Appeal 6001564

The appeal is dismissed.

An application for costs has been made by [name] against the Council. This matter is subject to a separate decision.

In the interests of conciseness, I have utilised the description of development given in the decision notice as the description in the application form provided superfluous information.

The main issues are: • whether the proposed development would cause harm to the vitality and viability of local centres; and, • whether the proposed development would result in an over concentration of retail provision.

Chapter 7 of the National Planning Policy Framework (the Framework) addresses the need to support the vitality and viability of town centres. Paragraph 91 states that proposals for main town centre uses are required to undergo a sequential test, with a clear preference for sites located within town centres, followed by edge‐of‐centre locations. Only where no suitable sites are available in these areas should out‐of‐centre options be considered. Paragraph 95 concludes the chapter by confirming that planning applications which do not satisfy the sequential test should be refused.

Policies TP22 and TP24 of the Birmingham Development Plan 2017 (BDP) are referenced within the reason for refusal on this issue. Policy TP22 relates to convenience retail provision and confirms that such proposals will be supported within centres that form part of the established network of centres. It further states that proposals located outside a defined centre will be assessed against the tests set out in the Framework, alongside other relevant local policies. Policy TP24 focuses on promoting a diverse mix of uses within centres, stating that a broad range of uses will be encouraged and supported in order to enhance their overall vitality and viability.

The appeal proposal relates to a convenience retail unit. Annex 2 of the Framework identifies retail development as a main town centre use and does not distinguish between different scales of retail provision. The site lies within the area known as Rubery, which is not designated within the BDP as a sub‐regional centre, district growth point, district centre, or local centre. The evidence indicates that the nearest designated local centre within the BDP is Frankley, located approximately less than 1 km from the site. Given the proposed use and its location outside a defined centre, the development is subject to the sequential test.

No explicit sequential test has been provided in the evidence before me. The appellant alleges that that they have applied a sequential assessment which demonstrates that there are no available premises or sequentially suitable preferable premises within the nearest local centre of Frankley. This statement however is not corroborated with convincing evidence. As such, the proposed scheme is a main town centre use, outside of a local centre and it has not been demonstrated that there is an absence of available space within the nearest local centres. This leads me to the conclusion that without such evidence, this proposal would have an unacceptable effect upon the vitality and viability of the Frankley local centre.

In developing this conclusion further, I note that elsewhere in their case the appellant states that vacant retail units are available within the Frankley local centre, but argues that these are in a poor state of repair and that enquiries indicate an amalgamation of units would not be supported. This, however, suggests that units are in fact available, which contradicts the position advanced by the appellant in the earlier part of this decision. Moreover, no substantive or verifiable evidence has been provided to demonstrate that such enquiries were made, nor to establish the extent of refurbishment that would be required to accommodate the proposed development. I am also mindful of the submitted plans and my own observations during my site visit, which indicate that the appeal premises would themselves require renovation, including internal reconfiguration and the construction of an additional stock room as clearly shown on the proposed floor plan.

The appellant refers to 2021 Census data, highlighting that this area has an atypically high proportion of households without access to a car compared with the national average, and contends that residents are therefore heavily reliant on shopping trips made on foot. On this basis, it is suggested that residents are unlikely to walk the less than 1 km distance to the Frankley local centre. [name] acknowledge that not all residents will wish to, or be physically able to, walk this distance, for the majority of individuals it would not represent an unreasonable or onerous journey. More significantly, I am drawn to further evidence submitted by the appellant which indicates that the appeal site falls within Zone 24 (‘Quinton’), where approximately 28.9% of residents undertake their main shopping trips within that zone. This reinforces the point that residents are capable of travelling to undertake shopping trips.

An appeal decision1 has been cited by the appellant. Critically, as required by the Framework, this decision notes that a sequential test was provided in this cited appeal. This appeal does not include such a test. Therefore, immediately, these cases are comparatively different from each other in their approach to their applications for planning permission.

Reference to Policy TP23 of the BDP is made by the appellant, to which it is contended that the Council should have had regard to this policy in their determination of the application before them. Policy TP23 is concerned with small shops and independent retailing. It notes that the Council will seek to ensure that there is a range of retail premises across the city and will consider the need for a range of unit sizes. In particular, it notes that proposals which promote and encourage independent and niche retailers will be supported, with proposals such as markets also encouraged.

The evidence before me indicates that the appellant is an independent retailer, and there is nothing substantive to suggest that the proposal would serve a general national retail chain. However, Policy TP23 places particular emphasis on supporting niche retailers. The proposed development is for a convenience retail unit, which does not, in my view, constitute a specialised or niche form of retailing. Furthermore, during my site visit I observed that an existing convenience store already operates within the vicinity of the appeal site, reinforcing the conclusion that this type of provision is typical and commonplace. I am also mindful that, even if the proposal were to be characterised as a niche retail offer, Policy TP23 does not exempt such development from the requirements of the Framework or other relevant policies of the BDP.

To conclude, the proposed development would conflict with Policies TP22 and TP24 of the BDP and the requirements as set out in the Framework. I am also of the view that the proposed development would not meet the requirements as set out in Policy TP23 of the BDP, as raised by the appellant. The requirements of these policies have been previously discussed within this decision.

The Council argues that the proposed development would result in an over‐concentration of retail provision within the immediate area, which already accommodates an existing convenience store and a community facility. Policy TP24 of the BDP supports the encouragement of a diverse range of uses, but importantly, this applies to locations identified within the established hierarchy of centres. As set out earlier in this decision, the appeal site is located outside any designated local centre. Consequently, I am not persuaded that Policy TP24 is directly applicable to the main issue in this case.

However, in the interests of coverage, I have explored this policy in greater detail against this main issue. In addition, whilst seeking to encourage and support a range of facilities and uses to meet the day-to-day needs of its residents, Policy TP24 does not state that it will specifically resist the provision of retail units, 1 Appeal Ref: APP/A4520/W/19/3238653 whether within local centres are not. In fact, this policy notes that it is important to ensure that centres maintain a predominantly retail function and provide shops which this proposal would seek to provide.

Therefore, insofar as it relates to this particular reason for refusal, the proposed development would not conflict with Policy TP24 of the BDP, the requirements of which have been explored throughout this decision.

For the reasons given above and in taking all material considerations into account, the appeal should be dismissed.