challenge from the Council to the views
expressed by Priority Sites. In view of the economic downturn they are being
selective about sites, yet they are attracted to the appeal site because of its
gateway location into the town, its proximity to the bypass, and the mixeduse proposals which would provide an active employment site with a critical
mass of development, rendering the site more attractive to the market and
more deliverable in terms of viability than others in the area. They say that
no alternative site exists in Worksop which could offer such a package. They
would meet the pent up demand from local occupiers by providing quality
accommodation between 2,000 and 10,000 sq ft; such units are attractive to
a range of occupiers and enable an occupier to grow organically. Priority
Sites’ involvement in the appeal scheme would not depend upon public funds
being used or divert their attention or resources from other projects.
5.25
Lastly, the need for employment development at the appeal site is supported
by the Dormer Tools appeal decision, relating to a site on the Sandy Lane
Industrial Estate. 23 That Inspector accepted the Council’s case that a
residential scheme should be rejected in order to protect the use of the site
23
Mr Miles Appendix C
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for employment purposes. He agreed that there was a need to avoid the loss
of high quality employment land in a sustainable location at a time when
future demand would outstrip supply. He also agreed with the Council that if
account were to be taken of the constraints applying to the existing supply,
there would be a deficit against future needs. The Inspector accepted the
Council’s view that the appeal proposal was very different to the scheme
before him because it is “heavily employment weighted”.
Size of superstore and enabling development
5.26
The parties agree that for the foreseeable future the only means of delivering
employment development on the appeal site is by a mixed use scheme which
includes a foodstore of 6,500 sq m gross. The only qualification to that view
is that if it be assumed in a viability gap appraisal that (a) the developer’s
profit is restricted to 20% on costs and (b) the undeveloped land value is
assessed for employment use only (at the agreed figure of £50,000 per acre),
the store could be reduced in area by up to 15%, but no more, ie. down to
5,500 sq m. However, it is also agreed that that is a theoretical exercise,
which is subject to the essential question of whether there would be demand
in the market to take a store less than 6,500 sq m in area.
5.27
Of the four major foodstore operators, Tesco and Sainsbury’s are already well
represented in Worksop. Therefore the site is only likely to be of interest to
Asda or Morrisons. Superstores largely compete with other superstores (the
“like for like” principle in PPS4 PG). The existing Sainsbury’s has a net
floorspace of 4,148 sq m. The consented Tesco at Carlton Road has a net
floorspace of 3,572 sq m and, if permission is secured for an extension, 5,801
sq m. The proposed Asda on the appeal site would have a net floorspace of
3,539 sq m. A 15% reduction in that floorspace would result in something
substantially smaller than either the Sainsbury’s or the Tesco superstores and
a severe restriction on the range of facilities that could be offered.
5.28
For the Council, Mr Balch’s view is that the market preference would be for a
store of the same size (if not greater) as the existing floorspace so that a new
entrant would be able to compete with the current operators. That is not an
arbitrary requirement but a matter of market forces and competition. He
thought that a 15% reduction in floorspace might no longer be attractive to
an operator, such that there was a risk that a store of 5,500 sq m gross
would not be taken. At the highest he thought that there was “a possibility”
that an operator would still go ahead at that size. Thus the Council could not
offer a positive view that there would be a demand for a smaller superstore.
On the evidence, therefore, the appellant submits that there is no real
likelihood of employment development going ahead on the appeal site unless
a foodstore of about 6,500 sq m is permitted.
5.29
In this situation the reliance placed by the Council on English Heritage’s (EH)
“Enabling Development” 24 and on the Shelford Road, Cambridge appeal
decision 25 has no real relevance. The Cambridge case simply rejected the
use of a historic land cost in determining the scale of affordable housing that
could be supported by a housing development in terms of viability. In the
present case the appellant has not sought to use the historic land price paid
24
25
CD45
Mr Balch Appendix 3
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in order to justify a superstore of 6,500 sq m. Nor has the appellant sought
to argue that a store of that scale should be permitted so as to produce a socalled super profit (i.e. a profit in excess of the notional developer’s profit of
20% on cost) which would offset any loss compared to historic land cost.
5.30
The appellant’s case on the size of superstore needed to deliver employment
development rests instead on the size of store which would be likely to be
acceptable to retail operators in order to justify their investing in this
location. An appraisal which would limit the size of the foodstore so that the
appellant receives no more than a 20% return on costs (restricting land value
to employment use) tells the inquiry nothing about the demand in the market
from superstore operators to operate in Worksop. That is a separate
commercial decision by a separate commercial entity as to the size of
superstore necessary to justify their investment decision, taking into account
competition, position and demographics; it has nothing to do with the
appellant’s commercial position. The superstore operator has no interest in
whether Dooba Developments makes a loss on its investment because of the
land price it has paid, or indeed whether it makes so-called super profits in
the sense used by the Council. The experts have, of course, agreed the price
which a superstore operator would pay for a 6,500 sq m store, uninfluenced
by those alleged “super-profits”.
5.31
The heavy reliance placed by the Council on paragraph 5.6.1 of the EH
guidance is similarly misplaced. That document relates to listed buildings and
defines "enabling development" in a particular way which is inappropriate to
this appeal. Here it is agreed that the appeal scheme would "enable" the
delivery of serviced and remediated land suitable for employment
development whilst 100% employment use, or indeed a mixed development
not including a foodstore, would not. The text relied upon by the Council is
simply concerned with the need to disregard the actual purchase price paid if
based on the hope of a consent for development “contrary to established
planning policy”. That is not the situation in the current case, not least
because the Council accepts that the unadopted Local Plan can carry only
little weight, puts no case forward about the loss of employment land, and
provides no evidence that the difference between a 6,500 sq m store and a
5,500 sq m store is even material, let alone harmful, in terms of its impact or
take of land.
5.32
The reference to hope value in paragraph 5.6.1 of the EH guidance is also
linked to the discussion of market value in paragraph 5.6.2. Mr. Balch cited
both of these paragraphs in his evidence, but he did not give any explanation
as to how they should be applied in this case other than to say that they
related to the “key viability issue surrounding the appeal site”, namely “the
need for enabling development to help bring a protected employment site
back into use”. 26 It was left to Counsel to contend, in closing submissions,
that “it is important to exclude hope value reflecting a possible change of use
from the protected employment use”. This proposition draws no support
from paragraph 5.6.4 of the EH document, which goes no further than to say
(so far as relevant):
(i)
26
Site value should be market value as defined by the RICS;
Mr Balch proof paragraphs 4.15-4.16
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(ii)
That figure should clearly allow for the hope value of any potential for
development or alternative uses in accordance with the development
plan;
(iii)
That figure should exclude any allowance for the possibility of consent
being obtained for development contrary to established planning policy;
(iv)
The RICS standards use hope value to define “justifiable expectations”.
5.33
The Council has overlooked an important point. There is no refusal in the
present case based upon a loss of protected employment land, not only in
relation to the foodstore, but also the hotel and the restaurants. Thus the
authority is unable rationally to claim that the market value of the
undeveloped land on the appeal site is restricted to employment use and
must exclude any hope value over and above bare employment land value.
It is also unable to claim that the site is "protected" for employment use in
order to try to justify the reliance upon EH’s guidance for minimizing the
amount of non employment uses.
5.34
It is important to appreciate the purpose of the viability appraisals agreed by
the two valuers. As Mr. Balch put it, the object was to analyse the “viability
gap” in order to test the means by which employment development could be
deliverable, including the use of public funding. The appraisals were never
constructed so as to arrive at a residual land value for the undeveloped land
(in contrast to the approach adopted in the Cambridge decision and in the EH
document where in those contexts a residual valuation approach is needed).
Instead, the experts agreed to assume a land cost based on employment site
values, and not to carry out a residual valuation to determine the value of the
undeveloped land.
5.35
The Council’s “super profits” argument seeks to show that by combining the
“surplus” with the developer’s profit allowance one arrives at returns in
excess of 50% on cost. The appellant’s viability witness, Mr Miles, protested
about the relevance of this exercise, saying that neither he nor Mr. Balch had
thought it appropriate to do a residual land value appraisal to find out the
value of the land. In other words, the exercise with the “viability gap”
appraisals assumed that the “surplus” would belong to the developer, rather
than forming a legitimate part of the land value to be paid by the developer
as part of the development costs to a landowner expecting a planning
permission to be obtained. The experts did not agree to make the Council’s
assumption in their viability gap appraisals.
5.36
Mr Miles clarified the position in re-examination, to which there was no
objection at the time. The appraisals by both sides have been constructed on
the basis that the revenues include the sale of a superstore which could not
be achieved without obtaining a planning consent (the superstore price is not
a “hope value”; it is a value for a built store following the grant of planning
permission). He then continued by saying that the assumed grant of
planning permission for a change of use to A1 also causes the undeveloped
value of the land to “increase, as a residual value”. Given that increase in
the land value, the development costs in the appraisal increase and logically
the developer earns an increased profit, as a percentage return on those
costs as well (albeit at the same percentage of 20%). The Cambridge case
did not involve any issue as to the land use to be assumed in the market
value of the land. In that case the housing scheme did not involve a change
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of use and there appears to be no suggestion that any pre housing use value
should have been applied, only the current housing use value.
5.37
In summary, the EH approach requires the land value to be a market value,
which must include justifiable expectations of planning permission. In this
case, because there is no loss of employment land objection, it is wrong to
assume that the market value of the land on the residual approach is
confined to employment value. The two valuers did not use the residual
value approach suggested in the EH document, but instead carried out a
viability gap analysis. This assumed employment land value as a fixed land
cost input in order to find out the size of the viability gap, determine the need
for development other than solely of an employment nature, and establish
whether the appeal scheme would be viable. There was no attempt to find
out the residual value of the land.
5.38
In market value terms there was a proper expectation of at least a hope
value given the Council’s previous approach to Sainsbury’s proposal to deliver
High Grounds, the acceptance by the Council that employment development
on the appeal site would require cross subsidizing development, the absence
of any loss of employment land objection, and the officers’ support for the
proposal. Moreover, there was a justifiable hope of obtaining a retail consent
given the fact that superstores had been permitted by the Council in out-ofcentre locations, and that the issue of impact on the town centre was one of
degree.
5.39
The true question is whether there is likely to be real demand from a limited
number of operators to take a foodstore of 5,500 sq m. The answer to that
question has nothing to do with the “super profits” argument pursued by the
Council, which confuses the valuation techniques and is entirely irrelevant.
The evidence demonstrates that there would not be any real likelihood of an
operator making such a large investment in a store of 5,500 sq m which
would be unable to compete effectively with two much larger and established
superstores nearby. This point is allied to the complete lack of evidence from
the Council that a smaller store would make any material difference to the
key issue of retail impact on the town centre. Accordingly the Council is not
entitled to submit in closing submissions that a superstore reduced in size by
15% would be “acceptable”. During the inquiry there was no suggestion from
the Council that it would have been willing to grant permission for a store of
5,500 sq m at the appeal site. If that had been the case, the issues would
have been narrower.
5.40
The planning system is not concerned to protect developers against the risks
they undertake. Equally, it would be improper to deny a planning permission,
if it were otherwise appropriate to grant it, because of a so-called excess
level of profit that a developer would earn, whether to offset a loss created by
a historic land price or for any other reason. The Council’s argument
proceeds on the false premise that there is no basis for granting permission
in this case except as enabling development. This is incorrect because
planning permission would be granted in any event if the Secretary of State
disagrees with the reasons for refusal, whether or not the “enabling” case is
accepted. Furthermore, the Council’s closing submissions about building
employment floorspace are untenable. Mr. Balch confirmed in crossexamination that it was agreed that speculative development would be
inappropriate on the appeal site - the Council was not trying to justify any
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requirement that the developer should build out any of the employment
floorspace.
Sequential Approach
Foodstore
5.41
At application stage the applicant agreed with Council officers that some 26
or so sites would be tested in a sequential analysis. Before the application
went to committee the officers agreed that the analysis demonstrated a lack
of sequentially preferable sites. However, the Council increasingly focused on
the sequential approach, rather than the impact evidence (the basis of the
members’ original refusal), as the inquiry progressed.
5.42
The Council now claims that there is one site (Kilton Road) which could
accommodate the size of superstore necessary to unlock the development
potential of the appeal site. However, that site is out-of-centre and therefore
is not sequentially preferable under EC15 and EC17. The Council claim that
Kilton Road is superior to the appeal site because it is closer to the town
centre. However, at a distance of over 700m from the centre, Kilton Road is
not close enough to encourage pedestrian trips between the two. The only
other relevant transportation comparison therefore relates to accessibility by
bus. Taking into account Nottinghamshire County Council’s suggestions, the
modifications to five bus routes would not only ensure connections to the
appeal site but would also strengthen the routes to the town centre. 27 Thus
there is no reason to believe that the Kilton Road site would be superior to
the appeal site in this respect.
5.43
The Kilton Road site has been protected for employment uses. The site is
now being cleared of buildings and remains as serviced land. There is
nothing to suggest that the Council no longer wishes to protect Kilton Road
for employment purposes. There is no evidence that the Council has
responded to the letter from Harris Lamb 28 inviting it to discuss alternative
uses. Indeed, Mr. Tonks said that the Kilton Road site had merely been put
forward at the inquiry for “sequential purposes”. In the final analysis a retail
development on this site would result in the loss of valuable, serviced land.
Even recently Kilton Road has been recognised by the Council’s own
consultants as important and to be kept for employment purposes. 29 A retail
development here would fail to achieve regeneration benefits as in the case
of the appeal proposal; accordingly the appeal scheme is clearly to be
preferred.
5.44
The cricket ground site is not a suitable, viable or alternative site. It has
been agreed by the Council that it could only accommodate 1,850 sq m of
floorspace, and that the development of valuable open space in an attractive
sensitive canal side setting would be a highly controversial issue even if a
relocation site could be found. The Council also accepts that at best the site
might only become available at some undefined point in the future.
5.45
The remaining sites in the sequential analysis have been considered in depth
not only in the original reports but also in DDL1/7 and the supporting
27
28
29
Mr Buckland of Nottinghamshire County Council; see DDL19 with additions
Mr Tonks Rebuttal Appendix 3
CD 44, Mr Miles proof and DDL1/7
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material. The essential points in that material have not been substantially
challenged or undermined.
Hotel and restaurant uses
5.46
The Council has recently raised the primary school site adjacent to the former
Victoria Hospital site as a potential hotel location. The appellant believes that
this site is unlikely to be attractive to a town centre hotel operation given the
nature of this particular town centre. In any event, the sort of operation
which would take place from the appeal site would be of a totally different
nature and operate in a different market to a town centre hotel and therefore
would not deter any such investment, even if there were to be demand for it.
Moreover, a Travelodge operation at the appeal site would depend on
adjacent restaurants to provide the services which are not covered by that
type of business model. They too would not compete with town centre uses.
5.47
The Council has attempted to suggest that the arguments on the former
Premier Windows and former Victoria Hospital sites were dealt with in the
Sandy Lane drive-through restaurant appeal decision. 30 But it is apparent
that that decision dealt with design and amenity concerns, which have not
been the focus of the analysis in the appellant’s sequential assessment. 31 For
example, specific technical evidence from the appellant which concludes that
a workable and/or attractive access to these sites could not be achieved, has
not been challenged or refuted. It appears from the Sandy Lane decision that
material of that kind was not submitted.
5.48
Overall, on the evidence presented the appellant has demonstrated that the
sequential test is satisfied in this case. That conclusion is further reinforced if
regard is had to the site-specific nature of the regeneration needs promoted
by this scheme.
5.49
Nevertheless, the appellant has accepted that in order to deliver employment
development, the hotel and restaurant uses are not critical components of
the viability appraisal. The scheme would still be viable without those
elements if all the land cost inputs are restricted to employment use.
However, the hotel and restaurant uses are still important to the overall
critical mass and synergy of the package of uses, which would encourage
initial take up and continued high rates of occupation of the employment
space.
5.50
On that basis it is submitted that there is a very good case, in the interests of
promoting and securing the regeneration benefits on the appeal site, for
retaining the hotel and restaurant uses in the scheme, even if an in-centre or
edge-of-centre site could be found for those particular elements. That view is
reinforced by paragraph 6.9 of PPS4 PG which acknowledges that different
markets exist, for example, for hotel uses in town centres as compared to
out-of-centre locations. If, however, the Secretary of State should disagree
on this aspect the parties have agreed 32 that it would be lawful for either a
split decision pursuant to Section 79 of the 1990 Act to be issued, or for a
condition in the following form to be imposed:
30
31
32
CD52
DDL1/7
See Council closing (BDC27) at paragraph 113
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" Notwithstanding the description of the development no hotel or restaurant
development (which for the avoidance of doubt shall not preclude a
restaurant or café within the foodstore) shall take place on the site."
The appellant prefers the condition route because this would avoid tension
with the terms of the various S106 obligations.
Retail Capacity
5.51
Under PPS4 there is no longer a needs test to be satisfied; instead, retail
capacity can inform the sequential analysis. However, it is wrong to suggest
that capacity directly determines impact. Whilst a substantial capacity figure
can provide comfort for the judgment that a proposal will not impact upon
town centres, the reverse does not follow. Even where a capacity figure is
lower, a new superstore in an out-of-centre location will be expected to draw
much of its trade from other out-of-centre superstores and so will not
necessarily have an adverse impact on a town centre. A capacity assessment
is no substitute for a properly carried out impact assessment.
5.52
The parties’ respective positions on capacity are not very far apart - the
Council estimates a figure of £23.9m, the appellant £28.02m. 33 These are
equivalent to 1,838.5 sq m and 2,155.38 sq m of net convenience floorspace
respectively, which is of the same order as the proposed net convenience
floorspace agreed at 2,216 sq m. The capacity figures are the sum of
components which individually reflect the different assumptions of the two
retail experts; these are examined below.
Addition - Available spending growth
5.53
The Council estimates £7.3m growth in convenience goods expenditure and
the appellant £10.36m. The difference arises because the former used 2008
Experian data and the latter 2009 Experian data. Clearly it is preferable to
use the most up-to-date consistent data set available. The Council sought to
counter this by referring to the most recent population projections showing a
reduction in the rate of population growth. But such figures cannot be used
compatibly with the Experian data sets before the inquiry. Revised
population projections could only be used with the next set of Experian data
available later on in 2010. Moreover, a reduction in the rate of population
growth does not necessarily point to a reduction in available expenditure
estimates because there are other factors which can point in the opposite
direction. All factors need to be looked at together on a consistent set of
data.
Addition - Clawback
5.54
33
34
The Council estimates clawback of £5.1m whereas the appellant’s figure is
£8.72m. Both figures are based on household surveys. The appellant’s
survey by Allegra is more up to date than that conducted for the Bassetlaw
Retail Study (BRS). The Council has sought to criticise the Allegra survey
because the questions referred to “shop,” whereas the BRS question referred
to “shop or centre”, but that criticism is unsound. 34 The clawback is primarily
Retail SCG, INQ5
See letter from Allegra, DDL29
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related to those leaving Worksop now (as surveyed) and going to the
Morrisons and Asda at Retford.
Addition - Overtrading
5.55
The Council’s estimate is £23.4m, based on the BRS survey, whereas the
appellant’s is smaller at £17.12m and derived from the Allegra survey.
Total Additions
5.56
Whilst the three individual components of the additions to quantitative need
reveal material differences between the parties, the sum of the additions is
remarkably similar - £35.8m for the Council and £36.17 for the appellant. In
closing submissions the Council sought to adopt some parts of the appellant’s
case on capacity but not others, but that is not legitimate given the
interrelationship between the components. For example, the authority
cannot properly take a lower overtrading figure on the grounds that the
appellant’s figure is more accurate than its own without acknowledging that
the appellant’s figure is derived from the Allegra survey, which therefore
should also be taken as accurate for other purposes.
Deduction - Commitments
5.57
The Council’s figure is £6.8m and relates to the Tesco relocation (2007
consent) and the Sainsbury’s Local (£2.4m); the appellant’s figure of £4.84m
relates solely to the proposed Tesco. Most of the difference arises because
the Sainsbury’s Local was trading at the time of the Allegra survey, whereas
it was not trading at the time of the survey for the BRS. Deducting £2.4m
from the Council’s £6.8m leaves £4.4m for the Tesco, a figure very close to
the appellant’s. It is important, however, to appreciate the significant
difference in the figures for the turnover of the Sainsbury’s Local. The
Council’s figure is derived from company average turnovers, whereas the
Allegra survey identified a turnover of only £0.56m. A small, top up unit in a
town already served by a large Sainsbury’s superstore could not possibly
achieve such a high turnover as that suggested by the Council, so the
appellant’s figure – which is survey-based – is to be preferred.
5.58
No account is taken in the Retail SCG of the current application to extend the
permitted but not yet built Tesco superstore at Gateford Road. The Council
calculates that the proposed 981 sq m net increase in convenience floorspace
would produce an increase in turnover for the Tesco, if the extension is
permitted, of £12.03m. But this argument pre-empts decisions both on this
appeal and on the Tesco extension. The whole point of a capacity
assessment is to provide some guidance on the scope for additional
floorspace, without any predisposition that some of that floorspace will be
taken up by a proposal yet to secure planning permission. The Council’s
approach simply benefits Tesco by securing protection for that company’s
current level of turnover where it is overtrading. An obvious alternative
approach is to relieve that overtrading and introduce some additional
competition for Worksop at the same time. The Council’s case ignores that
simple, fundamental objective of retail policy which has held good for so
many years.
5.59
In any event, the Council’s figure of £12.03m is far too simplistic and
adjustments would need to be made. First, it is a well established principle
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that extensions to existing stores or retailer representation do not trade at
the same level of sales density. 35 Accordingly it is appropriate to take only
40% of the average sales density figure, reducing £12.03m to £4.81m.
Second, the Council has proceeded on the basis that 7% of the turnover of
the new floorspace will come from people living beyond the catchment area
(the appellant had not relied upon that factor as a conservatism). That 7%
adjustment reduces the figure to £4.47m. Third, any new superstore
floorspace would compete to a large extent with other superstores on the
“like for like” principle; this justifies a further reduction by 26% (being the
assessed impact of the proposal on the permitted Tesco floorspace, applied to
the extra floorspace) to £3.31m.
5.60
Therefore, the Tesco extension (even if permitted) does not significantly
affect the issue of whether there is capacity for the proposed Asda. The
Council has not called any evidence to support the adjustment they suggest
of £12.03m. The attempt by its Counsel to give his own evidence on the
appellant’s adjustments is improper and unfair. Had the Council’s witness, Mr
Tonks, dealt with the matter he could have been cross-examined. The only
evidence before the inquiry on this point is from the appellant, which should
be accepted. Moreover, the Council overlooks the simple point that Tesco
must be assumed to be willing to transfer its business to Carlton Road even if
the extension is not permitted. There is no evidence to suggest otherwise.
Deduction - Re-occupied vacancies
5.61
The Council allows £1.4m for the re-occupation of premises currently vacant.
Given that (a) the vacancy rate is at or below the national average and (b)
some level of vacancy is necessary to allow for churn, the deduction made by
the Council is unsound. The allowance that should be made for churn,
coupled with the size, shape and age of units in the centre and the
unlikelihood of several of them ever being fit for modern retail purpose, leads
the appellant to conclude that no deduction should be made for vacancies.
Deduction - Proportion of spending growth spent outside the study area
5.62
The Council’s figure in the Retail SCG is £2.9m, the appellant’s is £2.51m;
the parties have since agreed to split the difference at £2.7m.
Deduction - Turnover efficiency improvements
5.63
Both experts have adopted a figure of £0.8m. However, the appellant
questions whether any such adjustment is in fact justified in a catchment
marked by overtrading and substantial expenditure outflows. The agreed
figure therefore represents a conservatism in the appellant’s overall capacity
figure.
Conclusion on capacity
5.64
35
The appellant’s estimated capacity of about £28m is to be preferred overall.
It would be impermissible to pre-empt the Council’s decision on Tesco’s
extension or any subsequent proceedings. Even if a planning permission
were to be obtained and a further capacity exercise undertaken at that future
point, only a modest reduction in capacity of just over £3m could be justified.
See CD23 paragraphs 8.16 to 8.21
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Any such extension will not affect conclusions on impact on the town centre
because both the Asda proposal and the larger Tesco will simply take more
trade from each other rather than anyone else.
5.65
At the last minute the Council attempted to undermine the floorspace figures
in the Retail SCG by suggesting that the agreed sales density figure of
£13,000 per sq m be revisited in the light of Verdict and Retail Rankings 2010
figures. The authority submitted a document produced at another inquiry
which refers to an Asda store at Burton Road, Kendal 36 supporting a sales
density figure of £15,458 per sq m. Yet no analysis for that inquiry has been
produced, and the source of that figure cannot have been the 2010 Verdict
report because that was only produced in mid September. Furthermore, the
sales density figure cannot simply be extracted from such a report. The data
has to be analysed using judgment to arrive at convenience and comparison
figures. Without that supporting analysis it is impossible to attach any weight
to the figure of £15,548 per sq m. Instead, the figure agreed between the
experts at this inquiry should be adhered to. In any event, the updating
information which is available from the Verdict 2010 report shows that Asda’s
sales density performance has declined and so the figure of £13,000 per sq m
would now be lower, resulting in an increase in the capacity for new
floorspace.
Retail impact
5.66
The main differences between the experts can be explained by the different
approaches taken to the estimation of trade draw. Up until the inquiry the
Council had insisted that no allowance should be made for clawback. It had
also failed to make any adjustment to the constant market share approach to
allow for (i) the like for like principle and (ii) a comparison of the distances
between population and different shops. Although the Council has now
purported to do this, it has made a single step judgment which (a) deals with
all zones together, (b) deals with main and top-up shopping together and (c)
does not separately allow for distance.
5.67
By contrast, the appellant dealt with main and top-up shopping separately
and also considered the propensity to divert for each shop relative to each
catchment zone separately, taking into account distance and the like for like
principle. The great advantage of his method is that the separate judgments
are transparent and can be checked for consistency and reasonableness. The
Council has made no attempt to test or challenge those judgments across the
study area, to show an internal inconsistency or to show some other flaw in
the approach, even though this was supposed to be the focus of the reason
for refusal.
5.68
Apart from limited criticisms of the Allegra survey, the challenge focused on
the diversion figures from Retford for residents in zones 1 and 2. The
diversion from zone 2 is less than £0.5m and therefore not significant. The
diversion from zone 1 is more substantial but it is reasonable to expect that
residents from the Worksop area would find it more attractive to visit Asda in
their own town than to visit Morrisons or Asda in Retford. It is apparent that
people are making an 18 mile trip in order to buy goods at prices which are
36
BDC24
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more attractive and competitive overall than those of Sainsbury’s and Tesco.
The views of local residents also make that plain.
5.69
Previously, the Council had estimated an impact percentage on the town
centre of 25%. Now that has reduced to 15%, a substantial change of
judgment. Its diversion totals £2.89m, including £0.5m from the Sainsbury’s
Local and £1.1m from the Worksop Netto. The percentage impacts on the
Sainsbury’s Local and the Netto are far too high at 21% in each case, being
similar to the 22% and 19% impacts for the Tesco and Sainsbury’s
superstores. Moreover, the estimated turnover for the Sainsbury’s Local is
far too high for the reasons previously given. If a survey based estimate
were to be taken then the diversion would have to be much less - the
appellant’s figure is £0.02m.
5.70
Overall, the appellant’s total town centre turnover pre-Asda of £19.98m, its
total diversion of £0.98m and its impact percentage of 5% should be
preferred. This analysis correctly treats the town centre convenience trading
as being mainly for top up shopping and therefore takes a more realistic view
as to the extent to which the proposed Asda would compete with those shops
as opposed to the superstores and other locations. Moreover, the element of
top up shopping that does take place in superstores is functionally different to
that which the town centre accommodates and therefore is not a matter of
concern for the health of the town centre.
5.71
As to the effect of such a draw from the town centre, the parties have agreed
the Health Check. 37 The Council’s concerns have primarily related to
vacancies in the Priory Centre and elsewhere. However, the vacancy rate has
typically been at about the national average and is currently below that
average. The vacancies in the Priority Centre relate to the least attractive
units and do not support the Council’s concern - indeed, the Council’s
Property Manager accepted that they were what he would expect. Instead,
his main concern related to the southern section of Bridge St, mainly at the
far end south of Smart Alec. However, this is a secondary location and the
impending cinema development is expected to overcome that issue. The
vacancies have been created by the success of the Priority Centre extension,
hence the need for the cinema development to redress the balance in the
town centre. There has been no suggestion that the likelihood of the cinema
development going ahead could be affected by the appeal proposal.
5.72
The appellant’s evidence also shows that, even after the estimated diversion
to the Asda, the town centre would still be trading at 33% above benchmark
turnovers. 38 That evidence has not been challenged at all and further
supports the conclusion that the Asda proposal would not have a significant
adverse impact on the town centre. Indeed, although the Council has
predicted a 15% impact on the town centre, it has not suggested that any
stores there would be likely to close or that the services they provide would
be adversely affected to a material degree.
37
38
Appendix 13 of Planning SCG, INQ1
Mr. Tapley’s table 4 Column 6 (Main proof – DDL1/14)
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Conclusions
5.73
It is not surprising that there is substantial public opposition to the stance
taken by the Council at this inquiry, reinforced by the cogent evidence from
John Mann MP and several Councillors. The main issue in the appeal ought to
be, as stated in the reason for refusal, whether the impact from the proposal
on the town centre would be unacceptable. If acceptable, then it would not
even be necessary to weigh the regeneration benefits against that impact.
However, the Council’s team has sought to place increasing emphasis upon
the sequential tests. They have also misrepresented the appellant’s case as
if it depended upon the concept of enabling development and viability. But
the appellant’s primary case has always been that planning permission should
be granted because the proposal would not have a significant adverse impact
upon Worksop town centre, as clearly demonstrated by the evidence.
5.74
The weight that can be attached to the Council’s extended case must be
affected by the process it has followed. With regard to the impact issue, the
members acted in December 2009 on the basis of advice that there would be
a 25% impact on the town centre, and capacity for new convenience
floorspace of 1,440 sq m in 2014, ie. capacity for about only a half of the
assumed net convenience floorspace of the proposed Asda. The Council’s
position has now changed radically. The agreed proposed net convenience
floorspace of the proposed Asda would be 2,216 sq m, the Council’s revised
capacity figure would support 1,838 sq m net, and its figure for impact on the
town centre has dropped to 15%. Yet the merits of the proposal were not
referred back to members so that they could reconsider the central issue
upon which the reason for refusal had been based.
5.75
The Council has lost sight of the fact that the appeal site is a “strategic
development site” and under the East Midlands Northern Sub-Region
Employment Land Review has one of the best sustainability scores for
Bassetlaw District. The Council has even put forward an interpretation of
policy EC17 of PPS4 which would prevent the regeneration benefits referred
to in PPS4 from being taken into account in the planning balance simply on
the basis that the existence of one alternative out-of-centre site with
allegedly better current accessibility is sufficient to demonstrate noncompliance with EC15 and EC17.1(a). That is a clear misinterpretation of
PPS4.
5.76
The correct approach is to apply PPS4 policy EC17.2. No significant adverse
impacts have been identified and, taken overall, the impacts under EC10.2
and 16.1 are positive. There would be substantial regeneration and
employment benefits, together with transportation benefits through the
improvement of bus services to the town centre and CO2 savings. Further,
the bus offer is now agreed by all parties and, according to the bus operators
and the County Council, would not only significantly increase accessibility to
the town centre, but would also have every prospect of longevity.
