Call in – SIMONICITY

GB News, Hertfordshire Edition

Some of the planning bar was all-caps aplenty on LinkedIn this week in relation to a couple of Hertfordshire green belt appeal decisions by the Secretary of State:

Before I discuss these (together with in fact a third one – take a bow David Hardy and team), I thought I would share with you some statistics. I have been looking at DLUHC’s list of called in planning application decisions and recovered appeal decisions to get a feel for the recent pass/fail rate and the extent to which the Secretary of State is departing from inspectors’ recommendations (a feature of two out of three of the recent decisions).

In relation to call in decisions over the last year, the Secretary of State has approved 5 out of 8. In 4 of them (half!) he has reached a different decision to that which the inspector recommended – two approvals against recommendation, two refusals against recommendation (although one of the latter – M&S Oxford Street – is of course back for redetermination).

In relation to recovered appeals, there have been 17 decisions – 10 allowed and 7 dismissed. In 5 of them he has reached a different conclusion to that which the inspector recommended – two allowed against recommendation, three dismissed against recommendation.

I’m not sure what you take from this back of the envelope calculation other than how unpredictable the process is. I feel I need to point again to my 9 February 2024 blog post, The Weighting Game .

Turning to these Hertfordshire green belt decisions…

Tring

This was an appeal against Dacorum Borough Council’s refusal of an application for planning permission for up to 1,400 dwellings (including up to 140 falling within use class C2), a new local centre, sports/community hub, primary school, secondary school and public open space on land bound by Bulbourne Road and Station Road, bisected by Marshcroft Lane, Tring, Hertfordshire. The site is in the green belt and surrounded on three sides by the Chiltern area of outstanding natural beauty. By his decision letter dated 15 March 2024 he disagreed with his inspector’s recommendations and refused planning permission.

The Secretary of State found that Dacorum has a significant housing land supply deficit – its supply stands at just 2.06 years. The inspector gave moderate weight to the provision of recreational and sporting facilities, whereas the Secretary of State gave this limited weight but, other than that, his findings did not materially depart from those of the inspector. However, it all came down to that tricky issue of weight:

“In line with paragraph 148 (now 153) of the Framework, the Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and any other harms resulting from the development is clearly outweighed by other considerations. Overall, he considers that the other considerations in this case do not clearly outweigh the harm to the Green Belt and the other identified harms relating to impact on character and appearance, setting of the AONB, harm to designated and non- designated heritage assets and loss of agricultural land. He therefore considers that [very special circumstances] do not exist to justify this development in the Green Belt.”

Chris’ LinkedIn post on the decision is here .

Chiswell Green Lane, St Albans

This was the Secretary of State’s decision letter dated 22 March 2024 in relation to two appeals against refusal by St Albans City and District Council of applications for up to 391 new dwellings, the provision of land for a new school and associated development on land south of Chiswell Green Lane and for up to 330 discounted affordable homes for key workers, including military personnel, the creation of open space and associated development on land north of Chiswell Green Lane, St. Albans

St Albans’ housing land supply stands at only 1.7 years and its housing delivery test figure stands at 55% (both figures worse at the time of the decision than at the inquiry). Although St Albans’ emerging local plan is still only at regulation 18 stage, the Secretary of State agreed with the inspector that “the Green Belt Review is a material consideration relevant in considering Green Belt matters in the district, and that the relative suitability of strategic sub-area S8 (which both appeal sites fall within), as defined by the Green Belt Review, is an important consideration.” and that the land to be secured for a new school via appeal A should attract significant weight.

In terms of housing:

“The Secretary of State agrees with the Inspector that there is a very substantial need for housing in the district which is persistently going unmet, that the Local Plan housing requirement is hopelessly out of date, and that, using the standard method, the Council can demonstrate just a two-year housing land supply at best. He also notes that the latest HDT has been failed by some margin. Therefore, the presumption in favour of sustainable development is triggered, in accordance with footnote 8 to paragraph 11(d) of the Framework.

For the reasons given in IR586-591, the Secretary of State agrees with the Inspector that in the context of such a great housing need, very substantial weight should be attached to the proposed housing.”

