Month: August 2016

(Rights Of) Light Relief: Section 203

Section 237 must be one of the best known sections of the Town and Country Planning Act 1990, beloved of planning lawyers – as for once we can be useful to our property colleagues.
Section 237 of course ensures, after an appropriate amount of detailed lawyering, that development can proceed without risk of injunctions from those whose easements (eg rights of light) or other rights (eg the benefit of restrictive covenants) may be affected. Where a local planning authority acquires an interest in land for planning purposes, or, where it already holds the interest, “appropriates” it for those purposes, interference with those interests or rights gives rise only to compensation rather than any risk of an injunction.

Although perhaps no surprise given the fact that the procedure is more than 50 years old, dating back to at least the Town and Country Planning Act 1962, it is very light in terms of process. Despite its effect being the removal of third parties’ private law entitlement to injunct against infringement of their rights, there is:

– no express requirement to consult with or even notify those potentially affected

– no statutory register to check where it has been used (see eg the ICO’s decision following a refusal in 2015 by Westminster City Council to provide information as to the occasions in which it had used section 237)

– no right on the part of those affected to object or have their grievances considered by an independent body, even though, because compensation is assessed on the basis of dimunition of value of their interest as a result of the interference (which will usually be less than the level of damages or settlement payout they could have secured in lieu of an injunction) the financial implications can be significant.

The power is useful in conjunction with use of an authority’s compulsory purchase powers, to ensure that, once land for development has been compulsorily acquired, problems will not arise through third party rights over the land acquired. However, nowadays the power is often used by authorities who are not looking to acquire land in their own right but rather looking to de-risk a development, hand in hand with a developer’s negotiations with those whose rights of light and other rights and easements may be affected – the approach of the courts to rights of light infringements still being difficult to predict (eg recently the Court of Appeal in Ottercroft Limited v Scandia Care Limited and Rahimian). The authority will proceed on the basis of an agreement by the developer to underwrite the authority’s compensation liability and (where the authority does not already have a legal interest in the development site) arrangements for the authority to acquire a freehold or leasehold interest in the development site – usually for a limited period of time and structured to minimise unnecessary risks and SDLT liability, prior to the interference occurs. 

Most recently the Corporation of London’s April 2016 decision to use the power to assist the development of 22 Bishopsgate attracted much publicity, possibly due to the nature of the scheme, which will become the City’s tallest building, rather than anything unusual about the use of section 237. 


Since 13 July 2016 the section 237 mechanism has been replaced by the similar (but slightly different!) power in Section 203 of the Housing and Planning Act 2016. 

The main changes between section 237 and section 203 are that:

• section 203 can be utilised not just by local planning authorities but other bodies with compulsory purchase powers, including statutory undertakers;

• in order to rely on the power, the authority must show that it “could acquire the land compulsorily” for the purposes of carrying out the development;

• there is an express exclusion in relation to easements or rights enjoyed by the National Trust;

• the new section expressly limits the power to situations where the development that creates the interference is related to the purposes for which the land was acquired or appropriated (a gloss upon section 237 that had been established by Midtown Limited v City of London Real Property Company Limited ). 

It is odd that once the decision was taken to update the section 237 procedure, more was not done to resolve the uncertainties that surround its operation, particularly given that by definition its use is usually contentious, being designed to affect the relative negotiating strength of potential litigants. The uncertainties are well described in a 2011 paper by Neil Cameron QC. 

The “could the authority acquire the land compulsorily?” test in section 203 is bound to lead to litigation. It was an open question under section 237 as to whether, before using acquiring or appropriating, the authority had to meet the same public need tests as would need to be satisfied were it to compulsorily acquire the land and as to whether consultation and negotiation was first required with those whose rights were to be affected. The main judicial authority for that position is a first instance ruling by McCullough J in R v Leeds City Council ex p Leeds Industrial Co-operative Society Limited, 1997. That, and the enactment of the Human Rights Act 1998, has led to additional caution as to the steps to be taken before invoking the procedure, including:

– identifying those likely to be affected

– seeking to resolve matters by negotiation, potentially on the basis of a more open discussion that one based solely on diminution in value as the basis of any settlement

– consideration by the authority of whether there is a compelling case in the public interest for use of the power and whether the tests in section 226 (compulsory purchase of land for planning purposes) are made out

– ensuring that there is the authority gives reasonable publicity to its decision to rely on the power (so as reduce the risk of a claim for judicial review of the decision being allowed out of time). 