5.77
For all these reasons the appeal should be allowed and planning permission
granted for a project which would be of great benefit to the residents of
Worksop.
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THE CASE FOR BASSETLAW DISTRICT COUNCIL
Planning Policy
6.1
Following the Council’s decision not to adopt its 2001 Bassetlaw Local Plan,
the EMRP is the sole adopted Development Plan Document. There is an
emerging Core Strategy, but this is agreed to be at an early stage of
preparation such that it can be given only limited weight.
6.2
In place of a Core Strategy, the Council still uses the BLP for the purpose of
development control. It therefore assists in the sense of providing a
definition to the town centre (the town centre boundary) and the only
available land designation for the appeal site (protected employment land).
But whilst the BLP provides the only sensible basis upon which the decision
maker can identify land use planning designations, determinations on the
merits of any application must also be considered in light of national planning
policy guidance and statements.
6.3
Most national policy has been revised since 2001. Particularly pertinent to
the facts of this case are the new PPS4 and the Practice Guidance on Planning
for Town Centres, which provides guidance on need, impact and the
sequential approach.
Enabling Development and the Evidence on Economic Viability
6.4
In the Planning SCG it is agreed that the site is appropriately described as an
employment site and that the appellant’s proposals are appropriately
described as enabling development. The difference between the parties is
stated in the SCG to be “whether the scale and nature of the enabling
development proposed is necessary to deliver the comprehensive
regeneration of the employment site and how it will enable such
regeneration”.
6.5
Enabling development is by definition development which is contrary to
policy, but allowed on the basis that it brings with it other benefits which
outweigh such conflict. 39 That is very clearly the appellant’s case in respect
of this proposal. It is founded on the principle that the proposed out-ofcentre Asda superstore, a Travelodge, a standalone restaurant and a KFC
drive-through restaurant, which are all main town centre uses, are justified
on an employment site next to the bypass because they enable the delivery
of employment land and a football pitch. They may be economic
development (PPS4, paragraph 4), but their presence on protected
employment land in an out-of-centre location is contrary to policy. This is a
clear argument of enabling development.
6.6
If an appellant wishes to make an argument that its proposal involves
enabling development, it should submit to an open book assessment in
respect of costs, revenues and even profits. In this case the appellant set
about the process quite properly, presenting an open book assessment of the
proposal. The critical point is that, consistent with the EH guidance, it is
necessary for the appellant to demonstrate that the amount of enabling
39
See the EH guidance (CD45) which is based on the 1998 Court of Appeal case of R v Westminster City
Council ex parte Monahan
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development is the minimum necessary to secure the employment land and
the sports pitch.
6.7
There was much positive discussion about the viability issue before the
inquiry. Crucially, it was agreed that the purchase price would be ignored
and a land value of £50,000 per acre would be adopted. 40 If that was not the
figure the appellant was relying upon, it should not have been in the Viability
SCG. It was also agreed that the developer’s profit should be 20%. Having
agreed to an open book approach, the figures reveal the appellant’s intention
to claim not only a developer profit of 20%, but an additional profit of
£4.11m (a super profit of an additional 48%). That makes a total profit on
costs for the appellant of 68%, where the costs are £8,563,742. 41
6.8
There is no justification for seeking that additional level of profit on costs. It
is far in excess of the 20% that has already been allowed for and agreed.
Seeking a 68% profit on costs is contrary to well established principles and
the guidance on enabling development provided by English Heritage. It is
also nothing more than a thinly veiled attempt by the appellant to recover its
purchase value.
6.9
The most pertinent part of the EH guidance appears under the heading “Site
value: has too much been paid?” 42
“5.6.1
One of the most common problems when dealing with proposed
enabling development is that too high a purchase price was paid for the
property. The acquisition costs for the purpose of enabling development
calculations should be the market value of the property in its existing
condition and having regard to the advice of PPG 15. Given that the market
value of a property is theoretically the sum remaining once development
costs have been subtracted from end value, the result for some significant
places in very poor condition will be negligible or negative. The actual
purchase price paid by the developer must be disregarded if it is based on the
hope or anticipation of consent for development contrary to established
planning policy. However, for the sake of openness, the actual purchase
price paid should be disclosed in any application for enabling development.”
6.10
Again, quite properly, the purchase price was disclosed by the appellant £13.4m plus VAT. In the Council’s submission, that looks very much like a
supermarket purchase value: Tesco paid £12m for the Carlton Road site. It
is true that the appeal site is much larger but, as the appellant’s own viability
and planning evidence demonstrates, it is only the supermarket which
creates any real value. Acquiring protected employment land at a
supermarket land price, whether that was the intention or not, is very high
risk. Moreover, it is a contaminated employment site, which would have
been known to the appellant at the time of purchase.
6.11
The appellant’s case is that it cannot deliver employment development on the
site, hence the enabling development argument. It is not designated for any
other use, so claims that there is a legitimate hope value for mixed use
development are groundless. Worse still, the fact it is contaminated land
40
41
42
Viability SCG (INQ2), page 8
Mr Balch’s proof of evidence, Table 2 on page 29
Mr Balch proof of evidence, page 17
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means it is genuinely difficult to ascribe value to the site. The figure of
£50,000 per acre was agreed in the Viability SCG, but the Council also tested
£0 and £100,000.
6.12
As well as excluding the purchase price, it is equally important to exclude
hope value reflecting a possible change of use from the protected
employment land use. This matter is also addressed in the English Heritage
Guidance: 43
“5.6.4
Where the property is in usable condition, site value should be
the market value as defined by the Royal Institution of Chartered Surveyors
(RICS) Appraisal and Valuation Standards (‘The Red Book’), which must take
account of the structural condition of the property and the planning
constraints upon it. In the context of testing the need for enabling
development, this figure should clearly allow for the ‘hope value’ of any
potential for development or alternative uses in accordance with the
development plan, but exclude any allowance for the possibility of consent
being obtained for development in contravention of established planning and
conservation policy. The RICS Standards (PS 3.2.5) uses the term ‘hope
value’ to define justifiable expectations; its common use to refer to
unreasonable expectations can be a source of confusion.”
6.13
There is no mention in the Viability SCG of any other figure reflecting a hope
value for alternative uses not in accordance with the BLP designation of
protected employment land. Yet, despite the appellant’s viability witness, Mr
Miles, quite properly and fairly accepting the point about a 68% level of profit
on costs, the appellant has sought in various ways to change the evidence.
Firstly, in re-examination Mr Miles was asked to accept that one should take
account of the increase in land value associated with the planning permission.
This is contrary to the EH approach set out above and contrary to the SCG.
Secondly, during the long adjournment the appellant tried to put in specific
figures to try and quantify that increase, 44 which was inappropriate. Thirdly,
in his evidence the appellant’s retail witness, Mr Tapley, suggested that the
surplus profit is part of the land value. 45
6.14
The appellant’s argument proceeded on the basis that the uplift in land value
derived from a more favourable planning permission should be taken into
account. It was put forward on the basis that a developer can claim to be
delivering enabling development and at the same time make 68% profit on
costs, despite agreeing the correct figure is 20%. That is illogical because it
is not simply enabling the employment land and football pitch, it is enabling,
in addition, a super profit. This is contrary to well-established principles and
the EH guidance on enabling development.
6.15
The appellant has maintained that it is unwilling to reduce the size of the outof-centre superstore. It has also maintained that it is unwilling to do more by
way of delivering the Class B employment which, it asserts, is the
development being enabled (for example, in the form of actual employment
units or premises). This is despite seeking a huge profit on costs so as to
recover part of the purchase value. After enjoying years of rising land
43
44
45
CD45 page 37
DDL16, subsequently withdrawn
Mr Tapley speaking note (DDL1/4) paragraph 5.13
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values, developers have clearly been badly affected by the recession. But
despite being happy to take profits in the years of plenty up until 2007, many
seem unwilling to accept that those profits come with the risk of losses.
6.16
The Secretary of State made very clear in the recent Cambridge appeal
decision 46 that it is inappropriate to assess viability on the basis of protecting
historic land values as well as insulating the developer against a risk for
which it is already indemnified by profit margins. The appellant suggests that
the Secretary of State’s approach in that case could be distinguished because
it is a housing case and the issue was the delivery of affordable housing. But
the subject matter of the application is not the issue. What matters is the
principle of how one treats the purchase price in a viability assessment. In
the Cambridge decision it was viability and the delivery of affordable housing.
In this case it is viability and the delivery of additional benefits associated
with providing employment units and premises. But it might equally have
been focused on providing a sports stadium. The other way to approach the
matter was simply to reduce the size of the supermarket.
6.17
Very little viability evidence to justify the argument for enabling development
was presented at the application stage, so little weight should be given to the
fact that the scheme was recommended for approval by Council officers. The
officer’s recommendation was made without knowledge of any of the
evidence before this inquiry. Despite the benefits associated with this
proposal and the support from local people, to grant permission in this case
would create a very worrying example of how enabling development could be
used in a way which then legitimises a very substantial surplus profit to
protect historic land values.
6.18
All the appellant would have to do is reduce the size of the store. The Council
even presented evidence indicating what that acceptable level would be (15%
reduction), having openly accepted the principle that any reduction in size
could not be applied pro rata to a 30% reduction in profit. Alternatively the
surplus profit could be ploughed back into the delivery of actual employment
units and premises (as with the Sainsbury’s High Ground permission), which
the Council openly signalled in its Statement of Case. It could even go to the
football ground which local people had actually been told they could expect –
note the words “building” of “a Community Sports Stadium” in the petition
organised by John Mann MP. 47
Application of Retail Policy
6.19
The appellant accepts that PPS4 contains two gateway tests. These are set
out in policy EC17.1 and concern the requirements of the sequential approach
and the expanded impact test. But it impossible to understand either without
an understanding of capacity. The need test may have been removed, but
one cannot sensibly look for sequential sites without knowing the size of the
site one is looking for. Nor can one begin to understand impact without
knowing how much capacity is available because in the absence of capacity
46
Mr Balch Appendix 3 paragraph 11
The words used in the petition which people were asked to sign and organised by John Mann MP are :
SAY “YES” to the new development on the Vesuvius site creating a 1000 jobs and building a
Community Sports Stadium, Industrial Units and a Supermarket.
47
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(from expenditure growth, clawback and overtrading) trade will be directly
drawn from the town centre and other preferred locations.
Capacity
6.20
The Council has a convenience goods capacity figure of £23.9m and the
appellant £28.02m. Given that the capacity of the proposed Asda is agreed
to be £28.8m, the difference is very important. But even this £4m difference
masks various, sometimes bigger, differences in the figures. The Council
only seeks to focus on the main issues.
6.21
The biggest component of the difference between the retail experts is
overtrading. The Council ‘s figure for overtrading (£23.4m) is very similar to
its total capacity figure. It is accepted that the Council’s figure is too high
and probably a result of the fact that Sainsbury’s had only just completed its
extension at the time of the Bassetlaw Retail Study (BRS) survey. The
appellant agreed that it would be more appropriate to use its figure of
£17.12m; this removes a further £6m from the Council’s figures, giving
around £17m capacity.
6.22
The real issue about overtrading is that most of it is taking place at Tesco.
That was agreed by the appellant, who volunteered a figure of £11.93m.
Tesco has an application before the Council for an expansion to its consented
store at Carlton Road which, the parties agreed, must be taken into account.
The Extra store proposal would offer 981 sq m of additional convenience
floorspace above the permitted scheme. Using the agreed Tesco trading
density of £12,266 per sq m gives a figure of £12.03m of expenditure. That
equates almost perfectly with overtrading figure for Tesco, and creates a real
difficulty for the appellant.
6.23
In response the appellant argues that one should not take account of the
£12m for two reasons. Firstly one should only apply 40% of the £12.03m,
immediately reducing the figure to £4.81m. Then a deduction should be
made for inflow into the catchment at 7% and a further deduction of 26% to
reduce the figure to £3.31m. But this makes no sense. The capacity that is
being identified is overtrading, which is agreed to be specifically taking place
in the existing Tesco store. Tesco are preparing to move site completely to
accommodate that overtrading by building an Extra superstore. There is no
logical reason why that move to a very much larger foodstore (over even the
consented scheme) should not absorb the overtrading from Tesco’s own
customers. Why else would Tesco be going to the trouble of moving sites
and building a whole new store? The appellant’s suggestion that it will only
perform as a general extension ignores completely its evidence of £12m of
overtrading at the existing Tesco store.
6.24
The only other answer given by the appellant on this issue is that need has
been removed from PPS4 and therefore capacity is largely irrelevant. But the
whole policy is focused on increased competition in town centres. It is not
there to create four giant out-of-centre superstores around every town in
England in the name of competition. That is precisely why capacity is so
important. Whilst town centre competition is to be encouraged, proposals for
new out-of-centre stores will self evidently be related to capacity. For Tesco
that is easy because they are overtrading.
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6.25
There is very little capacity for the out-of-centre Asda store even on the
appellant’s figures. Indeed it is assumed that all future growth to 2014
should be directed at the proposed store, though that is minus the inflow
figure. Without around £12m of overtrading there is nothing like the capacity
to justify a further out-of-centre store of the size proposed by the appellant.
6.26
Looking at the other figures, there is a difference of £3.62m in the estimates
of clawback. Whilst the Council accepts that this will take place, one is
talking about clawing back expenditure to an out-of-centre superstore in a
town where there are already two such stores. Moreover, the proposed Asda
would be smaller than the Sainsbury’s and the consented Tesco stores, and
would be located very close to Sainsbury’s. Despite this, the appellant relies
on a figure of £8.72 million, representing an unfeasible 31% of the total
capacity.
6.27
The Council allows a far more modest figure of £5.1m, representing 18% of
the appellant’s total capacity figure. The Retford trade diversion is addressed
below, but given that only 8 people in zone 1 in the Allegra survey shop in
Asda, the appellant’s argument that a high clawback figure can be accounted
for by loyalty to Asda looks unconvincing. The loss of a further £3.6m of
expenditure reduces the appellant’s capacity figure of £28m to approximately
£12.5m. 48 This is important because in terms of capacity one is then looking
at a much smaller, medium sized supermarket of less than 1,000 sq m
(based on a turnover figure of £13,000 per sq m) as regards the sequential
approach.
6.28
The Council also disputes the fact that no allowance has been made for the
re-occupation of vacant units; it believes that a deduction of £1.4m is
appropriate. The appellant argues no account should be taken of vacancies
to allow for churn. That stance should be contrasted with the appellant’s
note which lists convenience goods store openings and closings in Worksop
town centre. 49
6.29
The only other area of dispute is the total growth in convenience goods
spending, with a difference between the parties of £3.06m. It is accepted
that the most up to date Experian figures have been used. But caution needs
to be applied to the significant population increase because of the ONS 2008
Subnational Population Projection figures highlighted by the Council, which
show an appreciably smaller increase. As with current predictions on
expenditure, derived from the assumptions about the state of the economy,
they are just predictions; the difference between the data sets warrants a
cautious approach being taken.
6.30
It was agreed in cross examination that the figure for spending growth
outside the study area could be taken as an agreed figure of £2.7m. The
figure of £0.8m for turnover efficiency improvements is the same. Overall,
given the Tesco expansion proposal in a preferable location and the
appellant’s unrealistic assumptions about clawback, capacity does not exist to
support this out-of-centre Asda superstore.
48
£28.02m minus £3.62m and minus £11.94m overtrading at Tesco because of the expansion of
convenience goods floorspace by 981 sq m.
49
DDL14
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Sequential Approach
Superstore
6.31
The Practice Guidance (PG) to PPS4 states that the sequential approach can
be sufficient reason itself to refuse an application. The appellant agrees that
the sequential approach from policy EC17.1 is one of the gateway tests.
When applying policy to a planning application, the appellant suggests that
one is not entitled to look at out-of-centre stores – instead, it is said that the
300m maximum distance from the primary shopping area (PSA) is all that
one is entitled to consider. The logical consequence of that argument is that
at 310m there can be no more suitably located sites and therefore the appeal
site, on the periphery of town and right next to the bypass, has a free run.
Moreover, it would mean the Council could not have looked at the Tesco site
on Carlton Road despite the fact that it is vastly superior to the appeal site in
respect of all relevant retail policy considerations.
6.32
The appellant’s interpretation derives from looking at EC17.1 and suggesting
that the requirements of the sequential approach in EC15 mean that out-ofcentre sites should not be considered because they are not identified in the
test. This is despite the wording of sub paragraph (b) of EC15.1: “ensure
that all in-centre options have been thoroughly assessed before less central
sites are considered.” Given this wording, the policy does not need to
mention out-of-centre stores because they are self evidently identified as
“less central sites”. If EC15 was restricted to consideration only of sites
within 300 metres from the PSA, the wording would have read “ensure that
all in-centre options have been thoroughly assessed before edge-of-centre
sites are considered”. It does not.
6.33
PPS4 policy EC5.2 applies the sequential approach to the process of plan
making; in respect of out-of-centre sites, EC5.2 gives preference to those
which are well served by a choice of transport modes, closest to the centre
and most likely to form links with the centre. It is illogical to believe that the
criteria relevant to identifying suitable out-of-centre sites are relevant only to
plan making and not to determining planning applications. Moreover
paragraph 1.9 of the PG makes clear that despite the differentiation of the
policies in the PPS, “in practice a number of the techniques and approaches
outlined apply to both”. This interchangeable approach is also highlighted in
Part 5 of the PG under the headings “Supporting evidence in development
management” and “The Sequential Approach”, where paragraph 5.4 contains
this guidance:
“Where a sequential site assessment is required by Policy EC14 the policy
requirements for that assessment are set out in Policy EC15. The same
general principles will apply if local planning authorities are proposing to
allocate sites for main town centre uses which are not in an existing centre.
Detailed guidance on the application of the sequential approach as required
by Policy EC15 is set out in Section 6.”
Section 6 begins in paragraph 6.1 by specifically identifying out-of-centre
locations.
6.34
Aside from the Tesco proposal being in a more preferable location, which the
appellant accepted, the reason behind its contrived attempt to exclude
consideration of the merits of out-of-centre locations is concern about the
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Kilton Road site. Kilton Road is a much better site in terms of its location
than the appeal site, for the following reasons:
(i)
Kilton Road is around 700m from the PSA, whereas it is 1,765m to the
centre of the appeal site, ie the latter is around an additional 1km away.
(ii)
There is a much better bus service passing the Kilton Road site - two
existing services pass Kilton Road (one running at 20 minute intervals),
whereas only one half-hourly service passes the appeal site. The
appellant’s comparison between the service proposed at the appeal site
and the existing service past Kilton Road is not appropriate. There is no
reason why a Kilton Road proposal could not be required to deliver a
similar service to that at the appeal site. Indeed, such a proposal at
Kilton Road would be less expensive because the existing services are
more extensive, and the site is much closer to the town centre where all
the buses go in any event.
(iii)
Kilton Road is close to large residential areas which would provide a
realistic walk-in catchment for the store. Those residential areas
include Kilton and Manton, both of which are areas of deprivation.
Although Manton is further to the south, Kilton Road is the only
suggested superstore site on the eastern side of the town. It would
bring a superstore far closer to the people of Manton who suffer from
some of the worst deprivation in the country. This is a very important
factor in PPS4 and the PG.
(iv)
People in the surrounding residential areas would be close enough to
walk to work in a store on that site. Supermarket jobs are good entry
level jobs.
(v)
Parking charges in town centres are a universal problem and can be
especially significant in areas with low incomes, as in Worksop.
Therefore the ability to provide a free car park within just 700m of the
PSA, and even less to the town centre boundary at Matalan, has a very
realistic propensity to encourage people to use both it and the town
centre. Whilst the distance would not be suitable for carrying heavy
food shopping bags, it would be close enough to enable a trip into the
town centre, most likely before the trip into the store.
(vi)
The Kilton Road site is not that different a location in relation to the
town centre than the Tesco Carlton Road site. It is accepted that
Eastgate has fewer retail and commercial premises along it, but it is by
no means mainly industrial and for most of the walk you can see the
town centre in front of you. Also in its favour is that the route to Kilton
Road is completely flat and there is no railway line or level crossing.
6.35
In comparison, the appeal site is in an almost exclusively industrial area and
is not close to any major residential areas. Other than the very small number
of houses north of the rugby ground and the publican of the Lock Keeper’s
Public House, there is no one living close to the appeal site. Consequently
the appellant’s claim that their site is in a ward which also has a high level
multiple deprivation has little relevance.
6.36
The appellant has raised various arguments about Kilton Road. It was
suggested that in light of a 1995 proposal for a superstore on that site, it
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could not take a store of the size proposed by Asda. 50 Leaving aside the fact
that the capacity calculations do not support a store of that size, the
argument no longer stands up. Tesco have managed to place an 8,121 sq m
eco-store on their site at Carlton Road without even decked car parking. As
the Kilton Road site is almost exactly the same size, the appellant now
accepts that this argument against the Kilton Road site was wrong.
6.37
The appellant suggested that Kilton Road should be excluded from
consideration because it is a protected employment site. So is the appeal
site. Reliance is then placed on the fact that the Council employed a
consultant who concluded it was a good employment site. But this ignores
the fact that marketing of the site has delivered no real interest, as confirmed
by the Harris Lamb letter of 25 May 2010. 51 The letter also makes clear that
there are obvious practical difficulties affecting the attractiveness of the site
for distribution/warehousing in terms of the road having a mini roundabout at
one end and leading straight onto “the Worksop High Street” at the other.
The timing of the letter demonstrates that, as with the evidence on economic
viability, the officer recommendation was made without knowledge of the
Kilton Road site being available.
6.38
In short, Kilton Road is a more sequentially preferable site. It is out-ofcentre but, using the relevant criteria, it is far more preferable than the
appeal site. It is very obviously available, to the point where it is being
prepared for development today. There is no evidence that either Asda or
Morrisons would not go to that site. It is clearly big enough to take a
superstore. In applying policy EC17.1, the emergence of a site as large and
centrally located as Kilton Road marks the end of the appellant’s case. The
whole point about EC17.1 is that there is simply no need to look at impact
and the other tests if the proposal fails this test. Nothing could be clearer
than the guidance in PG paragraph 5.6 and the statement that the test is
“essential” in paragraph 6.51.
6.39
Other sites suitable for smaller supermarket proposals are suggested by the
Council which, given the evidence on capacity, are plainly relevant. The ideal
situation for Worksop town centre would be the Tesco Extra next to the town
centre boundary and then a smaller in-centre supermarket on the cricket
ground in an extended town centre. That site is not currently available,
though it is viable for a supermarket proposal in the medium term. Since the
Tesco Extra can absorb a great deal, there is no pressing need for the
remainder at the moment. That can come once the Council has fully
investigated the cricket ground and the relocation that would be necessary.
There are constraints, but no tangible evidence that they cannot be
overcome. Decked car parking is one option to increase capacity and it
already exists at the Priory Centre car park.
Hotel and restaurants
6.40
50
51
The appellant appears to admit that there are sequentially preferable sites for
the other main town centre uses (except the offices). The evidence on this,
coupled with the appeal decision earlier this year, makes that very obvious.
The appellant accepts the suitability of the area close to the proposed cinema
DDL24
Mr Tonks Rebuttal Appendix 3
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for restaurant uses, but makes the point that certain unnamed operators will
not come into the town centre. That argument is contrary to policy and the
guidance in PPS4. In terms of the hotel, the same suggestion is made - that
despite sites being available, Travelodge will not come into the town. Again,
that argument is contrary to policy.
6.41
In terms of the drive-through restaurant, the appellant’s case is hindered
significantly by the March 2010 appeal decision. The points about
conservation impact and amenity were addressed at the last appeal. New
points about access and land ownership for a right-hand turn lane have been
raised. But neither of these is a good reason to reject well located town
centre and edge-of-centre sites. A great deal more evidence would be
required, demonstrating how the appellant had constructively engaged with
landowners and agents, before such sites could be rejected.
6.42
The appellant’s offer to ‘condition-out’ these parts of the development is
highly instructive. In terms of procedure, the Secretary of State could issue
a split decision, making clear in the decision letter that for which permission
was being granted. He could also impose a condition; the Council is happy to
agree the wording which has been suggested by the appellant. He could also
do both, which assists in avoiding ambiguity when any permission is
examined henceforth. The Council does not believe any party could claim it
had been prejudiced by the grant of less development than that which has
already been the subject of public and statutory consultation.
Retail Impact
Quantitative impact
6.43
The main concern is over the convenience goods element. The parties agree
that the town centre convenience goods expenditure is around £19 million.
The two key figures are the town centre trade diversion figures, which equate
to approximately 5% for the appellant and 15% for the Council. Although
these are based on surveys, the key differences which arise from such impact
assessments are the judgments which the experts make. This process is
inherently subjective and the important point is to understand which
judgments matter. “Like trades with like” is a principle recognised in the PG
and accepted by both experts. But the other main principle in the PG is
proximity: “Distance, on the basis that consumers will generally use the
nearest centre/ facility which meets their needs in terms of quality/
convenience.”
6.44
Retford is the key to this issue. The appellant depends heavily on drawing
back £5.42 million trade from Retford to the new Asda proposal. This relies
partly upon customer loyalty to Asda, but very few go to the Retford Asda
from zone 1. It also relies on clawing back other customers who are said to
be leaving Worksop and making an 18 round mile trip to Retford in significant
numbers. It is clear from the appellant’s zone 1 and 2 survey results that
Morrisons at Retford may well be attractive to people who live equidistant
from Worksop or Retford, or even closer to Worksop. But the idea that
significant numbers of people are leaving Worksop urban area, with its two
superstores and multiple supermarkets, to go 18 miles there and back to
Morrisons is unconvincing.
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6.45
The Council believes that the appellant has over-emphasised the number who
would be drawn to the new store from Zone 2. The survey results show that
the whole of that zone is dominated by Doncaster in the north and Retford in
the south. Virtually no one is going from zone 2 to the Worksop superstores,
yet the appellant still suggests that the new store will attract over 5% of its
trade from zone 2. The important point, however, is the very clear evidence
that Retford is attracting people in the southern part of zone 2, who are close
to people in the northern part of zone 1.
6.46
The appellant has downplayed the inevitable diversion of trade from Worksop
town centre which the Asda store would bring. Its figure of 5% looks
unrealistic even allowing significant latitude for the ‘like trades with like’
principle. The appellant’s analysis also suggests that supermarkets do not
really obtain much top-up shopping other than walk-in catchment trade. Yet
its own evidence suggests otherwise. The Allegra survey reveals that
supermarkets do attract a very significant amount of top-up shopping and the
majority travel there by car.
6.47
In terms of harm to the town centre, a local landlord, Mr Brooks, made the
point well in terms of the effect of large out-of-centre superstores. The
appellant counters this by saying that few town centre traders have objected
to the proposed superstore. But they do not need to. The planning system is
there to apply Government policy; those traders look to the Council to protect
them from out-of-centre development, which it has done.
6.48
If, as the Council believes, there is far less capacity available for convenience
floorspace, the appellant’s trade diversion figures would be significantly
affected. Instead of most trade being accounted for by growth, clawback and
overtrading, the new Asda store would start cannibalising existing
expenditure in the town, including town centre shops, especially with quick
and easy car access from the bypass, free car parking and everything under
one roof.
Qualitative impact
6.49
There is a significant amount of common ground on the qualitative issue,
including the town centre Health Check and vacancy figures. Additional
points the Council wishes to make are these:
(i)
Despite Worksop being a town which was identified in the RSS as a subregional centre, the Council is having to significantly reduce the town
centre boundary and reduce the retail core (to the PSA) so it excludes
the lower half of the main pedestrianised High Street (Bridge Street).
(ii)
Whilst the number of vacancies in the town centre fluctuates around the
national average, and is now below it, the number of long term
vacancies is an issue. The concentration of vacancies at the Priory
Centre in the heart of the PSA, and the extensive number in Bridge
Street, is also an issue. The appellant suggests this is all to do with the
configuration of the units and churn. That does not address the
pervasive nature of long term vacancies, some of which have been
unoccupied since 2008.
(iii)
The Council’s Property Manager, who is in a very good position to know
about the town centre, stated that whilst the town centre is not failing,
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it is weak and fragile. Coupled with this is the fact that the Council is
actively engaged in town centre initiatives, including the major proposal
for a cinema.
(iv)
The evidence from agents of the Priory Centre owners indicates that the
leases on several currently occupied units are short or rolling, which is a
matter of concern. 52
(v)
Town centre convenience goods shopping accounts for 3,303 sq m of
floorspace. If this appeal is allowed the equivalent out-of-centre figure
would be 7,198 sq m. Even if one takes out the Tesco proposals to
relocate closer to the town centre, and treat that as neutral because the
Council supports it, the figure would still be 5,054 sq. That is a huge
imbalance.
Regeneration and Employment
6.50
The evidence on employment land has been the subject of considerable
discussion, culminating in a SCG on the issue. The Council believes that
there clearly is land available in Worksop and within the 20 minute drive
time. Some of it is at High Grounds, very close to the appeal site. The
appellant’s criticism that High Grounds is attracting trade counter users does
not help its case, for the same pressure would apply to the appeal site.
6.51
The Council accepts that the appeal proposal would deliver new jobs which
are certain in terms of the supermarket, the hotel, the drive-through and the
other restaurant. These would be real tangible jobs which would benefit local
people, and they need to be given appropriate weight. Worksop does not
have a major unemployment problem in terms of the national average, but
that is cold comfort to those without a job. But the figures for retail jobs put
forward by Asda would self evidently contain transferred jobs. The same is
true of local businesses which relocate to the employment element of the
appeal, although there is no certainty about those jobs or their timing.
6.52
If this superstore is built next to the bypass and occupied by one of the four
major superstore operators in the UK, it removes the prospect of that
operator coming into the town centre or an edge- or good out-of-centre site
like Kilton Road. That is an important consideration in terms of both
employment and impact. And whilst it is true that the scheme would
regenerate a brownfield site, there are many other sites in and around
Worksop which would benefit from regeneration. Kilton Road, close to major
residential areas, is one.
6.53
Greater weight could have been attached to this matter were the scheme
actually to deliver employment units and premises. But the proposal does
nothing more than supply serviced land and access. Even with the High
Grounds permission, which was granted twenty years ago, the Council
managed to secure 20,000 sq ft of fully serviced industrial floorspace in
advance of the store opening. In this case the complete lack of commitment
to the employment land makes the promise of 1,000 jobs inappropriate.
Whilst Priority Sites have shown an interest and written some supportive
letters, letters of this kind count for nothing in a planning decision. Without
52
BDC18
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the take up of premises being secured by a planning obligation or condition,
little weight can be given to Priority Sites’ interest.
Other matters
6.54
The Council welcomes the significant progress made by the appellant during
the inquiry towards a much better bus service. But it is important to note
that the amount of money spent would be exactly the same, and it would be
handed over to other parties who would have to sort out the routes. The
money would last for five years, after which there is no obligation on either
side to send a single bus past the site. That time period does not even
correspond with the assumptions made in the viability evidence on the
delivery of employment units.
6.55
The Council is loath to criticise The Right Honourable John Mann MP, a
Member of Parliament who is clearly working hard for his constituency for
very honourable reasons. No one can doubt his commitment to obtain a very
significant number of names on his petition. But the wording of the petition
cannot be ignored: “SAY “YES” to the new development on the Vesuvius site
creating a 1000 jobs and building a Community Sports Stadium, Industrial
Units and a Supermarket.” That phrase, to which no one is likely to say ‘No’,
is seriously wrong in terms of what is actually being offered, especially in
terms of the Community Sports Stadium which no doubt did much to
galvanize support. The names are impressive but, given the way the
question is phrased, the petition should not be given significant weight.
