Paignton
Neighbourhood Forum

Series

Lidl

Title

Lidl's Application Resubmission

Description

Letter from Lidl’s planning consultants (Rhian Lees at RPS) to Torbay Council’s Planning Officer Emily Elliot, dated 21 January 2021 .

Note: This analysis was written with the appalling treatment that Neighbourhood Forums received in the recent Inglewood Inquiry still fresh in the mind.

The response comprised eight pages of detailed stuff aimed at the planning officer, and thence at the planning committee.

So let’s distill it down to the bits that matter, and the bits hidden between the lines.

This issue goes to the heart of the planning process and subsequent development that meets the needs of the residents of Paignton. Our view, naturally, is that the needs of the residents should come before the wants of a national supermarket chain.

Lidl acknowledges that: “There are a number of matters to address and I will seek to deal with the majority in the commentary below.”

Doesn’t start well, it would have been preferable if ALL issues had been addressed.

Lidl lists the issues (it wants to address): “the need to provide additional retail units and general compliance with retail policy, drainage, archaeology, noise, landscaping and highways matters.”

However, the changes in the planning application itself relate almost entirely to the design of two, what I unkindly call “large garden sheds”, that could be constructed (assembled?) in the space previously already allocated at the corner of the carpark.

The fact that these units have been designed to match the style of the supermarket building is not good. Primarily due to the fact that the supermarket building is itself out-of-character with its surrounding area! So, if you don’t like the large supermarket building, your problem just got worse.

Unfortunately, “ecology matters will be dealt with under separate cover.”

We are yet to see a response to those ecology issues (despite the consultation period having already started). One can assume that it’s a serious issue because of the damage that has already been done to the site.

Provision of additional units

Apparently, Torbay Council asked for the design of the two “additional retail units” to be included in the proposal. Why is unclear. It doesn’t seem to address any the objections from anyone else. Maybe the Council thought it would add weight to the proposal. It doesn’t, especially as “Lidl will not accept any condition that requires the units to be built out or occupied prior to the first beneficial opening of the new Lidl store.”

Lidl won’t invest in the units until it is deriving ‘benefit’ from its proposed supermarket.

By the way Lidl, it’s not a ‘store’… it’s a large supermarket and carpark.

Besides, it doesn’t help the character of the “local centre” if the two units look like bolt-ons to the supermarket. Lidl seems to think that units that look like the supermarket will “maximise their marketability”. What about maximise their appearance to the residents of Paignton?

Size

Lidl then quotes Local Plan Policy SDP3.2, stating that it allocates “between 330sq m and 550sq m for a new local centre at White Rock, yet when Lidl’s proposal was considered by Torbay Council, there was no request for additional retail units.”

So, Lidl has provided designs of two additional units, as per Torbay Council’s request but complain about having to construct them.

This paragraph is particularly telling:

“I appreciate every application must be considered on its merits but as we emerge from the global Covid pandemic, how a post Covid world might look like in retail terms cannot be predicted and it would place an unfair burden on Lidl to require the units to be delivered when there is no guarantee there will be a demand. “

Unfair? We really don’t want to be unfair to a national supermarket chain.

The remainder of the letter then goes into great numerical detail predicting precisely how the future would look!

Then there’s a 'furthermore’:

“Furthermore, a condition requiring the units to be built out prior to the first beneficial opening would not meet all of the tests set down by paragraph 55 of the National Planning Policy Framework in that such a condition would not be necessary or reasonable. Planning policy guidance also makes it clear that conditions requiring a development to be carried out in its entirety should not be used:

“Conditions requiring a development to be carried out in its entirety will fail the test of necessity by requiring more than is needed to deal with the problem they are designed to solve. Such a condition is also likely to be difficult to enforce due to the range of external factors that can influence a decision whether or not to carry out and complete a development.”

All this fuss for a couple of pre-fab units, a fraction of the size of the overall supermarket and carpark.

There’s more:

“To reiterate however, a condition requiring the units to be built out prior to the first beneficial use of the store will not be accepted.”

… and if you put one in we’ll fight it by citing national planning policy guidance.