Care is also needed in determining the structure for granting the authority an appropriate interest, so as to ensure that there can be no complaint about state aid or disposal of land at an undervalue (when the authority is called upon to relinquish its interest). 

The gnomic drafting of section 203 will continue the debate as to just how much needs to be done in order for the procedure to be legally effective. 

Simon Ricketts 26.8.16

Personal views, et cetera

Section 106 Disagreements

If CIL is to beat a retreat in relation to major developments as rumoured (June 2016 blog post  – although we’ll now need to wait for Parliament to resume in the Autumn before we learn any more of the CIL working group’s thinking) it’s more important than ever that the section 106 process works as well as it can. Used well, it is a powerful and effective mechanism and there is no need at all for negotiations to become protracted.
Unfortunately the Government continues to snatch at the issues. Section 106 agreements come in all shapes and sizes, from the simplest agreement to secure a specific contribution tocomplex agreements in connection with urban extensions and large mixed use projects, amounting to public/private sector agreements to govern the delivery, over decades hand in hand with development phases, of many hundreds of millions of pounds of social and physical infrastructure – and where issues such as the appropriate ring-fencing of obligations to appropriate parts of the site, enforcement protocols, reasonable future-proofing, interaction with CIL, viability review mechanisms and long-term maintenance arrangements can come to the fore in a variety of permutations.  
Legislative changes

Regulations 122 and 123 of the CIL Regulations 2010 have set trip hazards for LPAs and developers: section 106 agreements that do not comply with those regulations which are relied upon by LPAs in granting planning permission render the LPA’s decision liable to judicial review by third parties. 

Regulation 122 placed in statutory form the previous policy test that a planning obligation must be necessary to make the development acceptable in planning terms, directly related to the development and fairly and reasonably related in scale and kind to the development. Examples of Regulation 122 leading to permissions being quashed include Borough of Telford and Wrekin v Secretary of State  (Court of Appeal, 2 April 2014), Oxfordshire County Council v Secretary of State  (Lang J, 3 February 2015 – monitoring obligations) and R (Mid-Counties Co-operative Limited v Forest of Dean DC  (Singh J, 6 April 2015). 

Regulation 123(2) bites against planning obligations in relation to the funding or provision of infrastructure on the LPA’s Regulation 123 list. Regulation 123(3) introduced the “pooling” restriction, where five or more planning obligations have been entered into within an LPA’s area since 6 April 2010 that provide for contributions to the same infrastructure project or type of infrastructure.

It is often difficult to get to the bottom of whether these restrictions would be, or have been, breached as well as how “infrastructure project” or “type of infrastructure” is to be interpreted. It is difficult enough negotiating a satisfactory mechanism to overcome legitimate planning concerns without having to guard against the risk of a judicial review based on alleged non-compliance with these broadly stated requirements. 

These are not the only trip hazards of course – for example there is the often-overlooked requirement in Article 40(3)(b) of the Development Management Procedure Order 2015 for the LPA to put “proposed” planning obligations on the planning register (although not every travelling draft amounts to a planning obligation that is “proposed” eg see R (Police and Crime Commissioner for Leicestershire) v Blaby District Council  (Foskett J, 27 May 2014)). 

Further constraints are still to come, via section 5 of the Housing and Planning Act 2016 (the “starter homes requirement” to be delivered in a specified form by way of section 106 agreement) and via section 159 (which enables the Secretary of State to render unenforceable specified planning obligations in relation to affordable housing). Following the Government’s victory in Secretary of State v West Berkshire Council  (Court of Appeal, 11 May 2016) the Planning Practice Guidance now again has the exemption introduced in 2014 for developments of 10 units or fewer and developments with less than 1,000 square metres of floor space from the requirement to contribute towards affordable housing.

