Planning & Covid: What do we do about shops?

It has taken a global pandemic – and the associated uptick in digital activity – for me to jump back on the blogging bandwagon that I fell off 18 months or so ago.

But the genesis of this article is a conversation I had before Covid with a retail entrepreneur with a great new tech-based concept (new technology plus a potential planning problem – what’s not to like?!). He was looking to repurpose relatively conventionally sized, 1,500sqft or so, high street shops.

But he said that so far he only has looked to take premises in shopping centres. Why? Because it is so much easier. There is a single point of contact in the centre management that can simply and easily tell him what he can, and can’t, do both inside and outside the store. Whereas trying to do the same thing on a high street would – in addition to discussions with the landlord – involve the whole panoply of planning, highways and street licensing with the time, costs and uncertainty that would entail.

I’m sure his conversation with me (which went along the lines of “brilliant idea, not A1, so contrary to policy, we’ll probably get most but not all of what you want and it’ll take 6 months at least”) did not give him as much confidence as he (or I) would have liked.

We all like to talk about the need for flexibility on the high street and the need to support and encourage innovation. But this is the starkest example that I’ve come across of the system, as currently structured, simply not doing that. For an innovator and start-up, it was simply too complicated, too expensive and too slow to try to do something different on the high street instead of the relative safety of a mall. Hearing it expressed in those terms was a shock.

That was, of course, before Covid. Whatever else that wretched virus has done, it has taken amorphous, long-term problems like retail change and dumped them firmly in today’s inbox, all-too-frequently in the form of shuttered, vacated shops whose previous occupants won’t be returning any time soon.

With the additional challenges of Covid, once the current lockdown ends and, thinking further ahead when, hopefully, social distancing requirements relax, the way in which we regulate high streets is going to have to change, to give them a fighting chance against the turn-key convenience of a mall or centre. Because the regulation that is ostensibly designed to support them, whilst well-intentioned, is too often strangling their capacity to innovate and attract investment.

Whats the problem?

Since PPG6 in 1996 the purpose of retail policies has been to promote the “vitality and viability” of town centres. The received wisdom is that one does this with a strong comparison goods base to pull people in, with a limited amount of supporting services. The restaurants and cafes can go on a side street because they don’t drive footfall.

But this logic doesn’t hold any more, for several reasons.

First, obviously, is the role of internet shopping drawing trade away. Covid and lockdown is likely to increase our reliance on the IV drip of daily Amazon deliveries, meaning fewer shops to locate in centres anyway.

Second, restaurants and cafes attract people into town and city centres in their own right. So resisting them on the basis that they provide services to people already visiting a high street, but do not attract people themselves, doesn’t make sense.

But the innovation point is where it gets interesting. Existing occupiers want to do different things within their shops. Whether that’s a cafe or restaurant, private “members” type facilities, a bar, private touch-down space for regular customers or other things yet invented. Often, though, that doesn’t easily sit within a Class A1 use. Or, at the very least it leads to tortuous and highly theoretical discussions about planning units, ancillary status and composite uses. I find them fascinating, but to a retailer probably a turn-off. In many cases the uncertainty itself is enough to discourage them from pursuing an idea.

At the same time, there are new occupiers (like my entrepreneurial contact at the start of this article) who want to take space, but probably aren’t Class A1. Or don’t really know what use class they are. There’s a whole range of new treatment and beauty uses that simply don’t feature in the 1987 Use Classes Order, and so are treated as sui generis. Likewise showroom-type spaces for showcasing, but not necessarily selling, products may, or may not, be A1. Many fitness uses are certainly not. Even the so called “Class A1 food” strictly does not exist – there are coffee shops and cafes under Class A3 and sandwich shops for the sale of cold food for consumption off the premises. Other uses may combine A1 and another use, thus becoming sui generis themselves and often then requiring permission (and worrying landlords). On the other side, different local authorities will often take a different approach to the classification of these units.