Compare and contrast with that Tring decision – Dacorum 2.06 years versus St Albans 1.7 years – hmmm, not much in it is there?

“The Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and the other harms he has identified, are clearly outweighed by other considerations. He considers that they are, and therefore very special circumstances exist to justify permitting the development. As such, the proposed development accords with Policy S1 of the St Stephen Parish Neighbourhood Plan 2019-2036 and Policy 1 of the St Albans District Local Plan Review 1994, and national planning policy on Green Belt.”

Charlie’s LinkedIn post is here .

Great Wymondley

This was a decision dated 11 March 2024 taken on behalf of the Secretary of State in relation to an application, which he had called in, for a proposed solar array with associated battery storage containers and ancillary development including means of access and grid connection cable on land at Graveley Lane and to the east of Great Wymondley, Hertfordshire. The inspector recommended that the application be refused but the Secretary of State disagreed and granted planning permission.

The Secretary of State placed significant weight on the contribution that the scheme would have to renewable energy targets, including “the generation of sufficient electricity to meet the requirements of about 31% of the homes in” North Hertfordshire. He disagreed with the inspector’s conclusion that the development would cause serious harm to the setting of the grade 1 listed Wymondley Priory and a nearby grade II* listed nearby tithe barn and with the inspector’s concerns as to the inadequacies of the site selection process carried out.

In summary (although as always do read the full letter):

“Weighing against the proposal is harm to the Green Belt which carries substantial weight, harm to heritage which carries great weight and uncertainty about mitigation for displaced Skylarks which carries moderate weight. Further to this, harm is found to the impact on views from Graveley Lane and the Hertfordshire Way which carries considerable weight, to the landscape of the site and its immediate surroundings which carries significant weight and to the effect on landscape character area which carries moderate weight.

The Secretary of State has considered paragraph 208 (formerly paragraph 202) of the Framework. He considers that the public benefits of the proposal do outweigh the less than substantial harm to the designated heritage assets and therefore, in his judgement, the Framework’s heritage balance is favourable to the proposal.

The Secretary of State has considered paragraph 153 (formerly paragraph 148) of the Framework. He considers that the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations, and therefore considers that VSCs exist.”

It is so hard to predict outcomes or to establish reliable patterns: three decisions – one allowed in accordance with the inspector’s recommendations, one refused against the inspector’s recommendations and one allowed against the inspector’s recommendations. Rather dispiriting for any inspector, one imagines.

In return for reading this free blog post….

Chris Young is doing a seriously great thing again this year, running the London marathon dressed as a house, for Shelter. Sponsor this qood cause here .

Town Legal partners, staff and their pressganged families are all running, walking, roller-skating etc at least 5km this weekend in aid of XLP, a charity which does life-changing work for disadvantaged young people. I’m checking internally as to whether tapping out 5k words counts but if not I may go walking tomorrow, either in the direction of the Tring appeal site or in the direction of the St Albans one. Or maybe I’ll just head in the direction of my favourite hefty Belties on Blackbird’s Moor. Please help XLP and give me a bit of impetus to keep typing away by sponsoring this good cause here .

Simon Ricketts, 23 March 2024

Personal views et cetera

The Belted Galloways on Boxmoor, Hertfordshire, pic courtesy of the Boxmoor Trust

M&S Mess 2: “The SoS Appears To Have Become Thoroughly Confused On This Point”

Quite a week. I was going to write about the London Mayor’s Large-scale Purpose-built Shared Living London Plan Guidance (29 February 2024) – less prescriptive in relation to co-living than his initial draft as a result of constructive engagement with the industry, well received and good to see – or indeed the Competition and Markets Authority’s final report into housebuilding in England, Scotland and Wales (26 February 2024) – the best analysis of the house building and land promotion industry and indeed opportunities to reform the planning system that I have read. But all that will need to wait because one case has dominated the chat in the last day or so:

Marks & Spencer plc v Secretary of State (Lieven J, 1 March 2024)

This was of course the legal challenge by M&S to the Secretary of State’s refusal of the retailer’s application, which he had called in, for planning permission for the construction of a nine storey new mixed office and retail store to replace its existing store at the western end of Oxford Street.