We also now have (albeit awaiting draft regulations) the dispute resolution mechanism introduced by section 158 and Schedule 13 of the Housing and Planning Act 2016. 

The explanatory notes to the Act explain the mechanism as follows:

“Appointment of a person to help resolve disputes

This Schedule requires the Secretary of State to appoint someone to resolve issues that are holding up the completion of planning obligations. 

The duty to make an appointment arises where certain conditions are met. There must be an existing planning application. The local planning authority must be likely to grant planning permission if satisfactory planning obligations are entered into. There must usually be a request from the local planning authority or from the applicant. 

The Secretary of State can also make regulations setting out:

who, other than the local planning authority and applicant, could make a request for the appointment of a person;

the timing and form of requests;

that a person can be appointed if outstanding issues have not been resolved within set timeframes (regardless of whether there is a request); 

further detail about appointments, including about when a request cannot be made and about when a request could be refused; 

what qualifications or experience the appointed person must have; and

any fees payable.

There are temporary restrictions on the steps that can be taken in relation to the application until the dispute resolution process concludes.

The appointed person 

The local planning authority and the applicant must co-operate with the appointed person and comply with any reasonable requests. Regulations can also enable the appointed person to award costs if one of those parties fails to comply or behaves unreasonably.

The appointed person must produce a report that sets out:

the unresolved issues and the steps taken to resolve them; and

the terms agreed, or where the terms have not been agreed, recommendations as to what terms would be appropriate.

The appointed person must take into account any template or model terms published by the Secretary of State. Regulations can also set out other details about what the appointed person must and must not take account of.

The local planning authority must publish the report in line with any requirements set out in regulations. Regulations may also provide a process for making revisions to a report.

An appointed person may be appointed to consider two or more planning applications at the same time if the same or similar issues arise under them. In such circumstances a single report may be produced.

After the appointed person’s report

After the appointed person issues a report, a local planning authority must comply with the obligations in this Schedule.

Where planning obligations are entered into in line with the report, then the local planning authority must not refuse permission for reasons relating to the appropriateness of the planning obligations.

The parties may agree different terms, but they will only have a limited period to do so, which will be set out in regulations.

Where no obligations are entered into within a set period, the application must be refused. This is to ensure that the matters come to a conclusion quickly.

Regulations can also set out restrictions on the local planning authority’s ability to ask for additional obligations at this time. Any such restrictions would be designed to ensure that the report is given proper effect by the local planning authority. Regulations can also set out:

periods for determining planning applications after a report is issued; 

circumstances or cases where the consequences in this Schedule don’t apply; and

any further steps required to be taken by the appointed person, the local planning authority or the applicant in connection with the report. 

Where an appeal is lodged, the person determining the appeal must have regard to the report but is not bound by it.”

Will this complicated process be much used or lead to quicker, better, negotiations? My reading of a number of the responses to its February 2015 technical consultation  was that it had less than whole-hearted support from even the private sector. You may remember that due to the impending General Election we then had the Government’s response  in record time the following month, with its proposed way forward in section 4.

In reality, an impasse in section 106 agreement negotiations is rarely down to one defined issue capable of resolution but can relate to a whole host of inter-linking factors, potentially involving parties beyond the LPA and applicant for example other authorities (county and district not seeing eye to eye on “county” issues is a growing concern), land owners and/or funders. 

Other legislative changes come and go, for example the time-limited section 106BA ability (until 30 April 2016) to apply to amend affordable housing provisions in section 106 agreements where necessary to render development viable, introduced in the Growth and Infrastructure Act 2013, announced in the Government’s 2015 Autumn Statement as to be extended and then abruptly left to expire.

Policy changes

The NPPF has only brief references to the section 106 agreement process (with nothing on timescales for their completion):

“203. Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition.

204. Planning obligations should only be sought where they meet all of the following tests:

● necessary to make the development acceptable in planning terms;

● directly related to the development; and

● fairly and reasonably related in scale and kind to the development.

