Month: August 2022

When Britain Built Something Big

“When Britain built something big” is the sub-title to Dave Hill’s book Olympic Park, which tells the story of how an Olympic park was created in London’s Lower Lea Valley in time for London 2012. It is a detailed factual account, not just of the politics, planning, infrastructure engineering and deal-making that led up to that event, but of its implications in terms of urban regeneration and legacy. 

I’m interviewing Dave about the book and its themes at 6 pm on Tuesday 30 August 2022 on the audio social-media app Clubhouse, and you’re welcome to listen in here and indeed we’d love to here your own accounts. 

A number of things are striking to me, looking back.

The first is that huge things can be achieved if individuals and institutions collectively grasp a vision and secure the necessary buy-in. At a time when this country had perhaps lost its self-belief in being able to deliver a project successfully and on time, here we were setting ourselves up to fail – but we didn’t. By luck there was a new system of London regional government in place to facilitate London’s bid for the games (Ken Livingstone as mayor, not a sports fan at all but persuaded as to the regeneration potential of a London Games) with the full support (not easily secured by the indefatigable Tessa Jowell) of the Blair government, and with the individual host boroughs, with capable leaders, willing to come together as a Joint Planning Applications Team to determine massively complex planning applications within tight timescales. 

The second is that there are inevitable trade-offs if a project such as the transformation of this huge area of east London was to be achieved by what was an immovable deadline. When London secured the Games, the London Olympic Games and Paralympic Games Act 2006  gave significant powers to unelected bodies, which has continued with the creation of the London Legacy Development Corporation in 2012. Many people’s homes and businesses were the subject of a compulsory purchase order, which was confirmed after a 41 day inquiry and which survived at least three legal challenges in the High Court. Should we have done it? Or should we have let community politics take their course?

The third is that whilst it is important to have the necessary statutory processes and a strategy, so much comes down to problem-solving, creativity and negotiation. Whilst the right calls may have been made in the negotiations necessary with the Stratford City development partners (at times a fragile partnership due to the takeover of Chelsfield during the process), was money wasted in deciding to proceed with a stadium design that did not easily allow for West Ham’s subsequent use – and just how good was West Ham’s eventual deal?

The fourth is that engineering constraints and their lead-in periods can cause headaches – for example the huge commercial, logistical and regulatory challenge of undergrounding electricity lines and removing pylons – achievements which we then utterly take for granted. 

The fifth is the need for cross-party consensus – long-term projects can’t be the punchbag of short-term party politics.  So there was the unholy alliance between Livingstone, expelled from the Labour party, and the New Labour government, both then replaced before the Games themselves by Johnson and the Conservative/Lib Dem coalition and now the approach to various legacy aspects being the domain of Sadiq Khan. 

The sixth is that surely we need to learn from what went well and what perhaps didn’t, and to apply it to the immediate challenges around us: climate change, including renewables and making existing buildings more energy-efficient; and indeed the challenge of delivering a new generation of affordable homes. What more broadly should we learn about how our planning system needs to adapt?

There is so much more to talk about. Do join us, or read the book, or both.

Then do join us again a couple of weeks later for another book club special! At 6 pm on Monday 12 September 2022, we have barrister and broadcaster Hashi Mohamed, to talk about his book, A home of one’s own – his very personal take on the housing crisis, its causes and some possible solutions. Invitation here.

You can RSVP for the events on the clubhouse app via the links so as to be reminded when the event is starting, or just log in when the time comes 

Simon Ricketts, 27 August 2022

Personal views, et cetera

Extension, Green Belt, Words

My ear-worm for this blog post is a 40 year old song by Spandau Ballet. Possibly not originally about home improvements in the green belt, with one word changed its chorus goes like this:

Reasons, reasons were here from the start,

It’s my extension,

It’s my extension.

Reasons, reasons are part of the art,

It’s my extension,

It’s my extension.

Words are important. If you engage a competent lawyer, their toolbox will be full of precise words, as short as possible for the job, together with the necessary interpretation widgets, i.e. case law. 

If you engage a competent builder and say to them that you would like an extension to your house, would you both be assuming that, inherent in the word the word “extension”, it would need to be attached to the house rather than, say the replacement of an outbuilding by a larger structure down the garden 20 metres away from your house?

Your lawyer now has the very widget to resolve that question, in the form of Warwick District Council v Secretary of State (Eyre J, 12 August 2022).