As to the various stages in the decision making process which led to the Secretary of State’s decision, together with an initial critique at the time of that decision (as well as the statement at the time from the M&S chief executive who had described Mr Gove’s decision as taken “on the whim of one man” and “utterly pathetic”) see my 21 July 2023 blog post, M&S Mess.

Russell Harris KC and Heather Sargent acted for M&S on the legal challenge, together with Dentons. Well done all for the outcome. For the pithiest and precise summary of the outcome you cannot beat Heather’s LinkedIn post yesterday:

“Lieven J has held that:

– The Secretary of State’s statement that “there should generally be a strong presumption in favour of repurposing and reusing buildings, as reflected in paragraph 152 of the [2021 NPPF]” was a misinterpretation of the NPPF and an error of law;

– The Secretary of State unlawfully failed to explain why he disagreed with his Inspector’s conclusions that there was no viable and deliverable alternative to the redevelopment scheme proposed by M&S;

– The Secretary of State unlawfully failed “to grapple with the implications of refusal and the loss of the benefits and thus departure from important Development Plan policies”;

– The Secretary of State unlawfully failed to provide adequate reasons for concluding (again in disagreement with his Inspector) that the harm to the vitality and viability of Oxford Street if M&S’s scheme (or an alternative) were not delivered would be “limited”; and

– The Secretary of State’s decision was also vitiated both by a factual error (namely, an erroneous understanding that there was no dispute that the proposed scheme would involve much greater embodied carbon than refurbishment) and by a misinterpretation of development plan policy on carbon. The judgment confirms that it is “clear beyond any rational doubt … that the offsetting requirements in [London Plan policy] SI 2C are in relation to operational carbon, and not embodied carbon”.

For the best explainer, a vivid and fascinating piece of prose as ever, you have to read Zack Simons’ 2 March 2024 blog post This is not just *any* judgment: M&S in the High Court.

My (possibly unfairly) selective quote in the title to this blog post is from paragraph 116 of Lieven J’s judgment where she reports his apparent misunderstanding that the London Plan’s requirement for carbon off-setting applies to embodied carbon rather than just operational carbon (ground 5). She goes on to conclude:

“120 It would be astonishing if one of the key policies in the London Plan on carbon emissions could have suddenly expanded the scope of the off-setting requirements in such a significant way without anyone applying it in this way before. The approach of the SoS appears to believe that there is a “net zero” requirement of, or at least aspiration for, construction impacts, in a key Development Plan policy which has never previously been applied.

121 It is important to make clear that this case is not about whether or not it would be appropriate or justified to have such a policy in the light of the climate emergency. Such a judgement is not the function of the court. The issue for the court is whether the SoS erred in law by misinterpreting the adopted London Plan policy.”

The only further comment I would add at this point is that this saga is not yet at an end. The effect of the judgment is that (absent any application by the Government Legal Department to the Court of Appeal for permission to appeal) the application goes back to the Secretary of State to be redetermined. No doubt the parties will need to be given the opportunity to make further representations. It will take months. Indeed, who will be the Secretary of State by then?

Paragraph 152 of the previous version of the NPPF, on which ground 1 turned, survives unchanged as paragraph 157 of the latest version of the NPPF but will any relevant policy changes be made before the final outcome of the redetermination process? We know from the Government’s December 2023 Future Homes and Buildings Standards consultation:

“ Embodied carbon, the carbon emissions generated from the production and transportation of building materials, construction process and maintenance of a building – is beyond the scope of this consultation and the existing Building Regulations. We recognise, however, that embodied carbon is a significant contributor to the whole life carbon of a building and that it is therefore crucial that we take steps to address it. The government intends to consult on our approach to measuring and reducing embodied carbon in new buildings in due course” (paragraph 1.1.4)

At a local level, and as an example of how life constantly edges on, Westminster City Council also adopted on 28 February 2024 (I said it was a busy week) its new Planning Obligations and Affordable Housing SPD, which is intended to become a material consideration in decision making from 7 March 2024, with, amongst other things, a swingeing increase in carbon off-set payments (see brief Westminster Property Association explainer here).