205. Where obligations are being sought or revised, local planning authorities should take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned development being stalled. “
At the same time as the March 2015 Government technical consultation response we had a very minor beefing up of the planning obligations section of the Planning Practice Guidance  :

“When should discussions on planning obligations take place?

“Discussions about planning obligations should take place as early as possible in the planning process, including at the pre-application stage. This will prevent delays in finalising those planning applications which are granted subject to the completion of planning obligation agreements.

Can planning obligations or heads of terms be on a local list? [answer: information about proposed planning obligations should not normally be made a validation requirement].

Local planning authorities are encouraged to inform and involve all parties with an interest in the land and relevant infrastructure providers, including county councils where appropriate, at an early stage to prevent delays to the process.”

Practical steps

An updated version of the Law Society’s model form of section 106 agreement, endorsed by DCLG (but openly consulted upon first please) would be helpful. The current version dates from June 2010 (predating all of the law and policy referred to in this blog post!). LPAs and developers alike could be advised more strongly that its terms should not be departed from without good reason – there is still far too much reinventing of the wheel and inconsistency of approach between LPAs and indeed between individual lawyers. The reference to a template or model terms in the passage above is encouraging. We need to move away from a bespoke tailored approach towards the “off the peg” department wherever we can…
Particular complexities arise in relation to negotiating viability review mechanisms. Again greater standardisation (which first needs greater standardisation of the approach taken by valuers to viability appraisal for section 106 purposes) would reduce a huge amount of detailed drafting and negotiation. 

There can be a bottleneck when it comes to the LPA’s internal legal and other officer resources, often despite the fact that the applicant is willing to pay for the LPA to outsource its legal work (not that outsourcing is in any way a universal panacea and on a complicated scheme a range of officer input is required). Proper discussions on the section 106 agreement still usually start far too late, with the difficult issues not grappled with until the lawyers have been instructed and start probing as to what the heads of terms actually mean…

The Local Government Ombudsman could usefully take a less hands-off approach than at present to complaints about undue delay. Its present stance (illustrated by this September 2014 ruling )  appears to be that the applicant’s remedy is simply to appeal to the Planning Inspectorate on the basis of non-determination of the application within the statutory period. 

Most usefully however, we could all re-double our efforts to ensure that we only include within section 106 agreements that which is absolutely necessary. If something can be addressed by planning condition, use a condition! 

Simon Ricketts, 20.8.16

Personal views, et cetera

Back Yard Back Handers

The idea, set out in the prime minister’s announcement  in relation to the Shale Wealth Fund, of the planning system encompassing direct payouts to households affected by shale oil and gas proposals, is an eye-opener on various levels – particularly given the suggestions that this will not stop at shale.

I set out below some reasons why I believe it is a wrong move and/or will not work. 
However, the proposals don’t come entirely out of the blue. 
There has been a community engagement charter since June 2013 in relation to oil and gas from unconventional reservoirs  It includes commitments from the industry to:
“Provide benefits to local communities at the exploration/appraisal stage of £100,000 per well site where hydraulic fracturing takes place;