It’s a really important question if your house is in the green belt, because you don’t have to demonstrate “very special circumstances” where specific exceptions in paragraph 149 of the NPPF apply. Two of the exceptions are as follows:

“c) the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;

d) the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;”

If an out-building falls within (d), the size of its replacement is obviously constrained by the fact that must be “not materially larger than the one it replaces”. But what if the replacement were actually to be interpreted as an extension to the house itself, such that you just have to show that the replacement “does not result in disproportionate additions over and above the size of the original” house? Gold!

Over to Eyre J in the Warwick case:

“The Second Defendant’s property is in Vicarage Road in Stoneleigh. The village of Stoneleigh is “washed over” by the West Midlands Green Belt. The Second Defendant’s property consists of a Grade II timber-framed cottage (“the Cottage”), a garden, a garage, and a currently disused timber structure. 

That structure has a footprint of 10.2m2 and appears to have been originally used as the garage for the property but that use has been superseded by a more recently-built garage. This timber structure is in the garden of the Cottage but is approximately 20m from the Cottage itself. The Second Defendants sought permission to demolish the timber structure and to replace it with a garden room/home office with a footprint of 16m2.”

Warwick District Council had refused the application, taking the position that paragraph 149 (c) did not apply. On appeal, the inspector disagreed: 

“9. Framework paragraph 149 (c) permits the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building. The existing building was the original garage to the house and as such could reasonably be considered to have been a normal domestic adjunct to it. Likewise, the proposed outbuilding would be used for purposes clearly related to the occupation of the dwelling. It would be in the same location on the site, relatively close to the dwelling and within a group of buildings closely associated with it. Therefore, I am satisfied that the proposed out building can be considered as an extension to the dwelling. 

10. The evidence before me is that there have been various extensions to the original building and a detached garage. Planning permission has recently been granted to replace the rear single storey extension with something similar in scale and the garage is relatively small in relation to the dwelling. The proposed outbuilding would be located behind this building and would be much smaller in scale compared with the host dwelling. Given the modest scale of these existing additions and the limited additional footprint from the proposed outbuilding, I find that the proposal, in combination with previous additions, would not result in disproportionate additions to the host dwelling.”

The inspector allowed the appeal and the Council challenged the decision. Eyre J concluded as follows, after analysis as to the normal meaning of the word “extension” and then the policy context within which it is used in paragraph 149 (c) (the Council = Claimant, the Secretary of State = First Defendant):

“Looking at the matter in the round no one of the points advanced is conclusive by itself but I am persuaded by the combined weight of the points advanced by the First Defendant. It is right to note that if the language of [149(c)] were to be considered in isolation from its context then the Claimant’s interpretation of the words used would be the more natural reading of those words. It is not, however, the only legitimate reading of the words and the First Defendant’s interpretation that an extension of a building can include a physically detached structure is also a tenable reading of the words used. The First Defendant’s interpretation is, in my judgement, the reading which accords considerably more readily with the content and purpose of the relevant part of the NPPF. While the Claimant’s interpretation has the potential to lead to artificial distinctions which would do nothing to further the purposes of the Green Belt whereas that advanced by the First Defendant would remove the risk of that artificiality without jeopardising those purposes. Accordingly, I am satisfied that [149(c)] is not to be interpreted as being confined to physically attached structures but that an extension for the purposes of that provision can include structures which are physically detached from the building of which they are an extension.

If, as I have found, an extension can be detached from the building of which it is an extension the Inspector did not err in law in granting planning permission and this claim fails.”

I don’t know if Warwick will be applying for permission to appeal. As a humble jobbing planning lawyer I’m not sure I would have predicted the conclusion to which Eyre J came. Surely an “extension” to something is by definition connected to that thing? Isn’t that so unambiguous that you do not then look at the policy ramifications? But my views are irrelevant and I suspect we shall be seeing an increase in proposals by the owners of large homes in the green belt for the construction of out-buildings, relying full square on this case. And the larger the house, the easier it will be to show that the “extension” is not a “disproportionate addition” – it’s the planning law equivalent of regressive taxation!

Of course any politician’s toolbox is also full of words, there to serve a different purpose: not to define, but to win elections – and the two words “green belt” are right there near the top. 

Does Rishi Sunak for instance really believe, or understand the real-world implications of, what he has been saying in relation to the green belt, in terms of tightening current restrictions? See e.g. Rishi Sunak: I’ll save Britain’s ‘precious’ green belt (Telegraph, 27 July 2022). 

