The NPPF provides a clear framework for the application of the sequential approach to site selection at paragraphs 87-89, with a summary mechanism provided at paragraph 91.

The approach laid out at Policy DEV5 part 5 is inconsistent with the advice provided by the NPPF and it would be better if the policy simply replicated the advice of the NPPF or cross-referred to it.

The NPPF provides a clear framework in terms of impact and sequential considerations for DM matters through paragraphs 87-91. Impact is largely dealt with at paragraph 90 and sets out where impact assessment is required and also the key areas which should be covered. Additional guidance is provided by the NPPG and typically practitioners also refer to leading cases by way of precedent.

Policy DEV5 part 6 appears to provide an uncomfortable hybrid of sequential and impact considerations by conflating the need to identify more central sites with the prospect of adverse harm upon the vitality of centres. These are separate tests and their conflation is unhelpful and inconsistent with the NPPF.

The NPPF sets out that the default threshold for impact assessment should be 2500 sq m unless a lower locally set standard can be justifiably imposed. Policy PV5 from the adopted Plan (2014 Core Strategy) set that threshold at 500 sq m in the prism of impact on Warrington Town Centre. In addition, Policy SN5 adopts the same threshold in the context of other defined centres.

Whilst these thresholds were adopted as part of the 2014 Core Strategy they were subject to unresolved objections. We see no evidence within the 2021 Retail Study or other evidence base material to sustain why this policy is necessary and justified.

By way of context, it is worth remembering that the derivation of the 2500m sq m floorspace threshold in the NPPF (which arrived with PPG6) was a response to the growth of larger stores that could genuinely impact shopping patterns. In the context of food shopping, the 2500 sq m threshold triggered the definition of food superstore and in terms of scale these would typically be directed towards higher-tier centres.

Put simply, the threshold was not geared to the typical size of the existing units in a centre, but rather to the scale of the retail offer that would be necessary to genuinely impact upon the ongoing vitality of those centres.

Through revisions to national policy and changes in shopping offer, it has been noted that in some instances that retail units that would fall below that 2500 sq m threshold could genuinely impact shopping patterns especially if the centre demonstrated signs of vulnerability. However, these locally based thresholds must be properly justified. Our view remains that this was never achieved in 2014 and no effort has been made to substantiate it now, let alone to evaluate whether that policy has been effective.

By way of summary, the impact thresholds that have been arrived at essentially rely upon the premise that there is an inherent vulnerability in terms of centre vitality which justifies the use of lower thresholds. The threshold which has been arrived at (500 sq m) was a compromise because the Council originally sought to utilise a threshold of 200 sq m aligned to the average size of shop units in the smaller centres.

We fundamentally disagree with the intellectual basis for arriving at these thresholds. The thread of the Council?s argument is that health checks clarify that most units in the lower order centres are relatively small and that by consequence of the mantra of ?like competes with like? then it would be reasonable to impose controls such that any proposals for units which could ?compete? should be required to provide retail impact assessments. This is completely absent of the logic which is that floorspace thresholds are needed to consistently apply a requirement for analysis where a development proposal could support a format that provides a shopping offer that could genuinely impact shopping patterns.

We do not seek to argue that there is no case for a lower locally set threshold and can see that popular formats including the food discounters (such as LIDL and Aldi) can provide a compelling food shopping offer in units which fall below the NPPF threshold. As such, evidence could be compiled to underpin a locally set threshold but it would need to be aligned to a consideration of a format that would genuinely impact vitality.

Regarding convenience retailing, it does not appear realistic that a unit of 501m2 (which would only just accommodate a Tesco Express format) would create a material extent of impact to a town centre which would typically have a food retail offer anchored by a food superstore and/or a food discounter.

Certainly in that context, there is no reasonable basis to impose a threshold of 500 sq m for proposals for retail development outside defined town centres. It could be the case that an argument can be created to identify a locally imposed threshold but at this point there is no credible evidence-based argument to do so. It is not for the Representor to demonstrate what should be an alternative threshold, but rather it is the duty of the LPA and if unable to do so then the Plan should revert to the thresholds set out within the NPPF.

Part 8 of Policy DEV5 adds a further layer of policy requirement which would appear to impede the types of change that might well be provided through the changes to the Use Classes Order or to other secondary legislation and guidance that provides the opportunity for flexibility to support the vitality of town centres.

It is unclear from review of Policy DEV5 part 8 whether this is to be applied without geographic discretion or whether it would form part of an impact assessment that would be otherwise sought through part 7. As written, the policy is imprecise and appears inconsistent with the direction of travel of Government planning policy and related legislation. This fails the test of soundness and legal compliance.

The supporting text to Policy DEV5 refers to its evidence base material, and we particularly cite the cross-reference to the 2021 Retail and Leisure Study Update at paragraph 4.3.9.

It identifies that the Update has sought to assess the extent of future need for additional retail and leisure floorspace up to the end of the Plan period and that in terms of comparison goods expenditure that:
"With regard to comparison floorspace, the Assessment concludes that existing stores in the Borough provide an oversupply and therefore have the capacity to absorb needs over the plan period."

Whilst we do not make comment on that conclusion, it is important to flag that one specific assumption that underpins the capacity analysis within the 2021 Retail and Leisure Study Update (2021 RLSU) is flawed and makes a substantive difference to how these tables should be presented.

Paragraph 4.30 of the 2021 RLSU highlights that retail commitment schemes at Junction 9 Retail Park have been omitted, stating:
"Furthermore, we have not accounted for the retail units at Junction 9 Retail Park (planning permission references 2016/29425, 2016/28791 and 2016/27464) as this too has now been implemented."

The above statement is correct in part, insofar that the floorspace approved under 2016/28791 and 2016/27464 has been built and utilised. It is also correct to say that the 2016/29425 approval is extant but this is simply by virtue of constructing the site access and none of those units have been completed or occupied. As such, these should remain as commitments and by use of the same trading density utilised for the other schemes that equates to a commitment turnover of ?37.6m at 2021. This is important because the text within paragraph 4.31 identifies that (by ignoring the J9 commitment) that the need position would be marginal.

The obligations laid out within Policy INF1 will inevitably provide the opportunity to mitigate transport effects consequent from new development but it will have viability implications.

The Council has published a Viability report in its evidence base which highlights that INF1 is recognised as being one that could impact on viability (paragraph 6.1 and then paragraphs 6.14-6.16). Whilst the analysis does appear to have tested 25 different typologies and sought to provide a "policy on" approach in the context of those typologies, none of this is relevant to the application of these requirements as they would be applied to a major DM application on an out-of-centre but established retail park.

Policy ENV7 part 4 places an obligation on all major development to deliver either 10% of its energy requirement from zero/low carbon sources or to reduce carbon emissions from 10% as measured under Part L. This evidently exceeds national requirements and needs to be justified in terms of its impact upon deliverability.

The Council has published a Viability report in its evidence base which highlights that ENV7 is recognised as being one that could impact on viability (paragraph 6.1 and then paragraphs 6.35-6.39). Whilst the analysis does appear to have tested 25 different typologies and sought to provide a "policy on" approach in the context of those typologies, none of this is relevant to the application of these requirements as they would be applied to a major DM application on an out-of-centre but established retail park.