6.56
Mr Mann, along with a local Councillor, was very keen to emphasise the easy
car access that the appeal site enjoys. This is of course completely contrary
to national planning policy. Mr Mann also gave evidence about the very clear
need for canal side regeneration in Worksop which, as the appellant pointed
out, is supported in the Core Strategy Preferred Options. That would favour
placing a major new superstore investment at Kilton Road, rather than at the
appeal site.
Conclusion
6.57
For all of the reasons set out above, the Council submits that the appeal
should be dismissed.
THE CASE FOR INTERESTED PERSONS
Supporters
7.1
53
John Mann, MP for Bassetlaw, described the process of organising a
petition in support of the proposal which has over 10,000 signatures. 53
Remote calling by telephone of 5,000 Worksop residents resulted in 93% of
respondees in favour. A Facebook campaign in support has over 2,000
subscribers. The Parish Councils, local ward Councillors, every surrounding
County Councillor and virtually every local resident support the proposal.
IP2 – Petition in IP4
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Overall in the community there is near unanimity in favour of the proposal.
The three principal reasons for this support are:
(i)
The agreement reached with Worksop Town Football Club to provide
them a serviced site would enable them to develop a sports facility for
community use. WTFC has been exiled for three years, with
consequential loss of income and employment, and this would enable
them to return to the town.
(ii)
A number of local businesses seek a new location near the bypass. The
opportunity for inward investment and future jobs in an accessible
location is welcomed. The creation of 350-400 supermarket jobs is also
important, and would coincide with the reduction in employment that is
likely through public sector cuts.
(iii)
An overwhelming majority of Bassetlaw constituents want further choice
in supermarkets and there is strong support for a new and additional
supermarket in an accessible location near the bypass. Asda is seen as
good competition for the existing Tesco and Sainsbury’s. Even town
centre market traders are not opposed, believing that the creation of
new jobs would enhance the town centre.
7.2
The area has been successful in attracting new investors every time an
industrial site has been opened up. In the past public sector subsidy has
created the opening, such as at Shireoaks Triangle, Manton Colliery, Steetley
brickworks (where 300 jobs are to be created) and the Glassworks site. This
site is unique in that it is private sector money supporting the investment.
7.3
The people of Bassetlaw are realists. They know what supermarket jobs are.
They realise that relocating and initiating new businesses to create
employment will take time, though some jobs will occur immediately. They
know that building a football stadium must be done incrementally. But
Bassetlaw people are also pragmatists, believing that this is the right site for
employment development, the best site for a supermarket, and the only site
that meets the criteria of the local football club.
7.4
Councillor Ivor Jones is the Bassetlaw Ward Councillor for the area around
the appeal site. Public support for the proposal has been overwhelming.
There was no objection from town centre traders when the application was
heard, yet despite the recommendation for approval by officers, the
Committee turned it down. A lot of people were aghast at this decision when
the same Committee had three years ago granted permission for another
operator to build a store on Carlton Road, closer to the town centre, in the
face of a lot of opposition from local people to the loss of public open space.
7.5
The Vesuvius site is derelict and without the proposal is likely to be an
eyesore for many years to come. The provision of 300-400 much needed
jobs is an important consideration in the current economic climate, as is the
regeneration effect.
7.6
Phil Hall, a Worksop resident, cited Mr Mann’s survey which showed 96%
support for the proposal. Only one person has spoken against. The scheme
would be good for employment, and the bus service goes past the site.
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7.7
Councillor Bill Barker, a Bassetlaw Councillor for Worksop North, made
representations on his behalf and on behalf of Councillor Sylvia May. As well
as endorsing many of the points already made in support of the proposal, it
was pointed out that the proposed Vesuvius development was the
overwhelming issue in a recent local by-election campaign. A petition had
been completed in a couple of hours from a podium in the centre of Bridge
Street, with strong support being expressed for more jobs and businesses.
7.8
Councillor Kevin Greaves, County Councillor for Worksop West, is also the
proprietor of two businesses in Worksop town centre. Local residents are
strongly in support of the proposal and are bemused at the Council’s decision
to turn down a scheme which would bring businesses and jobs to the town,
and cheaper food and petrol to residents as a result of greater competition
and consumer choice. The Council’s decision is inconsistent with the
permission granted for the Tesco store on Carlton Road. The development
would not have an unacceptable impact on the vitality and viability of the
town centre. Instead, the belief of many town centre businesses is that the
employment on the Vesuvius site would actually boost the town centre
through greater spending power.
7.9
Worksop suffers from a distinct lack of the modern office space and good
quality light industrial units which are required by small to medium size local
businesses. The proposal is a major opportunity to provide the employment
space that is so needed as the local economy fights its way out of recession.
Worksop is also very low on hotel capacity, so an additional hotel would
benefit local business users and the tourist industry. The football team
deserves a location in its own town.
Objector
7.10
Peter Brooks is a landlord in Worksop who has lived and worked in the town
for over 50 years. 54 Worksop used to have a vibrant shopping centre, but its
decline started when Tesco moved their shop from what is now the Priory
Centre to their store in Gateford Road, almost a mile from the town centre.
Further decline followed when Sainsbury’s built their supermarket even
further from the centre. The town already has many empty shops. Another
large supermarket on the appeal site would, without doubt, cause trade in
the town centre to decline further, increasing the number of empty shops. In
a few years Worksop would become a ghost town.
7.11
Whilst there is no objection to the Vesuvius site being redeveloped, there is a
lot of suitable unused land in and around Worksop which could also be used.
The site is not a good site for another supermarket. The often quoted figure
of 1,000 jobs if this development went ahead seems to have been plucked
out of the air. And if Asda employ 200 staff, it would certainly result in fewer
people being employed by Tesco, Sainsbury's and other shops in the town.
7.12
The provision of land for a new ground for WTFC is supported by all.
However, there is a lot of difference between having the land and having the
millions of pounds necessary to fully develop the ground – it is not clear
where the money would come from.
54
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Other interests
7.13
Whilst not objecting in principle to the proposal, British Waterways (BW)
raised a number of issues, 55 in particular concern about the long term
management/ maintenance arrangements for the proposed Sustainable
Drainage System (SUDS). The Flood Risk Assessment accompanying the
application indicates that the SUDS will drain to Claylands Dyke, which runs
in an open channel alongside BW’s depot by the Chesterfield Canal. The
intention is that the SUDS should ensure slightly lower discharge rates into
Claylands Dyke than from the existing site. But the PPS25 Practice Guide
states that a poorly maintained SUDS can increase flood risk rather than
reduce it. BW is concerned that should the SUDS scheme fail, additional
unattenuated flows from the storage elements of the SUDS could have
potential implications for the structural integrity of the Canal, as well as
flooding the area upstream of the Canal.
7.14
Such potential problems could be avoided provided any planning permission
adequately secures long-term management and maintenance arrangements
for the SUDS scheme. Prior to the implementation of the Flood and Water
Management Act 2010, which will provide statutory control over SUDS
maintenance, BW’s preference would be approval and adoption of the SUDS
by agreement between the developer and either the local authority or the
water undertaker.
7.15
BW notes that the local planning authority suggests a condition to deal with
the implementation and maintenance of the SUDS. It considers that a
condition has limitations in terms of long-term maintenance, preferring
instead a S106 planning obligation as recommended in Annex F of PPS25.
The S106 mechanism is supported by the National SUDS Working Group, who
suggest that for larger or complex schemes, a S106 can offer additional
security and allow for financial contributions in the form of a bond or periodic
payment.
7.16
Nottinghamshire County Council Transport Services advised that the
originally proposed bus service, a one-way circular route, was unlikely to
receive sufficient patronage to become a sustainable long-term route. A
much better use of the proposed funding would be to add one vehicle to the
existing Worksop services and modify their routes. By spreading the
resource across the existing network it should be possible to achieve a halfhourly service from Shireoaks and Rhodesia, and an hourly service linking
directly to Asda from each of the following locations - the Manton area, the
Larwood and Kilton areas, the Gateford Park and Valley Road areas, and the
Queensway area of Kilton. These would combine to give four buses an hour
between the town centre and the Asda site. This is thought to be a more
sustainable solution and would have a better chance of remaining viable once
the initial subsidy period had passed.
55
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WRITTEN REPRESENTATIONS 56
8.1
As well as the very large petition in favour of the proposal submitted by John
Mann MP, about 14 individual letters of support were submitted in response
to publicity about the appeal. The writers focus on the same main issues as
those who spoke at the inquiry, including the need for new jobs and industry,
the benefits for the local economy and the reduction in unemployment, the
increased competition and choice and reduced prices that would result from
the new supermarket, and the desire for a new stadium for WTFC. It is
suggested that the proposed Asda would take trade from the existing
superstores, not the town centre. Many are concerned at the Council’s
inconsistency in approving the Tesco proposal on Carlton Road yet rejecting
the appeal proposal, contrary to the views of the public. It is also asserted
that the Council has failed to address problems in Worksop town centre such
as congestion and inadequate parking for which a charge is made.
8.2
One writer contends that the suggested alternative site at Kilton Road does
not have good accessibility, especially by car, and that there would be
minimal linkage between the replacement Tesco store and the town centre.
A letter from North Nottinghamshire College points to the opportunities that
the appeal scheme would create for apprenticeships, both during the
construction and operational phases, and stresses the benefits of close
working relationships and partnerships between the College and industry.
8.3
Two letters of objection were received. One argues that the town centre is in
a fragile state and that another large supermarket would do considerable
harm, forcing independent town centre traders to close. The other is
submitted on behalf of Tesco and gives the September 2010 position
regarding the application for an enlargement of the consented superstore at
Carlton Road. It states that remaining minor highways issues should be
resolved shortly and that, as all other policy matters have been addressed,
Tesco expects the application to go to Committee with an officer
recommendation for approval. It submits that Carlton Road is the most
sequentially preferable site outside the town centre for a retail development
of this scale, and would enhance the potential for linked trips to the centre.
It suggests that the capacity identified by the BRS would be taken up by the
expansion of the Carlton Road site, and that the further floorspace proposed
in the appeal application would have a detrimental impact on investment that
should be focused towards the town centre.
CONDITIONS AND OBLIGATIONS
Conditions
9.1
56
57
Lists of planning conditions were produced throughout the inquiry and
discussed between the parties. The final version 57 is, for the most part, an
agreed list that also reflects comments I made during the inquiry session on
conditions. At Annex A to this report I attach a suggested list of conditions,
with reasons, which is based on the final agreed version. Where necessary I
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have made minor adjustments to the wording to ensure compliance with
Circular 11/95: The use of conditions in planning permissions or to improve
consistency.
9.2
I am satisfied that, for the reasons given, the suggested conditions are
necessary and meet the other tests of the Circular. Most are self-explanatory
and are based on policy requirements. Condition 15 refers to an
unreferenced topographic survey plan attached to the Flood Risk Assessment;
an enlarged version of this plan is labelled ‘Plan B’.
9.3
In suggested condition 7 (now renumbered as condition 5), the fact that the
specified limits for convenience goods and comparison goods floorspace add
up to more than the total net floorspace is deliberate and allows a small
flexibility margin to facilitate compliance. Also in respect of this condition, I
questioned why the area occupied by concessions (typical examples being a
pharmacy, optician’s, dry cleaner’s, post office and bank) should be excluded
from the definition of net sales floorspace. Such operations involve the sale
of goods or services in much the same way as the majority of the sales
floorspace. I appreciate that concessions are listed as one of the exclusions
in the example put forward by the Competition Commission and included in
the PPS4 PG. However in the circumstances of this case, where the purpose
of the condition is to limit the size of the net sales area so as to minimise the
impact on the town centre, I consider that, potentially, there could be a
significant increase in sales area through the provision of concessions. I have
therefore removed concessions from the exclusions to net sales floorspace.
9.4
Two additional conditions were suggested by the Council but opposed by the
appellant. 58 The first sought to prevent non-food concessions from being
established in the foodstore in the first place, in order to minimise the impact
on the town centre. The Council’s concern at the inquiry was primarily with
the convenience goods sector, however, and there was no direct evidence on
the importance of such concessions to the comparison goods sector of the
town centre or the impact that their provision in the superstore might have.
In the absence of such evidence, the condition does not satisfy the test of
necessity. The second condition sought to restrict the hours of operation of
the foodstore and restaurants, again to prevent there being a trading
advantage over the town centre. No evidence was given about the impact of
trading hours, however, nor is the extent of control over trading hours in the
town centre known. Again, in the absence of evidence the condition is
unnecessary; by unduly restricting choice it is also unreasonable.
Planning Obligations
9.5
Two S106 planning agreements and one unilateral obligation (see paragraph
1.6) would, as part of the development, provide improvements to transport
infrastructure and bus services, land for community sports, a Sustainable
Drainage System, and marketing of the employment land. A detailed
explanation of and justification for the matters included in the obligations is
given in document DDL26. The principal matters are summarised below:
(a)
58
Integrated Transport Measures Contribution. A payment of £96,680 to
the District Council for use on projects to improve integrated transport.
Conditions 5 and 6 of INQ8
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The sum is based on formulae in Nottinghamshire County Council’s
Planning Contributions Strategy, and is intended to mitigate off-site
impacts to the transport network arising as a direct result of the
development. It is stated that the sum would only fund measures in
Worksop associated with the impacts, though no specific scheme details
are given.
9.6
(b)
Safeguarded Community Sports Land. A 125 year lease of 1.9ha of
land to Worksop Town Football Club at peppercorn rent for a football
ground. WTFC is currently locked out of its nearby ground and is
sharing a ground at Retford. In the event that WTFC does not take the
lease or a ground is not built, a scheme must be submitted to the
Council for the provision of a public playing field and facilities. This is
necessary to off-set the loss of a company sports ground formerly on
the site and thereby comply with PPG17.
(c)
Employment Development Marketing Strategy. The marketing for
seven years and reasonable endeavours to dispose of the employment
uses, according to a strategy submitted to the Council for approval.
The strategy must include the erection of boards, circulation of
particulars and press adverts, and is necessary to ensure employment
development opportunities are maximised.
(d)
Bus Service. A sum of £550,000 for the provision for up to five years of
local bus network improvements to ensure all major suburban areas
and the town centre are linked to the site by bus at least hourly from
0700 until 2000 hours Monday to Saturday. Details of the service are
given in paragraph 7.16 above. The intention is to optimise
accessibility of the site for Worksop residents.
(e)
Sustainable Drainage. The provision of a scheme for the disposal of foul
water and the provision, implementation, adoption, maintenance and
management of a SUDS. The SUDS would be designed to reduce flood
risk and provide secure arrangements for management and
maintenance, thereby addressing BW’s concerns.
There is no dispute that in terms of their structure, content and wording, the
S106 obligations are considered to be fit for purpose and would deliver what
is intended. Regulation 122(2) of the Community Infrastructure Levy
Regulations 2010 sets out three tests with which such obligations must
comply. There can be little doubt that matters (b) to (e) above satisfy these
tests. The issue is less clear cut in respect of the Integrated Transport
Measures Contribution because the specific measures to which the funding
would contribute are not known. Circular 05/2005: Planning Obligations does
allow the use of pooled contributions based on standard formulae, however,
provided there is a policy basis and the scheme details are set out in
advance. The Planning Contributions Strategy provides such information and,
on balance, I consider that the tests of Regulation 122(2) are met.
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CONCLUSIONS
(In this section the numbers in square brackets refer to the relevant paragraphs in the
preceding sections of the report)
10.1
At the time of the inquiry it was believed that, following revocation of regional
strategies and in the absence of a statutory Local Plan or new-style DPD,
there was no development plan for Bassetlaw. The cases for the main
parties 59 are therefore based predominantly on national planning policy. The
proposed uses are all ‘economic development’ as defined in PPS4. The retail
development, hotel, restaurants and offices are uses to which the town
centre policies of PPS4 apply. Because the appeal site is located close to the
A57 Worksop bypass, some 1.25km from the town centre, the policies in
PPS4 which address “main town centre uses that are not in a centre and not
in accordance with an up to date development plan” are relevant to this
proposal. [2.4, 3.3, 5.4, 5.6, 6.1-3]
10.2
With the reinstatement of regional strategies as a result of the Cala Homes
judgement, the EMRP is the sole component of the development plan. It
appears that EMRP policies relating to economic development and town
centre uses are not materially different to those in PPS4, for the broad thrust
is similar – the EMRP seeks to promote economic regeneration in and around
Worksop and to sustain and enhance the role of the town centre. In
particular, there is no reason to suppose that the application of the policies in
PPS4 which address proposals for “main town centre uses that are not in a
centre and not in accordance with an up to date development plan” should be
any different as a result of the reinstatement of EMRP. Furthermore, there is
no evidence from the parties of any disparity between national and regional
policy. [1.7-9, 3.1-2]
10.3
Based on the evidence presented at the inquiry, the main considerations in
this appeal are as follows:
(i)
in relation to the proposed main town centre uses, whether compliance
with the sequential approach to site selection set out in policy EC15 of
PPS4 has been demonstrated;
(ii) whether, and the extent to which, the proposed main town centre uses
would lead to adverse impacts on Worksop town centre, having regard
to PPS4 policy EC16.1;
(iii) the nature and extent of the regeneration, employment and other
benefits of the proposal;
(iv) whether any conflict with the town centre policies of PPS4 is outweighed
by the benefits of the proposal, having regard to policies EC17 and
EC10.
The reinstatement of EMRP means that it is also necessary to consider, for
the purposes of Section 38(6) of the Planning and Compulsory Purchase Act
2004, whether the proposals accord with the development plan.
10.4
The key element of the proposed main town centre uses is the superstore for
Asda. Retail capacity assessments which examine quantitative need were
prepared by each party and, because they underpin and inform much of the
59
As reported in Sections 5 and 6
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subsequent analysis, it is necessary to consider these assessments first.
[5.51, 6.19]
Retail capacity
10.5
The Retail SCG sets out the agreed matters and explains the basis for the
differences between the individual components of the quantitative need
assessments. The Council’s principal concern is the impact on convenience
trade in Worksop town centre, so the assessments do not address the
comparison goods sector. There is little dispute about the study area and its
subdivision into primary and secondary catchment areas, nor about the base
and forecasting years used for the assessments. From the evidence
submitted there is no reason to question these matters. Rather, the analysis
focuses on the main components where there is disagreement. [4.8, 6.43]
Growth in available expenditure
10.6
The difference between £7.3m (Council) and £10.36m (appellant) is largely
explained by the Council’s use of the 2007 expenditure and population figures
used in the Bassetlaw Retail Study (BRS), whereas the appellant uses 2008
figures from the same (Experian) source. The latter are the most up-to-date
figures and should be preferred. The Council urges caution on the basis that
ONS forecasts for 2008 show a reduced rate of population growth, but the
extent of any change in forthcoming Experian data cannot be predicted.
Moreover, it is important that there is compatibility with the other data sets
from Experian used in the assessments, otherwise inconsistencies could arise.
[5.53, 6.29]
Clawback
10.7
Both parties derive the amount of convenience expenditure that currently
goes out of the catchment from their respective surveys. I think it unlikely
that the slight difference in wording between the questions posed in the
Allegra survey and the BRS survey would have significantly influenced the
responses, so the more up-to-date (and larger) Allegra survey should be used
as the starting point for trade diversion. Each party then broadly follows the
approach recommended in PG, estimating for each of the main locations
outside the catchment the amount of trade that would be diverted to the
proposed store on a zone by zone basis. In each case judgements are made
based on the PG principles of ‘proximity’ and ‘like trades with like’, though
the appellant’s process is much more transparent. [5.54, 6.26-7]
10.8
There is inevitably a large measure of informed guesswork in making such
judgements. In this case much depends on the clawback from Retford, which
on the appellant’s figures would amount to about 60% of the total trade
diversion of £8.7m, most of which would come from zone 1. The main
attraction in Retford is a Morrisons superstore which is easily accessible from
the main routes into the town from the north and east; the other main store
is a smaller Asda in a relatively inaccessible location south of the town centre.
The significance of Morrisons is that, of the ‘big four’ superstore operators, it
is perceived by many consumers as a lower price convenience goods retailer
than the existing Tesco and Sainsbury’s offer in Worksop, and thus more
comparable to the proposed Asda. [5.68, 6.44]
10.9
It is reasonable to assume that most of the zone 1 expenditure going to
Retford comes from the north of the zone. To reach the proposed Asda at
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Worksop would necessitate a journey through much of the built-up area of
the town; those approaching on the A60 would also have to drive through
Carlton-in-Lindrick. Thus even if journeys to Retford would be longer in
distance, as from Langold and Oldcotes, many people would perceive
Morrison’s as being quicker and easier to access. Consequently the
appellant’s estimate of 48% of the expenditure currently going to Retford
being diverted to the proposed superstore seems highly optimistic. For the
same reasons it is doubtful whether the appellant’s anticipated trade
diversion from Doncaster and other more distant towns would be as high as
is forecast. On the other hand, it seems to me that the appellant’s estimate
of 5% clawback of trade going from zone 3 to Clowne may be unduly low
given the proposed Asda’s good accessibility for zone 3 residents. [5.68, 6.44]
10.10 The Council estimates a much lower trade diversion from Retford and the
more distant centres than the appellant and a higher clawback from Clowne.
Overall, and bearing in mind that clawback derives primarily from
assumptions about the propensity to divert, I consider that the Council’s
judgements are more credible. Despite reservations about the lack of
transparency in the way that the Council has calculated clawback, its figure of
£5.1m is to be preferred.
Overtrading
10.11 The figure for overtrading comprises the largest individual difference (over
£6m) between the parties in the capacity assessment. The difference comes
directly from the survey results, derived from surveyed expenditure at the
main Worksop stores compared with the benchmark turnovers for those
stores. Because the Allegra survey is more up-to-date, and to ensure
consistency of approach, the appellant’s overtrading figure of £17.12m should
be used. [5.55, 6.21-2]
Claims on capacity and other deductions
10.12 The difference in the commitments figures is largely explained by the fact
that the Sainsbury’s Local on Newcastle Avenue was a commitment at the
time of the Council’s BRS survey, but was built and trading at the time of the
Allegra survey. Because the Sainsbury’s Local turnover has been taken into
account in the appellant’s capacity analysis, which is more up-to-date and is
the basis for the approach preferred thus far, it should not be counted as a
commitment. The appellant’s commitment figure of £4.84m relates to the
increase in convenience floorspace arising from the Tesco relocation from
Gateford Road to its proposed superstore at Carlton Road. The planning
permission for this new store has been implemented (insofar as a material
commencement has been made, though work on the building has not started)
and there is little doubt that a replacement store of at least the consented
size will be built. [5.57]
10.13 Tesco has a current application to provide a larger “Extra” superstore on the
Carlton Road site. This would provide 981 sq m net additional convenience
floorspace over the consented scheme, representing an increase in turnover
of between £3.31m (based on the appellant’s assessment, which also takes
other factors into account) and £12.03m (based on the Tesco average density
figure used by the Council). Even if such an extension would not trade at
quite the same sales density as the company average, it is unlikely to trade
substantially below this level because it would be taking up substantial
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overtrading at the existing store. In addition, the reductions in catchment
turnover sought by the appellant are not consistent with the methodology
hitherto adopted. Consequently a figure close to the Council’s estimate is
preferred. Council officers have indicated their support in principle for this
enlargement and the evidence suggests that the few outstanding technical
matters should shortly be resolved. Whilst the Council has yet to determine
the application and thus the proposal is not a commitment, it has the
potential to be a significant draw on available capacity and (as both parties
agree) must be taken into account. [5.58-60, 6.22-3]
10.14 The Council includes a figure of £1.4m for the re-occupation of town centre
premises that are currently vacant, whereas the appellant argues that these
are part of the natural churn of properties and no such allowance should be
made. To my mind there is some merit to both arguments. The natural
turnover of premises does depend on a certain level of vacancies, with a
figure of 5% often being used. On the other hand, the proportion of vacant
properties in the town centre is currently about 10%, suggesting that there is
some spare capacity which could be taken up by convenience goods retailers.
I appreciate that some units have been vacant for a substantial period, but –
particularly in a period of economic downturn – it does not follow that they
are unfit for modern retail purpose, as the appellant suggests. On balance,
given that current vacancies are about double the level necessary for churn, I
think an allowance of £0.7m, half the Council’s figure, is reasonable. [5.61,
6.28]
10.15 There is no dispute about the other deductions from capacity. It was agreed
in cross examination that the proportion of spending growth spent outside the
study area amounted to £2.7m, and that an allowance of £0.8m should be
made for turnover efficiency improvements. I find no reason to disagree.
[5.62-3, 6.30]
Retail capacity - conclusion
10.16 The proposed Asda superstore would provide a net convenience floorspace of
2,216 sq m which, at the agreed floorspace ratio of £13,000 per sq m, would
have a turnover of £28.81m. At the inquiry the Council suggested that a
significantly higher sales density figure should be used, based on a figure
derived from an Asda superstore at Kendal. However, there is no evidence
that the example of a single store is representative of the company
performance as a whole, so it would not be appropriate to depart from the
agreed sales density figure. [5.65]
10.17 From the above analysis there is capacity in the study area for convenience
goods expenditure of about £23.5m in 2014.60 This result suggests that the
available expenditure within the catchment would not support a superstore of
the size proposed. It is important to bear in mind that such an analysis is not
an exact science and depends instead on the application of a range of
assumptions which have varying margins of error, so wholesale reliance on
the outcome would be misplaced. Nevertheless, its broad conclusion is a
matter that informs the examination of the main considerations in this case.
60
Calculated thus: expenditure growth +£10.36m, clawback +£5.1m, overtrading + £17.12m,
commitments -£4.84m, re-occupied vacancies -£0.7m, spending growth outside area -£2.7m, efficiency
improvements -£0.8m. This gives a total of £23.54m.
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Sequential approach to site selection
10.18 For main town centre uses, PPS4 policy EC15 requires all in-centre options to
be thoroughly assessed first; if there are no town centre sites that are
available, suitable and viable, preference should be given to edge-of-centre
locations which are well connected to the centre in terms of pedestrian
access. The evidence in this case clearly demonstrates that, for the package
of main town centre uses proposed, there is no individual in-centre or edgeof-centre site that satisfies these criteria. [5.7, 6.32]
10.19 Policy EC15.1d states that, when considering sites in or on the edge of
centres, developers should demonstrate flexibility in terms of scale, format,
car parking and disaggregation. The appellant accepts that, although there
would be regeneration benefits from providing all the proposed main town
centre uses at the appeal site, the hotel and restaurants are not essential to
the viability of the proposal and could be disaggregated. It is therefore
necessary to examine whether there are sequentially preferable sites for (a)
the superstore and (b) the other town centre uses. But before considering
the specifics of this case, it is appropriate to review the very different
interpretations of PPS4 applied by the parties to the sequential approach and
out-of-centre locations. [5.49]
Interpretation of PPS4
10.20 The question is whether, in the absence of in-centre and edge-of-centre sites,
it is necessary in applying the sequential approach to compare the relative
merits of opportunities that come within the out-of-centre category. The
appellant contends that, under the part of PPS4 that applies to planning
applications, such a comparison is not necessary, pointing out that policy
EC15.1 makes no reference to out-of-centre sites or how they should be
treated. In this respect policy EC15.1 differs from policy EC5.2, the
sequential approach as applied to plan making, where it is stated that
preference should be given to out-of-centre sites which are closest to the
centre and well served by a choice of means of transport. The appellant
seeks to make sense of this apparent inconsistency by reference to policy
EC17, arguing that because EC17.1 deals only with defined detriments, it
provides no opportunity to weigh the positive and negative impacts of a
proposal (as provided in EC17.2) in the balance, which – it says – cannot be
right. The Council contends that because the sequential approach under
policy EC15.1 applies to all “less central” sites, which must include out-ofcentre sites, it follows that if a sequentially preferable out-of-centre site is
found to exist, planning permission should be refused under the ‘gateway’
test of policy EC17.1a. 61 [5.6-16, 6.31-3]
10.21 It seems to me that there are two separate arguments here. Dealing firstly
with the application of the sequential approach, clarification is provided in the
PG. Paragraph 1.9 of the PG makes the general point that whilst the plan
making and development management sections are differentiated in PPS4, in
practice a number of the techniques and approaches apply to both.
Paragraph 5.4 (in the development management section) says that section 6
of the PG sets out detailed guidance on the application of the sequential
61
This is a condensed and somewhat simplified version of the respective arguments, which are reported
in greater detail at paragraphs 5.6 to 5.16 (appellant) and 6.31 to 6.33, 6.38 (Council)
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approach as required by policy EC15; it also says that the same general
principles apply to plan making. When defining out-of-centre sites in section
6 of the PG, paragraph 6.8 states:
“Where locations in existing centres or edge of centre locations are not
available, preference should be given to out of centre sites well served by a
choice of means of transport, which are close to a centre and have a higher
likelihood of forming links with a centre.” [5.15-16, 6.33]
10.22 Paragraph 6.2 of the PG explains that the sequential approach is intended to
achieve two important policy objectives – reducing the need to travel, and
reinforcing the vitality and viability of existing centres. Taken as a whole,
PPS4 and the PG make clear that there is a strong preference for in-centre
and edge-of-centre sites, but if these are not available, the policy objective is
best met by out-of-centre sites which contribute most to these objectives.
Thus a comparison of the relative extent to which out-of-centre sites satisfy
the policy objectives, as expressed in PG paragraph 6.8, is necessary. [6.33]
10.23 The second argument concerns the process by which the positive and
negative impacts of development should be weighed in the balance. In this
regard the mixed use nature of the appeal scheme is critical. It is clearly not
the case that, if the scheme does not comply with the sequential approach,
planning permission should automatically be refused under policy EC17.1
because that policy (and EC15) have no relevance to most of the B1/B2/B8
uses proposed in this case. Instead, any conflict with the sequential
approach in policy EC17.1 would have to be weighed against the economic
development and regeneration benefits of the package of proposals, having
regard to policy EC10 and any other material considerations. [5.11]
Superstore
10.24 There are no in-centre sites which could accommodate a superstore. As to
edge-of-centre sites, the Council refers to the possibility of the cricket ground
adjacent to the Priory Centre having potential for development in the medium
term, but accepts that it is currently in recreation use and therefore is not
available. Further, given the concerns raised about access, the suitability of
the cricket ground is uncertain. In the absence of any other opportunities,
there is no available, suitable and viable edge-of-centre site for a superstore
of the size proposed, nor indeed for a superstore of a reduced size. [5.44,
6.39]
10.25 That leaves out-of-centre sites, the category into which the appeal site falls.
At the inquiry (though not in its reason for refusal) the Council contended
that the former distribution and warehouse complex at Kilton Road would be
a sequentially preferable site. The availability of this site is not seriously
questioned, for the vacant accommodation has been on the market for some
time and, with no serious interest, the buildings are currently being
demolished. The site is approximately the same size as the Tesco site at
Carlton Road, so its ability to accommodate a superstore of the size proposed
by Asda is not in doubt. The only real doubt about the suitability of Kilton
Road for retail use is policy-based, because the Council’s approach is to
protect land such as this for employment purposes. But this factor also
applies to the appeal site, so there is no clear-cut distinction here. Whilst the
relative merits of an alternative use of the two sites in terms of the
consequences for economic development and regeneration is an important
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consideration, it does not follow that the Kilton Road site is inherently
unsuitable in terms of policy EC15.1a. [5.42-3, 6.34-8]
10.26 It is true that the Council has not expressly indicated that a superstore at
Kilton Road would be suitable, and that it refused planning permission for
such a use some 15 years ago. But the concerns at that time were the same
as those raised in this case – impact on the vitality and viability of the town
centre and the loss of employment land. The latter, as indicated above, is a
separate consideration. Retail matters would still have to be addressed, but
as the fundamental purpose of the sequential approach is to favour sites that
are close to and would form better links with the town centre, logically the
impact of a proposal on town centre vitality and viability should be less
adverse if it is in a sequentially preferable location. Thus, whilst a finding
that Kilton Road is sequentially preferable does not mean that it is suitable,
as the impact and other retail policy tests would still have to be satisfied, it
does result in a presumption against the appeal site in retail policy terms. As
to viability, there is no evidence that a superstore on this site would not be
viable – again, comparative viability with the appeal site is a separate matter.