Or last week, according to twitter:

“We will stop urban mayors trying to push development out to the Greenbelt in largely Conservative areas. I will stop that from happening.”

 Odd isn’t it? Owners of large homes in the green belt will be cock-a-hoop over the Warwick ruling (the larger the home, the more advantageous the ruling) and yet, without drawing breath, no doubt fully behind politicians who say no development in the green belt.  Or at least, whether or not Sunak wins, (back to my ear-worm – take it away Tony Hadley…) it’s my instinction.

NB On the subject of words, spoken and written, we have two clubhouse Planning Law Unplanned sessions of interest coming up fast:

  • At 6 pm on Tuesday 30 August 2022, we have Dave Hill, who of course runs On London and is one of the leading commentators on London planning and development issues, to talk about his recent book, Olympic Park – a fascinating story of the politics, deal-making and sheer collective endeavour that delivered London 2012. Invitation here. 
  • At 6 pm on Monday 12 September 2022, we have barrister and broadcaster Hashi Mohamed, to talk about his forthcoming book, A home of one’s own – his very personal take on the housing crisis, its causes and some possible solutions. Invitation here.

Simon Ricketts, 20 August 2022

Personal views, et cetera

Remain In Light

No talking heads today, despite it being the second anniversary of the publication of Planning for the future. We’re of course in stasis at least until the current round of talking (to the Conservative party membership) concludes and votes are cast. But then of course the party conferences will be hoving into view. And so it continues. (It goes without saying that the prospectus for an updated NPPF didn’t appear in July as promised). 

Instead I’m simply going to repost a piece which my colleagues Mary Cook and Aline Hyde wrote last week on the updated BRE guidance, Site layout planning for daylight and sunlight: a guide to good practice, published in June 2022. Given the role that the guidance plays in the planning system, it is odd (to say the least) that it is not freely available but it isn’t (save for the index, glossary and introduction). Instead the guidance can be purchased for, gulp, £75 from the BRE bookshop.

Mary and Aline, over to you:

“BRE have issued a “comprehensive revision of the 2011 edition of Site layout planning for daylight and sunlight”. Like its predecessor,this 2022 third edition “gives advice on site layout to achieve good sunlighting and daylighting both within buildings and in the open spaces between them”. Equally it is “purely advisory and the numerical target values within it may be varied to meet the needs of the development and its location.” 

Daylight

So what is new? Out go the average daylight factor (ADF) and No Skyline/Daylight Distribution Tests as recommended measures to assess the overall amount of daylight in a space. Those familiar with the old minimum values of 2% ADF for kitchens, 1.5% for living rooms and 1% for bedrooms must set this methodology aside since the third edition supersedes the second edition which “has been withdrawn”. All outstanding applications, environmental impact assessments & appeals which include daylight assessments will need to be re-assessed against the third Edition of BRE 209. 

Daylight is now to be checked using either of two methods set out in British Standard 17037: 2018 “Daylight in Buildings” (“BS EN 17037”). Appendix C to the BRE 209 guidance summarises the two methods, both of which are more complex than the old ADF method.

The first (“the illuminance method”) is based on target illuminances from daylight to be achieved over specified fractions of the reference plane (a plane at table top height covering the room) for at least half of the daylight hours in a typical year. This requires climatic data for the site location “at an at least hourly interval for a typical year” and is described as “detailed and calculation intensive”. The alternative method (“the daylight factor method”) is based on calculating the daylight factors achieved over specified fractions of the reference plane but we are told that “usually a detailed simulation model is still used”. The results have then to be tested against the new BRE recommended daylight targets. Appendix C explains that the guidance in BRE 209 is intended to be used with BS EN 17037 and its UK National Annex. BS EN 17037 gives three levels of recommendations for daylight spaces and its Annex A provides values for different room types. For compliance with the standard we are advised the minimum level should be used. BRE 209 warns against very high daylight levels, where summertime overheating (of which more later) can arise.

Under the heading “Presentation of Results”, paragraph C32 of BRE 209 advises that for each room the median illuminance or median daylight factor should be presented “as this enables a comparison with the different recommendations in BS EN 17037”. This sentence needs to be read in the wider context of both BS EN17037 and the UK National Annex. “For non-domestic interiors where daylight calculations are undertaken, the minimum illuminance or median daylight factor should also be presented” the reader is advised. Practitioners will be alive to the fact that development planning policies or supplementary planning documents refer to the BRE Guidance rather than to BS standards.  It is the advice in BRE 209 which is to be applied in such cases.

