As our high streets strive to reinvent themselves, many shopping centres face a similar challenge. Whatever the end vision, a range of interventions may be required – from internal alterations and change of use, to land assembly, demolition and complete redevelopment. But is the Scottish planning system sufficiently flexible enough to respond to the demands of the market and consumers, and is compulsory purchase an option if private developers are involved?

Could additional permitted development rights be the key to unlocking regeneration?

For major redevelopment schemes, planning permission will clearly be required. But where the existing building is to be retained with internal alterations only, planning permission will still be required for any material change of use. Many schemes will be driven by the need to introduce a different, more flexible proposition, for example, with a greater emphasis on food and drink, and leisure and entertainment experiences with the use of space evolving from day to evening or as individual events require.

This is a challenge for the often inflexible planning system. The Scottish Government is however currently consulting on the introduction of new and extended Permitted Development Rights (PDR), which allow specified development without the need for planning permission. The consultation looks at, amongst other things, the possibility of a combined use class for town centres uses – potentially similar to the English class E. This might bring together Classes 1 (shops), 2 (financial and professional services), and 3 (food and drink) into a single class to allow for easier movement from one to the other. Uses from other classes, such as art galleries (Class 10) and gyms (Class 11) could also be included.

While loosely badged as a "town centre" use class, the proposal under discussion would in fact have wider application – authorising the specified changes regardless of location.

At first glance, these proposals might be seen to remove a major planning hurdle to regeneration, allowing for increased flexibility and responsiveness. However, as we note in our recent blog the new class would need to be carefully considered and framed. In the absence of planning scrutiny, the mix of uses in an area may suffer, potentially accelerating the loss of retail spaces. While shopping centre landlords might expect to control this through their leases, unregulated changes in the wider area may still have an adverse impact, by either damaging the character of an existing area or by drawing footfall away to a competing location.

Time for masterplan consent areas to go live?

If expanded PDR is too blunt or limited a tool, the flexibility allowed by a masterplan consent area (MCA) might be attractive for large-scale regeneration schemes, extending beyond the shopping centre itself.

Although on the statute book, MCAs are not yet in force in Scotland, having been introduced as part of the recent planning reform. Similar in effect to the simplified planning zone, an MCA would authorise any specific development or development type identified within the MCA scheme which would be designed to meet the requirements of the particular locality. This could allow the flexibility to move routinely between pre-approved uses within defined parametres without the need to revisit planning, as well as authorising built development where needed.

An MCA may therefore take a more comprehensive approach but focussed on local requirements. It will however be for planning authorities to promote an MCA (once the statutory provisions take effect) and the process will take time, resources and commitment on the part of the authority. Scottish Government work on MCAs is ongoing, recognising the potential benefit to the regeneration agenda.

Developers attracted by the possibilities will need to work closely with the planning authority in question to ensure that any scheme best meets their aspirations.

When can Compulsory Purchase be used?

Compulsory purchase can facilitate major redevelopment schemes in a number of ways.

While a shopping centre will typically be held in single ownership, compulsory purchase may be used to acquire leasehold interests where necessary; extinguish problematic title conditions or enable a more comprehensive redevelopment of the area by assembling additional parcels of land.

Compulsory purchase is usually associated with "public" projects but planning authorities may also acquire land in order to transfer it to a third party for redevelopment, if satisfied that a robust case can made for doing so in line with planning policy - often referred to as an "agency" CPO. The CPO promoted by City of Edinburgh Council to enable the redevelopment of the St James Centre is a good example of this.

More recently, the Scottish Ministers confirmed a compulsory purchase order (CPO) promoted by Fife Council to acquire the Glenwood Centre in Glenrothes – a local shopping centre built by the Development Corporation in the 1970s - to enable redevelopment in a bid to regenerate the surrounding area.

Ultimately the Scottish Ministers will only confirm a CPO if satisfied that there is a compelling case in the public interest for doing so. For example, when confirming the St James CPO, the Ministers considered that the scheme would "bolster the city centre’s retail attractiveness, provide housing, employment and other amenities, improve the urban environment, stimulate tourism and generate associated economic benefits."

A CPO for redevelopment purposes may be promoted before planning permission for the scheme is in place, but it is usually preferable to secure permission upfront as this will reduce the scope for objection by parties who are opposed to the scheme.

As we discuss in this blog series, whether redeveloping or re-purposing, there are plenty tools in the tool kit to support the transition – some tried and tested, with newer tools emerging. Identifying the most appropriate solutions in partnership with the planning authority and other stakeholders will smooth the path to delivery.