The Secretary of State’s call-in of this application in June 2022 will so far have caused (assuming, which is not in the bag yet, that planning permission is eventually granted) at least two years’ delay, vast expense and delay for M&S as well as opportunity cost for the most important traditional shopping street in the nation’s capital (for which there is no financial recompense for M&S or for London). There really should be a higher threshold for call-in by the Secretary of State (whatever his or her political persuasion) of decisions which are referable to the Mayor of London (whatever his or her political persuasion). And the “behind the scenes” weighing of planning considerations/political advantage which leads to decisions such as this and that in relation to the Television Centre (see my 9 February 2024 blog post, The Weighting Game) is unfathomable (a word which I was relieved to see I used in my M&S Mess post last year about the Secretary of State’s reasoning on some aspects in his M&S decision).

Finally on this subject, whether as a thumbs up to that M&S legal team, or as a general thank you tip for us planning law bloggers, or as a gesture of support to Russell Harris and most importantly the young people’s charities he is supporting by way of this mad thing, please do sponsor Russell’s Cycle to MIPIM 2024 . He and the rest of them will no doubt shortly setting out and would appreciate any support. When I last looked, he was about £1,500 short of his £11,000 target. As another retailer might say, every little helps.

Simon Ricketts, 2 March 2024

Personal views, et cetera

Extract from photograph by Victor via Unsplash

The Weighting Game

I was going to call this blog post National Lottery but then I remembered I’ve already used that strapline back in 2019. 7 years of this blog, 408 posts – round and round the same track we go.

Much has already been written about the Secretary of State’s decision letter dated 6 February 2024 in which he granted planning permission for the redevelopment of the former London Television Centre, on London’s south bank (NB paragraph 1 of the Secretary of State’s letter curiously describes it as an appeal against refusal of the application by Lambeth Council, which it was not – Lambeth was supportive and had resolved to grant planning permission before the Secretary of State intervened by calling in the application).

See eg Zack Simon’s post as to what the decision may tell us as to the question of “beauty”, Nicola Gooch’s post on severability (although maybe the applicant didn’t have Hillside severability in mind so much as simply phasing for CIL purposes?) and Andy Black’s post on the some of the wider implications of the decision.

I’m not going to duplicate any of those posts. I’m just going to use another aspect of the decision as a jumping off point both for sympathising with all parties who spend vast amounts of time and money at risk on these sorts of application and appeal processes and for giving a small jab at us lawyers.

Because the decision essentially turned on one thing: the Secretary of State having (crucially) found that there was compliance with the development plan as a whole (despite some conflict with individual policies), the pivot was whether there were material considerations which indicated that the proposal should be determined other than in accordance with the development plan – or, more basically, how much relative weight the Secretary of State decided to apply to the public benefits arising from the scheme as against the harms arising from the scheme (whilst applying the appropriate tests in relation to elements of “heritage” harm, for instance requiring “clear and convincing justification” by way of the public benefits arising). To quote the key paragraphs:

“35. Weighing in favour of the proposal are the employment generating opportunities for the Borough in the construction phase as well as the operational phase of the development, which both carry substantial weight, the placemaking benefits delivered by the public realm strategy which carry substantial weight, and the commitment towards an employment and skills strategy over and above the policy requirements as well as the provision of affordable creative workspace which carries moderate weight.

36. Weighing against the proposal is the less than substantial harm to the significance of the designated heritage assets of the RNT, the IBM building, Somerset House, the South Bank CA and the Roupell Street CA, which carries great weight. The Secretary of State has also found that the proposal would not provide a positive contribution to the townscape of the South Bank, which carries moderate weight.