Provide a share of proceeds at production stage of 1% of revenues, allocated approximately 2/3rd to the local community and 1/3rd at the county level”
Community benefit packages like this are not new. There is also a non-statutory process in relation to on-shore wind. Community Benefits From On Shore Wind Developments  published by DECC (as it then was) in October 2014, describes a voluntary protocol agreed by the on shore wind industry. It commits developers of onshore wind projects above 5 MW in England to provide a community benefit package to the value of at least £5000 per MW of installed capacity per year, index-linked for the operational lifetime of the project. There are equivalent schemes in Wales and Scotland. The guidance stresses that payments should not be taken into account by decision-makers in determining applications. There is much focus on identifying appropriate community bodies and working through how benefits can most be effectively used by the community, with no suggestion of the monies being able to be shared out for personal gain. 
With fracking, the potential move to individual payouts was flagged in January 2014. As part of announcements that local authorities would in 100% of business rates from fracking,  it was announced that the industry would further consult about its community benefits packages, “with options including direct cash payments to people living near the site, plus the setting up of local funds directly managed by local communities”. 
For an industry paralysed by opposition to its proposals for exploratory wells, let alone extraction, this is presumably a fairly desperate attempt to turn the tide of local opinion. But the implications of such a scheme would go way beyond energy policy. Again, extending such ideas to housing is not new. Then deputy prime minister Nick Clegg was reported in August 2013 as promoting the idea of payments for those affected by garden city proposals.
These are seven obvious concerns:
1. It won’t reduce the opposition
Objections are not necessarily limited to the immediate environs of the project. People have strongly held concerns about (in the case of fracking) the potential effects of shale oil and gas extraction on the environment and on climate change more generally. Those non-local objectors will not be “bought off” by any direct payment. 
Nor will local objectors, whose concerns are, it is to be assumed, strongly held and not necessarily swayed by cash. Indeed a December 2014 research report on public engagement with shale gas and oil commissioned by the previous Government would appear to support that view.  Chapter 5 addresses mixed reactions to community benefits packages: 
“The financial aspect of the package was met with discomfort for many, because it was seen to monetise the risk taken on by the community, and was thus seen as a bribe by some. The fact that money was offered was also seen to indicate the activity was extremely high risk and dangerous, as participants were unaware of money being exchanged in other situations. “

2. Contamination of the planning process

Regulation 122(2) of the CIL Regulations 2010 provides that
“A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—

(a)necessary to make the development acceptable in planning terms;

(b)directly related to the development; and

(c)fairly and reasonably related in scale and kind to the development.”

It is of course a fundamental principle of the UK planning system that planning permissions cannot be bought or sold. However, let’s face it, our system is already influenced by financial considerations. For example:

– the Localism Act 2011 amended section 70 of the Town and Country Planning Act 1990 so as to require decision-makers to take into account in their decisions “any local finance considerations, so far as material to the application”

– local authorities are rewarded by Government for allowing homes to be built, by way of the new homes bonus and the business rates system increasingly encourages authorities that go for growth. 
– a proportion of CIL receipts is payable to parish councils, with little restriction in practice on what the monies can be spent on.
There is nothing necessarily wrong in my view with these interventions. Monies are directed to democratic bodies acting in the public interest. But we should be planning for the long term, for future generations rather than those who happen currently to live beside a major proposal. 
3. This is not about compensation for impacts
The VOA reported in August 2014   that there is no evidence that shale oil and gas exploration will affect house prices. I assume their view has not changed. 
The compulsory purchase compensation system provides protection for those whose land interests are taken or where, even if no land is taken, there is reduction in land value due to the physical effects arising from the operation of development projects. The common law of nuisance provides additional protections. 
4. It will be complicated
Who draws the boundary lines that determine who qualifies? What distinctions are there between home owners and tenants? Will there be minimum residency requirements? What about second home owners? What about clawback if people move out of the area within a short period of time, having accepted the payment? How will it be treated for tax purposes? All in all a lot of detail to be resolved and even the. There will inevitably be those who feel that they have been unfairly excluded. 
5. Slippery slope
Why not every form of development? This legitimises dialogue on planning being about how much should be paid to individuals affected, not what is in the public interest.
6. Dissipation of funds
The on-shore wind protocol contains good examples of how community benefits can deliver worthwhile projects, in the public interest. This opportunity is wholly lost with individual payouts.  

7. Whatever happened to localism?

The most depressing aspect of the announcement is that it appears to be a recognition or hunch that, for all the promotion of, initially, the Big Society, from 2010 and then neighbourhood planning, with the structures created by the Localism Act 2011, what drives behaviour is not community but me, myself, I. In order to persuade us each to allow development to proceed, apparently monies have to change hands, directed not to our parish council or other community group but directly into our bank accounts. 
Tell me if I have this wrong…

Simon Ricketts 8.8.16
Personal views, et cetera
 

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Heritage Law Update: What Goes Around Comes Around?

A brief update on what has been happening in heritage law over recent months. 
The section 66(1) & 72(1) tests in the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990

First, aptly, some old news. 

Section 66(1) requires decision-makers, in “considering whether to grant planning permission for development which affects a listed building or its setting” to “have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses”.