Scale

The Great parks Masterplan set aside 550sq.m. of retail space as part of a “local centre”. This is important, the (consulted) masterplan has specified a local centre with a range of shops, similar to Foxhole where there’re a mid-sized Co-op, convenience store, fish & chip shop, hairdressers, cafe… you get the idea. Opposite is a children’s playground… it forms the basis of a community.

Here’s the one Paignton Neighbourhood Plan Policy that Lidl addresses: PNP20. Note, the Paignton Neighbourhood Forum highlighted non-compliance with eight Policies… Lidl only addresses one, PNP20. Perhaps it thinks the others won’t prevent it getting planning permission.

Lidl argues:

“In the Officer’s view, this puts the application in conflict with Policy PNP20 of the Paignton Neighbourhood Plan and also Local Plan Policy TC3(B)1. However, neither policy includes a floorspace limit. Policy PNP20 states that completion of development proposals at Great Parks will be supported in accordance with the Masterplan. Policy TC3(B)1 simply requires local centre retail facilities to be of a scale appropriate to the nature and size of the centre.” There is simply no way to argue that a large supermarket and carpark is of a “scale appropriate to the nature and size of the centre” but Lidl tries:

“I acknowledge the quantum of floorspace exceeds 550sq m, this is an arbitrary figure set in the Masterplan that has not been subject to any detailed scrutiny.”

So despite all the consultation of the masterplan, Lidl considers the 550sq.m. figure to be ‘arbitrary’.

The tactic is then to minimise the consideration that the required size should have: its weight:

“To retain support for a local centre within the 2013 Masterplan and dictate the size to be no more than 550sq m without any sound technical studies to support it brings into question the amount of weight that should be afforded to the Masterplan in the decision making process.”

Switching to the Local Plan:

“The application proposal should be assessed primarily against the policies of the Local Plan, not supplementary planning guidance documents, which are only classed as material considerations.”

This is incorrect: the application proposal should be assessed primarily against the Development Plan (Local Plan and Neighbourhood Plan). So the consulted Paignton Neighbourhood {lan is brushed aside, as is the consulted Masterplan.

We’ve seen this before (ref: Inglewood Inquiry)… brush away entire plans.

What developers fail to understand is that they are brushing away people, not plans.

Local deprivation and food poverty

This is without doubt a very serious problem. There are people in Great Parks and Foxhole who are impoverished. That’s why the Great Parks Masterplan offering a local centre and range of shops is important.

Lidl goes to lengths to highlight why its large supermarket offers a better range of “fresh fruit and vegetables and fresh meat products” at “7%” cheaper than so-called smaller stores such as Tesco Express or Sainsbury’s Local.

It even claims that such stores “would do very little to tackle local deprivation and food poverty”. A grand claim.

The Forum intends to do more research into such claims. It’s important that towns are not pushed into accepting large supermarkets that are out-of-place and out-of-character.

Another claim: “The Lidl store would also offer twice the number of jobs a smaller convenience store would. The value of these jobs as Torbay recovers from the Covid pandemic cannot be overestimated.”

Sadly for those concerned, this statement does not take into account the loss of jobs from businesses that Lidl acknowledges would lose trade.

Which, again Lidl goes to lengths to numerically quantify. But, summarising, any loss of business for shops in Preston, Foxhole, or on Kings Ash Road will “not be significant".

This is one hell-of-a statement to direct at those stores which are already suffering from trade-loss due to online purchasing. The Forum intends to do much more research into this area. This segues into the Town Centre.

Another not-good-reading for the Paignton Neighbourhood Forum members:

“Furthermore, whilst Policy PNP20 of the Neighbourhood Plan states development proposals that accord with the Masterplan will be supported, for the reasons set out above, the floorspace threshold, and the scale of development that it implies, should be disregarded.“

In terms of town planning, we are all getting a bit tired of being “disregarded”.

More on interpretation of planning policies:

“The conclusion that the proposed development satisfies the sequential test is caveated that it is dependent on the retention of Lidl’s existing store in Paignton Town Centre. However I do not believe that accurately reflects the sequential approach to site selection that is set down in the NPPF. The test is whether now, or in a reasonable period of time, a suitable site will be available to accommodate the proposed development, and whether Lidl will close their store at Victoria Square sometime in the future is not material.“

Again, why would Lidl want to deflect from the existing store at Victoria Square?