37. The Secretary of State has considered the heritage balance set out at paragraph 208 of the Framework (formerly paragraph 202). He has noted public benefits deriving from the public realm strategy, as well as the other public benefits identified in paragraph 35 above. However, he has also identified less than substantial harm to the significance of the RNT, the IBM building and Somerset House, and to the South Bank CA and Roupell Street CA. Having carefully weighed up the relevant factors, he has concluded that the public benefits of the proposal do outweigh the harm to designated heritage assets. Therefore, in his judgement, the balancing exercise under paragraph 208 of the Framework (formerly paragraph 202) is favourable to the proposal.

38. Overall, in applying s.38(6) of the PCPA 2004, the Secretary of State considers that the accordance with the development plan and the material considerations in this case indicate that permission should be granted.”

Of course, a huge amount of expert evidence was given at the inquiry over 12 sitting days by the parties as to each of these matters and the weight to be applied to each of them, but if the Secretary of State had chosen to give less weight to the public benefits set out in paragraph 35, the decision would probably have gone the other way. How much weight the Secretary of State (or any decision maker) gives to such considerations is very difficult to predict – it is quintessentially a matter of planning (whisper political) judgment. (Similarly his decision as to whether, despite non-compliance with some individual policies, there was compliance with the development plan as a whole).

The weighting is particularly interesting, given that he was more bearish than the inspector (who had recommended that permission be granted) on various aspects, including:

whether “the scale of the building and the proposed massing provides an appropriate response to the site”
finding negative elements to the effects on townscape
disagreeing that “the proposed palette of materials and the aesthetic appearance of the building is appropriate for what is a very prominent and sensitive site. He disagrees with the Inspector that an attractive development would be delivered.”

The Planning Practice Guidance summarises the legal position as to the weight to be given to material considerations:

“What weight can be given to a material consideration?

The law makes a clear distinction between the question of whether something is a material consideration and the weight which it is to be given. Whether a particular consideration is material will depend on the circumstances of the case and is ultimately a decision for the courts. Provided regard is had to all material considerations, it is for the decision maker to decide what weight is to be given to the material considerations in each case, and (subject to the test of reasonableness) the courts will not get involved in the question of weight.

Paragraph: 009 Reference ID: 21b-009-20140306

Revision date: 06 03 2014”

And as for public benefits:

“What is meant by the term public benefits?

The National Planning Policy Framework requires any harm to designated heritage assets to be weighed against the public benefits of the proposal.

Public benefits may follow from many developments and could be anything that delivers economic, social or environmental objectives as described in the National Planning Policy Framework (paragraph 8). Public benefits should flow from the proposed development. They should be of a nature or scale to be of benefit to the public at large and not just be a private benefit. […]

Paragraph: 020 Reference ID: 18a-020-20190723

Revision date: 23 07 2019”

To quote Lindblom LJ in East Staffordshire Borough Council v Secretary of State for Communities and Local Government (Court of Appeal, 30 June 2017):

“Planning decision-making is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process not rigid or formulaic. It involves, largely, an exercise of planning judgment, in which the decision-maker must understand relevant national and local policy correctly and apply it lawfully to the particular facts and circumstances of the case in hand, in accordance with the requirements of the statutory scheme. The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave with the decision-maker a wide discretion.”

We often pretend that planning decision-making to be a quasi-scientific, quasi-judicial process. But it’s really nothing of the sort. We lawyers can seek to ensure that all material considerations are taken into account, that immaterial considerations are not taken into account, that thresholds and criteria in specific statutory and policy tests are taken into account and that the decision-maker’s reasoning is adequate and rational. We can apply our forensic experience to ensure that the necessary evidence is brought forward and is presented as persuasively as possible – and can stress-test the evidence against us. But beyond that, rather than anything resembling the scales of justice, there is a black box in which there is simply the exercise of planning judgment. (I’m not complaining about that – that is the essence of the role of the planner I would have thought).

My jab at us lawyers is simply that perhaps we do not stress strongly and frequently enough to clients how unscientific the planning application and appeal process is. We are often asked to indicate what the odds are on a proposal finding favour with the decision-maker: what are the percentage prospects of success? This is an entire reasonable question to ask, because otherwise how can the client carry out a proper cost benefit analysis of whether the process is likely to be a worthwhile investment? But save for rare examples of cases which mainly turn on the correct interpretation of a particular policy, we have so little to go on other than analysis (which is often not sufficiently objective and evidence-based and possibly infected by eg optimism bias) of previous trends in decision-making to see what weight has previously been applied to various material considerations, in differing circumstances and permutations – trends which in any event do not amount to formal precedents.