[5.43, 6.38]
10.27 The Kilton Road site is some 580m by road from the retail core, as defined in
the BLP, and almost 720m from the PSA as proposed by the Council in the
emerging Core Strategy. The route on foot to the town centre is not
particularly attractive, being along a fairly main road past a mix of
residential, commercial and industrial properties, but it is flat and there are
no major obstacles. Moreover a large Matalan store is the first property at
the edge of the retail core, while the heart of the town centre (the Priory
Centre) is very close to the PSA boundary at this point. Two bus routes
currently pass the site, one with a 20 minute daytime service, and both link
directly to the town centre. Although it is unlikely that large numbers of
people would make a linked trip by these transport modes to the town centre
from a superstore at Kilton Road, there must be a reasonable prospect that a
small but significant number would. [5.42, 6.34]
10.28 The appeal site is about 1,250m by road from the retail core and the
proposed superstore would be over 1,700m from the PSA. One half-hourly
bus route passes the appeal site on its way to the town centre. The site is
therefore substantially further from the town centre than Kilton Road and
much less well connected by public transport. Given the substantial distance
and lack of good links to the town centre, the prospect of any significant
number of linked trips with the town centre by non-car modes is remote.
Whilst it is true that the proposed improvements to bus services would
significantly improve accessibility to the town centre by this mode, it is also
reasonable to suppose that at least an equal measure of improved
accessibility could be secured in association with a superstore at Kilton Road.
Moreover, there is no certainty that the enhanced routes to the appeal site
would be viable at the end of the initial 5 year subsidy period. [5.42, 6.34]
10.29 Overall, given the much greater distance and time of journeys to the appeal
site, it is only Kilton Road that is likely to form links with the town centre.
Kilton Road is therefore a sequentially preferable site in terms of PPS4 policy
EC15 and the PG, as interpreted in the round, and the superstore element of
the appeal proposal conflicts with the town centre objectives of PPS4.
Because compliance with the sequential approach is not demonstrated, there
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is a strong presumption against the grant of planning permission for the
superstore under policy EC17.1a. However, that is not necessarily fatal to
the decision because of the need to weigh in the balance town centre
considerations against the economic and regeneration benefits of this mixed
use proposal. [5.12, 6.32]
10.30 The Council contends that the Kilton Road site has other locational
advantages over the appeal site, notably its position on the east side of
Worksop close to extensive residential areas and, in particular, much closer
to areas of deprivation. This would provide a large walk-in catchment for
shoppers using the proposed superstore and would also give more people the
opportunity of walking to jobs in the store. There is undoubtedly some merit
to this argument, for not only is the appeal site remote from residential areas
of Worksop, but the existence of two superstores (Asda and Sainsbury’s)
close together in an edge-of-town location would represent a geographic
imbalance which would increase overall travel when compared with the Kilton
Road site. [6.34]
10.31 The only other out-of-centre site large enough to accommodate the proposed
superstore is the Tesco relocation site at Carlton Road. Although the
consented scheme is slightly larger than the existing Gateford Road store, it
is essentially a direct replacement and Carlton Road should therefore be
disregarded in terms of availability and suitability for a new superstore;
moreover, the small increase in convenience floorspace has been factored
into the capacity analysis. However, with the Council arguing that the
current proposal to build a significantly larger superstore represents an
opportunity to take up about half the available convenience goods capacity, it
is appropriate to consider the comparative locational merits of this site.
[6.22-3]
10.32 The Carlton Road site is also out-of-centre in PPS4 terms, being about 385m
from the retail core and just over 500m from the PSA, though it is only
separated from the town centre boundary (as defined in the BLP) by the
railway line. Linkages to the town centre are vastly superior to the appeal
site and significantly better than Kilton Road. On foot the relatively short
route along Carlton Road is direct and passes predominantly commercial and
retail premises, and by bus there are five existing services connecting to the
centre. With Worksop station on the opposite side of Carlton Road to the
Tesco site, the route is also the same as that currently used by people who
travel to or from the town centre by train. Thus, despite the very slight uphill
gradient from the town centre and the presence of the level crossing which
would occasionally cause a slight delay, the Carlton Road site is by far the
most sequentially preferable location for large scale retail development in
Worksop. [6.31, 6.34]
Hotel and restaurant uses
10.33 Because of the much smaller land requirement, there are a number of incentre and edge-of-centre sites (as defined in PPS4 for non-retail main town
centre uses) large enough to accommodate the proposed hotel and/or the
restaurants. The recently expired planning permission for retail (A1 food)
development on the former Premier Windows site at Gateford Road gives a
good indication that a hotel or restaurant use is likely to be acceptable in
principle, and the Inspector in the Sandy Lane Retail Park appeal felt that this
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site would be able to accommodate a drive-through restaurant. Most of the
constraints are capable of resolution by appropriate design, and despite the
highways evidence which suggests that there would be peak-time congestion,
I share the view of the Council and the other Inspector that it should be
possible to accommodate a drive-through restaurant on this site. [5.47, 6.41]
10.34 Very similar considerations apply to the vacant land on Memorial Avenue
which was part of the former Victoria Hospital. The amenity and historic
heritage concerns merely require an appropriate design, and the access
concerns in relation to a drive-through restaurant seem to me to be
overstated given the relatively light traffic flows I observed along Memorial
Avenue. Again, I see no reason to question the views of the Council and my
colleague that this site could accommodate a drive-through restaurant, or a
small hotel or restaurant. Other opportunities also exist - for example, there
is no obvious reason why the restaurant could not be accommodated in one
of the larger town centre retail units that are vacant. Overall, there is little
doubt that sequentially preferable in-centre or edge-of-centre sites exist for
the non-retail main town centre uses, which thereby fail the test of PPS4
policy EC17.1a. [5.46, 6.40]
10.35 Offices are included as a main town centre use in the PPS4 definition. They
are also part of the employment uses for which the appeal site is protected,
and the Council takes no issue with the small amount of office development
(740 sq m) proposed for the appeal site. Offices represent less than 5% of
the total employment floorspace in this case, and it is reasonable to regard
such a small proportion as being complementary to the industrial and
warehouse uses likely to occupy the majority of the employment land.
Consequently the fact that the land required for offices has not been included
in the sequential analysis does not amount to a significant shortcoming in the
application of PPS4 to this proposal.
Impact on Worksop town centre
10.36 The criteria to be applied in the impact assessment are set out in PPS4 policy
EC16. There is no evidence of allocated sites outside town centres being
developed (EC16.1c), nor of locally important impacts on centres (EC16.1f).
The site is not in or on the edge of the town centre, so the question of the
scale of the proposal in relation to the size and role of the centre does not
apply (EC16.1e). So the matters to be addressed are the impacts on
existing, committed or planned investment in Worksop town centre
(EC16.1a), town centre vitality and viability (EC16.1b) and the impact on
trade and turnover, both in the centre and in the wider area (EC16.1d).
Trade diversion
10.37 The proposed Asda superstore would draw convenience trade from four broad
categories of store – the existing Tesco (or its consented replacement) and
Sainsbury’s superstores in Worksop, Worksop town centre stores, other
stores within the catchment, and clawback from stores outside the
catchment. There is agreement that the bulk of the trade – around 60% –
would come from the existing superstores, based on the “like trades with
like” and “proximity” principles. This would represent a loss of around 2025% for these superstores, significant though not critical (particularly as both
are recorded as overtrading in the Allegra survey); in any event, the impact
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of a proposed out-of-centre store on other out-of-centre stores is not a
concern of PPS4. [5.66, 6.43]
10.38 The major difference between the parties is the extent of trade diversion from
stores outside the catchment. In the retail capacity analysis I found the
appellant’s assumptions about the amount of trade to be clawed back from
Retford and other distant towns to be unfeasibly high, preferring instead the
Council’s approach. The same applies to the trade diversion included in the
impact analysis – the appellant’s prediction that around a third of the total
convenience turnover of the proposed Asda would be drawn from expenditure
that goes to stores outside the catchment, most of which are likely to be
more easily accessible to outlying catchment area customers than the appeal
site, is not consistent with the proximity principle. [6.44-6, 10.7-8]
10.39 If most of the remaining trade is not drawn from outside the catchment, it
has to come from within. The Council’s analysis suggests that it would be
taken in roughly equal proportion from Worksop town centre and from other
stores within the catchment, including local centres. 62 The town centre
impact is the key consideration in this appeal. Although the Council’s figure
for diversion from the Sainsbury’s Local is clearly wrong given the much
smaller turnover surveyed at this store, it is reasonable to assume a diversion
of over £2m from the town centre, amounting to an impact in excess of 10%.
10.40 Two separate checks suggest that such an impact may be on the low side.
Firstly, if the Council’s percentage impact on town centre destinations is
applied to the appellant’s spending at those destinations (given the
preference for spending figures based on the Allegra survey), this gives a
trade diversion of £2.49m. 63 Secondly, the appellant’s own analysis predicts
that the proposed superstore would have a proportionately greater effect on
the town centre than on the other stores within the catchment (ignoring of
course the impact on the existing superstores). 64 Thus it is reasonable to
conclude that a figure of over 10% for the impact on town centre trade is
robust.
Vitality and viability
10.41 A detailed and up-to-date Worksop town centre Health Check was agreed by
the parties and, from the submitted evidence and my observations of the
centre, its conclusions appear generally sound. The only health check
indicator where the conclusion is questionable concerns the availability of
land for town centre development – the Council (though not the appellant)
regards this as “above average”, but to my mind the in- or edge-of- centre
development opportunities identified in this appeal do not strike me as
anything more than “average” for a town of Worksop’s size. [5.71, 6.49]
62
Table 2 column 5 in the Retail SCG - £2.88m from Worksop town centre, £2.76 from other stores
within the catchment, being the sum of Local Centres in PCA, Aldi Worksop, Celtic Point, and Other
Catchment Facilities.
63
Table 2 columns 2 and 7 – the sum of 10% of £15.52m plus 21% of £3.90m and £0.56m.
64
Table 2 columns 4 and 6 in the Retail SCG. The appellant predicts an impact of £0.98m or 5% on
town centre stores and £0.77m or about 3% on other stores within the catchment (the latter figures
being the sum of the four destinations listed in footnote 60 above, the percentage being weighted by
turnover).
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10.42 The one matter that was up-dated during the inquiry is the vacancy rate,
which moved from being slightly above the national average to slightly below
it, but this relatively small movement over a short period of time does not
change the conclusion that performance on this indicator is about average.
That, indeed, reflects the overall picture portrayed by the Health Check –
performance on many of the PPS4 indicators is around average, and while
there are some indicators where performance is above average, there are
others where it is below average. I consider below, in the context of town
centre investment, the implications of the proposal for two of the indicators
where performance is below average – diversity, and the amount of retail
floorspace in out-of-centre locations. [5.71, 6.49]
10.43 Overall the vitality and viability of Worksop town centre is about average for
a centre of its size and role in the retail hierarchy. It is certainly not failing,
and the Council’s evidence that it is fragile probably overstates the case; on
the other hand, there is no real evidence that the centre is buoyant or faring
especially well in the current downturn. And even if the Council is right, the
fragility of Worksop is more likely to be associated with the prevailing
economic conditions than with any significant inherent weakness in Worksop
as compared to other centres.
Town centre investment
10.44 There is limited evidence of existing, committed or planned investment in
Worksop town centre, so the absence of any suggestion that the proposed
superstore would directly affect such investment is hardly surprising. The
most significant planned investment is a cinema, which is currently being
promoted by the Council on part of the market site at the southern end of the
town centre. This would help to address one of the weaknesses identified in
the Health Check, the lack of diversity. Although the town centre’s primary
role is as a shopping centre, the Health Check commented on a limited
leisure and office market; in particular, it said that the evening economy is
poorly developed, with no cinema and an under-provision of restaurants.
[5.71, 6.49]
10.45 Whilst the cinema proposal would not be affected by the superstore, there is
a reasonable expectation that complementary evening uses such as
restaurants and bars might follow. Another hotel in the town centre would
also benefit the evening economy. It is likely that the provision of such
facilities at the appeal site would have an adverse effect on the prospect of
securing similar uses for the town centre. The appellant argues that the
proposed hotel and restaurants would serve a different market; whilst that
may be true for the specific operators envisaged in this case (Travelodge and
KFC), I do not believe that it applies to the market as a whole. [5.46]
10.46 Another below average indicator identified in the Health Check is the
significant amount of retail floorspace in out-of-centre locations. Clearly
there is little that can be done about the much bigger retail attractions in the
surrounding large towns and cities, which will remain a significant draw for
comparison goods shopping. But within Worksop itself, a very high
proportion of convenience trade goes to the out-of-centre Tesco and
Sainsbury’s superstores. I share the Council’s view that this represents a
weakness in the town centre shopping offer, and it is one that would be
exacerbated substantially by the proposed superstore.
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Impact on town centre - conclusion
10.47 The loss of over 10% of trade as a result of the proposed superstore would
undoubtedly have an adverse impact on the town centre – the question is
how serous that impact would be. Although the vitality and viability of the
town centre is currently about average, PPS4 PG advises that it is the
cumulative effects of developments over time which can result in a decline in
vitality and viability. To my mind there is a risk that the appeal proposal, by
adding to the already substantial trade draw of the existing/consented out-ofcentre superstores, would result in a small but noticeable loss of vitality and
viability, including an increase in shop closures and loss of town centre jobs.
In any event, the proposal must seriously diminish the prospect of attracting
new convenience goods expenditure into the town centre and thereby
improving its vitality and viability. It would also reduce the chances of
attracting new restaurants and a hotel to the town centre, potentially making
the enhancement of the evening economy more difficult to achieve.
10.48 Overall, whether the adverse impact would be “significant” in terms of PPS4
policy EC17.1b is arguable. My judgement is that the proposal would come
close to that level of impact. However, the requirement of EC17.1b is that
there should be “clear evidence” of significant adverse impacts; because the
conclusion is not unequivocal, the proposal does not fail that particular policy
test. Nevertheless, the adverse impact on the town centre remains a
material consideration to be weighed in the overall balance.
Qualitative retail need
10.49 PPS4 policy EC1.4 indicates that assessments of retail need should take both
quantitative and qualitative need into account; the PG identifies five factors
that may be relevant when assessing qualitative need. There is no obvious
gap or deficiency in the existing superstore provision in the catchment that
the proposal would address. Moreover, to the extent that there may be a
slight locational imbalance in Worksop, with no significant provision in the
eastern part of the town, the siting of a new superstore close to the existing
Sainsbury’s on the western edge of the town would do nothing to address
that imbalance.
10.50 There is strong support among local people for the proposal on the grounds
that it would improve consumer choice and competition. There is no doubt
that the entry of a third major superstore operator into the Worksop market
would increase choice for consumers and, potentially, the added competition
could lower the price of goods and services. But as all three stores would be
in out-of-centre locations, competition here would be at the expense of
Worksop town centre which, as paragraph 3.15 of the PG states, is a matter
to be weighed in the balance. The guidance cautions against the promotion
of new out-of-centre facilities on the basis of fostering choice or competition
where there is insufficient quantitative need and the development may
undermine investment or harm the vitality and viability of a nearby centre.
[7.1-8]
10.51 The Courts have established that overtrading can be an indicator of both
qualitative and quantitative need, and the latter has already been addressed.
In qualitative terms it is clear that the existing cramped and outworn Tesco
superstore cannot cope adequately with the existing consumer demand, but
the replacement facility is intended to largely address that matter. The other
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claims of overtrading are based solely on comparisons with company average
turnovers and there is no corroborating evidence of overcrowding or
congestion. Accordingly, in line with the PG advice, these claims carry limited
weight. [6.22]
10.52 In terms of location-specific needs, PPS4 seeks a distribution of facilities
which allows genuine choice to meet the needs of the whole community,
particularly those living in deprived areas. As already stated, the siting of a
second superstore on the opposite side of Worksop to the pockets of
deprivation in the Manton ward would be contrary to this objective. Whilst
the proposed improvements to bus services would provide some opportunity
for people living in the eastern side of Worksop to travel by non-car modes to
the appeal site, accessibility would remain poor by comparison with the town
centre or (potentially) the Kilton Road site. Furthermore, these bus services
cannot be guaranteed beyond the initial subsidy period. [6.52]
10.53 With regard to the quality of existing provision, the main deficiency in terms
of convenience floorspace is the poor quality Tesco superstore which is about
to be replaced. The appellant contends that many of the vacant town centre
units do not meet modern operators’ requirements, as evidenced by the longterm nature of some of the vacancies. However, although some of the
vacant town centre units suffer from specific constraints, long term vacancy
is not identified as a particular problem in the Health Check, and is not an
unusual feature in the current downturn. [5.71]
10.54 Overall, consideration of the indicators of qualitative need boils down to the
advantages of improved consumer choice and competition and the
disadvantages arising from convenience goods provision in an out-of-centre
location which is less accessible than both the town centre and a potential
alternative location which is much closer to areas of deprivation. I do not
believe that the benefits outweigh the adverse effects, so qualitative
considerations do not add materially to the case for the proposed retail
development.
Regeneration, employment and other benefits
10.55 The appeal site was formerly used for the manufacture of refractory products
and is situated in the middle of an industrial area on the western side of
Worksop. It and the surrounding land are identified in the BLP and the
emerging CSDMP as protected for employment use unless the land is no
longer capable of such use. There are substantial costs associated with the
remediation of the appeal site and the provision of essential services and
infrastructure. Financial appraisals demonstrate beyond doubt that
developing the site for solely Class B1/B2/B8 uses is currently not viable.
Consequently there is, in principle, no objection to the loss of part of the
appeal site to non employment uses provided such development is part of a
scheme which would remediate the rest of the site and make available
serviced employment land. This is the enabling development argument.
[2.1, 3.4-5, 5.26]
10.56 To facilitate an assessment of the benefits of providing employment land in
this manner, two matters need to be considered. The first is the importance
of the appeal proposal to regeneration objectives, including the supply of and
demand for employment land in the locality. The second is the extent to
which the development would achieve an appropriate balance between (i) the
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provision of employment land and other benefits, and (ii) the provision of
retail and other town centre uses which are contrary to the policy which
protects the land for employment purposes.
Regeneration and employment land
10.57 Regeneration is a “flagship policy” of the Council and Worksop, a sub-regional
centre, is one of three key centres for growth in the District. Because there
are very substantial employment land allocations in surrounding districts
which are better able to meet the needs of large and footloose users, recent
studies suggest that the focus in Worksop should be more on meeting locallybased needs for the supply of small to medium-size serviced employment
sites. Worksop has the strongest demand in Bassetlaw for office and
industrial space. The Sandy Lane industrial area (within which the appeal site
lies) is identified in the sub-regional land review as having good sustainability
credentials but average market interest. [5.17, 5.22]
10.58 The Bassetlaw Employment Land Capacity Study is a recent (2010) study
commissioned by the Council to inform the LDF process. Because it was
prepared in full knowledge of the current recession, its findings are more upto-date than those of earlier studies. The study reveals a somewhat mixed
picture of employment land in the Worksop area. The total amount of land
available locally is quite substantial, amounting on the appellant’s estimate to
around 20 years’ supply based on average development rates of the past few
years, but much of this land is constrained and/or un-serviced. Because of
these constraints, the study suggests that an additional 20-40 hectares of
employment land would be needed in the longer term (to 2026); it identifies
a number of potential sites for consideration during the LDF process. [4.6-7,
5.21]
10.59 Constraints affect the two largest available sites which together provide about
75% of the land supply. The Gateford Common allocated site has lain
undeveloped for many years because of ownership issues and it is not known
whether a resolution is likely to be forthcoming. Despite being identified as
constrained, the Steetley site is being developed by Laing O’Rourke as a
dedicated manufacturing plant and currently no land is available to the
general market; however, because this site will contribute in a major way to
the underlying objective of employment land supply, which is to provide jobs,
its significance should not be ignored. The other sites are smaller and, whilst
they may not be prime sites, I endorse the Council’s view that they are
mostly available and deliverable. [4.6-7, 5.21, 7.2]
10.60 The appeal proposal would provide serviced sites suitable for small and
medium size businesses, thereby meeting an identified local need. The
expression of interest given by Priority Sites Limited for the development of
7,900 sq m of speculative commercial floorspace is a good indication that the
provision of serviced land by the appellant would be followed by industrial
premises ready for occupation, though no binding commitment to build is in
place. The provision and marketing of serviced employment land, which is
guaranteed by conditions and planning agreement, would clearly be a
significant benefit. Provided it was delivered, the construction of speculative
premises would be a further benefit at a time when the take-up of industrial
land has slowed significantly as a result of the downturn. An appreciable
number of jobs could be created by the scheme. [5.24, 6.53]
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10.61 The question arises of how pressing is the need for the regenerated
employment land. The 2010 study estimated a 7 year supply based on an
average take-up rate of 3.18ha over the last 5 years; that rate is heavily
influenced by the development in the early part of the period of a large
distribution facility at Manton Wood. The study suggests that new allocations
are required in the medium term, by which time it is reasonable to assume
that the employment land supply issues will have been resolved through the
LDF process. In the meantime, I consider that there is not such a shortage of
available land or premises in Worksop to justify the argument that there is a
pressing need for this proposed employment scheme in the short term.
[5.20-21, 6.50]
Other benefits
10.62 The most significant other benefit is the offer of land at a peppercorn rent to
Worksop Town Football Club (WTFC), who have been locked out of their
former ground nearby and are compelled to ground share in Retford. It is
envisaged that WTFC would build a new home football ground and ancillary
facilities. If WTFC does not take the lease, or does not build a football ground
within five years, the S106 includes a fall-back position whereby a senior
football pitch with changing facilities and public access arrangements would
be provided. This is necessary to avoid what would otherwise be a policy
objection to the loss of the former Vesuvius sports ground. [9.5]
10.63 There is strong public support for this aspect of the proposal, and it should be
recognised that the benefits to the town of bringing its football club “home”
are potentially more than just increased attendances and shorter journeys.
On the other hand, there is no certainty that the offer of land would be taken
up by WTFC. And as the Council pointed out, the strength of public support
may have been partly influenced by the inference in the petition organised by
John Mann MP that the proposal would actually build a community sports
stadium rather than make land available for such development. A further
benefit of the scheme to the wider Worksop community is the improved bus
linkages to the locality around the appeal site, though whether this would be
sustained in the longer time is unclear. [6.55, 7.1-9]
Viability and enabling development
10.64 Without significant remediation and infrastructure provision, the appeal site
can only realistically be used for low intensity outdoor uses such as external
storage and recycling. Consequently some form of subsidy or enabling
development is necessary if the site is to be made available to the market in
the form of serviced land for Class B employment development. Public sector
gap funding is unlikely to be available in the foreseeable future. Housing
would not be suitable because the site is surrounded by industrial uses.
Retail is the only other use likely to generate sufficient income from land
sales. The assumptions agreed by the parties when preparing viability gap
appraisals are reasonable; these include a land cost of £50,000 per acre, site
remediation works and infrastructure costs totalling £5.69m, and a profit
level of 20% on costs. Receipts from land sales for the proposed
development would be £12m for the superstore, £250-300,000 per acre for
the hotel and restaurants, and £150,000 per acre for the employment land.
[4.4]
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10.65 The detailed methodologies used for the viability gap appraisals vary slightly,
though the underlying approach is broadly similar and accords with
established practice. There are two main differences: firstly, the S106 costs
for a new bus service are assessed by the Council at £100,000 and by the
appellant at £550,000; and secondly, finance costs are included in the
calculation of developer’s profit by the appellant but excluded by the Council.
Because the higher figure for bus services is a firm commitment, and as
developer’s profit is generally calculated on total costs including finance
charges, the appellant’s approach is more appropriate. For these reasons,
the appellant’s surplus figure of £3.13m (additional profit on costs above the
developer’s 20% profit) is preferred over the Council’s surplus of £4.11m; it
follows that the 48% claimed by the authority as the percentage of additional
profit would be proportionately smaller. [6.7, 9.5]
10.66 Both appraisals patently demonstrate that the proposal is viable, by a
substantial margin, and that the scheme would enable the development of
serviced employment land. The Council argues, however, that the surplus
represents an unjustified excess profit on costs, which it believes to be
contrary to established principles and the guidance on enabling development
produced by English Heritage (EH). The fundamental principle cited by the
Council is that the quantum of enabling development, which by definition is
contrary to policy, should not exceed the minimum necessary to facilitate the
development which is being enabled. [6.6, 6.8-9]
10.67 The surplus profit in this case would derive from the substantial increase in
land value as a result of a superstore of the size proposed. The Council
considers that, in the event that the development is deemed acceptable in
principle, the superstore should be reduced in size so that the accepted 20%
profit on costs is achieved – ie, the amount of enabling development should
be reduced to the minimum required. The parties established that a 15%
reduction in the size of the superstore (from 6,500 sq m to 5,500 sq m gross)
would broadly equate to the point at which surplus profits would not be
made. [5.26, 6.15]
10.68 The appellant believes that a superstore of this size would not be attractive to
the market, with the result that the development as a whole would not
proceed. The Council acknowledges that the main superstore operators are
seeking ever larger stores in order to compete effectively with their rivals,
which in this case are the nearby 6,396 sq m Sainsbury’s and the consented
6,617 sq m replacement Tesco, and accepts there is a risk that no operator
would take a 5,500 sq m store. Asda states in writing that it would not be
interested in a store “in the order of say 5,000 sq m gross” on the basis that
it could not provide a wide enough retail offer to be able to compete properly.
That may be so, though the evidence was not tested 65 and, as the Council
points out, it is in Asda’s interest at this stage not to deviate from the scheme
for which permission is sought. [5.27-8]
10.69 It is not known whether the other main superstore operator, Morrisons, would
be interested. The appellant contends that it would not, citing a case in
Crawley where that Council would have accepted a store of 5,000 sq m but
not one of 6,500 sq m. This example does not wholly support the appellant’s
65
Thus it is not certain that “in the order of say 5,000 sq m” includes a store of 5,500 sq m.
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argument, however, for Morrisons required a 6,500 sq m store to be able to
compete with stores of 10,315 sq m, 8,517 sq m and 8,054 sq m – thus, by
my calculation, a store a minimum 15% smaller than the competition was
regarded as acceptable by Morrisons in Crawley. There was no analysis of
whether other operators not represented in Worksop might be interested in
an even smaller store, though there was no evidence that they would. [5.39,
6.18]
10.70 The limited evidence on this matter does not enable a firm conclusion to be
reached. Although there are doubts about whether a 5,500 sq m store would
be built, there is not sufficient evidence to conclude that it would not.
Consequently the Council’s argument that the scheme proposes more by way
of non-employment development than is necessary to enable the serviced
employment to be delivered, is not disproved. Whilst the appellant is right to
argue that, by delivering serviced employment land, the submitted scheme is
a form of enabling development, it is not certain that it satisfies the generally
accepted criteria for enabling development set out in the EH guidance.
[5.31]
10.71 At the inquiry the appellant attempted to move away from the agreed land
cost of £50,000 per acre, arguing instead for a substantially higher initial
market value of the land based on a justifiable expectation of planning
permission for a superstore. There is no compelling evidence, however, to
support the notion that the proper market value should include an
expectation of superstore development. Firstly, it is not appropriate to rely
on an analogy with the Sainsbury’s superstore at High Grounds, for such outof-centre schemes frequently involve complex judgements with uncertain
outcomes; thus it cannot reasonably be assumed that just because one
enabling development was permitted, so too would another. Secondly, as
officers’ support for the appeal proposal was finely balanced and recognised
that there would be harm to the town centre, contrary to policy, a retail
permission in this case was far from certain. [5.35-6, 6.13]
10.72 Thirdly, the appellant’s argument that there is no policy objection to the loss
of employment land is not correct. The long established protection given to
employment land, which is retained in the emerging CSDMP, is a material
consideration. PPS4 and EMRP do not specifically address this issue, though
the latter refers to a lack of good quality industrial land in the Northern Subarea. Fourthly, the Council’s acceptance that employment development on
the appeal site would need cross-subsidy does not carry with it an express
commitment to that subsidy, for there is no imperative to secure enabling
development on every large site that needs remediation. In these
circumstances, even if it is assumed that there is a legitimate expectation of
[5.33]
some ‘hope value’, this does not extend to superstore value.
10.73 The appellant also argues that the superstore price should not be regarded as
a ‘hope value’ but as the value of a built store following the grant of planning
permission, and is thereby a value legitimately paid by the developer to the
landowner. But for the purpose of enabling development, it matters little
where on the balance sheet the uplift in value is entered. The plain fact is
that the increase in value far exceeds justifiable expectations having regard
to policy and other planning considerations. It comes instead under the
ambit of ‘unreasonable expectations’ which the EH guidance warns against.
[5.36, 6.14]
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10.74 The appellant accepts that the planning system does not exist to protect
developers against the risks of losses created by historic land prices, 66 but
says that the Council is wrong to say that the case is predicated entirely on
the enabling development argument because, in any event, planning
permission would be granted if the retail case is accepted. But even if the
retail case were proven, the fact remains that the loss of employment land is
not consistent with long established policy, so the enabling development
argument would not simply fall away. And given that policy concern, the
amount of enabling development is pertinent because, irrespective of the
excess profits argument, more non-employment development than is
necessary reduces the amount of land that is left for Class B employment
use, which is the objective of the enabling process. [5.40, 6.16]
Other PPS4 matters
10.75 In addition to the policy tests already applied, PPS4 requires economic
development proposals such as this to be assessed against the criteria of
policy EC10.2. The Design and Access Statement indicates an intention to
use sustainable construction methods to minimise carbon dioxide emissions
and address climate change issues (EC10.2a). It also demonstrates that a
high quality and inclusive design could be achieved which would improve the
quality and character of the area (EC10.2c). Both matters would be
addressed more fully at the detailed design stage and could be secured by
[4.3]
conditions.
10.76 Accessibility by a choice of transport modes (EC10.2b) would be reasonable
in terms of the employment uses, being within the Worksop built-up area and
served by an improved bus network (for 5 years at least). For the superstore
and other commercial uses, however, accessibility would not compare
favourably with locations in or closer to the town centre. There is no concern
about the effect on local traffic levels or congestion. The impact on economic
and physical regeneration and on areas of deprivation (EC10.2d), and the
impact on local employment (EC10.2e), have largely been addressed already.
These impacts would generally be beneficial, though the location of the
superstore across the town from areas of deprivation would not assist social
inclusion objectives.
Balance of considerations
Summary of town centre impacts
10.77 Dealing firstly with the proposed superstore, there is capacity within the
catchment for about £23.5m of convenience goods expenditure in 2014,
whereas the store would have a turnover of about £28.8m. Although
capacity figures should be treated with caution, the broad conclusion is that
there is insufficient capacity within the catchment to support a superstore of
the size proposed. Capacity is no longer a specific policy test, however, so
assessment must be made against the sequential approach and the impact
test. [10.16-17]
10.78 There are no in-centre or edge-of-centre sites which are available, suitable
and viable. The overall thrust of PPS4 (including policy EC15 when read with
66
The appeal site was acquired in December 2007 for £13.4m.
