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Nicholas Boys Smith is the Director of Create Streets. Hugo Owen is a researcher at Create Streets.

Much has been written about “the death of the high street”. Scarred by shifting consumer habits, wounded by the ease of online delivery, the high street now faces a second post-COVID battle: in the post-pandemic world, will people dare to shop? Will they dare to eat or drink out?

Although the scale and longevity of the pandemic’s consequences remain unclear, some profound changes in how we interact within our environments seem very likely. Remote working will be more common. Local centres may gain in importance relative to city centres (if people stop commuting daily but still need to work away from home). In the short to medium term, many cafes and restaurants are going to struggle.

It is impossible to know what the future will bring. Risk is everywhere. Investment will be easy to put off. Landlords are nervous. For our high streets and town centres to remain vibrant and relevant places in a world post COVID 19, landlords and business will need to be able to invest with as much confidence in the future as possible. To achieve that, we should remove all risk we can from how they can use shops and commercial spaces.

At present, and simplifying quite a lot, the Town and Country Planning (Use Classes) Order 1987 sets out very compartmentalised classifications for non-residential property uses. These are A1 (shops), A2 (professional and financial services), A3 (restaurants and cafes), A4 (Pubs), A5 (Takeaways), B1 (offices), D1 (Non-residential institutions), D2 (leisure) and lots of other one-offs categorised in legal Latin as sui generis. For some changes of use, a full planning permission request is required. This costs money to submit and can take weeks or even months.

Others are covered by so-called permitted development – so in principle do not need planning approval. However, it is not as simple as that. Some permitted changes of use are still subject to ‘prior approval’. This can take just as long as full planning permission to secure. And if you want to prove that your change of use is legal you may be well advised to apply for a Lawful Development Certificate anyway. But then again you may not. Local Councils can withdraw permitted development. And there are restrictions in certain circumstances. Most ‘matrixes’ of what is permitted and what is not permitted run to nearly 100 lines and conclude by saying it is far more complicated and that you should read many pages of accompanying technical notes. And when you do have a stiff drink and a careful read, you find lots of anomalies. Why cannot a bank become a yoga studio? Why do we allow a laundrette to become an office, but not a shop? And if (as must be possible) someone is tempted to write in and say that actually we’ve got that wrong and in such and such a situation, those changes would, in fact, be possible, well you’re rather making our point for us.

To allow high streets to navigate the unavoidable period of uncertainty ahead, we’ll need to give them some flexibility. Rather than compartmentalising classes within their rigid disciplines, a new use class should be created that allows shops and offices in high streets and town centres to move seamlessly between different uses without any need for council approval. Shops, cafes, offices (A1, A2, A3, D1, D2, B1) should combine into one flexible homogeneous class – call it F for flexible. Maybe this new use class should become the default use class in many locations?

This need not be that radical. Similar suggestions have been made to the Greater London Authority. And an equivalent mechanism already exists in English planning law – but it is time-limited. Class V of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development, England) Order 2015 (we hope you’re still paying attention) permits commercial buildings to switch flexibly between different use classes during their first ten years. After the ten-year period the right falls away and the ongoing lawful use is ‘crystallised’ as the use carried out on the very last day of the ten-year period. The logic was to give new retail space the best possible chance of economic survival during its formative years by discovering what the market ‘wants’. But why restrict this to new units on new developments? Surely the same logic applies now at the very least to existing retail and commercial space within high streets? What is going to ‘work’ in the post COVID world? Who knows?

It is also possible for Local Plans to use Local Development Orders (known as LDOs) to achieve similar ends. LDOs allows local authorities to pre-permit certain changes or developments, such as, for example, change of use. Poole Town Centre has used LDOs to permit flexible changes of use between A1, A2, A3, B1 and D1 use classes on ground floor units. In February 2019, Llanelli Town Centre, with vacancy rates of almost 20 per cent, also adopted this approach, on ground floor and upper floor units. We are also aware of at least one London council which is actively considering something similar at present. No doubt there are others.

At least one neighbourhood forum has also tried to do something through its neighbourhood plan. The St Quintin and Woodlands Neighbourhood Plan in North Kensington has granted shops in three neighbourhood shopping parades the right to permanent change of use between A1, A2, A3, D1, D2, and B1 uses. According to one local resident; “it has helped to reduce the number of vacant shops. One long empty shop unit has become part of a neighbouring school, Bassett House School, which was short of space, as a D class use. It has been very well refurbished in the process.”

However, very few councils or neighbourhood plans appear to have taken advantage of this opportunity. Perhaps they don’t know about it? Maybe they don’t like to give away control?

It is not just post-COVID uncertainty that make the Flexible Use Class an idea whose time has come. Technology is making possible new types of pop-up shop or office that were just not conceivable a few years ago. Why shouldn’t a small business hire a shop for one evening or a few days as their perhaps limited customer base requires? Why shouldn’t a space that operates as a shop by day, turn into a dance studio or an art class by night? Technology permits both rapid change of décor but also hyper-targeted advertising. By allowing flexibility in use class, the opportunities are endless. The Flexible Use Class should permit not only changes of use from year to year but from hour to hour.

Other places, particularly smaller centres such as villages or old fashioned runs of shops in Victorian suburbs, might not be able to support a full time shop, pub, or post office, but could support a unit that operates as all three at different times of day. The new Flexible Use Class might make this easy. In a post COVID 19 world, in which potentially people commute less, there may be more need for shopping and social interaction in more local centres. Again, a Flexible Use Class would permit landlords to respond speedily to this opportunity. Such centres already exist at home and abroad but they tend to be the consequence of much labour. In the Dutch city of Groningen, for example, a new library building is part library, part meeting space, part science museum, and part recreational space. Let’s make it easy.

This not an argument for that tiresome conflagration, a bonfire of the red tape. Some regulation in the built environment is necessary. Not all use classes should be permitted. No iron smelting in the suburbs, thank you very much. And turning a shop into an office should never permit the destruction of an historic or attractive shop façade. There is a very good case for regulating how buildings look and affect the public realm. There is a very bad case for regulating what happens inside as long as there is no public nuisance through noise or pollution. There should be upper limits on factors such as hours of operation, air quality, noise and parking could be set through planning condition or by amending The Town and Country Planning (Use Classes) Order 1987. And if owners want to restrict how a unit is used, then, of course, they can and should.

High streets that are succeeding and performing their historic role as a place where a community comes together for agreeable business, shopping, and interaction, tend to be nice places to spend time. And they tend to be responsive to what people want. At present our regulation of the built environment is the wrong way round. The maintenance of the public realm, the quality of the carriageway, the way shops interact with the street, are all unavoidable civic functions. At any rate, city authorities have regulated some aspects of this since time immemorial. But, within the limits of public nuisance (no tanneries within the city gates!) there is no need to over-regulate what people sell.

The need to act is now. Many small businesses are facing systemic uncertainty as restaurants face the unavoidable unprofitability of social distance dining and shops just don’t know if people will come. Parliament showed us in March how fleet of foot it can be when need arises. Parliament should now permit the same flexibility and freedom to our high streets and town centres so that they can respond to the slings and arrows that await them in the months and years ahead. Who knows what the future holds? Right now, none of us do. So, let’s not pretend otherwise.

8 comments for: Nicholas Boys Smith and Hugo Owen: Councils should stop micro-managing what high street shops sell

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