Lidl: “Currently Victoria Square … has a number of constraints including a lack of decent surface level parking and no main road frontage.”

We don’t want main road frontage that degrades the look of our town. It’s not as if people don’t know where the supermarket is!

Lidl: “No Limited Assortment Discounter (“LAD”) can be expected to develop a sub-standard store that will not be able to compete effectively with its competitors, simply to satisfy the sequential approach.”

A “Limited Assortment Discounter” is a nice way of saying a store than only offers a limited range of products sold as cheaply as possible to maximise profits. And, its ability to compete is not our concern… our town of Paignton is.

“Whether a suitable site could be made available is the next test, but that will require additional land along the road frontage and it is unlikely that it could be assembled in the short term.”

Large supermarkets and associated carpark along the road frontage… presumably by knocking down the shops that are already there?

Impact

In 2013, Torbay Council commissioned a revealing report: Torbay Retail Study Update 2013. This gives a great detail of background into the issues and calculations for determining the demands of retail shopping in Paignton. As mentioned above, the Forum will be doing a lot more research into this. Whilst Lidl goes into detail of “Quantitative Capacity”, one line from the report states: “These trips are shared amongst the town centre, Preston district centre, the two out of centre supermarkets and local shopping facilities (primarily stores in defined local centres).

Of note is that we now have four supermarkets on the Brixham Road, and a Bookers, and a Morrisons not far away.

This from the Council’s report:

“In order to improve the health of Torquay, Paignton and Brixham town centres, and to improve the role of Torquay in the regional shopping hierarchy, we recommend that the Council will need to be proactive over its promotion of town centre development sites.”

We cannot consider large supermarket developments independently of the effects on our “scruffy and run-down” town centre.

Lidl itself even makes this point:

“Some of the existing stores in Paignton have ceased trading, notably the Co-op in the Crossway Centre which had a benchmark turnover of £.2m, and that will also have increased quantitative capacity.“

The clear implication being that people stopped shopping in the Town Centre, having moved their purchasing out to the already SIX supermarkets on the periphery.

From Lidl: “there is no longer any requirement for an applicant to demonstrate a need/quantitative capacity for new development, and accordingly the fact that your 2013 Retail Study shows no capacity has no relevance to the determination of the current application.”

Broken planning system anyone?

Town Centre Health Check

Lidl calmly states: “As at 2018 the proportion of convenience outlets within the centre was the same as the national average, and an increase over the preceding years. Vacancy rates were slightly higher than in 2013 but not very far above the national average and likely skewed by the Crossways Shopping Centre which remained vacant."

It gives us no comfort to know that out Town Centre is round about the “national average”.

“My colleague undertook a site visit to the town centre during the Covid lockdown”

Oh, really. But anyway, to continue…

“Lidl’s existing store on Victoria Square is served by a multi-storey car park which is in poor condition, not suited to larger modern vehicles and poorly designed to serve main food trolley shopping.”

Reference: Lidl not wanting to commit to keeping its town centre supermarket open.

Referring to the pandemic, Lidl admits: “which is forcing many retailers in to administration.”

Impacts on Small Shops/Foxhole Local Centre

Local shops should be our main priority. Often overlooked is that these shops tend to keep their profits in the local economy. National chain shops do not. Money leaks out of the local economy.

Lidl: “In terms of the potential impact on small shops, any that are not located within a designated centre are not protected by retail policy.”

A great relief for the small shops then.

Further, Lidl casually states: “Given the £500,000 of spending expected to be drawn from small shops will be spread across the five convenience outlets in Marldon and Foxhole as well as other shops elsewhere on the west side of Paignton, I do not expect that the levels of impact on any individual stores will be significantly adverse.”

This is where we need the input, financially, from these smaller shops. Will they seriously say: “Yeah, it’s OK losing half-a-million during a global pandemic and a surge of online shopping.”