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the PG) is that preference should be given to out-of-centre locations which
are close to a centre and have greater likelihood of forming links with that
centre. The Kilton Road site is available and viable, and the only question
about its suitability involves policy considerations that also apply to the
appeal site. It is much closer to the town centre than the appeal site and,
though linkages with the centre would be limited, it is reasonable to assume
that some linked trips by non-car modes of transport would be made. Kilton
Road is therefore sequentially preferable to the appeal site; consequently
there is a strong presumption against the proposed superstore under policy
[10.29]
EC17.1a.
10.79 In terms of impact, the superstore would result in the loss of over 10% of the
convenience goods expenditure that currently goes to Worksop town centre.
Overall the health of the centre is average - it performs well in some areas,
but less well in terms of diversity and the amount of floorspace in out-ofcentre locations. There is a risk that a further 10% loss of trade added to the
already significant trade draw of existing out-of-centre superstores would
result in a small but noticeable decline in the town centre’s vitality and
viability, with consequent shop closures and job losses. It would also
diminish the prospect of attracting new convenience floorspace into the town
centre. Nevertheless, the evidence is not so compelling as to invoke the
PPS4 policy EC17.1b presumption against the superstore on impact grounds.
The superstore would undoubtedly increase consumer choice and
competitiveness, for which there is strong local support, but competition
would be between out-of-centre operations at the expense of the town
centre. Its location on the western side of town would also restrict the
choices available to the deprived communities on the eastern side of
Worksop, who have much easier access to the town centre (and to Kilton
Road). [10.47]
10.80 The picture is complicated by the current proposal to extend the consented
Tesco superstore at Carlton Road. Although out-of-centre, this is a superior
sequentially preferable site and a location from which satisfactory links are
likely to be formed with the town centre. If permitted, the extension would
take a significant proportion of the available capacity within the catchment,
leading to a firm conclusion that there is no need for an additional superstore
of the size proposed. If both the Tesco extension and the appeal proposal
were built, whilst the impact in terms of trade draw would be felt mostly by
the out-of-centre superstores, there would undoubtedly be a further loss of
trade from the town centre and a potentially significant impact on town
centre vitality and viability. [10.13]
10.81 As for the other town centre uses, there are a number of small sites in the
centre and on the edge of the centre which could accommodate the proposed
hotel and restaurants. The former Premier Windows site and part of the
former Victoria Hospital site are available, suitable and viable for a hotel or
drive-through restaurant, and some of the vacant town centre units could
accommodate a restaurant. All these locations are sequentially preferable to
the appeal site, so the policy EC17.1a strong presumption against the other
town centre uses (apart from offices) applies. The provision of a hotel and
restaurants at the appeal site would also reduce the chances of attracting
such uses to the town centre, potentially making it more difficult to secure
much needed enhancements. [10.34]
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Summary of regeneration and other impacts
10.82 The appeal site is within an industrial area where there is local policy
protection (albeit not part of the development plan) for employment uses. It
is contaminated brownfield land and the high costs of remediation and
infrastructure provision mean that redevelopment for solely B1/B2/B8 uses is
not viable. For this reason there is, in principle, no policy objection to some
non-employment development which would add sufficient value to the land to
enable the provision of serviced employment land on the rest of the site.
This would be designed to meet the needs of small and medium size
businesses for which there is an identified need. Priority Sites Limited has
indicated a willingness to provide speculative commercial floorspace on a
significant proportion of the site. Assessed against the impact considerations
of PPS4 policy EC10.2, the outcome for the non-town centre elements of the
proposal is favourable.
10.83 Provision of the serviced land and, potentially, speculative buildings would be
a significant benefit of the scheme, with the potential to create an appreciable
number of jobs. There is, nevertheless, sufficient supply of employment land
in the Worksop area to meet short term needs, and the medium to longer
term needs will be addressed through the LDF process. Consequently there
is not such a shortage of available land or premises to justify the argument
that there is a pressing need for the development in the short term. Another
benefit would be the provision of land at nominal rent to WTFC for the
development of a community sports stadium and the return “home” of the
town’s football club. [10.61]
10.84 Viability appraisals reveal that, because of the size of the superstore, the
scheme would produce a £3.13m additional profit on costs above the
accepted developer’s profit of 20%. This is contrary to the established
principle and practice of enabling development, where the aim is to achieve a
quantum of enabling development which is the minimum necessary to
facilitate the development being enabled. A superstore 15% smaller would
be necessary to eliminate the additional profits; there are some doubts as to
whether an operator would build a store of this reduced size, given the desire
to compete with two larger stores in Worksop, but the evidence is not
conclusive. Thus it cannot be said with certainty that the proposed 6,500 sq
m superstore is the only size that would deliver the enabling development.
[10.70]
PPS4, the development plan and the planning balance
10.85 The decision in this case turns primarily on whether the significant
employment and regeneration benefits of the scheme, together with the
strong public support for greater consumer choice and land on which WTFC
could build a stadium, outweigh the harm to the “town centres first” objective
of PPS4, notably the failure to comply with the sequential approach and the
adverse impacts on Worksop town centre caused by a loss of trade and
diminished vitality and viability. A very similar weighing of impacts applies to
a determination made in accordance with the development plan – the
regeneration and employment growth sought for the Sub-Regional centre of
Worksop by EMRP policies 7 and 19 has to be set against the promotion of
existing town centres for retail and other functions under policies 22 and
Northern SRS2.
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10.86 The provision of serviced employment land and – potentially – buildings
would undoubtedly be an immediate and significant benefit in terms of jobs
and wealth creation. Nevertheless, in the short term there is not such a
pressing need for the development of this particular site, while medium/
longer term employment land supply issues will be addressed through the
development plan process. The evidence of the recent past suggests that
Worksop is reasonably well placed to attract investment – indeed, the
Steetley example demonstrates that even a highly constrained site should not
be ruled out.
10.87 In contrast, the adverse effects on Worksop town centre are likely to be felt
over a longer period. The provision of another out-of-centre superstore
would not only reduce convenience expenditure in the town centre, leading to
job losses and, potentially, some shop closures, but it would also reduce the
prospect of investment in a centre which already suffers from substantial
outflows of convenience goods expenditure. In addition, there are concerns
about the size of the superstore: it appears that there is insufficient
expenditure capacity within the catchment area to support it, and it is larger
than is necessary to enable serviced employment land to be brought forward.
The provision of hotel and restaurant uses in this out-of-centre location would
also lessen the chances of such investment going to (or close to) the town
centre.
10.88 Taking all these factors into account, in my judgement the harm to the town
centre objectives of PPS4 outweighs the regeneration, employment and other
benefits of the scheme. That judgement does not change if the hotel/
restaurant uses are taken out of the equation, leaving just the superstore on
the appeal site. Thus, whilst assessments under PPS4 policies EC10, EC15,
EC16 and EC17 produce outcomes which pull in different directions, the
overall balance weighs against the proposal.
10.89 The conclusion is the same when the determination is made in accordance
with the development plan. The compliance with - and contribution towards the regeneration and employment policy objectives of the EMRP are
outweighed by the conflict with polices aimed at protecting the retail role of
Worksop town centre. Accordingly, whatever weight is given to the
Government’s stated intention to repeal regional strategies does not have any
material bearing on the decision in this case. [1.10]
10.90 This conclusion has been reached without consideration of the proposed
Tesco extension, which complicates the analysis. Only limited weight can be
given to this proposal prior to any grant of planning permission. However,
because the Tesco extension is in a sequentially preferable location and has
the potential to take a significant amount of the available capacity, such
weight as can be attributed adds to the case against the appeal proposal.
RECOMMENDATION
11.1
I recommend that the appeal be dismissed.
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Conditions if planning permission is granted
11.2
If the appeal is allowed, then consideration should be given to the imposition
of conditions on the planning permission as set out in Annex A to this report,
for the reasons outlined therein.
11.3
If the Secretary of State is minded to permit the superstore but not the hotel
and restaurant uses (or vice versa), a split decision would be preferable to
the use of a condition, though legal advice may need to be sought to
determine whether the benefits secured by the S106 agreements and
obligation would be threatened.
Martin Pike
INSPECTOR
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APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY:
Christopher Young
of Counsel
instructed by Carolyn Forster, Head of Legal
Services, Bassetlaw District Council
He called
Mr M Tonks
MT Town Planning
Mr M Wheater
Property Manager, Bassetlaw District Council
Mr C Balch
Precode Limited
MA DipTP MRTPI
BSc(Hons) MRICS
MA MPhil MRTPI MRICS
FOR THE APPELLANT:
David Holgate QC
He called
Mr S Miles
BA(Hons) DipENV MRTPI
Mr A Tapley
BSc(Hons) DipTP MRTPI
instructed by Walker Morris Solicitors
Associate Director, DTZ
Partner, Rapleys LLP
INTERESTED PERSONS:
Mr I Dickinson
Mr J Mann MP
Mr P Brooks
Cllr I Jones
Mr P Hall
Mr Buckland
Cllr B Barker
Cllr K Greaves
Area Planner, British Waterways
Member of Parliament for Bassetlaw
Worksop landlord
Bassetlaw District Councillor
Local resident
Reviews and Efficiencies Manager,
Nottinghamshire County Council Transport
Services
Bassetlaw District Councillor
Nottinghamshire County Councillor
DOCUMENTS
Core Documents - Policy
CD1
CD2
CD3
CD4
CD5
CD6
CD7
CD8
CD9
CD10
Planning Policy Statement 1: Delivering Sustainable Development
Planning Policy Statement 1: Climate Change Supplement
Planning Policy Statement 4: Planning for Sustainable Economic Growth
Planning for Town Centres: Practice Guidance on Need, Impact and the
Sequential Approach
Planning Policy Guidance 13: Transport
Planning Policy Guidance 17: Planning for Open Space Sport and
Recreation
Planning Policy Guidance 23: Planning and Pollution Control
Planning Policy Statement 25: Development and Flood Risk
East Midlands Regional Plan, March 2009
Bassetlaw Local Plan, October 2001
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CD11
CD12
Vesuvius Works, Worksop
Bassetlaw Local Development Framework Core Strategy Issues and
Options, September 2009
Bassetlaw District Local Development Framework Preferred Options
Core Strategy and Development Management Policies Consultation
Document, May 2010
Core Documents – Application
CD13
CD14
CD15
CD16
CD17
CD18
CD19
CD20
CD21
CD22
CD23
CD24
CD25
CD26
Outline Planning Application forms and associated application
submissions, 9 February 2009
Transport Assessment, January 2009
Town Centre Health Check, Rapleys January 2009
Employment Land Assessment, DTZ January 2009
Sequential Site Assessment, Rapleys January 2009
Design and Access Statement, February 2009
Environmental Statement, February 2009
Planning Statement, February 2009
Travel Plan Framework, February 2009
Addendum note regarding Hotel and Restaurant Sequential Sites, July
2009
Updated Retail Study and Supporting Appendices, September 2009
Planning Statement Update, October 2009
Revision and Commentary on Critique, December 2009
Further Retail Sensitivity Analysis Tables, December 2009
Core Documents - Council Reports/Decision
CD27
CD28
CD29
CD30
Vesuvius Committee Report (02/09/00033), 15 December 2009
Minutes of Committee Meeting, 23 December 2009
Vesuvius Application Decision Notice, 11 January 2010
Report of Head Of Community Prosperity to Planning Committee
Meeting, 14 April 2010
Core Documents - Studies/Reports
CD31
CD32
CD33
CD34
CD35
CD36
CD37
CD38
CD39
CD40
CD41
CD42
Employment Densities: A Full Guide, Arup on behalf of English
Partnerships, 2001
Worksop Town Centre Masterplan, July 2004
Bassetlaw Retail Study, August 2004
East Midlands Northern Sub-Region Employment Land Review, Arup
March 2008
Retail Led Regeneration – Why it matters to our communities. Business
in the Community and British Council for Shopping Centres, 2008
Bassetlaw District Council Playing Pitch Assessment, July 2009
Bassetlaw Retail Study, May 2009
Bassetlaw Retail Study Visitor Survey, October 2008
Bassetlaw Retail Study Household Survey, November 2008
Bassetlaw Retail Study Household Survey Results for zones 1 to 3 by
postcode sector level, November 2008
Allegra Household Survey Results analysed by Watershed Sub-Zones,
February/March 2010
Allegra Household Survey Results analysed by Postcode Sector Areas,
February/March 2010
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CD43
CD44
CD45
CD46
CD47
CD48
CD49
CD50
CD51
Vesuvius Works, Worksop
Bassetlaw Retail Study Business Survey, January 2009
Employment Land Capacity Study, January 2010 by NLP
English Heritage: Enabling Development and the Conservation of
Significant Places, September 2008
SRB Challenge Fund Gap Funding Appraisal – Methodology Guidance for
Developers, DETR 1998
Valuation Office: Property Report on Industrial Land, July 2009
The Effect of Supermarkets on Existing Retailers (Roger Tym &
Partners), December 2006
Goad Town Centre Categories Report for Worksop, July 2008
Goad Plan for Worksop Town Centre, July 2008
Postcode Sector Map for Worksop
Core Documents - Appeals
CD52
CD53
CD54
CD55
Appeal decision letter for the A3 application at Sandy Lane (Appeal ref:
APP/A3010/A/09/2111209) March 2010
Appeal decision letter for residential development in Cambridge
(Appeal ref: APP/Q0505/A/09/2103592 and 2103599) March 2010
Appeal decision letter for retail development in Walsall (Appeal ref:
APP/V4630/A/09/2111779) February 2010
Secretary of State decision letter and Inspector’s report on retail
development in Hertford (Appeal ref: APP/J1915/V/09/2101286)
January 2010
Core Documents - Miscellaneous
CD56
CD57
CD58
CD59
CD60
CD61
CD62
CD63
CD64
CD65
CD66
Planning Permission Decision Notice for Junction Improvements to
provide access to site, December 2008
Letter from Rt Hon Eric Pickles MP, 27 May 2010
Guidance Note regarding abolition of Regional Strategies, Planning
Inspectorate, Undated
Court of Appeal Judgment in the case of Bannertown Development
Limited v SSE, 1998
Financial Appraisal and Project Viability, Topic Paper T10, Atlas 2010
Review of Rapleys Retail Assessment, Martin Tonks Report to BDC, April
2009
Review of Rapleys Additional Information, Martin Tonks Report to
BBDC, November 2009
Representation from Worksop Chamber of Trade and Commerce to the
Bassetlaw Local Plan, March 1994
Impact of Large Foodstores on Market Towns and District Centres
Worksop Index of Multiple Deprivation, 2007
Worksop – Bus about Town – times from August 2009
Inquiry Documents
INQ1
INQ2
INQ3
INQ4
INQ5
INQ6
Planning Statement of Common Ground
Viability Statement of Common Ground
Draft Retail Statement of Common Ground – July 2010
Employment Land Statement of Common Ground
Final Retail Statement of Common Ground – September 2010
Draft list of Conditions – July 2010
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INQ7
INQ8
Vesuvius Works, Worksop
List of Core Documents
Final list of Conditions – September 2010
Appellant’s Documents
DDL1/1
DDL1/2
DDL1/3
DDL1/4
DDL2/1
DDL2/2
DDL2/3
DDL3
DDL4
DDL5
DDL6
DDL7
DDL8
DDL9
DDL10
DDL11
DDL12
DDL13
DDL14
DDL15
DDL16
DDL17
DDL18
DDL19
DDL20
DDL21
DDL22
DDL23
DDL24
DDL25
DDL26
DDL27
DDL28
DDL29
DDL30
DDL31
DDL32
Mr Tapley Proof of Evidence and Appendices
Mr Tapley Rebuttal
Mr Tapley Summary
Mr Tapley Speaking Note
Mr Miles Proof of Evidence and Appendices
Mr Miles Rebuttal
Mr Miles Summary
Bryan G Hall Response to Transport Matters Raised in Mr Tonks'
rebuttal proof
Draft Section 106 Agreement
Draft Section 106 Unilateral
Sandy Lane Forum letter dated 22 July 2010
Agreed Heads of Terms between Appellant and Priority Sites Limited
Comparison Table of M Tonks positions at time of Determination and
Inquiry
BDC Cabinet report on Worksop Market Improvements dated 13 July
2010
Minutes of 16 January 2008 BDC Committee Meeting re Retail Units at
High Grounds
Duration of Vacancies and Vacancy Update 7th September 2010
Duration of Vacancies and Vacancy Update 20th September 2010
Asda FTE Jobs Estimate
Convenience Goods Store Opening and Closing in Worksop Town Centre
Holding Letter to Inspectorate and attachments from Rapleys – 6
September 2010
Note on Land Value (withdrawn and not included)
Priority Sites Letter – 9 September 2010
Worksop Office Market Assessment – September 2010
Response to Bassetlaw District Council Note (BDC14) on the Viability of
the Proposed Bus Service – September 2010
Response to BDC15 – Status of High Grounds Bulky Goods Application
Response to BDC16 – Note regarding whether Sainsbury’s Store at
High Grounds was Enabling Development
Comments on BDC17 – Status of the Carlton Road Tesco Applications
Comments on BDC18 – Note on Longevity of Vacancies in the Priory
Centre, Worksop
Comments on BDC19 – Committee Report on Application for Retail
Store Development at Kilton Road Site
Response to BDC20 – Employment Densities at Kilton Road
Planning Obligations Explanatory Note
See INQ7
See DDL1/4
Letter of Support from Allegra Strategies
Worksop town centre - Vacancies 17 September 2010
S106 Agreement - Dooba Developments Limited and Bassetlaw District
Council
Draft S106 Unilateral Undertaking - Dooba Developments Limited to
Bassetlaw District Council - Bus Service
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DDL33
DDL34
DDL35
DDL36
DDL37
DDL38
DDL39
Vesuvius Works, Worksop
S106 Unilateral Undertaking - Dooba Developments Limited to
Bassetlaw District Council (No 2 - Drainage)
GOAD Plan of Worksop town centre
Extract from Verdict 2010 report - Asda
Letters relating to proposed Tesco store enlargement
Closing Submissions
Response to Costs Application
S106 Agreement - Dooba Developments Limited and Bassetlaw District
Council - Bus Service
Council’s Documents
BDC1
BDC2
BDC3
BDC4
BDC5
BDC6
BDC7
BDC8
BDC9
BDC10
BDC11
BDC12
BDC13
BDC14
BDC15
BDC16
BDC17
BDC18
BDC19
BDC20
BDC21
BDC22a
BDC22b
BDC23
BDC24
BDC25
BDC26
BDC27
BDC28
BDC29
BDC30
BDC31
BDC32
CLG Steve Quartermain letter dated 6 July 2010
Note on Status of BDC's LDF
Rapleys Retail Capacity Assessment 29 January 2009
Note on the status of Ryton Park Primary School
Email from Harris Lamb to Richard Schofield dated 3 August 2010
John Mann letter to Planning Inspectorate dated 31 March 2010
Worksop Guardian Extract dated 1 January 2010
P Sibson email to Planning Inspectorate dated 26 July 2010
Plan of sites referred to in Mark Wheater's evidence
C Balch replacement tables for appendix 1
C Balch note on impact of alternative scenarios on viability of appeal
scheme
Appraisal summaries produced by C Balch
Sales details in relation to High Grounds Industrial Estate
Note on the viability of the proposed Bus Service (Offered By Unilateral
S106)
Note on the status of the High Grounds bulky goods application
(69/07/00018)
Note on whether the Sainsbury’s High Grounds store was treated as
enabling development
Note on the status of the Carlton Road Tesco applications
Note on the longevity of vacancies in the Priory Centre, Worksop
Planning Committee Report (and accompanying information) for
application 1/2/94/295 (Kilton Road)
Note on Employment Density at Seafield Warehouse complex, Kilton
Road
Note on the tables appended to the Retail Statement of Common
Ground
Map of Harworth/ Langold routes to Retford/ Worksop
Distances and Times from Harworth, Langold and Blyth to Alternative
Supermarket Destinations
Christopher Balch Note on DDL16 (withdrawn and not included)
Shap Road, Kendal Table “Trading Performance of Existing Stores”
Tesco Express in Worksop Figures
Site Layout Plan for Extended (F60) Tesco on Carlton Road, Worksop
Closing Submissions
Costs Application
Reply to Appellant’s Costs Response
Mr Tonks Proof of Evidence
Mr Tonks Appendices
Mr Tonks Rebuttal
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BDC33
BDC34
BDC35
BDC36
Mr
Mr
Mr
Mr
Vesuvius Works, Worksop
Tonks Rebuttal Appendices
Wheater Proof of Evidence
Balch Proof of Evidence
Balch Rebuttal
Interested Person’s Documents
IP1
IP2
IP3
IP4
Mr Dickinson Statement on Drainage
John Mann MP Statement
Statement of Mr Brooks
Bundle of Written Representations (including Petition)
PLANS
A
B
C
Application site plan
Topographic survey plan
Catchment areas to be served by enhanced bus frequency
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ANNEX A
CONDITIONS
1)
Applications for the approval of details of the (a) access, (b) appearance,
(c) landscaping, (d) layout and (e) scale ("the Reserved Matters") must be
made to the Local Planning Authority before the expiration of eight years
from the date of this permission, except in respect of details of the
foodstore, which must be made within two years from the date of this
permission.
Reason: To ensure the timely, ordered and effective implementation of the
development and to comply with section 92 (as amended) of the Town and Country
Planning Act 1990.
2)
A plan indicating the phases in which the development is to be
implemented (“the Phasing Plan”) must be submitted to and approved in
writing by the Local Planning Authority prior to the submission of the first
reserved matters application. Thereafter each subsequent Reserved
Matters application must be accompanied by an updated Phasing Plan for
the approval of the local planning authority. The updated Phasing Plan
must set out any proposed changes from the Phasing Plan as previously
approved pursuant to this condition.
Reason: To ensure the timely, ordered and effective implementation of the
development.
3)
The development hereby permitted must be begun in each phase of the site
before the expiration of two years from the date of the last approval of the
details of the Reserved Matters in respect of that phase. Such approval
must be obtained in writing from the Local Planning Authority before any
development is commenced in each phase.
Reason: To prevent the accumulation of unimplemented permissions and to comply
with section 92 (as amended) of the Town and Country Planning Act 1990.
4)
The gross internal floorspace of the uses hereby permitted shall not exceed
(a) 6,500 sq m for the foodstore, (b) 360 sq m for restaurants, (c) 2,050
sq m for the hotel, (d) 740 sq m for offices. The gross floorspace of other
uses hereby permitted shall not materially differ from that assessed and
reported in the submitted Environmental Statement.
Reason: To define the permission and ensure any impact to the town centre is
controlled in line with PPS4.
5)
The net sales floorspace of the foodstore (defined as the sales area within
the building excluding checkouts, lobbies, restaurants, customer toilets and
walkways behind the checkouts) shall not exceed 3,539 sq m, of which no
more than 2,300 sq m shall be used for the sale of convenience goods
(defined as food and non-alcoholic beverages, tobacco, alcoholic beverages,
newspapers and periodicals, and non-durable household goods) and no
more than 1,416 sq m may used for the sale of comparison goods (defined
as clothing materials & garments, shoes & other footwear, materials for
maintenance & repair of dwellings, furniture & furnishings, carpets & other
floor coverings, household textiles, major household appliances whether
electric or not, small electric household appliances, tools & miscellaneous
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accessories, glassware, tableware & household utensils, medical goods &
other pharmaceutical products, therapeutic appliances & equipment,
bicycles, recording media, games, toys & hobbies, sport & camping
equipment, musical instruments, gardens, plants & flowers, pets & related
products, books & stationery, audio-visual, photographic and information
processing equipment, appliances for personal care, jewellery, watches &
clocks, other personal effects).
[NOTE: The convenience goods limit includes a flexibility margin to
facilitate compliance].
Reason: To define the permission and ensure any impact to the town centre is
controlled in line with PPS4.
6)
The petrol filling station hereby permitted shall not include provision for the
sale of convenience and comparison goods other than goods principally for
the benefit of motorists (e.g. oil, maps, sandwiches, snacks, cold drinks)
and no part shall be used for the sale, display or repair of vehicles.
Reason: To define the permission and ensure any impact to the town centre is
controlled inline with PPS4.
7)
Applications for the approval of the Reserved Matters shall be in accordance
with the principles and parameters described and illustrated in the
submitted Design & Access Statement and a statement, which
demonstrates this accordance, shall be submitted with each Reserved
Matters application. No development shall take place in any phase until
details of the materials to be used in the construction of the external
surfaces of the buildings in that phase have been submitted to and
approved in writing by the Local Planning Authority. The development shall
be implemented in each phase in accordance with the approved details.
Reason: To ensure that high standards of urban design and comprehensively
planned development are achieved in accordance with the principles set out in
PPS1.
8)
All landscape works shall be carried out in accordance with the landscaping
details submitted to, and approved in writing by, the Local Planning
Authority under Condition 1. These details shall include: (a) means of
enclosure, (b) hard surfacing materials, (c) planting plans, (d) schedule of
plants (noting species, planting sizes and proposed numbers/densities) and
(e) a schedule of landscape maintenance for at least five years with
implementation arrangements. The approved works shall be carried out
prior to the occupation of each phase. Any trees or plants that die, are
removed or become seriously damaged or diseased within five years from
the completion of each phase shall be replaced in the next planting season
with others of similar size and species.
Reason: To ensure that high standards of design and visual amenity are achieved
in accordance with the principles set out in PPS1.
9)
A new junction of Sandy Lane and Shireoaks Road and a road extending to
the location of the playing field as shown on the Illustrative Masterplan in
the submitted Design and Access Statement ("The Access Road") (unless
an alternative termination point is agreed with the Local Planning
Authority), of a capacity and design capable of serving all of the
development hereby permitted and containing gas pipes, electricity cables,
drains and telecoms ducts, must be constructed prior to the first opening of
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the foodstore to customers. The junction shall be constructed in
accordance with Drawing No. 07/390/TR/008 Revision D approved under
planning permission reference 02/08/00321 or details first approved in
writing by the Local Planning Authority. The Access Road shall be
constructed in accordance with details first submitted to and approved in
writing by the Council.
Reason: To ensure sustainable travel, to maintain traffic safety and flow in
compliance with PPG13 and to service the application site.
10)
The access details under Condition 1 shall include details of the proposed
physical measures to facilitate public transport, private vehicular and
pedestrian access to the site; internal roads and footways; parking spaces
(type and number); service and vehicle turning areas; footpath and cycle
links to the town centre and surrounding area and associated signs. All
signs and means of access, circulation and parking in each phase shall be
implemented prior to any of the buildings in that phase being brought into
use, and shall be retained thereafter, all in accordance with the approved
details. None of the parking, turning or servicing areas shall be used for
any purposes other than the parking and turning of vehicles and the
servicing of the development. No development shall take place in each
phase until a scheme for the provision of secure and under cover cycle
parking for that phase has been submitted to, and approved in writing by,
the Local Planning Authority. Such parking shall be provided prior to any of
the buildings in that phase being brought into use, and shall be retained
thereafter, all in accordance with the approved details.
Reason: To ensure sustainable travel, to maintain traffic safety and flow in
compliance with PPG13 and in line with the principles of PPS1.
11)
No development hereby permitted shall take place in any phase until a
Travel Plan Co-ordinator, to be responsible for the implementation,
delivery, monitoring and promotion of the sustainable transport initiatives
set out in the Travel Plan Framework (February 2009 Ref: 07-390-004.2)
has been appointed for that phase. A Travel Plan Co-ordinator shall
thereafter continue to be employed or engaged and their details shall be
provided and updated to the Local Planning Authority. No development
hereby permitted shall be brought into use in each phase until the Travel
Plan Co-ordinator has submitted a Travel Plan in respect of that phase, to
include targets, processes for monitoring, reviewing and updating the Plan
and measures to correct any failure to meet the targets, for approval in
writing by the Local Planning Authority, in line with the principles of the
submitted Travel Plan Framework (February 2009. Ref: 07-390-004.2).
Once approved, the Travel Plan for each phase must be implemented when
development in that phase becomes operational or during any other such
period as may be specified in the approved Travel Plan for that phase.
Where targets are not achieved the Travel Plan Co-ordinator shall notify the
Local Planning Authority and the Plan shall be reviewed, updated and
submitted to the Local Planning Authority within one month of the
notification. The updated Travel Plan shall be implemented within one
month thereafter.
Reason: To ensure the promotion of sustainable forms of transport in line with the
requirements of PPG13 and PPS1.
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12)
Vesuvius Works, Worksop
No development shall take place in each phase until a Construction Method
Statement has been submitted to, and approved in writing by, the Local
Planning Authority for that same phase. The approved Statement shall be
adhered to throughout the construction period. The Statement shall
provide for:
• the parking of vehicles of site operatives and visitors
• loading and unloading of plant and materials
• storage of plant and materials used in constructing the development
• the erection and maintenance of security hoarding including decorative
displays and facilities for public viewing, where appropriate
• wheel washing facilities
• measures to control the emission of dust and dirt during construction
• a scheme for recycling/disposing of waste resulting from demolition and
construction works
• protection of Tranker Wood SINC and slow worm receptor sites from
construction materials and machinery.
Reason: To ensure minimum impact on the amenity of the surrounding area,
biodiversity and the road network.
13)
No development approved by this permission shall be commenced in each
phase until a scheme for the provision and implementation of surface water
run-off limitation to existing rates, with 20% reduction provided for events
between a 1 in 30 year storm event up to and including the 1 in 100 year
event including an appropriate allowance for climate change, has been
submitted to and approved in writing by the Local Planning Authority in
respect of that same phase. The scheme for each phase shall be
implemented as approved.
Reason: To prevent the increased risk of flooding downstream in compliance with
PPS25.
14)
There shall be no built development within 5 metres of any existing open
watercourse crossing or adjacent to the site.
Reason: To allow maintenance of the watercourse, to protect the river habitat, to
prevent destabilisation of the river banks and to allow for natural processes of
erosion and deposition.
15)
Finished floor levels shall be set at least 150mm above existing ground
levels as set out in the Plan at Appendix B ‘Topographic Survey and Crosssection Locations’ to Annex E ‘The Flood Risk Assessment’ of the submitted
Environmental Statement (labelled Plan B).
Reason: To protect the development from surface water flooding in compliance
with PPS25.
16)
The development hereby permitted shall not be commenced in each phase
until such time as a scheme to install oil and petrol interceptors in the
parking areas, turning areas and the petrol station where impermeable
surfaces have been used has been submitted to, and approved in writing
by, the Local Planning Authority in respect of that same phase. The
scheme shall be implemented as approved.
Reason: To protect ground and surface water quality in compliance with PPS23.
17)
The development hereby permitted shall not be commenced in each phase
until such time as a scheme to install trapped gullies in the road network
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has been submitted to, and approved in writing by, the local planning
authority in respect of that same phase. The scheme shall be implemented
as approved.
Reason: To protect ground and surface water quality in compliance with PPS23.
18)
An Ecological Management Plan providing details of ecological mitigation,
management and monitoring measures, particularly in relation to the ongoing protection of Tranker Wood SINC and the relocation and on-going
protection of the identified protected species on the site, in respect of each
phase must be submitted to and approved by the Local Planning Authority
in writing before any development is commenced in that same phase. The
Plan must thereafter be implemented in each phase in accordance with the
approved details.
Reason: To mitigate the effects of the permitted development on biodiversity in
compliance with PPS9.
19)
The development hereby permitted shall not commence until a detailed
remediation scheme to bring the site to a condition suitable for the
intended use by removing unacceptable risks to human health, buildings
and other property and the natural and historical environment has been
submitted to and approved in writing by the Local Planning Authority. The
scheme must include all works to be undertaken, proposed remediation
objectives and remediation criteria, a timetable of works and site
management procedures.