I’m not even sure that appeal odds can be given which are much more than, say:

Less than 35 – 40% ie very unlikely to succeed given significant technical or legal hurdles to be overcome.

Circa 50% ie yes it’s arguable but it’s going to come down to whether there has been development plan compliance as a whole and the weight that the decision-maker gives to competing material considerations

Circa 60% – 65% ie a scheme which appears to be policy compliant and to meet the relevant legislative and policy tests

Would anyone be prepared to bet good money on the basis of assuming prospects materially higher than 65%? In my view it would need to be an unusual case turning on relatively binary issues.

Factors which lead to additional variability:

The scale of the development proposal, the range of potential issues and process timescale (will the decision maker or other circumstances in fact change along the way?!)

Cases where the principal live issues give rise to a large element of subjectivity, in relation to matters such as design or townscape

Is this a Secretary of State decision (ie in relation to an application which he has called in or an appeal he has recovered for his own determination)? – again this inevitably makes the outcome less predictable, both due to the influence of “politics” but due to the additional delays thereby arising (see above)

Political/media interest or pressure

Unusual proposals and/or where the decision-maker does not have a relevant or consistent track record.

When set against the scale of investment required to promote a large scheme at inquiry or indeed to defend against it, these may be sobering thoughts.

Simon Ricketts, 9 February 2024

Personal views, et cetera

PS Since I left Twitter I have experimented with a few social media platforms. None are ideal but, now that it is finally public access, you could give Bluesky a go. I share these posts there (my account is here) and on LinkedIn and you may find some related content.

Scheme image courtesy of CO-RE website

London 2024

The next London Mayoral election will be held on 2 May 2024.

As of 9 November 2023 Sadiq Khan held a 25 point lead over conservative candidate Susan Hall, according to a YouGov poll. Anything could of course happen between now and 2 May though, the greatest risk for Khan possibly being if Jeremy Corbyn stands as an independent candidate and splits the labour vote. The deadline for candidate nominations is 27 March so I suspect we will see increasing levels of speculation in the meantime…

To his left, Mr Corbyn. To his right, Mr Gove.

As part of the flurry of DLUHC announcements on 19 December 2023 (see my blog post that day, In DLUHC Jubilo: NPPF & Much More), the Secretary of State wrote to Mr Khan. The letter included the following passage:

“Due to the significant shortfall in housing supply and under delivery of housing in our capital, I have concluded that it may be necessary to take further action now, as a matter of urgency, to make sure London is delivering the homes our capital needs.

With this in mind, I have asked Christopher Katkowski KC to lead a panel of expert advisers comprising Cllr James Jamieson, Paul Monaghan, and Dr Wei Yang, to consider the aspects of your London Plan which could be preventing thousands of homes being brought forward, with a particular focus on brownfield sites in the heart of our capital. I have asked them to produce their report by January and will make sure that it is shared with you.

If you cannot do what is needed to deliver the homes that London needs, I will.”

The terms of reference given to the advisors were published on 22 December 2023. Lichfields have been appointed along with the advisors previously announced.

“The expert advisers will assess whether there are specific changes to London Plan policies that could facilitate urban brownfield regeneration in London for housing delivery in an appropriate manner and, if necessary, recommend changes to the London Plan accordingly.

The output of the review will be a short report, delivered by 15 January 2024, to the Secretary of State.”

The objectives of the work are as follows:

“To consider and, if appropriate, make recommendations for specific changes to the London Plan. The Secretary of State will share the recommendations with the Mayor to consider their implementation.

To work with Lichfields consultants to ensure that there is an evidence base which supports the recommendations of the expert advisers.

To complete a report on how, specifically, the London Plan could be improved to facilitate the delivery of new homes on brownfield sites.”