This raises a suite of problems. To start with, as described, the agonising as to whether, or not, an idea, concept or use sits within Class A1. And trying to get funders, investors and landlords all comfortable with that.

Then, the time involved in having both those discussions and progressing through pre-application discussions with the local authority to at least explain the concept, through to submission and determination of a planning application.

The time is a real barrier – retailers want to be able to fail fast: if an idea doesn’t work, to change it quickly to something else and try again. Planning officers are often able to give little in the way of comfort in pre-application discussions; whilst often they recognise the merits of a proposal they will feel their hands tied by relatively strict, binary policies.

Finally, of course, comes the risk that permission won’t be granted because of strict Class A1 protection policies and the proposal is not A1. Or if it is granted, it is granted only by committees against the recommendations of officers who feel duty-bound to comply with clear, but perhaps obsolete, retail protection policies.

Solutions

In the short term, the Government should recognise that the objective of town centre policies is to keep centres active and interesting, and to avoid the downward spiral of vacancy and decline. Uses that bring people into centres and promote footfall should be acceptable in principle, irrespective of use class.

The same logic could be applied to the ground floor of office buildings, where the lines between receptions, cafes, retail units and breakout space for staff are becoming blurred. If some public access is achieved – whether its to a cafe, shop, yoga studio or bike servicing centre – this should be welcomed.

Reform of the Use Classes Order is essential. At the very least, greater flexibility should be given for diversification within larger stores and beauty and treatment facilities brought into Class A1. And the Class A1 food uses should be brought in their current subsistence in the planning netherworld between A1 and A3.

This is by no means revolutionary but progress on this has been slow.

I would encourage the Government to go further, however, and support amalgamation of use classes into a ‘town centre’ use class encompassing most uses that attract visiting members of the public, perhaps alongside a standard condition in the Permitted Development Order to control late evening and night-time activity.

Land use principles should be separated from amenity considerations. A restaurant may well be acceptable in use terms, as supporting activity in the centre of a town, but still rightly unacceptable if it will belch cooking fumes into a nearby residential window. Amenity concerns should not, however, be a proxy for a blanket exclusion or presumption against certain uses in and of themselves.

In the absence of Government action, local authorities can take a role. Whilst changing local plans to relax A1 protection would help, it won’t overcome the time, costs, information requirements and sheer aggravation factor of seeking planning permission for alternative uses that can be a discouragement. Alternatively, or additionally, I wonder if there is a role for local or neighbourhood development orders, to pre-empt changes to the use classes order to create a ‘basket’ of town centre uses, movement between which would not require planning permission.

I’m conscious that this may be mainly applicable to the larger and more successful retail centres that have benefitted from the flight to quality that has characterised retail in recent years. But even in successful centres my expectation is that attitudes, and policy, will need to change. In smaller centres, as the tide of conventional retail ebbs away, the extent of local centres may need to also shrink in local plans, to prevent permanently empty shops lingering on the edges of centres like flotsam on a beach at the high water mark.

A final suggestion – we have to make the public realm easier to work with. Too often the streets outside shops continues to be treated solely, or overwhelmingly, as a piece of transport infrastructure. Its potential social and economic role is overlooked and proposals to make improvements, when promote by developers, occupiers or BIDs are treated with suspicion or ambivalence, and the process for developing, agreeing and delivering proposals can be opaque and complex, when compared to the experience within a shopping centre.

Conclusion

I’m convinced that high streets, especially high streets in larger and, until now, successful town and city centres, will have a future after Covid. The desire of people to mix, socialise and spend time together will be heightened by current experience, which will demonstrate that Amazon and Zoom are poor substitutes for the sort of interactions that the centre of towns and cities can provide.

But to help this to happen quickly – rather than being forced into it later by the wave of Covid vacancies – we now need to move fast. High street change has been creeping on us for years; it has gathered pace in recent years and, with Covid, is now breaking on us like a flood. Urgent change to both directive policy, and to regulation, is necessary to allow high streets and city centres to change, compete and innovate. The current structure is not protecting them – it’s limiting their chances of success.