Section 72(1) requires decision-makers with respect to any buildings or other land in a conservation area to pay “special attention…to the desirability of preserving or enhancing the character of that area”.

The NPPF  has advice on heritage decision-making at paragraphs 132 to 135. 

Until the Court of Appeal’s welcome 3 December 2015 ruling in Mordue  we planning lawyers were getting in a right pickle. As a result of Sullivan LJ’s Court of Appeal judgment in Barnwell  and Lindblom J (as he then was) in Forge Field  the law appeared to be that (despite any reference to “harm” in the legislation itself and indeed the expression not being defined in the NPPF) decisions were liable to be quashed if the decision maker had not articulated that it had 

– considered whether substantial or less than substantial harm was likely to arise to a listed building or setting of a listed building or to the character of a conservation area

– in the event of any finding of harm, balanced any harm against any counterveiling planning benefits, giving “considerable importance and weight” to the finding of harm (caselaw relied on by the Court of Appeal in Barnwell)

– in the event of any finding of substantial harm, taken into account the NPPF advice that consent should be refused “unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss” or at least one of four specified criteria are met (para 133, NPPF).  

– in the event of any finding of less than substantial harm, given “considerable importance and weight” to that finding (a “strong presumption against planning permission being granted” (Lindblom J in Forge Field), giving greater weight to other considerations, weighing “the harm against the public benefits of the proposal, including securing its optimum viable use (para 134, NPPF).

All of this is still good advice but the risk of a decision being quashed simply because of inadequate incantation of all of these tests is now reduced. The Court of Appeal in Mordue helpfully restored some sanity (albeit with a point deducted for using the word “fasciculus”):

“Paragraph 134 of the NPPF appears as part of a fasciculus of paragraphs, set out above, which lay down an approach which corresponds with the duty in section 66(1). Generally, a decision-maker who works through those paragraphs in accordance with their terms will have complied with the section 66(1) duty. When an expert planning inspector refers to a paragraph within that grouping of provisions (as the Inspector referred to paragraph 134 of the NPPF in the Decision Letter in this case) then – absent some positive contrary indication in other parts of the text of his reasons – the appropriate inference is that he has taken properly into account all those provisions, not that he has forgotten about all the other paragraphs apart from the specific one he has mentioned.”

Explaining away Barnwell, the Court of Appeal put it like this:
“Sullivan LJ’s comments….were made in the context of a decision letter which positively gave the impression that the inspector had not given the requisite considerable weight to the desirability of preserving the setting of the relevant listed buildings, where as a result it would have required a positive statement by the inspector referring to the proper test under section 66(1) to dispel that impression”.
In the wake of Mordue we have since had:

– R (Blackpool Borough Council) v Secretary of State  9 May 2016, where Kerr J found on the facts that an inspector had failed to apply the NPPF tests in the case of proposed major works that the inspector concluded would cause “little harm” to the special architectural or historic interest in a listed synagogue, including there being, as in Barnwell, a series of signposts in the decision letter that led to the judge’s conclusion. 

– Boden v East Staffordshire District Council  27 May 2016, where Coulson J found on the facts that errors in articulating the NOPF test (including the common one of describing harm as “minor” without explaining where that sits on the harm/substantial/less than substantial spectrum) did not vitiate the council’s decision. 

So we still need to be alert for signs that the right tests haven’t been applied but there is again room for common sense.

No 1 Poultry


Barnwell, Forge Field and Mordue all refer back in their discussion to Save Britain’s Heritage v Number 1 Poultry Limited [1991] 1 WLR 153, HL, the leading case on the standard of reasons to be expected where a planning decision is taken granting permission for development which has a detrimental impact upon listed buildings. The then Secretary of State had overturned an inspector and approved Peter Palumbo’s redevelopment scheme designed by James Stirling which entailed the demolition of eight grade II listed buildings (I remember them well, just across the street from the Cheapside branch of Our Price records). A challenge by Save Britain’s Heritage was rejected by the House of Lords: any inadequacies in the Secretary of State’s reasoning were not such as to substantially prejudice potential objectors in that they did not give rise to substantial doubt that the decision had been made on relevant grounds – a high hurdle for an objector to clear. 