Specified default values are given to be used if none are measured or specified, and there are also maximum reflectances indicated for specific surfaces. Where specific surfaces finishes are used, appropriate factors for maintenance and furniture should be included. It is notable that the guidance is clear that the surfaces utilised in the assessment, as well as the maximum reflectances, need to be presented in the results. Where specific surfaces are relied upon either to achieve compliance or near compliance, it will be important to prove the characteristics of the material by reference to the manufacturer’s specification. Checking on the longevity of the product would also be useful. The wider the palette of materials with these characteristics, the more choice the developer will have at their disposal.

There will inevitably be pressure to impose planning conditions on planning permissions informed by such assessments to ensure that the surfaces relied upon to show compliance (or near compliance) with BRE 209 are used in the final development and thereafter maintained. It is unrealistic to think this can be avoided unless default values are used. The risk of planning conditions should be identified with the client up front. A decision needs to be taken to see if reliance on default values is preferable in order to avoid this risk. In high end bespoke developments with luxury space this could be a significant factor.

Sunlight

The Annual Probable Sunlight Hours (APSH) test has also been replaced for new buildings (the test is retained for assessing impacts on existing buildings). Sunlight amenity is now to be tested on March 21st when a habitable room, preferably a main living room, can receive a minimum of 1.5 hours of sunlight. This is to be assessed at the inside of the window. Sunlight received by different windows serving one room can be counted, but only if the sun lights the windows at different times. Where the positions of the windows are not known, availability of sunlight is to be assessed at points no more than 5m apart, and at a point of 1.6m above ground level. Though the minimum of 1.5 hours is given in the BS EN 18037, BRE 209 notes that a local planning authority may legitimately seek a different target value for hours of sunlight.

Further Tests for View, Sunlight Exposure & Glare are introduced.

Solar Panels

This third Edition of BRE 209 contains more guidance on the use of photovoltaics (“PVs”). The case of R (on the application of McLennan) v. Medway Council) [2019] EWHC 1738 established that the potential interference with solar panels is capable in law of amounting to a material planning consideration. In that case, the failure of an officer report to consider this impact led to the quashing of the permission.

Within BRE 209, the overshadowing or obstruction of PVs is noted as potentially capable of having a considerable negative impact on performance: where a proposed development of any type is near to an existing solar installation or building it is good practice to try to minimise any loss of solar radiation. Section 4.3 offers new more detailed guidance on this topic. 

Most development plan policies that reference the BRE Guidance do so in the context of daylight and sunlight and broad residential amenity considerations, rather than specifically in the context of energy consumption.  However, it has long been noted by decision makers that reductions in daylight can lead to increased energy consumption and the associated costs. In the context of Environmental Impact Assessment (EIA), there is no reason why existing solar panels are not capable of forming part of the wider “environment” which might be the subject of “likely significant effects”. Accordingly, where there are likely significant effects, they will need to be assessed. Scoping opinions and directions will need to consider if these effects should be scoped in or out in the same way as broader daylight & sunlight impacts.

Overheating

As in the previous edition, the risk of overheating is referenced and needs to be borne in mind. This is an area which is acquiring increased significance especially in the context of specialist accommodation for the elderly, where people can reasonably be expected to spend more time inside. The London Plan leads the way by including a policy directed to managing risks to the city from heat (Policy SI4), which highlights orientation and shading as key elements of the cooling hierarchy.

The Building Regulations 2010 Part O took effect on 15 June 2022 but applies only to new residential buildings. It does not apply to extensions added to residential buildings after they are built, nor does it apply to changes of use.  Developers will require designers to heed the Building Regulations since compliance is mandatory. The need to comply with the Building Regulations is a material consideration for the designer just as much as the decision maker determining an application. Securing a consent for a scheme being designed now which is then not deliverable without requiring alterations to comply with the Buildings Regulations is likely to be problematic and time consuming.  However, there may be a number of ways in which compliance can be achieved. If the need to comply with the Building Regulations resulted in a design that gave rise to identified planning harms, it should not be assumed that the permission would be granted in all cases. This would be a fact specific judgement weighing competing planning considerations in the overall planning balance.”  

Thank you Mary and Aline!

(This is intended as an overview by planning lawyers who are not rights of light surveyors rather than to be relied upon as advice. Please contact Mary or Aline if you have a legal question and for detailed advice on the practical application of the guidance, do approach a rights of light surveyor). 

Simon Ricketts, 6 August 2022

Personal views, et cetera