Reason: To ensure that risks from land contamination to the future users of the
land and neighbouring land are minimised, together with those to controlled
waters, property and ecological systems, and to ensure that the development can
be carried out safely without unacceptable risks to workers, neighbours and other
offsite receptors in compliance with PPS23.
20)
The approved remediation scheme must be carried out across the whole
site in accordance with its terms prior to the first use of any development
hereby permitted. Within two months of the completion of measures
identified in the approved remediation scheme, a validation report (that
demonstrates the effectiveness of the remediation carried out) must be
submitted to and approved in writing by the Local Planning Authority.
Reason: To ensure that risks from land contamination to the future users of the
land and neighbouring land are minimised, together with those to controlled
waters, property and ecological systems, and to ensure that the development can
be carried out safely without unacceptable risks to workers, neighbours and other
offsite receptors in compliance with PPS23.
21)
In the event that contamination is found at any time when carrying out the
approved development that was not previously identified it must be
reported in writing within two days to the Local Planning Authority and once
the Local Planning Authority has identified the part of the site affected by
the unexpected contamination, development must be halted on that part of
the site. An assessment must be undertaken in accordance with the
following requirements:
(i)
a survey of the extent, scale and nature of contamination;
(ii)
an assessment of the potential risks to:
•
human health,
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•
•
•
•
•
(iii)
Vesuvius Works, Worksop
property (existing or proposed) including buildings, crops,
livestock, pets, woodland and service lines and pipes,
adjoining land,
groundwaters and surface waters,
ecological systems,
archaeological sites and ancient monuments;
an appraisal of remedial options, and proposal of the preferred
option(s).
Where remediation is necessary a remediation scheme together with a
timetable for its implementation, must be submitted to and approved in
writing by the Local Planning Authority in accordance with the requirements
of condition 19. The measures in the approved remediation scheme must
then be implemented in accordance with the approved timetable. Following
completion of measures identified in the approved remediation scheme a
validation report must be submitted to and approved in writing by the Local
Planning Authority in accordance with condition 20.
Reason: To ensure that risks from land contamination to the future users of the
land and neighbouring land are minimised, together with those to controlled
waters, property and ecological systems, and to ensure that the development can
be carried out safely without unacceptable risks to workers, neighbours and other
offsite receptors in compliance with PPS23.
22)
The development hereby permitted shall not be brought into use in respect
of each phase until details of means of storage and removal of refuse and
recycling from the site have been submitted to and approved in writing by
the Local Planning Authority in respect of that phase. The development
must thereafter be implemented in each phase in accordance with the
approved details.
Reason: To maximise the opportunities for recycling and to minimise the need for
waste disposal.
23)
The development hereby permitted shall not be brought into use in respect
of each phase until an external lighting scheme, to include signage and
floodlighting, in accordance with the Institute of Lighting Engineers 2005
Guidance Notes for the Reduction of Obtrusive Light, has been submitted to
and approved in writing by the Local Planning Authority in respect of that
phase. External lighting shall only be installed and operated in accordance
with the approved scheme.
Reason: To minimise impact on wider amenity and that of other permitted
development and minimise undue glare on the highway and rail network.
24)
The development hereby permitted in respect of any phase used for
industrial purposes (within Use Class B2) shall not be commenced until a
Noise Impact Assessment (to include technical details concerning noise of
the proposed plant or machinery, vents or extracts, and maximum noise
levels at the façade of the nearest noise sensitive premises) has been
submitted to and approved in writing by the Local Planning Authority in
respect of that phase. The development must thereafter be implemented
in each phase in accordance with the recommendations of the approved
Noise Impact Assessment.
Reason: To minimise impact on wider amenity and that of other permitted
development.
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25)
Vesuvius Works, Worksop
The development hereby permitted in respect of any phase used for
restaurant or industrial purposes (within Use Classes A3 or B2) shall not be
brought into use until details of a scheme for means of ventilation and
odour extraction (to include technical details concerning emissions from the
proposed plant or machinery, vents or extracts) has been submitted to and
approved in writing by the Local Planning Authority in respect of any such
phase. The development must thereafter be implemented in each phase in
accordance with the approved scheme.
Reason: To minimise impact on wider amenity and that of other permitted
development.
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Hilary Term
[2012] UKSC 13
On appeal from: [2011] CSIH 9
JUDGMENT
Tesco Stores Limited (Appellants) v Dundee City
Council (Respondents) (Scotland)
before
Lord Hope, Deputy President
Lord Brown
Lord Kerr
Lord Dyson
Lord Reed
JUDGMENT GIVEN ON
21 March 2012
Heard on 15 and 16 February 2012
6b.99
Appellants
Martin Kingston QC
Jane Munro
(Instructed by Semple
Fraser LLP)
Respondents
Douglas Armstrong QC
James Findlay QC
(Instructed by Gillespie
Macandrew LLP)
Interveners (Asda Stores
Limited and MacDonald
Estates Group PLC)
Malcolm Thomson QC
Kenny McBrearty
(Instructed by Brodies
LLP)
6b.100
LORD REED (with whom Lord Brown, Lord Kerr and Lord Dyson agree)
1.
If you drive into Dundee from the west along the A90 (T), you will pass on
your left a large industrial site. It was formerly occupied by NCR, one of Dundee’s
largest employers, but its factory complex closed some years ago and the site has
lain derelict ever since. In 2009 Asda Stores Ltd and MacDonald Estates Group
plc, the interveners in the present appeal, applied for planning permission to
develop a superstore there. Dundee City Council, the respondents, concluded that a
decision to grant planning permission would not be in accordance with the
development plan, but was nevertheless justified by other material considerations.
Their decision to grant the application is challenged in these proceedings by Tesco
Stores Ltd, the appellants, on the basis that the respondents proceeded on a
misunderstanding of one of the policies in the development plan: a
misunderstanding which, it is argued, vitiated their assessment of whether a
departure from the plan was justified. In particular, it is argued that the
respondents misunderstood a requirement, in the policies concerned with out of
centre retailing, that it must be established that no suitable site is available, in the
first instance, within and thereafter on the edge of city, town or district centres.
The legislation
2.
Section 37(2) of the Town and Country Planning (Scotland) Act 1997, as in
force at the time of the relevant decision, provides:
“In dealing with [an application for planning permission] the
authority shall have regard to the provisions of the development
plan, so far as material to the application, and to any other material
considerations.”
Section 25 provides:
“Where, in making any determination under the planning Acts,
regard is to be had to the development plan, the determination is,
unless material considerations indicate otherwise –
(a) to be made in accordance with that plan...”
Page 2
6b.101
The development plan
3.
The development plan in the present case is an “old development plan”
within the meaning of paragraph 1 of Schedule 1 to the 1997 Act. As such, it is
defined by section 24 of the 1997 Act, as that section applied before the coming
into force of section 2 of the Planning Etc. (Scotland) Act 2006, as including the
approved structure plan and the adopted or approved local plan. The relevant
structure plan in the present case is the Dundee and Angus Structure Plan, which
became operative in 2002, at a time when the NCR plant remained in operation.
As is explained in the introduction to the structure plan, its purpose is to provide a
long term vision for the area and to set out the broad land use planning strategy
guiding development and change. It includes a number of strategic planning
policies. It sets the context for local plans, which translate the strategy into greater
detail. Its preparation took account of national planning policy guidelines.
4.
The structure plan includes a chapter on town centres and retailing. The
introduction explains that the relevant Government guidance is contained in
National Planning Policy Guidance 8, Town Centres and Retailing (revised 1998).
I note that that document (NPPG 8) was replaced in 2006 by Scottish Planning
Policy: Town Centres and Retailing (SPP 8), which was in force at the time of the
decision under challenge, and which was itself replaced in 2010 by Scottish
Planning Policy (SPP). The relevant sections of all three documents are in
generally similar terms. The structure plan continues, at para 5.2:
“A fundamental principle of NPPG 8 is that of the sequential
approach to site selection for new retail developments … On this
basis, town centres should be the first choice for such developments,
followed by edge of centre sites and, only after this, out of centre
sites which are currently or potentially accessible by different means
of transport.”
In relation to out of centre developments, that approach is reflected in Town
Centres and Retailing Policy 4: Out of Centre Retailing:
“In keeping with the sequential approach to site selection for new
retail developments, proposals for new or expanded out of centre
retail developments in excess of 1000 sq m gross will only be
acceptable where it can be established that:
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6b.102
 no suitable site is available, in the first instance, within
and thereafter on the edge of city, town or district
centres;
 individually or cumulatively it would not prejudice the
vitality and viability of existing city, town or district
centres;
 the proposal would address a deficiency in shopping
provision which cannot be met within or on the edge of
the above centres;
 the site is readily accessible by modes of transport
other than the car;
 the proposal is consistent with other Structure Plan
policies.”
5.
The relevant local plan is the Dundee Local Plan, which came into
operation in 2005, prior to the closure of the NCR plant. Like the structure plan, it
notes that national planning policy guidance emphasises the need to protect and
enhance the vitality and viability of town centres. It continues, at para 52.2:
“As part of this approach planning authorities should adopt a
sequential approach to new shopping developments with first
preference being town centres, which in Dundee’s case are the City
centre and the District Centres.”
That approach is reflected in Policy 45: Location of New Retail Developments:
“The City Centre and District Centres will be the locations of first
choice for new or expanded retail developments not already
identified in the Local Plan. Proposals for retail developments
outwith these locations will only be acceptable where it can be
established that:
a)
no suitable site is available, in the first instance, within and
thereafter on the edge of the City Centre or District Centres; and
Page 4
6b.103
b)
individually or cumulatively it would not prejudice the vitality
and viability of the City Centre or District Centres; and
c)
the proposal would address a deficiency in shopping provision
which cannot be met within or on the edge of these centres; and
d)
the site is readily accessible by modes of transport other than
the car; and
e)
the proposal is consistent with other Local Plan policies.”
6.
It is also relevant to note the guidance given in NPPG 8, as revised in 1998,
to which the retailing sections of the structure plan and the local plan referred.
Under the heading “Sequential Approach”, the guidance stated:
“12. Planning authorities and developers should adopt a sequential
approach to selecting sites for new retail, commercial leisure
developments and other key town centre uses … First preference
should be for town centre sites, where sites or buildings suitable for
conversion are available, followed by edge-of-centre sites, and only
then by out-of-centre sites in locations that are, or can be made easily
accessible by a choice of means of transport …
13.
In support of town centres as the first choice, the Government
recognises that the application of the sequential approach requires
flexibility and realism from developers and retailers as well as
planning authorities. In preparing their proposals developers and
retailers should have regard to the format, design, scale of the
development, and the amount of car parking in relation to the
circumstances of the particular town centre. In addition they should
also address the need to identify and assemble sites which can meet
not only their requirements, but in a manner sympathetic to the town
setting. As part of such an approach, they should consider the scope
for accommodating the proposed development in a different built
form, and where appropriate adjusting or sub-dividing large
proposals, in order that their scale might offer a better fit with
existing development in the town centre …
14.
Planning authorities should also be responsive to the needs of
retailers and other town centre businesses. In consultation with the
private sector, they should assist in identifying sites in the town
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6b.104
centre which could be suitable and viable, for example, in terms of
size and siting for the proposed use, and are likely to become
available in a reasonable time …
15.
Only if it can be demonstrated that all town centre options
have been thoroughly addressed and a view taken on availability,
should less central sites in out-of-centre locations be considered for
key town centre uses. Where development proposals in such
locations fall outwith the development plan framework, it is for
developers to demonstrate that town centre and edge-of-centre
options have been thoroughly assessed. Even where a developer, as
part of a sequential approach, demonstrates an out-of-centre location
to be the most appropriate, the impact on the vitality and viability of
existing centres still has to be shown to be acceptable …”
The consideration of the application
7.
The interveners’ application was for planning permission to develop a
foodstore, café and petrol filling station, with associated car parking, landscaping
and infrastructure, including access roads. The proposals also involved
improvements to the junction with the A90 (T), the upgrading of a pedestrian
underpass, the provision of footpaths and cycle ways, and improvements to
adjacent roadways. A significant proportion of the former NCR site lay outside the
application site. It was envisaged that vehicular access to this land could be
achieved using one of the proposed access roads.
8.
In his report to the respondents, the Director of City Development advised
that the application was contrary to certain aspects of the employment and retailing
policies of the development plan. In relation to the employment policies, in
particular, the proposal was contrary to policies which required the respondents to
safeguard the NCR site for business use. The Director considered however that the
application site was unlikely to be re-developed for business uses in the short term,
and that its re-development as proposed would improve the development prospects
of the remainder of the NCR site. In addition, the infrastructure improvements
would provide improved access which would benefit all businesses in an adjacent
industrial estate.
9.
In relation to the retailing policies, the Director considered the application
in the light of the criteria in Retailing Policy 4 of the structure plan. In relation to
the first criterion he stated:
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6b.105
“It must be demonstrated, in the first instance, that no suitable site is
available for the development either within the city/district centres
or, thereafter on the edge of these centres … While noting that the
Lochee District Centre lies within the primary catchment area for the
proposal, [the retail statement submitted on behalf of the interveners]
examines the potential site opportunities in and on the edge of that
centre and also at the Hilltown and Perth Road District Centres. The
applicants conclude that there are no sites or premises available in or
on the edge of existing centres capable of accommodating the
development under consideration. Taking account of the applicant’s
argument it is accepted that at present there is no suitable site
available to accommodate the proposed development.”
In relation to the remaining criteria, the Director concluded that the proposed
development was likely to have a detrimental effect on the vitality and viability of
Lochee District Centre, and was therefore in conflict with the second criterion. The
potential impact on Lochee could however be minimised by attaching conditions
to any permission granted so as to restrict the size of the store, limit the type of
goods for sale and prohibit the provision of concessionary units. The proposal was
also considered to be in conflict with the third criterion: there was no deficiency in
shopping provision which the proposal would address. The fourth criterion,
concerned with accessibility by modes of transport other than the car, was
considered to be met. Similar conclusions were reached in relation to the
corresponding criteria in Policy 45 of the local plan.
10.
In view of the conflict with the employment and retailing policies, the
Director considered that the proposal did not fully comply with the provisions of
the development plan. He identified however two other material considerations of
particular significance. First, the proposed development would bring economic
benefits to the city. The closure of the NCR factory had been a major blow to the
economy, but the re-development of the application site would create more jobs
than had been lost when the factory finally closed. The creation of additional
employment opportunities within the city was considered to be a strong material
consideration. Secondly, the development would also provide a number of
planning benefits. There would be improvements to the strategic road network
which would assist in the free flow of traffic along the A90 (T). The development
would also assist in the re-development of the whole of the former NCR site
through the provision of enhanced road access and the clearance of buildings from
the site. The access improvements would also assist in the development of an
economic development area to the west. These benefits were considered to be
another strong material consideration.
11.
The Director concluded that the proposal was not in accordance with the
development plan, particularly with regard to the employment and retailing
Page 7
6b.106
policies. There were however other material considerations of sufficient weight to
justify setting aside those policies and offering support for the development,
subject to suitable conditions. He accordingly recommended that consent should
be granted, subject to specified conditions.
12.
The application was considered by the respondents’ entire council sitting as
the respondents’ Development Quality Committee. After hearing submissions on
behalf of the interveners and also on behalf of the appellants, the respondents
decided to follow the Director’s recommendation. The reasons which they gave for
their decision repeated the Director’s conclusions:
“It is concluded that the proposal does not undermine the core land
use and environmental strategies of the development plan. The
planning and economic benefits that would accrue from the proposed
development would be important to the future development and
viability of the city as a regional centre. These benefits are
considered to be of a significant weight and sufficient to set aside the
relevant provisions of the development plan.”
The present proceedings
13.
The submissions on behalf of the appellants focused primarily upon an
alleged error of interpretation of the first criterion in Retailing Policy 4 of the
structure plan, and of the equivalent criterion in Policy 45 of the local plan. If there
was a dispute about the meaning of a development plan policy which the planning
authority was bound to take into account, it was for the court to determine what the
words were capable of meaning. If the planning authority attached a meaning to
the words which they were not properly capable of bearing, then it made an error
of law, and failed properly to understand the policy. In the present case, the
Director had interpreted “suitable” as meaning “suitable for the development
proposed by the applicant”; and the respondents had proceeded on the same basis.
That was not however a tenable meaning. Properly interpreted, “suitable” meant
“suitable for meeting identified deficiencies in retail provision in the area”. Since
no such deficiency had been identified, it followed on a proper interpretation of the
plan that the first criterion did not require to be considered: it was inappropriate to
undertake the sequential approach. The Director’s report had however implied that
the first criterion was satisfied, and that the proposal was to that extent in
conformity with the sequential approach. The respondents had proceeded on that
erroneous basis. They had thus failed to identify correctly the extent of the conflict
between the proposal and the development plan. In consequence, their assessment
of whether other material considerations justified a departure from the plan was
inherently flawed.
Page 8
6b.107
14.
The respondents had compounded their error, it was submitted, by treating
the proposed development as definitive when assessing whether a “suitable” site
was available. That approach permitted developers to drive a coach and horses
through the sequential approach: they could render the policy nugatory by the
simple expedient of putting forward proposals which were so large that they could
only be accommodated outside town and district centres. In the present case, there
was a site available in Lochee which was suitable for food retailing and which was
sequentially preferable to the application site. The Lochee site had been considered
as part of the assessment of the proposal, but had been found to be unsuitable
because it could not accommodate the scale of development to which the
interveners aspired.
15.
In response, counsel for the respondents submitted that it was for the
planning authority to interpret the relevant policy, exercising its planning
judgment. Counsel accepted that, if there was a dispute about the meaning of the
words in a policy document, it was for the court to determine as a matter of law
what the words were capable of meaning. The planning authority would only make
an error of law if it attached a meaning to the words which they were not capable
of bearing. In the present case, the relevant policies required all the specified
criteria to be satisfied. The respondents had proceeded on the basis that the
proposal failed to accord with the second and third criteria. In those circumstances,
the respondents had correctly concluded that the proposal was contrary to the
policies in question. How the proposal had been assessed against the first criterion
was immaterial.
16.
So far as concerned the assessment of “suitable” sites, the interveners’ retail
statement reflected a degree of flexibility. There had been a consideration of all
sites of at least 2.5 ha, whereas the application site extended to 6.68 ha. The
interveners had also examined sites which could accommodate only food retailing,
whereas their application had been for both food and non-food retailing. The
Lochee site extended to only 1.45 ha, and could accommodate a store of only half
the size proposed. It also had inadequate car parking. The Director, and the
respondents, had accepted that it was not a suitable site for these reasons.
Discussion
17.
It has long been established that a planning authority must proceed upon a
proper understanding of the development plan: see, for example, Gransden & Co
Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J,
affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment
(1991) 63 P & CR 219, 225-226 per Nolan LJ. The need for a proper
understanding follows, in the first place, from the fact that the planning authority is
required by statute to have regard to the provisions of the development plan: it
Page 9
6b.108
cannot have regard to the provisions of the plan if it fails to understand them. It
also follows from the legal status given to the development plan by section 25 of
the 1997 Act. The effect of the predecessor of section 25, namely section 18A of
the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of
the Planning and Compensation Act 1991), was considered by the House of Lords
in the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC
(HL) 33, [1997] 1 WLR 1447. It is sufficient for present purposes to cite a passage
from the speech of Lord Clyde, with which the other members of the House
expressed their agreement. At p 44, 1459, his Lordship observed:
“In the practical application of sec 18A it will obviously be
necessary for the decision-maker to consider the development plan,
identify any provisions in it which are relevant to the question before
him and make a proper interpretation of them. His decision will be
open to challenge if he fails to have regard to a policy in the
development plan which is relevant to the application or fails
properly to interpret it.”
18.
In the present case, the planning authority was required by section 25 to
consider whether the proposed development was in accordance with the
development plan and, if not, whether material considerations justified departing
from the plan. In order to carry out that exercise, the planning authority required to
proceed on the basis of what Lord Clyde described as “a proper interpretation” of
the relevant provisions of the plan. We were however referred by counsel to a
number of judicial dicta which were said to support the proposition that the
meaning of the development plan was a matter to be determined by the planning
authority: the court, it was submitted, had no role in determining the meaning of
the plan unless the view taken by the planning authority could be characterised as
perverse or irrational. That submission, if correct, would deprive sections 25 and
37(2) of the 1997 Act of much of their effect, and would drain the need for a
“proper interpretation” of the plan of much of its meaning and purpose. It would
also make little practical sense. The development plan is a carefully drafted and
considered statement of policy, published in order to inform the public of the
approach which will be followed by planning authorities in decision-making unless
there is good reason to depart from it. It is intended to guide the behaviour of
developers and planning authorities. As in other areas of administrative law, the
policies which it sets out are designed to secure consistency and direction in the
exercise of discretionary powers, while allowing a measure of flexibility to be
retained. Those considerations point away from the view that the meaning of the
plan is in principle a matter which each planning authority is entitled to determine
from time to time as it pleases, within the limits of rationality. On the contrary,
these considerations suggest that in principle, in this area of public administration
as in others (as discussed, for example, in R (Raissi) v Secretary of State for the
Home Department [2008] QB 836), policy statements should be interpreted
Page 10
6b.109
objectively in accordance with the language used, read as always in its proper
context.
19.
That is not to say that such statements should be construed as if they were
statutory or contractual provisions. Although a development plan has a legal status
and legal effects, it is not analogous in its nature or purpose to a statute or a
contract. As has often been observed, development plans are full of broad
statements of policy, many of which may be mutually irreconcilable, so that in a
particular case one must give way to another. In addition, many of the provisions
of development plans are framed in language whose application to a given set of
facts requires the exercise of judgment. Such matters fall within the jurisdiction of
planning authorities, and their exercise of their judgment can only be challenged
on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State
for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann). Nevertheless,
planning authorities do not live in the world of Humpty Dumpty: they cannot make
the development plan mean whatever they would like it to mean.
20.
The principal authority referred to in relation to this matter was the
judgment of Brooke LJ in R v Derbyshire County Council, Ex p Woods [1997] JPL
958 at 967. Properly understood, however, what was said there is not inconsistent
with the approach which I have described. In the passage in question, Brooke LJ
stated:
“If there is a dispute about the meaning of the words included in a
policy document which a planning authority is bound to take into
account, it is of course for the court to determine as a matter of law
what the words are capable of meaning. If the decision maker
attaches a meaning to the words they are not properly capable of
bearing, then it will have made an error of law, and it will have failed
properly to understand the policy.”
By way of illustration, Brooke LJ referred to the earlier case of Northavon DC v
Secretary of State for the Environment [1993] JPL 761, which concerned a policy
applicable to “institutions standing in extensive grounds”. As was observed, the
words spoke for themselves, but their application to particular factual situations
would often be a matter of judgment for the planning authority. That exercise of
judgment would only be susceptible to review in the event that it was
unreasonable. The latter case might be contrasted with the case of R (Heath and
Hampstead Society) v Camden LBC [2008] 2 P & CR 233, where a planning
authority’s decision that a replacement dwelling was not “materially larger” than
its predecessor, within the meaning of a policy, was vitiated by its failure to
understand the policy correctly: read in its context, the phrase “materially larger”
referred to the size of the new building compared with its predecessor, rather than
Page 11
6b.110
requiring a broader comparison of their relative impact, as the planning authority
had supposed. Similarly in City of Edinburgh Council v Scottish Ministers 2001
SC 957 the reporter’s decision that a licensed restaurant constituted “similar
licensed premises” to a public house, within the meaning of a policy, was vitiated
by her misunderstanding of the policy: the context was one in which a distinction
was drawn between public houses, wine bars and the like, on the one hand, and
restaurants, on the other.
21.
A provision in the development plan which requires an assessment of
whether a site is “suitable” for a particular purpose calls for judgment in its
application. But the question whether such a provision is concerned with suitability
for one purpose or another is not a question of planning judgment: it is a question
of textual interpretation, which can only be answered by construing the language
used in its context. In the present case, in particular, the question whether the word
“suitable”, in the policies in question, means “suitable for the development
proposed by the applicant”, or “suitable for meeting identified deficiencies in retail
provision in the area”, is not a question which can be answered by the exercise of
planning judgment: it is a logically prior question as to the issue to which planning
judgment requires to be directed.
22.
It is of course true, as counsel for the respondents submitted, that a planning
authority might misconstrue part of a policy but nevertheless reach the same
conclusion, on the question whether the proposal was in accordance with the
policy, as it would have reached if it had construed the policy correctly. That is not
however a complete answer to a challenge to the planning authority’s decision. An
error in relation to one part of a policy might affect the overall conclusion as to
whether a proposal was in accordance with the development plan even if the
question whether the proposal was in conformity with the policy would have been
answered in the same way. The policy criteria with which the proposal was
considered to be incompatible might, for example, be of less weight than the
criteria which were mistakenly thought to be fulfilled. Equally, a planning
authority might misconstrue part of a policy but nevertheless reach the same
conclusion as it would otherwise have reached on the question whether the
proposal was in accordance with the development plan. Again, however, that is not
a complete answer. Where it is concluded that the proposal is not in accordance
with the development plan, it is necessary to understand the nature and extent of
the departure from the plan which the grant of consent would involve in order to
consider on a proper basis whether such a departure is justified by other material
considerations.
23.
In the present case, the Lord Ordinary rejected the appellants’ submissions
on the basis that the interpretation of planning policy was always primarily a
matter for the planning authority, whose assessment could be challenged only on
the basis of unreasonableness: there was, in particular, more than one way in
Page 12
6b.111
which the sequential approach could reasonably be applied ([2010] CSOH 128,
para 23). For the reasons I have explained, that approach does not correctly reflect
the role which the court has to play in the determination of the meaning of the
development plan. A different approach was adopted by the Second Division:
since, it was said, the proposal was in head-on conflict with the retail and
employment policies of the development plan, and the sequential approach offered
no justification for it, a challenge based upon an alleged misapplication of the
sequential approach was entirely beside the point (2011 SC 457, [2011] CSIH 9,
para 38). For the reasons I have explained, however, even where a proposal is
plainly in breach of policy and contrary to the development plan, a failure properly
to understand the policy in question may result in a failure to appreciate the full
extent or significance of the departure from the development plan which the grant
of consent would involve, and may consequently vitiate the planning authority’s
determination. Whether there has in fact been a misunderstanding of the policy,
and whether any such misunderstanding may have led to a flawed decision, has
therefore to be considered.
24.
I turn then to the question whether the respondents misconstrued the
policies in question in the present case. As I have explained, the appellants’
primary contention is that the word “suitable”, in the first criterion of Retailing
Policy 4 of the structure plan and the corresponding Policy 45 of the local plan,
means “suitable for meeting identified deficiencies in retail provision in the area”,
whereas the respondents proceeded on the basis of the construction placed upon
the word by the Director of City Development, namely “suitable for the
development proposed by the applicant”. I accept, subject to a qualification which
I shall shortly explain, that the Director and the respondents proceeded on the latter
basis. Subject to that qualification, it appears to me that they were correct to do so,
for the following reasons.
25.
First, that interpretation appears to me to be the natural reading of the
policies in question. They have been set out in paras 4 and 5 above. Read short,
Retailing Policy 4 of the structure plan states that proposals for new or expanded
out of centre retail developments will only be acceptable where it can be
established that a number of criteria are satisfied, the first of which is that “no
suitable site is available” in a sequentially preferable location. Policy 45 of the
local plan is expressed in slightly different language, but it was not suggested that
the differences were of any significance in the present context. The natural reading
of each policy is that the word “suitable”, in the first criterion, refers to the
suitability of sites for the proposed development: it is the proposed development
which will only be acceptable at an out of centre location if no suitable site is
available more centrally. That first reason for accepting the respondents’
interpretation of the policy does not permit of further elaboration.
Page 13
6b.112
26.
Secondly, the interpretation favoured by the appellants appears to me to
conflate the first and third criteria of the policies in question. The first criterion
concerns the availability of a “suitable” site in a sequentially preferable location.
The third criterion is that the proposal would address a deficiency in shopping
provision which cannot be met in a sequentially preferable location. If “suitable”
meant “suitable for meeting identified deficiencies in retail provision”, as the
appellants contend, then there would be no distinction between those two criteria,
and no purpose in their both being included.
27.
Thirdly, since it is apparent from the structure and local plans that the
policies in question were intended to implement the guidance given in NPPG 8 in
relation to the sequential approach, that guidance forms part of the relevant context
to which regard can be had when interpreting the policies. The material parts of the
guidance are set out in para 6 above. They provide further support for the
respondents’ interpretation of the policies. Paragraph 13 refers to the need to
identify sites which can meet the requirements of developers and retailers, and to
the scope for accommodating the proposed development. Paragraph 14 advises
planning authorities to assist the private sector in identifying sites which could be
suitable for the proposed use. Throughout the relevant section of the guidance, the
focus is upon the availability of sites which might accommodate the proposed
development and the requirements of the developer, rather than upon addressing an
identified deficiency in shopping provision. The latter is of course also relevant to
retailing policy, but it is not the issue with which the specific question of the
suitability of sites is concerned.
28.
I said earlier that it was necessary to qualify the statement that the Director
and the respondents proceeded, and were correct to proceed, on the basis that
“suitable” meant “suitable for the development proposed by the applicant”. As
paragraph 13 of NPPG 8 makes clear, the application of the sequential approach
requires flexibility and realism from developers and retailers as well as planning
authorities. The need for flexibility and realism reflects an inbuilt difficulty about
the sequential approach. On the one hand, the policy could be defeated by
developers’ and retailers’ taking an inflexible approach to their requirements. On
the other hand, as Sedley J remarked in R v Teesside Development Corporation, Ex
p William Morrison Supermarket plc and Redcar and Cleveland BC [1998] JPL
23, 43, to refuse an out-of-centre planning consent on the ground that an
admittedly smaller site is available within the town centre may be to take an
entirely inappropriate business decision on behalf of the developer. The guidance
seeks to address this problem. It advises that developers and retailers should have
regard to the circumstances of the particular town centre when preparing their
proposals, as regards the format, design and scale of the development. As part of
such an approach, they are expected to consider the scope for accommodating the
proposed development in a different built form, and where appropriate adjusting or
sub-dividing large proposals, in order that their scale may fit better with existing
Page 14
6b.113
development in the town centre. The guidance also advises that planning
authorities should be responsive to the needs of retailers. Where development
proposals in out-of-centre locations fall outside the development plan framework,
developers are expected to demonstrate that town centre and edge-of-centre
options have been thoroughly assessed. That advice is not repeated in the structure
plan or the local plan, but the same approach must be implicit: otherwise, the
policies would in practice be inoperable.
29.
It follows from the foregoing that it would be an over-simplification to say
that the characteristics of the proposed development, such as its scale, are
necessarily definitive for the purposes of the sequential test. That statement has to
be qualified to the extent that the applicant is expected to have prepared his
proposals in accordance with the recommended approach: he is, for example,
expected to have had regard to the circumstances of the particular town centre, to
have given consideration to the scope for accommodating the development in a
different form, and to have thoroughly assessed sequentially preferable locations
on that footing. Provided the applicant has done so, however, the question remains,
as Lord Glennie observed in Lidl UK GmbH v Scottish Ministers [2006] CSOH
165, para 14, whether an alternative site is suitable for the proposed development,
not whether the proposed development can be altered or reduced so that it can be
made to fit an alternative site.
30.