Section 106 agreement

A Section 106 agreement basically states planning obligations that the applicant must agree to should the application be approved. This from Lidl: “The Strategic Policy Officer has stated that the Lidl store in Victoria Square in the town centre should be kept open for a minimum of 10 years from the opening date of the new store, to be secured through a Section 106 agreement. This is wholly unacceptable and unreasonable and Lidl will not sign up to a Section 106 agreement with such a restrictive clause.”

The point of clauses in an agreement is that they are restrictive. It’s the applicant’s right to object but it’s totally up to them whether they agree or not. Torbay Council is acting on the behalf of the people of Paignton who elect/employ them. So, restrictive clause are there to protect us.

Lidl: “Forcing Lidl to keep the town centre store open for a minimum of 10 years is neither fairly nor reasonably related in scale and kind to the development.”

Why would Lidl be so concerned? It gets better:

“For the reasons above, Lidl also consider they erred in signing the S106 agreement for the store at White Rock, which already requires the town centre store to remain open until 30th January 2024.”

Is that like “Sorry, I mis-spoke”. They are concerned that they have committed to another three years?

Lidl: “Fundamentally there is no policy justification for seeking to ensure the town centre store remains open beyond the date already set and my advice to Lidl is to resist any similar request. Lidl’s position therefore remains that they will not sign any Section 106 that requires the town centre store to remain open. If the Council disagrees with this position I would ask that you seek external professional advice on the matter.”

“Policy justification”. How about “people justification”?

Lidl then pushes quickly past other issues. With good cause, however. Information has not been submitted to them (or us). And yet, this is at the crucial point, Torbay Council has commenced the period for consultation, that is for the Paignton Neighbourhood Forum and others, to comment without the documents that we need. This also happened with the initial application… the clock was started and comments continued to be published.

Drainage

Lidl “Additional information to address the objection of the Council’s Drainage Officer was submitted on 21st December. I do not believe the Officer has responded to the latest submission and I would be grateful for any update you can provide.”

Archaeology

Lidl: “A Written Scheme of Investigation (WSI) has been prepared by RPS and submitted to Devon County Council for initial comments. Once these are received, the WSI can be formally submitted.”

Noise

Lidl: “The Council’s Environmental Health Officer has requested that the noise impact on the potential future homes on the adjacent land be assessed.

“There is no committed development proposal to develop the land for housing and if and when that does come forward, it would be the responsibility of the residential developer to consider noise from the Lidl store and mitigate appropriately. For Lidl to try and second guess how any residential scheme might be impacted is a purely hypothetical exercise. The request is ultra vires.”

“There is also a 2.1m high acoustic fence proposed along the boundary which will provide significant mitigation. It is unreasonable to expect Lidl to potentially include very expensive noise control measures to cover every eventuality in terms of the design of the future residential development.”

Who said “every” eventually? At least give it some thought.

On a point of appearance, who wants to look at a 2.1m fence around the development?

Highways

A response to the request from WSP for further information was submitted on 16th December 2020. I would be grateful for any update you can provide on their response to that information.

Conclusion

One of the biggest problems we face is the information that is presented to the Planning Committee. In this case the main application document is the Design and Access Statement. It shows a green field and contains statements about what Lidl will do if the planning application is approved. This is misrepresentation. The site has already been cleared and the existing scrubland and habitat destroyed.

We aim to be an additional source of information for our Planning Committee Councillors.

Over a hundred people have commented on Torbay Council’s website who said that they support the application.

Lidl’s so-called public consultation consisted of one question: Do you support the proposed Lidl foodstore at Kings Ash Road, Paignton?

Of course, the vast majority would say yes… who wouldn’t want shopping closer to home?

The problem is, in Lidl’s own (very) small-print: the data will be “used to lobby local Councillors”.

To Lobby: Verb: “seek to influence on an issue.”

We fully support residents’ desire for food provision close to home. To argue that that can only come from a large supermarket and carpark is ignoring the community plans that were set in place for Great Parks.

We must ask the question: How to we get to a position where one end of Paignton has six large supermarkets, and the other end has none?

The answer cannot be: Let’s build a seventh.

Follow the ideas and aspirations behind the Great Parks Masterplan. The residents said that’s what they want. (And, of course, Great Parks Phase 2 helps with the Housing Land Supply... but that's a bigger issue).

Last Updated: Friday 17 December 2021