The Secretary of State has agreed with the recommendation of his Inspector to refuse permission for an over 50,000 square metres retail led expansion to an out-of-town shopping centre known as The Mall, Cribbs Causeway.
Bristol City Council opposed the scheme on the basis that there was a sequentially preferable site on which the main town centre uses could be accommodated and because of the significant adverse impacts the scheme would have on the vitality, viability and investment in Bristol City Centre. The Secretary of State agreed with Bristol City Council's concerns.
The Secretary of State of State called in decision will be important reading for anyone considering the policies in Section 7 of the revised NPPF which concern the vitality of town centres. Paragraph 90 of the revised NPPF directs that where an application fails to satisfy the sequential test or is likely to have significant adverse impact on vitality, viability or investment in town centres it should be refused.
The sequential test
The sequential test is set out in paragraph 86 of the revised NPPF. It applies to applications for main town centre uses which are neither in an existing centre nor in accordance with an up-to-date development plan. It requires that such uses should be located in town centres in the first instance and only if suitable sites are not available, or expected to become available within a reasonable period, should out of centre sites be considered.
This case was the first application of the new NPPF for a major retail proposal by the Secretary of State. It was concluded that what would be reasonable period for the town centre site to become available will depend on the particular circumstances of the sequentially preferable site and the proposal that it is being expected to accommodate [IR-571 and DL19]. The Inspector concluded that an extended period was justified for the city centre site for three reasons:
•Because of policy support
•The complex nature of clearing the city centre site
•The purpose of the sequential test which is to look to town centres as the first port of call for town centre uses [IR 602]
The Secretary of State accepted that the city centre site would be available within a reasonable period.
The Secretary of State rejected the applicant's argument that because the application was for the expansion of an existing shopping centre which would enhance existing investment and respond to consumer and operator demands, there were particular locational requirements which meant that the sequential test should not be applied [IR-572-574 and DL19]. It was held that such arguments could be deployed in respect of many out-of-centre shopping developments built in the 1980's and 1990's but that extensions to existing retail developments are not immune from the sequential test [IR-574 and DL19].
The Secretary of State was satisfied that Callowhill Court, in Bristol city centre, was of a sufficient size to accommodate the relevant parts of a broadly similar development proposal to the application [DL20]. It also benefited from outline planning permission and an allocation for major retail-led development in the local development plan. The city centre site was therefore found to be sequentially preferable to the out-of-centre location.
The impact on vitality and viability of Bristol City Centre
The impact test in paragraph 89 of the revised NPPF requires consideration to be given to the impacts of a proposal on the vitality and viability of town centres. The test is whether the proposals would be likely to have a significant adverse impact on the centre in question.
The Inspector noted the importance of remembering that Bristol is a regional city centre and that as well as retailing it provides a focus for civic, cultural and recreational activity and is a popular tourist destination and a place of employment [IR-625]. Whilst the Inspector took the view that Bristol was a vital and viable shopping centre it was recognised that it would be likely to be vulnerable if there were to be a significant loss of turnover or investment as a result of the application proposals [IR-635].
The Secretary of State and Inspector rejected the Applicant's argument of an internal impact ie that the trade draw for the Mall expansion would come from the existing Mall. [31 DL] He accepted adjustments had to be made so that there would in fact be a solus impact of 6.4% from the City Centre. It was held that Bristol's fortunes as a regional shopping destination and its longer term standing in the south-west region would therefore be likely to be put at serious risk and to amount to a significant adverse impact on the vitality and viability of Bristol City Centre [IR-655 and DL 32].
Impact on planned investment
Paragraph 89 of the revised NPPF also requires a consideration of the impact on existing, committed and planned investment. It was noted that these are clearly three different stages in the lifetime of a project, which are in effect sequential. The decision gives important consideration to the test of what is "planned investment". That the majority of Callowhill Court was allocated for major retail-led mixed use development; had been granted outline planning permission; steps had been taken to acquire interests in the properties needed for the redevelopment and Bristol City Council had resolved to use CPO powers if needed all fed into the assessment that the investment was planned [DL34-35].
The Secretary of State was satisfied that the out-of-centre scheme, if granted permission, would be likely to frustrate a city centre investment supported by the development plan [DL37]. It would thus have a significant adverse impact on planned investment.
Richard Ground QC and Ben Du Feu successfully represented Bristol City Council who stood to suffer the greatest impact.