In the present case, it is apparent that a flexible approach was adopted. The
interveners did not confine their assessment to sites which could accommodate the
development in the precise form in which it had been designed, but examined sites
which could accommodate a smaller development and a more restricted range of
retailing. Even taking that approach, however, they did not regard the Lochee site
vacated by the appellants as being suitable for their needs: it was far smaller than
they required, and its car parking facilities were inadequate. In accepting that
assessment, the respondents exercised their judgment as to how the policy should
be applied to the facts: they did not proceed on an erroneous understanding of the
policy.
31.
Finally, I would observe that an error by the respondents in interpreting
their policies would be material only if there was a real possibility that their
determination might otherwise have been different. In the particular circumstances
of the present case, I am not persuaded that there was any such possibility. The
considerations in favour of the proposed development were very powerful. They
were also specific to the particular development proposed: on the information
before the respondents, there was no prospect of any other development of the
application site, or of any development elsewhere which could deliver equivalent
planning and economic benefits. Against that background, the argument that a
different decision might have been taken if the respondents had been advised that
Page 15
6b.114
the first criterion in the policies in question did not arise, rather than that criterion
had been met, appears to me to be implausible.
Conclusion
32.
For these reasons, and those given by Lord Hope, with which I am in entire
agreement, I would dismiss the appeal.
LORD HOPE
33.
The question that lies at the heart of this case is whether the respondents
acted unlawfully in their interpretation of the sequential approach which both the
structure plan and the relevant local plan required them to adopt to new retail
developments within their area. According to that approach, proposals for new or
expanded out of centre developments of this kind are acceptable only where it can
be established, among other things, that no suitable site is available, in the first
instance, within and thereafter on the edge of city, town or district centres. Is the
test as to whether no suitable site is available in these locations, when looked at
sequentially, to be addressed by asking whether there is a site in each of them in
turn which is suitable for the proposed development? Or does it direct attention to
the question whether the proposed development could be altered or reduced so as
to fit into a site which is available there as a location for this kind of development?
34.
The sequential approach is described in National Planning Policy Guidance
Policy 8, Town Centres and Retailing, para 5.2 as a fundamental principle of
NPPG 8. In R v Rochdale Metropolitan Borough Council, Ex p Milne, 31 July
2000, not reported, paras 48-49, Sullivan J said that it was not unusual for
development plan polices to pull in different directions and, having regard to what
Lord Clyde said about the practical application of the statutory rule in City of
Edinburgh v Secretary of State for Scotland 1998 SC (HL) 33 at p 44, that he
regarded as untenable the proposition that if there was a breach of any one policy
in a development plan a proposed development could not be said to be “in
accordance with the plan”. In para 52 he said that the relative importance of a
given policy to the overall objectives of the development plan was essentially a
matter for the judgment of the local planning authority and that a legalistic
approach to the interpretation of development plan policies was to be avoided.
35.
I see no reason to question these propositions, to which Mr Kingston QC for
the appellants drew our attention in his reply to Mr Armstrong’s submissions for
the respondents. But I do not think that they are in point in this case. We are
concerned here with a particular provision in the planning documents to which the
Page 16
6b.115
respondents are required to have regard by the statute. The meaning to be given to
the crucial phrase is not a matter that can be left to the judgment of the planning
authority. Nor, as the Lord Ordinary put it in his opinion at [2010] CSOH 128,
para 23, is the interpretation of the policy which it sets out primarily a matter for
the decision maker. As Mr Thomson for the interveners pointed out, the challenge
to the respondents’ decision to follow the Director’s recommendation and approve
the proposed development is not that it was Wednesbury unreasonable but that it
was unlawful. I agree with Lord Reed that the issue is one of law, reading the
words used objectively in their proper context.
36.
In Lidl UK GmbH v The Scottish Ministers [2006] CSOH 165 the appellants
appealed against a decision of the Scottish Ministers to refuse planning permission
for a retail unit to be developed on a site outwith Irvine town centre. The relevant
provision in the local plan required the sequential approach to be adopted to
proposals for new retail development out with the town centre boundaries. Among
the criteria that had to be satisfied was the requirement that no suitable sites were
available, or could reasonably be made available, in or on the edge of existing
town centres. In other words, town centre sites were to be considered first before
edge of centre or out of town sites. The reporter held that the existing but soon to
be vacated Lidl town centre site was suitable for the proposed development,
although it was clear as a matter of fact that this site could not accommodate it. In
para 13 Lord Glennie noted that counsel for the Scottish Ministers accepted that a
site would be “suitable” in terms of the policy only if it was suitable for, or could
accommodate, the development as proposed by the developer. In para 14 he said
that the question was whether the alternative town centre site was suitable for the
proposed development, not whether the proposed development could be altered or
reduced so that it could fit in to it.
37.
Mr Kingston submitted that Lord Glennie’s approach would rob the
sequential approach of all its force, and in the Inner House it was submitted that
his decision proceeded on a concession by counsel which ought not to have been
made: [2011] CSIH 9, 2011 SC 457, para 31. But I think that Lord Glennie’s
interpretation of the phrase was sound and that counsel was right to accept that it
had the meaning which she was prepared to give to it. The wording of the relevant
provision in the local plan in that case differed slightly from that with which we
are concerned in this case, as it included the phrase “or can reasonably be made
available”. But the question to which it directs attention is the same. It is the
proposal for which the developer seeks permission that has to be considered when
the question is asked whether no suitable site is available within or on the edge of
the town centre.
38.
The context in which the word “suitable” appears supports this
interpretation. It is identified by the opening words of the policy, which refer to
“proposals for new or expanded out of centre retail developments” and then set out
Page 17
6b.116
the only circumstances in which developments outwith the specified locations will
be acceptable. The words “the proposal” which appear in the third and fifth of the
list of the criteria which must be satisfied serve to reinforce the point that the
whole exercise is directed to what the developer is proposing, not some other
proposal which the planning authority might seek to substitute for it which is for
something less than that sought by the developer. It is worth noting too that the
phrase “no suitable site is available” appears in Policy 46 of the local plan relating
to commercial developments. Here too the context indicates that the issue of
suitability is directed to the developer’s proposals, not some alternative scheme
which might be suggested by the planning authority. I do not think that this is in
the least surprising, as developments of this kind are generated by the developer’s
assessment of the market that he seeks to serve. If they do not meet the sequential
approach criteria, bearing in mind the need for flexibility and realism to which
Lord Reed refers in para 28, above, they will be rejected. But these criteria are
designed for use in the real world in which developers wish to operate, not some
artificial world in which they have no interest doing so.
39.
For these reasons which I add merely as a footnote I agree with Lord Reed,
for all the reasons he gives, that this appeal should be dismissed. I would affirm
the Second Division’s interlocutor.
Page 18
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6b.118
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23 23 23 25 27 19 21 22 6 9 11 3 3 4 5 •
The Unfolding Story 35 Chapter5.AlternativeScenariosforNorthWalsham&RecommendedWayForward
• An Exciting Context for the Scenarios 28 • Alternative Scenarios 30 • Site Capacities 32 Chapter4.ComparatorTowns
• Introduction • Possible Comparators • Bridport • Thame • Conclusions Chapter3.NorthWalsham’sMarketandtheCompetingCentres
• Catchment Area and Planned Changes • Competing Centres and the Trade They Take • Conclusions Chapter2.NorthWalsham:theCurrentRetailandLeisureoffer
• Profile of the Centre • Current Retail and Leisure demand • SWOT Analysis (Strengths, Weaknesses, Opportunities and Threats) Chapter1Introduction
• The Council’s Brief • Research Undertaken • Report Layout • Acknowledgements Contents
2 6b.120
The following tasks have helped to provide a picture of the position and prospects of the town centre: • A review of the DTZ Peida Study, principally drawing on its health checks of the relevant centres and on its analysis of the catchment areas of North Walsham and the competing centres. • A profile of the catchment or market area of the town including changes such as additional housebuilding or changes in employment numbers; the profile will include the key socio‐economic characteristics. • A profile and critical appraisal of the town centre of North Walsham, using sources such as Goad maps and reports, building on the DTZ Peida Report and through observation in the town centre: a. Retail, leisure and service outlet mix b. Rents and footfall c. Key access points, e.g. car parks, public transport, pedestrians, and movement patterns d. Key attractors and stores, including services such as Paston College, which brings many people into the town each day e. Recent and planned changes and developments f. Public realm and ambience g. Primary and secondary frontages • Examination of other town centres: ResearchUndertaken
3 “North Walsham’s retail offer is considered to be weak in comparison to other towns in the District (particularly Cromer and Fakenham) and market towns of a similar size / catchment elsewhere in the country. There are few national or regional chains represented in the town.” “Whilst North Norfolk District Council is conscious of the national debate about “clone” towns, a line of argument could be presented that a town of North Walsham’s size and population profile requires the representation of some national and regional retailers if the independent retail sector is also to thrive. The independent sector alone does not have the appeal to sustain a vibrant retail economy in its own right in North Walsham. It is therefore important to establish whether there is demand / support from a broader range of national and regional retailers in the town, and how/where such operators might be accommodated.” “The aim is to strengthen the town’s place in the retail hierarchy and better meet the needs of the local population” Our advice has been prepared in response to the Council’s “Retail and Leisure Demand, Capacity and Feasibility Study Brief” dated March 2012, key phrases from which are: TheCouncil’sBrief
1. Introduction
6b.121
The evidence and our advice are presented in the following order: Chapter 2. North Walsham: the Current Retail and Leisure offer • Profile of the Centre • Current Retail and Leisure demand • SWOT Analysis (Strengths, Weaknesses, Opportunities and Threats) Chapter 3. North Walsham’s Market and theCompeting Centres • Catchment Area and Planned Changes • Competing Centres and the Trade They Take Chapter 4. Comparator Towns • Introduction • Possible Comparators ReportLayout
An additional issue which is central to any strategy for the town centre is the emerging and, in the case of Waitrose, permitted proposals for out‐of‐centre supermarkets. This has had to be a driving factor in our recommendations. Much of the evidence will be familiar to the Council and others with an interest in the town. Nevertheless we reproduce it, as succinctly as we can, in this report because the evidence and our interpretation of it are fundamental to the advice we are giving on the town centre. •
•
•
•
4 a. Those that compete with North Walsham e.g. Cromer. b. Centres elsewhere in the country with similar catchment characteristics which can provide useful lessons for the future development of the town. Face to face interviews with about 20 (23 in total) retailers, leisure providers and other businesses/facilities in the town centre in order to assess the strengths, weaknesses, opportunities and threats both of North Walsham as a shopping centre and of the competing centres. Analysis of the potential development and redevelopment sites in the town centre: their development capacity, their location (in relation to the retail shape of the centre), constraints on development such as multiple landownership or access difficulties and a broad appraisal of viability. The sites identified by the Council in the Brief were New Road Car Park, St Nicholas Precinct, Vicarage Street Car Park and Bank Loke. In the event we found it necessary to look at other sites in addition. The above evidence was assembled and reviewed in a brainstorming meeting with the Council on 26th June. The brainstorming session also considered the options that we have considered for the future of the town centre and the team’s recommended vision of the future role and functions of the town centre. Throughout the process soundings have been taken with retailers and leisure operators to assess their response to North Walsham as a possible trading location. 6b.122
5 Businesses and business representatives interviewed: Beechwood Hotel, J. Sainsbury, Chimneys Bed and Breakfast, J. Postle, North Walsham Town Council, Foundry Cars, Tatters and No.1, Kitale Café & Charity Furniture, Griffon Area Partnership, The Fishmonger, House of Hobbies, Cockerell Restaurant, North Walsham Chamber of Trade, Spring Floral Design, Express Printing, Green Room Café, County Pets and Sports, Blakemans, The Feathers (incl King’s Arms and night club). The interviews have an importance beyond the information and views that have been imparted: the future of the town centre depends on strong local leadership and engagement (i.e. continuing dialogue and participation e.g. through investment) and local businesses are likely to have a major role in the rejuvenation of the town centre. We enlarge on this key issue later in the report. As relative strangers to North Walsham we had a lot to learn in order to gain some understanding of the character and dynamics of the town and the town centre. We have enjoyed full and enthusiastic support from the District and Town Councils in the supply of information and in opening doors to meet key people in the town. We have also had very helpful responses from all the businesses and town representatives we have interviewed; no‐one has refused an interview and people have been frank and informative in responding to our questions. Underlying these responses is a very strong commitment to the town and town centre. We are grateful for this support and hope that we have done justice to these contributions in our advice. Acknowledgements
• Bridport • Thame • Conclusions Chapter 5. Alternative Scenarios for North Walsham • An Exciting Context for the Scenarios • Alternative Scenarios • Site Capacities • The Unfolding Story 6b.123
Features
Retail, leisure and service outlet mix. Key attractors and stores, including services which brings people into the town. Index
81
81
59
91
203
The under‐representation of multiples across sectors is clear; the apparent over‐representation of multiples in financial and business services is a quirk of the arithmetic: the corollary of the under‐representation in other sectors. Many independents including some with other branches e.g. J B Postle, Tatters. Destination independents (drawing significant trade from beyond the town (including by internet) include Country Pets and Guns, Spring Floral Design, J B Postle and others. Many public and commercial services drawing people to town: Paston College, solicitors, doctors, dentists, tourist office, post office, library…… Other facilities near the town centre include Victory and Rossi leisure centres, Community Hospital, Police Station, and the North Walsham and Dilham Canal. Multiple Counts by Sector
“Area” = North Walsham; “Base” = UK
Counts
Outlets
Area %
Base %
Comparison
12
35.29
43.73
Convenience
3
8.82
10.85
Retail Service
2
5.88
10.00
Leisure Services
6
17.65
19.50
Fin’l & Business Services 11
32.35
15.92
Total Multiple Outlets
34
Source: Goad Category Report for North Walsham
Commentary
Few multiples: J Sainsbury, Lidl, Martin’s, Roy’s, Stead & Simpson, Boots, QD, Hughes, banks, building societies; the proportion is significantly below the national average. ProfileandCriticalAppraisaloftheTownCentre
The profile below derives from our own observation of the town centre, from comments made in the interviews and from other reports on the centre. ProfileoftheCentre
2.NorthWalsham:theCurrentRetailandLeisureOffer
6 6b.124
Key access points, e.g. car parks, public transport, pedestrians, and movement patterns Rents and footfall, primary and secondary frontages The town centre leisure offer is limited to several public houses, take‐aways and cafes including The Green Room and The Cockerel; high quality eating is to be found at the Beechwood Hotel, Cromer Road and the Gunton Arms (out of town on the Cromer Road) Major draws, J Sainsbury, Lidl and Roy’s, are edge of centre and poorly related to the core. Their own free parking and barriers between the stores and the town centre facilitate shopping trips that exclude the centre. Lidl and Roy’s benefit from good exposure to passing traffic on the main route round the centre (New Road., Yarmouth Road and Grammar School Road). J Sainsbury less conspicuous on the Bacton Road. Rents and prices for retail premises very low (in investment terms): £20‐£25 per sq.ft. zone A; £90 per sq.ft. freehold Market Place is dominated by banks, estate agents and other blank facades e.g. nos. 17‐22, 6, 7, 12, 15, 29‐
30, 42, 43, 46‐47, many of which are the scarce larger units in the centre. Footfall is strongest in Market Place, especially on market day (Thursday); it is very weak after the close of the market and on Saturday afternoon. Secondary locations: Market Street and Church Street. Market Street could perform better as key entry to the town centre. Church Street has some specialist traders e.g. florist and music, and gains some footfall from pedestrians moving between J Sainsbury and the town centre. King’s Arms Street ticking over, helped by attractive café. Mundesley Road and St Nicholas Court very weak. The yards off Market Place and Market Street are very quiet but offer potential for attractive destinations or through routes e.g. passages to Bank Loke car park, King’s Arms Loke, passages to St Nicholas’ Church, Market Cross Mews and Mitre Tavern Yard. There is a new opportunity to open up views and access to the Church and the Precinct via the derelict building (No.4) at top of Market Street. For pedestrians the town centre sits centrally within the built‐up areas; however some are beyond walking distance. Within the centre there is a number of places where pavements are narrow or non‐existent or where there are blind corners e.g. the junction of Church Street, Market Place and New Road; Kings Arms Street; and the top of Market Street where it enters Market Place. The churchyard forms an attractive 7 6b.125
pedestrian area, but it does not represent an easy link between Sainsbury’s and the town centre. The Precinct is poorly maintained and there is little or no reason to go there. We have not investigated accident records but have not been told of significant accidents in the town centre; it seems as if there is a natural calming of the traffic imposed by the configuration of the streets, such that it is a pleasant experience to walk in the centre. It contrasts well in this sense with the roads and car parks around the centre. The principal entry points to the town centre for cars are: • The Cromer and Lyngate Roads, arriving at the bottom of Market Street, which is one‐way in their favour. • New Road, arriving at the top of Market Place by the Post Office with no alternative but to turn left into Yarmouth Road • The A149 from the south and the Norwich Road, arriving into Grammar School Road. • The Aylsham Road which joins the Cromer Road at bottom of Market Street. Shoppers do not suffer from the same access difficulties as HGV’s serving the industrial estates – the low bridges are not a factor. There is no bus station, in spite of North Walsham being a changeover location for buses. Stopping arrangements in Market Place are being improved by the Town Council. NNDC Car parks: 1. Vicarage Road: 130 spaces 2. New Road: approx. 65 spaces, of which 16 are free of charge for users of the library and community centre 3. Bank Loke: 91 spaces All charged at £0.50 for 30 minutes; £1.00 for 2 hours, then 70p per additional hour; 18.00 to 23.00: £1.00 per stay; slightly cheaper than Cromer, Holt, Sheringham and Wells. Other car parks (all free, usually for customers only): 1. Sainsbury’s: 227 spaces 2. Lidl: 80 spaces (also very accessible to Roy’s) 3. Mundesley Road: 70 spaces; (4 mins walk to TC) 4. Midland Road: DK spaces; (8 mins walk to TC) 5. North Walsham Station: 10 spaces; (8 mins walk to TC) 8 6b.126
The whole centre is a Conservation Area and there are many listed buildings; major stores are on the edge of the centre: J Sainsbury, Lidl and Roy’s, reflecting the lack of significant development sites in the core. The historic building stock and the lack of modern development give the centre a valuable distinctive character. This character, together with a core of committed independent retailers and the catchment of people on moderate and higher incomes, are the key assets of the town centre. However much of the property is poorly maintained, one building (listed) being derelict and due for demolition. Two issues seem to underlie the lack of maintenance: • The poor viability of many of the businesses in the town centre. • The neglect of the landlords, some of whom are reported to be based far away from North Walsham. It is convenient to consider retailers and leisure operators who might come to North Walsham under a number of headings: • Supermarkets • National names that limit their representation to major towns and cities • National names that seek wider representation • Regional and local chains • Independents CurrentRetailandLeisureDemand
Recent and planned changes and developments Public realm and ambience The car parks are close to the town centre; they do however exacerbate the tendency for shoppers to gravitate towards the larger stores on the edge of the centre. Only Bank Loke is highly accessible for the core of the centre. Access to the centre from both the wider catchment area and the town itself seems to be satisfactory. There are complaints from traders about parking charges, comparisons being made with the adjacent (and competing) districts of Breckland and Broadland and with the supermarket car parks, where parking is free. Sensitivity to parking charges is heightened in the recession, when people are reportedly reducing their travel. Planned housing growth: 450 homes. 9 6b.127
10 Our soundings with retailers and leisure operators in relation to North Walsham indicate: • Supermarkets are interested in North Walsham and in the town centre if a suitable site can be created; the interest in the town is already manifest in the Waitrose proposal and in the interest being expressed on behalf of other supermarkets, albeit out‐of‐centre. • Many national names operate a large but limited number of stores; they reckon to achieve sufficient national coverage by being represented in major towns and cities; many of the fashion chains fall into this category and they are not likely to consider North Walsham positively. The situation of North Walsham can be illustrated from the current list of requirements for East Anglia: there are currently no national retailer requirements for the town. • Operators that seek wider representation include Costa, Greggs, Poundland and QS; Boots are understood to be looking for a larger store in North Walsham. All of these are possible candidates for space in North Walsham. • Regional and local chains, such as Hughes and J B Postle (both already established in the town centre), are interesting because they know the trading environment and bring the financial clout and trading experience of a group. Hughes want to expand in North Walsham; there are better prospects for attracting regional and local chains in the short term than national multiples. • Independents form the majority of traders in North Walsham; they include some excellent examples like the Beechwood Hotel and Spring Floral Design; the turnover of independents can be high as entry to the business is relatively easy. In the short to medium term we see independents being an important source of business in the town. In the progressive regeneration process that we recommend for North Walsham (see below) a wider range of retailers and leisure operators will become candidates for the town centre at successive stages in the process as footfall is increased and turnover and confidence boosted. 6b.128
Strengths
Strengths,Weaknesses,
OpportunitiesandThreats
MarketsServed
Affluence and loyalty of customers round here Independents serving more than one market: flowers and catering for external events Year –round trade unlike Sheringham and Cromer Very friendly and open to strangers; customers also friendly Everyone knows each other. We have loyal customers. They come here just for a chat...which is fine. Near Bacton Gas Terminal: source of business customers Other markets: business on industrial estates; visitors, tourists & visiting friends and relations Large population and quite mixed, taking into account the villages in the hinterland TheWiderContext
Image of North Norfolk Great location e.g. for touring Nice places to visit in and around NORTH WALSHAM: Church, Paston Way, Woods, Mundesley Lovely countryside A stunning area 11 RetailandLeisureOffer
Excellent personal service in many shops Lovely people where service counts. I wanted to build a cafe for nice little old ladies – which is what we offer. It’s a bit like a social service! Many successful businesses in town and centre Market Facilities located in North Walsham: Victory and Rossi sports centres; Mike Thurston’s lake activities; theatre, cottage hospital (being expanded), doctors, dentists and vets, community health All the banks are in NORTH WALSHAM; important for rural service centre together with estate agents, dentists, solicitors etc. They bring people in to spend on other things. Paston College also important for TC business. High School major earner for N Walsham Lovely venues These statements are almost all drawn directly from the interviews with businesses and town representatives. We do not necessarily endorse them nor have we checked their truth. Strengths,Weaknesses,OpportunitiesandThreats
6b.129
AccessandEnvironment
Market Place attractive Town centre compact Town isolated: long way to alternative shopping opportunities Large catchment area for specialist shops Plenty of character, lovely town and very accessible Good transport, including train to Norwich and coast. A lot of older people for whom service counts 12 6b.130
Weaknesses
AccessandEnvironment
Distance from distribution depots Vandalism in TC; kids hanging around the Bandstand and Martins Shabby, uncared for shops; especially grocers in middle of Market Place; derelict building in Market Street. The place needs a lick of paint. It needs more money spending on it. No bus station in spite of N Walsham being bus changeover centre 13 MarketsServed
Customers lack awareness of the town centre’s offer. Fewer people in town centre esp young people Housing market static so people not buying carpets & furniture. People clean carpets rather than buy new one. Fuel costs limiting travel of older people more than others; hence a growing proportion of shoppers in town centre are older. We’re in a double dip recession. The response from customers is to make fewer trips. They now have tea and a sandwich not tea and a lunch. People now only come out at 9 or 10pm having had a drink at home (pubs) Continuing to be tough. Discretionary spending is down. Employment in the town is down...East Coast Plastics is now down from 300 to 100 employees. This year, the holiday season has not yet got going. That weakens demand, plus there are lots of cafes in NORTH WALSHAM at lunchtime. I had no evening meal trade last week at all. My nearest competition is a 50p can from Sainsbury’s! RetailandLeisureOffer
Lack of shops for menswear (only cheap shops in NORTH WALSHAM), ladies wear, books & stationery (NB 800 students in Paston College), mid‐range shoes Market Place: a street, poor shops and not ready or suitable for the café culture. Loss of destination shops in town centre Yes, there’s not enough in NORTH WALSHAM. No menswear (apart from Roy’s) and nothing for the young family except second hand. Stead’s doesn’t really do it...like a Clarks would. Young families go to Norwich by bus or train Too many cafes and estate agents There are only cafes here. There’s nothing to eat. You have to go to the Gunton Arms. Charity shops; resentment at unfair trading in some (not paying rates….) Lack of big name stores to attract people to town 6b.131
14 Other
Image of North Walsham Negligent, often absent, landlords Wave of facilities leaving NORTH WALSHAM: courts, LA offices, police (but they have come back; main station for NN), BBC and Anglia TV studios, hospital departments. High overheads especially rates in shops; rates increasing when turnover falling Town puts itself down; negativity; famous “This is North Walsham!” comment at Waitrose publ8ic meeting. Insufficient cooperation and coordination between traders e.g. with Town Council in relation to Jubilee Street Party and Shop Window Competition. Independent traders need to support each other. I wouldn’t open a business here because people here are very set in their ways. Difficult to recruit people aged 20‐40 for shop and café work Decline of Precinct which used to house part of (larger) market Additional costs and hassle of shops being in listed building e.g. erecting a sign Fuel costs and parking charges reducing flow of customers from outside North Walsham; parking free in Brecklands and Broadlands. Parking is now being charged for and is going up again...a disincentive. Too many zebra crossings and parking for traders is not free. The pigeons. 6b.132
Opportunities
MarketsServed
Additional housing to increase population and spending Significant spending power in the hinterland 15 RetailandLeisureOffer
Another supermarket – an alternative to Sainsbury’s There’s nothing to attract new businesses. Try and get some chains. Try a Pizza Express...better than a McDonalds. It would be a destination. Big retailers help. Another petrol station would be good – a separate enterprise. Supermarkets leave opportunities for independents: Sainsbury’s here isn’t much competition. They don’t make up orders and don’t have much variety. It’s all ready‐made bouquets. I’d be pretty teed off if my funeral bouquet came from Sainsbury’s! More destination shops Bring Farmers’ Market into Market Place In the florist world we try to help each other out. Lavenders Blue in Aylsham is the nearest decent place. Internet exploited successfully by local independents e.g. florist and gun shop Need good quality food retail in town centre Have to accept need to pay a bit more for local shops but get good service. Independents are good for the town; they retain income in NORTH WALSHAM. Waitrose welcome provided they signpost the town centre and do not have a café Waitrose positive for up‐market trader Waitrose would be a good thing in one way. But butchers, greengrocers and bakers are needed in the town. Basically we want exclusive, special little shops. 5‐6 multiples want to come to NORTH WALSHAM e.g. Iceland, M & Co (menswear), Costa Need young fashion in town e.g. Smiths, McKays, New Look. A new visitor attraction, where people would come for the day plus a fast food restaurant like a Pizza Hut or a McDonalds (a McD’s application has been rejected he thought). Look at Bridport example: was ailing, now flourishing with multiples and independents, free car parking at weekends. More fun days and shows. The park for kids is very old‐fashioned. You should see the good one at Mundesley – its zip wire and wooden tractor with slide. The older kids sit out around the town clock. What about having a youth club? The Carpenters Arms – a Benjamin Trust project – used to have a pool‐room, play stations and a tuck shop as well as a cafe for kids. 6b.133
16 Other
Development Trust to own and manage town centre properties for retail and residential Atrium: unfulfilled potential Railway building adjacent to station: available but on restrictive user terms Unsung history of town: Nelson (attended Grammar School); Peasants’ Revolt; Worstead and the weavers; canal; manufacturing industry; church which had second tallest spire in County before it fell Foundry Cars site (next to Sainsbury’s) for sale (Hughes understood to be negotiating) Response (to the recession) is to be innovative and positive; develop skills to motivate people; recruit people with right attitude; team work. It should be easier to open things and start a business. Why not lower business rates. They are very expensive at £640 p.a. Needs some development to overcome limitations of tiny shops. St Nicholas Precinct: Scope for offices, incubators and pop‐up shops linked to Paston College fashion students? Proposal for Davenport’s Magic Kingdom on Cromer Road; potential major attraction for N Walsham. Achievements of town, recently: • M Portas Bid • Leadership of Place (together to plan devt and improvement of NORTH WALSHAM in Mkt Place) AccessandEnvironment
Free car parking Reduce car parking charges, say for short visits and in the evenings Need more parking, highly accessible to shops Pedestrianise centre Pride in place e.g. to address scruffy shops Bring yards off Market Place and Market Street into use We’re not too far from money. Sheringham and Holt are retired money towns...a bit up‐market from Cromer. Holiday‐makers especially on Market Day coming down from Sheringham and Cromer Confidence increasing, maybe due to Waitrose interest and Portas Bid Retired people who eat out Students who shop and spend NORTH WALSHAM was blue collar, agricultural engineering community; higher incomes to west; retirees economically interesting. 6b.134
Other
Too many people uNorth Walshamilling to work The possible huge wind turbine up by Focus. AccessandEnvironment
Fuel price rises, impacting length and number of journeys to town centre Free car parking in adjacent districts and at major stores Cost and lack of shoppers’ parking MarketsServed
Recession and its impact on spending; wages static but household costs rising Increasing commuting from North Walsham takes more spending out of town RetailandLeisureOffer
Too much out of town centre retail development including Norwich out of centre retail parks. People go to Norwich (Castle Mall is great...you know where everything is) or sometimes the mini mall at Yarmouth (Dorothy Perkins, New Look, John Lewis). For shoes (Stead’s here is a bit old‐fashioned) and clothes. For food, Sainsbury’s here. For electrical goods, the internet. Online shopping e.g. J Sainsbury Trader expanding from TC shop to ground floor unit on industrial estate Competition and differentiation: Aylsham caters for discretionary, incidental, enjoyable shopping, NORTH WALSHAM for regular shopping incl market. Lidl and Roy’s very successful. Market dwindling; Sheringham now bigger 17 The overall picture that emerges from the profile and the SWOT analysis is of a town centre with major assets, such as the character of the historic core, the high quality of the personal service in some shops, the number of services and facilities located in the town (many of them in or adjacent to the centre) and the interesting number of consumer markets served by the town centre (or at least available to it). Against these assets are the poor range of shops particularly the lack of clothing, books and stationery shops, the leakage of large amounts of spending, not just to larger centres such as Norwich (often Threats
• Town in Bloom Do a positive asset audit. 6b.135
18 linked trips, e.g. linked to commuting) but to smaller centres which have alternative supermarkets e.g. Stalham and Cromer and the shabby, neglected air of the town centre. Free car parking is often mentioned, as is the high level of business rates, which of course are not responsive to fluctuations in turnover (c.f. Corporation Tax). A number of changes are relevant to the future health of the centre: • The recession is affecting not only spending but also confidence to spend. • Higher fuel prices have various effects including reducing the number of shopping trips people are willing to make, encouraging them to shop more locally and reducing the money available for shopping. • The internet can likewise cut two ways: some shops in North Walsham are making successful use of the net to tap into wider markets than the local one; other shops are suffering from the competition from internet traders with lower overheads. • The balance of development in the town is seen to be damaging to local trade: fewer local jobs alongside an expanding housing stock leading to increased commuting, which tends to pull spending out of the town. • Local attitudes to North Walsham: there are strong camps of very committed optimists and some quite vocal pessimists, • Supermarkets: there is a tendency to welcome the Waitrose proposal, sometimes a conditional welcome: provided the store does not offer too wide a range; there is a desire for an alternative to Sainsburys in the town centre and a real fear that any more out‐of‐centre supermarket development will be very damaging. 6b.136
800
2.2
1760
12000
14.7
Town
13000
Approximately
20-minute drive time
40000
15
9
5. Lower supervisory and
technical occupations
6. Semi-routine occupations
8
8
15
3. Intermediate occupations
4. Small employers and own
account workers
2. Lower managerial and
professional occupations
1. Higher managerial and
professional occupations
North Walsham
5
6
12
8
9
11
18
Catchment within 10
minute journey
13
7
7
11
16
North
Norfolk
5
13
8
8
9
17
Norfolk
6
Resident Population by Socio-Economic Group, North Walsham, its Catchment Area, District and County
(%)
Assume p.p.hh. (NNDC 2001)
Additional population
N Walsham population 2001
Increase to 2021 (%)
Population
Additional Housing
Core Strategy
North Walsham: Allocation plus
Estimated Windfalls to 2021
NorthWalsham:ConsumerMarkets
We have looked briefly at the different markets that are (or could be better) served by North Walsham. CatchmentAreaandPlannedChanges
3.NorthWalsham’sMarket&theCompetingCentres
19 6b.137
8
3
25
100
12
2
26
100
29
100
10
2
26
100
10
3
•
•
•
20 The prosperity and welfare of North Norfolk and its community is irrevocably linked to the success of its tourism sector.
