Wednesday, 25 July 2012

Peel Holdings - back door at night tactics to defeat planning committee

Jack Straw and I, along with Hyndburn Council and it's leader Miles Parkinson have been fending off Peel Holdings desire through expensive barristers to reverse a planning a decision by a back door technicality. Jack has written an article on the issue for The Times which I have reprinted;

Times230712 JACK STRAW – TIMES – PLANNING LOOPHOLE – 23 JULY 2012 hitebirk retail Park

In a no-man’s land between Blackburn and Accrington, there’s something going on which could adversely affect your town centre, and undermine this government’s commendable efforts to implement Mary Portas’ excellent proposals to revive our high streets. Developers are using an obscure technical loophole to override decisions by local councils against out-of-town retail parks. It’s entirely lawful – but to me it’s neither democratic, nor acceptable. It could be coming soon to your area.

Whitebirk Retail Park was built in the nineteen eighties on the site of the old municipal power station. Geographically, it’s Blackburn; administratively, it’s within the Hyndburn Council area.

It’s a windswept collection of retail sheds with no humanity, no merit save that it’s a few hundred yards from a junction of the M65 motorway.

To protect the adjacent town centres of Blackburn and Accrington, the Council imposed a “bulky goods only” restriction on the site. It can therefore sell only electrical “white goods”, furniture, carpets, bedding, some DIY. The sale of “comparison goods” like fashion and footwear, and food, the mainstay of any town centre, is banned.

There’s been a big decline in the bulky goods sector in recent years. There are vacant units on this site, as on other similar sites.

The owners of this site are Peel Holdings, a large, privately-owned property company, who developed the huge Trafford Centre on the outskirts of Manchester, and are now major shareholders in Trafford’s owners, Capital Shopping Centres plc.

Over the years Peel have shown a single-minded determination to pursue its shareholders’ interests.

In 2005 Peel sought to avert the decline of their Whitebirk site by submitting a new planning application for its partial redevelopment, and crucially, for an end to the “bulky goods” restriction, to allow for new tenants like Boots, Next, and ASDA Living.

Hyndburn Council said “No”. Peel appealed. After a thorough Inquiry in 2008, the Planning Inspector said “No” as well, in strident terms:- “ ...I have expressed my concern that geographically superior locations exist in the centres of both Accrington and Blackburn for the type of development proposed...I fear that [it] would have a negative and harmful impact on these critical areas of both towns...I consider that it is of vital importance in this case that policy in respect of town centres should not be compromised”.

The owners of the main shopping mall in the Blackburn town centre, Capital and Regional, had put on hold a £60 million redevelopment (including a new market) unless Peel’s application was rejected. When it was, the investment went ahead – the new facilities, opened last year, have been a great success. Footfall is up; free Saturday parking has been introduced; the town centre is now buzzing in a way not seen for years.

But Peel do not enjoy taking “No” for an answer. As I told the Commons two months ago “having failed to get in via the front door, in daylight, [Peel] embarked on a strategy of forcing its way in, at night, by a back window ....”[1]

Between 2008 (once they had lost their appeal) and 2011 they submitted 29 minor, and apparently unconnected planning applications in respect of buildings on the site, for changes like “new partial cover mezzanine floors”, and “reconfiguration of Unit 1, including partial re-cladding and creation of mezzanine floors”.

Only if the planning officers had been clairvoyant could they have divined Peel’s intentions. But the officers did seek – and receive – reassurances from Peel. “ [T]his application process proposes only alterations to the building; the legal agreement [the bulky goods restriction] is... concerned solely with regulating the use of buildings, not altering them”.

However, having assembled their 29 separate, routine planning permissions for alterations to their buildings, Peel then claimed that, taken together, these 29 gave them a right to alter the use of the buildings, and have the bulky goods restriction lifted altogether, by the technical route of a “Lawful Development Certificate”. When Hyndburn indicated they would try to block Peel’s strategy in their area, Peel got heavy, saying “inevitably, the [legal] costs we will be seeking from your Council will be correspondingly significant”. Hyndburn did refuse. Peel are now taking them to court. A further advantage of this technical route is that there will be no planning inquiry on the merits – just a judicial review of the legal niceties involved.

Peel have used this tactic before, in Sunderland, where they won their court case. In other areas – Cheltenham, Wycombe, Barnet, Southwark, Plymouth and Liverpool- they and other developers have been able to gain their “Lawful Development Certificates” by aggregating minor planning permissions to override the local Councils’ determination to protect their town centres, without having to go to court, such are the high legal costs Councils face, and the confused state of the law. My own researches show that the courts have tended to reduce these critical issues of the viability of town centres to semantic games. You and I may think that a planning condition which restricts an out-of-town park to uses “solely for the sale of DIY/home improvement goods, Building, Garden and Gardening products” to protect “the local town centre” (to quote an example from the south of England) means what it says; but unless other technical language is used as well, the restriction can be broken with ease.

Last year the Prime Minister called in the retail expert Mary Portas to conduct a review into the future of the English high street. The government has now built on her recommendations, with its new National Planning Policy Framework announced in March that local authorities must recognise town centres “as the heart of their communities and pursue policies to support their viability and vitality.” Sadly, unless the government end this loophole, much of their worthy intentions will come to nought.

BBC’s Radio 4 “Face the Facts” programme will be covering this issue at 12.30pm today [Wed 25th July].


[1] This is a direct quote from Hansard, 16 May 2012, col 663