The Stirling scheme was completed in 1997. Scroll forward to 2016 and the new owner of the building is wishing to make some changes to its lower levels. In response, Lord Palumbo, the Twentieth Century Society and others have been lobbying for the 1997 building to be listed. Historic England recommended a grade II* listing last year which was rejected by Secretary of State for Culture, Media and Sport John Whittingdale in December 2015, relying on the Government’s policy that buildings under thirty years old should normally only be listed if they are of “outstanding quality and under threat”. The Twentieth Century Society appealed and to everyone’s surprise Whittingdale indicated last month that the decision is to be reviewed, acknowledging that it may be appropriate to list a building which is under thirty years old if it is of special historic or architectural importance even if it does not meet the “outstanding quality and under threat” tests. The decision is now in the in-tray of his successor Karen Bradley. 

In the meantime, planning permission for amendments to the ground floor of the building was resolved to be approved in March by the Corporation of London. 

We await the Bradley’s decision, as no doubt do the owners of other high profile modern buildings. And, if the decision is not to list, giving five years’ automatic listing immunity, the failed challenge of the decision not to list Pimlico School, brought by its architect John Bancroft (2004 EWHC 1822), suggests the likely outcome of any judicial review. 

World Heritage Sites


UNESCO’s World Heritage Committee lists places of special cultural or physical significance. One of those is the Liverpool – Maritime Mercantile City World Heritage Site.

25 years after the No 1 Poultry case, Save Britain’s Heritage is of course alive and kicking. On 2 August 2016 the Court of Appeal in Save Britain’s Heritage v Liverpool City Council  rejected their challenge to planning permission for a scheme in Lime Street, Liverpool. Save argued that the Council had breached the World Heritage Committee’s operational guidelines  as well as the Government’s Planning Practice Guidance  which require a council to consult with DCMS and via DCMS with the World Heritage Committee in the case of any proposal which may affect the “outstanding universal heritage” of a world heritage site. Save’s position was that the duty did not just apply to proposals that may have an adverse effect, but proposals that may have any effect, negative, neutral or indeed positive. Lindblom LJ disagreed: the proper interpretation could only be “adverse effect”. 

This is of course not the only controversial issue facing the Council in relation to its world heritage site status. As is recorded in the judgment, in view of its “serious concern at the potential threat of the proposed development of Liverpool Waters on the Outstanding Universal Value of the property”, the huge scheme by Peel Holdings, the World Heritage Committee in 2012 decided  to inscribe the site on its List of World Heritage in Danger.

By way of international perspective on the focus that world heritage site status can bring to issues that go well beyond issues of architecture and built heritage a 25 July 2016 Eco-Business piece describes the impacts of climate change and fossil fuel emissions of sites such as the Great Barrier Reef and a 26 July 2016 article in the Straits Times  describes the pressures faced by China’s sites. 

Failure to consult

Finally, back to domestic law – the redevelopment of a disused bowling green in Bexhill-on-sea for a sheltered housing development. The Court of Appeal in R (Loader) v Rother District Council  28 July 2016 quashed the planning permission for the scheme, which would adversely the setting of listed buildings. The Victorian Society had objected to a previous scheme but were recorded as having been consulted and not objected to the scheme under challenge. The reality was that officers knew that their attempts to contact the Society had failed. The court held that the summary in the report of the Society’s position was seriously misleading: “In the context of the duty in section 66(1) of the Listed Buildings Act, the committee was misinformed on the consultation of a national amenity society, which had been an objector to a similar proposal, and whose views on this application the council had chosen to seek and might have made a difference to its decision”. 

So,
– successive waves of case law on the reasoning needed before allowing harm to be caused to a listed building or conservation area

– radical architects and brave developers, who then try to have their developments listed to prevent anyone else being radical or brave

– international but often powerless, principles of heritage protection versus the simple, practical protections (demonstrated by the Court of Appeal in Loader) of English administrative law…

Simon Ricketts

Personal views, et cetera