Tourist expenditure, recorded as an export measure, contributes an estimated £391 million to the economy, underpinning 8,500 jobs. 72% of these jobs are
provided directly as a result of visitor spend activity, with the remainder being supported indirectly through tourism business linkages, and through the resultant
expenditure of employees on local goods and services.
Moreover, the cross-cutting nature of tourism means that these effects are felt on a whole range of employment and economic activities over and above the ‘frontfacing’ accommodation and attraction enterprises normally associated with the hospitality industry, namely:
o the arts and crafts, with the visitors actually promoting this sector as they look for unique and locally produced goods or experiences, or whereby specific
traditional skills are employed for the preservation and conservation of important heritage sites that are supported by visitor spend and entrance fees;
o leisure, through the pursuit of activities that have a participation fee such as golf, sailing, tennis, swimming, and other such sports;
o retail, through the purchase of clothes, gifts, specialist products such as antiques and arts and crafts, more general consumables, and food and drink for
consumption off-site. Tourism can particularly sustain and improve the viability of markets and local shops that could otherwise struggle if reliant on the
local population alone;
o catering, particularly pubs and restaurants in more vulnerable locations such as small villages in rural surroundings that have limited local markets;
o transport, with both day visitors and overnight visitors who use local transport helping to support routes that are a valuable resource for local residents
that otherwise may have no other means of travel;
o agriculture, through the sale of produce to local businesses, and increasingly through helping farmers diversify their income through accommodation
provision or opening up as attractions/activities;
o construction, through both maintenance works and new build developments that specifically cater for the visitor market;
o real estate, through land and property purchase specifically for tourism enterprises, and through second home ownership.”
“TheImportanceofTourismtoNorthNorfolk
Two other significant facilities which draw young people from a wide catchment area to North Walsham are the High School and Paston College, both with over 800 pupils.
EmploymentinNorthWalsham: 5051 (c.f. economically active: 5315); assume no net change over plan (Core Strategy) period. 7. Routine occupations
8. Never worked and long-term
unemployed
Not Classified (largest group)
Totals
Census 2001
Relatively high %
Relatively low %
6b.138
Leisure Larger stores e.g. Tesco, Morrisons Bennetts Hi‐Tech Show at Norfolk Showground (three‐day electrical/electronics event) Out of centre locations such as Eaton Centre, which includes Waitrose and Comet Clothing, major durable items e.g. furniture. Hobbycraft in Riverside Retail Park. This outflow is assisted by the net outmovement of North Walsham residents to Norwich for work. DTZ: 30% of respondents in N Walsham Zone (3) did their main bulk food shop in Norwich, 22% in N Walsham, 14% in Gt Yarmouth and 13% in Stalham. DTZ: For Zone 3 residents the centres used for clothing and footwear shopping are: Norwich 54%; Gt Yarmouth 19%; other 20% and N Walsham 6% Morrisons & other attractions e.g. McDonalds Roy’s (better quality than in North Walsham) Tesco Tesco, Sainsbury’s Norwich Cromer Wroxham Stalham Sheringham Holt On‐line deliveries Aylsham Reasons for Visiting Centre The information on competing centres and the reason for local people visiting them has been derived from the interviews and from previous reports prepared for the Council. It is summarised in the table below. CompetingCentresandtheTradeTheyTake
21 In brief, there are some very interesting markets available to North Walsham: a large and increasing resident population (in the town and in the surrounding villages), a large but probably decreasing workforce, both in the town and in other accessible localities such as Bacton, a potentially significant tourist market (capable of generating spending in a number of sectors of the economy) and other markets offered by facilities such as Paston College and the High School. There is a bias towards higher income groups in the wider catchment area and the reverse in the town, but both areas are very diverse. Source: North Norfolk DC, Tourism Development Overview, 2012 6b.139
22 North Walsham loses large amounts of convenience spending: • To alternative centres with a different supermarket from J Sainsbury, the only mainstream supermarket in North Walsham; some of this loss could be clawed back with additional supermarket provision in North Walsham • To Norwich, probably both in and out of centre locations, and much of this loss linked to commuting trips to Norwich; some of this outflow will also be linked to trips to Norwich for comparison shopping or leisure; the linked nature of these trips limits the scope for clawing back spending for North Walsham. The corollary of this outflow is that North Walsham gains business from the employers located in and near to the town (we know this from interviews with leisure/catering operators) North Walsham loses large amounts of comparison shopping expenditure, principally to Norwich and Great Yarmouth; whilst there are comparison shops in North Walsham, there are not enough of them, they are not large enough and most do not offer the feel‐good factor that makes for an attractive shopping experience. Conclusions
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Tourism as well as second‐homing is important to Bridport. The town styles itself ‘Gateway to the Jurassic Coast’. 23 Bridport (population 12,977) is located near the coast at the western end of Chesil Beach in West Dorset. It is about the same drive time from London as N. Walsham. It originally thrived as a fishing port and rope‐making centre. The port is no longer in existence although the harbour at West Bay is a mile away. It has a large rural hinterland. Background
Bridport
A range of possible towns were given a preliminary examination. These were Midsomer Norton and Shepton Mallet in Somerset, Keswick in Cumbria, Fakenham in North Norfolk, Thame in South Oxfordshire, and Bridport in West Dorset. Bridport and Thame were selected after the initial appraisal. PossibleComparators
A town of similar size; N Walsham is about 13,000 population A free‐standing town, not a suburban centre or a town within a conurbation such as W Yorkshire A town population that is skewed towards lower socio‐economic groups A town that serves a rural hinterland (about 40,000 within 20 minutes’ drive time of NW), which is of a higher socio‐economic grouping than the town itself. 5. A town that has regenerated its town centre offer, successfully. 1.
2.
3.
4.
The criteria used in selecting comparators were: This note is a brief analysis of two market towns which are deemed to be on a positive track, have gone beyond the stage of aspiration and are successful examples of town centre regeneration. The aim is not to present them as models for the future development of North Walsham, but to see whether there are any valid lessons for the regeneration of the town. Introduction
4. ComparatorTowns
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Drawing on surveys of 2001 and 2006, the top five retail or service outlets in terms (by number of units)are: • Clothes and shoes (14 outlets ) • Gifts (13) • Take‐aways (13) • Hairdressers (12) A survey in 2006 showed that there were no vacant shops in the town centre. Today, there appear to be just two vacant outlets. Morrison’s supermarket is located some 800 metres from the core of the town centre, but Waitrose is in the centre with a frontage to West Street. 24 Bridport has a thriving commercial centre with a twice‐weekly street market and monthly farmers' market. National multiples (not including charity shops), represent perhaps 15% of Bridport’s 180 or so retail and catering outlets, include WH Smith, Clintons Cards, Blockbuster, Threshers, Waterstone’s, Stead and Simpson, Timpson’s, Specsavers, Waitrose, Ladbrokes, Costa Coffee, Superdrug and Co‐op Pharmacy. Retail&Leisure
Markets,ShowsandFestivals
The town has been nicknamed Notting Hill Gate‐on‐Sea. The Bridport Art Scene has gained a national profile. Shows and festivals include: • Bridport Open Studios: over 100 artists • The popularity of the event has led to three more open events in November, Easter and May. • Bridport Literary Festival has been running since 2005 and has played host to the biggest literary lions • The Food Festival is held in late June at Asker Meadow. It showcases locally produced foods for which the area is well known. • The Beer Festival is run by the Bridport Round Table • The raft race, organised by the RNLI, is held in July in the River Brit basin at West Bay. • The annual carnival is held on the third Saturday in August. Other attractions on the day include carnival darts, carnival golf, a grand car boot sale, carnival fete and a fun fair. • A torchlight procession takes place the following night (after the carnival) to a bonfire at West Bay. This is followed by live music and fireworks. • On the Thursday before the August bank holiday weekend Bridport hosts the Melplash Show at the West Bay Showgrounds. This is one of Dorset's three biggest agricultural shows. • Street Markets held on Wednesdays and Saturdays • Farmer’s Market. The town has some light industry, most notably Palmer's Brewery and two or three survivors of the rope making industry. Employment
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Restaurants (8) Cafes (11). Markets,ShowsandFestivals
Shows and festivals include: • a twice weekly cattle market 25 The town's two largest employers are Omnicom‐owned CMP Group (the world’s largest outsourced sales organisation and lead sponsor of the Thame Arts and Literary Festival ‐ see below) and Travelodge, both of which have their head offices on the edge of the town. EmpŽoyment
Thame, population about 11,000, is 14 miles east of Oxford, 10 miles south‐west of Aylesbury and 47 miles from London. The entire town centre is designated as a Conservation Area and the wide, boat‐shaped High Street is a striking sight for new visitors. The design owes its origins to medieval town planning and the requirements of the market. The church, ancient inns and houses in a variety of styles and materials create a scene once described as ‘picturesque in an unpretentious way’. Backgro—nd
Thame
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Key points made by officials from the Town and District Councils were: • Success has by no means been the District Council’s doing. Whilst there has been a lot of Council work, it is slow progress and a rocky road. However, there are very positive community partnerships; • Bridport has been discovered by London and ‘Notting Hill Gate‐on‐Sea’ is not wrong. There is a strong arts focus; • Bridport is helped by its location: coast nearby, far enough from bigger conurbations, a strong hinterland and not over‐targetted by the national chains; • Waitrose took over from Summerfields in the town centre three years ago and gave the place a lift; • Heritage and conservation projects have been important • Lucky to have had Hugh Fearnley‐Whittingstall do a lot of visiting in Bridport which has built up as a food centre over the last 10 years; • The local charitable trust is vibrant and runs the Arts Centre and the 1930s theatre (The Electric Palace) is a successful private enterprise attracting medium‐sized bands and reasonable comedians; • The restaurants are doing quite well • Waitrose (‘thank goodness is in the town’)is praised for being community‐minded and is welcomed locally. •
•
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a very popular street market every Tuesday which goes back to 1219; every second Tuesday in the month the regular market is supplemented by a Farmers' Market Saturday Farmers' markets on the fifth Saturday in a month TheThame Food Festival is now in its 5th year. Thame stages the Oxfordshire County and Thame Show, the largest one‐day agricultural show in Britain. the three day Thame Fair In June the Thame Festival is held the three day Thame Arts and Literary Festival 26 CommentaryfromLocalOfficials
Key points made by an official from the Town Council were: • Waitrose (one of the biggest formats) is down a snicket/ginnel/loke just off the High St and is a great benefit to the town. It certainly has a positive spin‐ off into the High St where there are some strong specialist independents as well as national multiples. • Thame is 25 miles from Henley and Marlow which are both very upscale and pricey. People travel in from there as Thame is known for good quality but is a lot cheaper. • The community associations in Thame are very strong. They cover everything from music, arts, sport……. • the Farmers Market (every 2nd Tuesday and 5th Saturday) and the ordinary market on Tuesdays (at which there are 42 stalls) are very important and popular. Coaches come in to these from London! The retail offer is complemented by a full array of commercial and community services. Thame adopts a car‐friendly approach with extensive (over 600 spaces), and mostly free, car parking in the town centre close to the shops. There are only 6 vacant outlets at present. National multiples (not including charity shops), represent perhaps 15% of Thame’s 130 or so town‐centre retail and catering outlets by number. These include Waitrose, Sainsbury’s, Martin’s, Fuji Film, Clintons Cards, Robert Dyas, Boots, Clarks Shoes, Viyella, Superdrug, The Aga Shop, Corals Betting, Costa Coffee, Co‐op Travel and Co‐op Funerals. Historic and eclectic, Thame retains its traditional High Street shopping experience. Its marketing strapline to encourage shoppers to use the town is ‘Try Thame first’. With the high levels of product knowledge and customer service that is sometimes only found in the smaller outlets, Thame's shops aim to offer real ‘service added‐value’ to a shopping trip. Retail
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Car parking is free and this is incredibly important The County Council had wanted to put in charges. But they gave the Town Council delegated powers and a delegated budget. The fines pay for the enforcement...so it costs the Council nothing They do not have a particularly strong Chamber of Commerce. The Chamber has been trying out a loyalty card...but it is not yet a strong feature in the town. 27 Whilst circumstances in the two towns examined are different in important respects from those of North Walsham, there are nevertheless valuable lessons that can be drawn from their experience: • There is a place in the modern economy for towns of this size; they can be very successful. • Supermarkets and their location relative to the town centre are very important. • Local associations have been very important in promoting the towns; in Bridport the District Council is avowedly playing more of a supporting role. • Markets and events such as festivals are important in bringing people from a wider catchment area into the town • Independents remain the backbone of a successful town centre; a number of national multiples will also take space. • Community participation and loyalty are very important for lively centres; town centres are where community is celebrated. • Food plays a major role in the marketing and trading of both towns Conclusions
•
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28 However there are real challenges that need to be tackled in going forward: • The negative image or, more worryingly, the negative self‐image of the town/town centre • Related to the image are the presence and influence of people who hold very negative views about the town centre and its prospects; against them are some very energetic and enthusiastic business people • The urban fabric, which is dominated by historic and small buildings, limits the opportunities for investment in new retail outlets or in the modernisation of existing ones We have set down the Council’s ambitions for the town centre in Chapter 1. Those ambitions need to be seen in the context of: • The very positive features of the town centre • The challenges that face the town centre and those doing business there • Some dramatic changes taking place in the social, economic and political context of the UK (led by those who believe that you should never let a good crisis go to waste). The positive features of the town are that it is an all‐purpose town centre, characterised by: • Major convenience stores (Lidl and Sainsbury), but a lack of competition in this sector • A limited choice of comparison stores, the largest being Roy’s and QD • A large number of independent stores, a few of which are destination shops including Country Pets and Guns, Spring Floral Design, J B Postle and others • A valuable record of friendliness and good personal service • An enviable history which is manifest in both the town centre buildings and environment and in the stories that have made North Walsham the unique town that it is • Large and diverse markets: o town residents from a range of socio‐economic backgrounds; o retired people; o students from a wide area at Paston College; o tourists; o the workforce in the town centre, the industrial estates and major nearby employers such as Bacton Gas Terminal; o a large catchment area including well‐to‐do households • A large number of other services provided by the town to the same catchment: solicitors, doctors, banks, dentists, tourist office, post office, library, Victory and Rossi leisure centres, community hospital, police station. AnExcitingContextfortheScenarios
5. AlternativeScenariosforNorthWalshamandRecommendedWayForward
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The very dangerous threat of further out‐of‐centre supermarket development (Waitrose’s scheme on the Cromer Road having already been granted planning permission): o Scott Properties’ proposal for a store of 45,000 sq.ft., also on the Cromer Road o Petros/Hartfield’s proposal for a store, reported to be intended for Tesco, on Midland Road. Cambridge & Counties Bank Transition towns
Social enterprise
Empower individuals and communities
Secret millionaires The Totnes Pound Leadership of Place Dave’s Bank
Enterprise hubs Portas funding
Diyeconomics
Localism & the Big Society
Cloud funding Crowd funding Some of the key strands above are: • A new bank established to serve small and medium enterprises, the major banks having let them down • Small firms raising finance from thousands of customers and supporters via the internet • Towns that are acting locally to secure a more sustainable future for their community 29 The interest of three supermarket developers is very good evidence that there is a demand for both convenience and comparison goods in North Walsham and its hinterland. The diagram below contains some of the hints and strands of change that are taking place across the UK. •
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30 SummaryEvaluation
Effectiveness very low; readily deliverable; real risk of further decline of the town centre including disinvestment in the historic fabric. If delivered, would achieve the Council’s objectives for the town centre; current conditions in N Walsham (footfall, image and character of centre) unlikely to attract significant participation by national or regional fashion brands; redevelopment to create newe premises unlikely to be viable; risk of failed schemes. BB A variant on Scenario B would be to focus on good quality independents Builds on service quality strength of town centre (a means of competing or small local/regional chains with supermarkets); could be implemented in existing shops (development trust would help; see below); risk of insufficient momentum or critical mass to increase footfall significantly. C. Developing a specialised role (such as books in the case of Hay‐on‐Wye The food role could be valuable in strengthening the fundamental and antiques in the case of Tetbury); this brings customers to the centre convenience shopping role of North Walsham as a district centre. Much from beyond the conventional catchment area, creating the opportunity could be achieved in the present stock of premises. Considerable effort is to capture their spending on other goods or services. Cllr Ivory has required to design and implement a successful campaign for the production suggested a specialised role for North Walsham: good quality, healthy chain and supporting events. Risk of failure because the campaign does not Scenario
A. Do nothing or unchanged policy for town centre B. Capturing a higher share of catchment area expenditure by an improvement in the general retail and service offer, especially in sectors where expenditure leakage is high, for example clothing and fashion. At the interim stage of this exercise we evaluated a number of scenarios against three simple but robust criteria of effectiveness, deliverability and risks. The scenarios and their summary evaluation are set out below: AlternativeScenarios
• Communities where people have acted voluntarily to support those in need • A guy who set out to show that you could lend to small firms more cheaply than the banks • Alternative economics which focuses on new forms of economic activity • A push to have responsibility carried as locally as possible, for example for caring because the nationally funding institutions are failing • A new concern for the health of town centres as the heart of communities • Groups of individuals and small businesses coming together for local networking combined with global contacts and trading • A device to keep money generated locally within the local economy. The positive messages from this glimpse of a different economic and social world are that it offers real opportunities for North Walsham: firstly for the town centre as a potentially viable local economic entity and secondly for individuals and small businesses in the retail and leisure sectors. 6b.148
31 and sustainable food. Potential components: reach critical mass i.e. does not have the attraction to significantly increase a. Specialised food retailers; could Waitrose be engaged in this? North Walsham’s draw in its catchment area. b. Excellent catering e.g. Beechwood Hotel, Gunton Arms; the Griffon Food Trail lists good eating places and quality producers c. Craft food production and preparation e.g. in secondary retail locations d. Micro‐breweries e. Expanded outdoor farmers’ market f. Norfolk Food and Drink Festival, a satellite of which already takes place at Holkham Hall g. Ancillary products: dining furniture, cutlery, linens, cookery books h. Cookery school i. Links with schools and colleges for food education e.g. the food technology suite in the Atrium at the High School j. Links with HEI’s for food research D. Generating tourism, for which an attraction or attractions are necessary. This would add spending power in the town centre; tourist literature for North Norfolk does not feature North Walsham as a main attraction; the town’s attraction is a relatively modest one; given that the retail and leisure offer of the town is weak at the moment, it is unlikely that significantly increased tourist traffic could be generated on its own. E. Create the site, with land acquisitions if necessary, and the This would achieve significant benefits: infrastructure for a substantial supermarket to locate in the town • A substantial alternative supermarket to Sainsbury’s in the centre. centre. By “substantial” we mean: large enough to offer a real • Additional footfall in the centre for the benefit of the centre as a whole alternative to J Sainsbury and large enough to enable the planning • A strengthening of the Council’s case if it was minded to resist out of authority to resist out of town supermarket applications. centre supermarket development. An urgent requirement if the Council is to be well equipped to respond to the expected out of centre supermarket applications. Depending on the capacity and servicing of the selected site vis‐à‐vis the scale of supermarket that meets the requirement, the tasks and costs could be significant: • Land assembly, possibly involving compulsory purchase 6b.149
Infrastructure investment, including the creation, if necessary, of replacement car parking. Site/DevelopmentOption VicarageStreetcarpark
Option A For a single supermarket, including the Foundry Cars site: NewRoadcarpark
Car park and adjacent sites: Supermarket: 25,000 sq.ft. sales BankLokecarpark
Car park alone as supermarket: 10,000 sq.ft. sales In the table below we have set out the potential capacity for different forms of development of the four sites: SiteCapacities
StNicholasPrecinct
Supermarket: 13,500 sq.ft. sales 5,500 sq.ft. storage The sites that the Council asked us to consider are: • Vicarage Street car park • New Road car park • Bank Loke car park • St Nicholas Precinct In order to maximise development capacity, we have in some instances considered extensions to these sites, where additional land assembly appeared feasible. We have also looked at a fifth site which is our favoured location: the Lawns site of Paston College. 32 The risks are mainly financial, which would be mitigated by the Council, assuming they are the principal landowner, entering into an agreement with a developer (who would enter into agreement with a supermarket) before committing substantial capital. F. Create a site for a supermarket in the town centre within the constraints Similar benefits to E, possibly scaled down, depending on what constraints of public landownership this scenario imposes on the size and configuration of the supermarket. Lesser scale investment and financial risk than E. The most productive approach for the town centre is not a single scenario or master plan but a series of initiatives, each preparing the ground, for example through increased footfall and rents, for the next initiative. Because of the immediate threat of additional out‐of‐centre supermarket proposals and because our enquiries with retailers indicate that a supermarket (and a developer) could be attracted to North Walsham and could have a significant effect on footfall and spending in the town centre, we have focused our examination of town centre sites on finding a suitable and viable location for a substantial supermarket (Scenario E). •
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Commentary Option B 10,000 sq.ft. storage 35,000 sq.ft. total 100 car park spaces (instead of 65 spaces currently). Provides for small expansion for Lidl, which they are seeking. Requires relocation of community facilities: library, community centre, fire station and children’s centre No alternative scheme 4,000 sq.ft. storage 14,000 sq.ft. total 35 car spaces (instead of 91 spaces currently) Extend site to Grammar School Road between Bank Loke and Black Swan Loke. Supermarket: 25,000 sq.ft. sales 10,000 sq.ft. storage 35,000 sq.ft. total 90 car park spaces below (instead of 91spaces currently). The supermarket is too small The supermarket is adequate Scheme A produces a very to be effective. but would exacerbate the small supermarket. centrifugal character of the Option B, the group of town centre. Lidl’s proposed Scheme B produces a shops, could be effective in expansion should be significant supermarket on forming a stronger link examined for the the site that offers the best between Sainsbury’s and the opportunity to create a new relationship with the town centre; however it involves pedestrian link from New town centre; our enquiries land assembly. This is the Road car park to the town indicate that a number of second best option for a new retailers could be attracted. centre via an attractive supermarket after the walkway through Lidl’s car Car park site only, for a group of shops: 18,000 sq.ft. with storage over. No parking spaces (loss of 110 spaces) 15,000 sq.ft. sales 6,000 sq.ft. storage 21,000 sq.ft. total 110 car spaces (instead of 130 spaces currently) 33 To improve the shops and integrate the Precinct better into the town centre: a. Minimum scheme: redevelop 11‐13 (1,900 sq.ft.) to create 2,600 sq.ft. b. Preferred scheme: redevelop 9‐13 (3,200 sq.ft.) to create 3,200 sq.ft. The supermarket in Option A is small, yet it still requires land assembly. The partial redevelopment of the Precinct would be a very important part of the overall aim to re‐integrate the different parts of the town centre (see below) 19,000 sq.ft. total 50 car park spaces (no public spaces currently provided). 6b.151
Lawns. 34 Having reviewed the above sites, we believe there is an alternative site that could provide a very substantial supermarket adjacent to the town centre and with ample car parking: the Lawns site of Paston College. The key components of a scheme here would be: • Two alternative configurations of the site for a supermarket: o Supermarket located on the northern part of the site, closest to Market Street ƒ 40,000 sq.ft. sales ƒ 15,000 sq.ft. storage ƒ 55,000 sq.ft. total ƒ 200 surface car spaces (losing no public spaces) o Supermarket located on the southern part of the site, closer to Park Lane ƒ 40,000 sq.ft. sales ƒ 15,000 sq.ft. storage ƒ 55,000 sq.ft. total ƒ 180 surface car spaces (losing no public spaces) • Car and service vehicle access from Park Lane • Pedestrian access to town centre via (a) Market Street, adjacent to the fishmonger and (b) via Market Cross Mews and Market Place • Northernmost College buildings retained for retail, cafes and small business centre • College (Lawns) buildings relocated to Bank Loke car park next to College Griffons site, giving College a single campus. Without having a brief from the College (for the scale and specification of their requirement) and using broad estimates of value and cost, we believe that the area of buildings on the Lawns site (estimated roughly at 34,500 sq.ft.) could be rebuilt for the value surplus that would be generated by a supermarket of the scale we have considered; this omits any costs of land acquisition (surveys are required to ascertain whether more land is required (than the Council’s car park) in order to integrate and service the car park and Griffons sites. We have considered two alternative sketch schemes for the Griffons and Bank Loke sites: • Replacement of the 34,500 sq.ft. on the (a) Griffons site northern courtyard/car park: 11,850 sq.ft. and (b) on Bank Loke car park: 22,650 sq.ft. with 50 car spaces underneath; this scheme leaves 51 spaces in the existing car park. • As the first option but with the development of a small business centre, linked to the College, on the outstanding car park space; business centre: 21,500 sq.ft.; 27 public undercroft car spaces and 78 underground spaces for the College. park. 6b.152
We see the proposed supermarket in the town centre as the essential first step in the above process; further action (Figures 1, 2 and 3 below show the existing layout of the town centre, the initial development strategy and the pedestrian shopping routes that will result from the initial strategy) might evolve as follows: 1. As footfall increases and confidence in the town centre grows, the centre will become more attractive to other traders; in the short term we believe there is demand from two sources: a. National and regional multiples that look for widespread representation e.g. Greggs, Costa, Coop (food/convenience), Iceland, Hughes (regional, located in Market Place and wanting to expand), Poundland, QS, Boots (located in Market Place and wanting to expand) b. Independents, who know the area and who can fit into existing premises more readily than multiples (Scenario BB); this might be linked to a food focus (Scenario C) 2. If the first steps are successful, footfall, values and confidence should have increased sufficiently to market North Walsham to regional and national multiples, for example those in clothing shoes, jewellery, books etc.(Scenario B) 3. The town centre then becomes attractive to tourists in greater numbers (Scenario D), by dint of an improved retail and catering offer, of the special interest of the food campaign and the care applied to the historic fabric. 35 As we said above, we are not proposing a single scenario or master plan for the town centre, but a market‐driven process which goes on for many years, indeed forever: maintaining, managing and upgrading the town centre is a continuous process, much like a factory or, more appropriately, an enclosed shopping centre. This applies particularly to the regeneration process where one is trying to generate demand and increase values such that further investment in facilities becomes viable. At any one time the priority will be on two or three programmes, projects or maintenance issues, but achievement of those will create hitherto impossible opportunities, which become the next round of projects etc. External factors will also influence the pace and direction of change: the possible Davenports’ Magic Kingdom could transform the tourism potential of the town centre. TheUnfoldingStory
In relation to the out‐of‐centre proposals a supermarket of 55,000 sq.ft. compares with Scott Properties’ proposal for a store of 45,000 sq.ft. (Cromer Road). And the existing Sainsbury’s supermarket in North Walsham measures 35,000 sq.ft. (sales area) and 40,000 sq.ft (sales including checkouts). The proposal on the Lawns site meets our criteria of being large enough to provide a real alternative for shoppers to the existing Sainsbury’s store and of meeting the need for an additional supermarket to serve the North Walsham market (instead of the out‐of‐centre proposals). The fallback way of fulfilling these criteria would be the larger scheme above on the Bank Loke site; this still provides a significant store and it is very well located relative to the town centre; however it will require land acquisitions, the cost of which we have not estimated. 36 6b.153
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39 It can be seen that all the interesting scenarios can be achieved. We also recommend some other initiatives to support the future health of the town centre: 1. Small business development: a real handicap for town centre retailing in North Walsham is the growing scale of commuting to Norwich and other towns which have a convenient and often superior retail offer; some of the lost retail spending will be clawed back if the offer in North Walsham is improved, but a further initiative is to increase local employment. In this regard the town centre, given the changes in the UK economy, probably offers better prospects than the industrial estates and allocations. The big liberating factor for sole traders and small firms is ICT. It has given rise to a curious phenomenon: small business centres where people mix socially and network commercially, but from which they communicate, collaborate and trade globally – the curiosity is that there is still a need to come together locally even if technology allows remote working and firms are trading on a much larger scale geographically. Young people, amongst whom unemployment is currently highest, are particularly adept at both ICT and small business. Models for such centres range from the long established portfolio of the Workspace Group Plc inside the M25 to the Hubs, which have been developed worldwide to a common philosophy (English examples include the King’s Cross and Westminster Hubs). An element in the Hub can be an in‐house academy, where most of the teaching is done by peers (small business is best taught by people doing it). We have suggested that a business centre might be set up in collaboration with Paston College as part of their redevelopment. An alternative might be co‐location with the High School which has extensive facilities in the Atrium, which could be used more intensively. Business centres normally focus on non‐retail activities (some may offer public‐facing premises to facilitate demonstrations of work or occasional sales); however we suggest that appropriate elements of the model be applied to retailing in the town centre; in the next paragraph we look at the premises question raised by a retail “business centre” 2. A development trust: we would like to create for North Walsham some of the management tools that are available to the owner of a shopping mall, in spite of the fact that there are hundreds of owners and occupiers in the town centre. The primary concern is with the retail/leisure focus and mix in the centre: which trades are missing and where would they best be located? A development trust is one approach. The core purpose of the trust is to acquire leases (or freeholds, if appropriate) of key properties in the centre when they become vacant in order to market and let them to a target group of occupiers who will add real value to the town centre offer. It might also contribute to the small business centre, which could comprise one hub building with shared services and a number of other premises for small firms scattered around the centre. There are several parts of the town centre which are very weak in retailing terms e.g. St Nicholas Precinct, but which could gain life from small business occupiers on ground and upper floors. The development trust could facilitate such use with its market interventions. Clearly the trust needs to have good business acumen or have access to good advice. 6b.157
40 3. Local leadership: North Norfolk DC has made a commitment to implementing the Coalition Government’s localism agenda. Continuing commitment to a town centre, such as North Walsham, over a long period of years will best be achieved by a local body. Not only has the Council made a commitment to devolution, but it has to be fair in its attention to six other market and resort towns, and staff resources will not be growing in the immediate future. Two candidates offer themselves as possible vehicles for local leadership: the town council and a new body custom‐designed for the task. Key criteria in designing or selecting an appropriate body include: accountability to the local community, continuity and commercial knowledge and understanding. 4. Internet: an immediate action to promote business would be to explore, with advice if necessary, how the internet and social networking could be used to greater effect by North Walsham traders. Other issues that may be relevant to the future health of the town centre include: • Local funding, which might be cloud‐funding • A Business Improvement District which gathers local funds and spends them according to a locally approved business plan • Events, related to the food theme, or anything else distinctively North Walsham, to bring new people to the town centre • Attention to the public realm, which is especially important because of the historic character of the town centre and the potential for tourism; attention means maintenance and cleaning as much as capital works • Refurbishment and care of buildings: too many are in a poor state of repair • Marketing of the town centre which might, for example, adopt and adapt the griffin or griffon as a cartoon mascot, much as Amul, the largest collective of dairy farmers in India, did with their cartoon character. 6b.158
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