15 January! It will be interesting to see what emerges. I assume that aside from the implications of the detailed and prescriptive approach taken by the London Plan – a document which is instead meant to operate only at a strategic level – one potential area for investigation will be the extent to which the Mayor’s rigid approach to minimum levels of affordable housing, even in the face of agreed unviability, and/or his requirements as to review mechanisms which can cause difficulties with funders, is holding back delivery (although of course the Mayor’s response is always to point to the level of need for social housing). Will another be the Mayor’s resistance to development in the green belt? But this would only make sense in the context of Mr Gove’s letter if the focus is on previously developed land in the green belt – and even this would uncomfortably with the Government’s 19 December 2023 revision to the NPPF, absolving authorities of the need to review green belt boundaries when preparing local plans…

Are there possibly any clues in two recent Secretary of State decisions?

On 11 December 2023 the Secretary of State overturned inspector Jennifer Vyse’s recommendation and granted planning permission in relation to called-in applications for mixed use development at Homebase and Tesco Osterley, Syon Lane, Hounslow. His approach to the planning balance and overall conclusion in his decision letter is as follows:

“64. For the reasons given above, the Secretary of State considers that the application is not in accordance with LonP policies D9 and HC1 and LP policies CC3 and CC4 of the development plan, and is not in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in line with the development plan.

65. Weighing in favour of the proposal is the regeneration of under-utilised brownfield land which carries substantial weight. Also weighing in favour is the delivery of up to 2,150 homes which carries substantial weight, and the delivery of 750 affordable homes designed to meet the current housing need profile in Hounslow, which each carry substantial weight. Economic benefits carry significant weight whilst the provision of open space and significant biodiversity net gain both carry moderate weight. Highway and transport improvements carry limited to moderate weight and the reprovision of an existing Tesco store and the provision of community space each carry limited weight.

66. Weighing against the proposal is less than substantial harm to a number of designated heritage assets which carries great weight. Moderate harm to the character and appearance of the area in relation to the Homebase scheme carries moderate weight. Heritage harm caused by the total loss of a non-designated heritage asset (the Homebase store) carries limited weight and the Secretary of State has considered paragraph 203 of the Framework in coming to this decision.

67. In line with the heritage balance set out at paragraph 202 of the Framework, the Secretary of State has considered whether the identified less than substantial harm to the significance of each designated heritage asset is outweighed by the public benefits of the proposal. Taking into the account the public benefits of the proposal as identified in this decision letter, the Secretary of State agrees with the Inspector at IR15.11 that the public benefits of the appeal scheme are more than sufficient to outweigh the identified harm, including cumulative harm, to the significance of the designated heritage assets. He considers that the balancing exercise under paragraph 202 of the Framework is therefore favourable to the proposal.

68. Overall, in applying s.38(6) of the PCPA 2004, the Secretary of State considers that despite the conflict with the development plan, the material considerations in this case indicate that permission should be granted.

69. The Secretary of State therefore concludes that planning permission should be granted.”

Note the weight placed on delivery of homes, including affordable homes, on under-utilised brownfield land, together with economic benefits, versus heritage harm.

On 4 December 2023 the Secretary of State agreed with his inspector’s recommendation and granted planning permission for the demolition of existing buildings and the comprehensive phased redevelopment of the site for a mix of uses including up to 1,049 residential units and up to 1,200 square metres of flexible commercial and community floorspace in buildings ranging from 3 to 18 storeys along with car and cycle parking, landscaping and associated works. His decision letter demonstrates a similar balancing exercise, in the additional context of Barnet Council not having a five year supply of housing land:

“35. Weighing in favour of the proposal is the delivery of market and affordable housing which each carry significant weight; the reduction in traffic, provision of open space, biodiversity improvements, regeneration benefits and employment provisions which each carry moderate weight; and improvement in healthcare facilities which carries minimal weight.

36. Weighing against the proposal is the less than substantial harm to the designated heritage asset which carries great weight.

37. In line with the heritage balance set out at paragraph 202 of the Framework, the Secretary of State has considered whether the identified less than substantial harm to the significance of the designated heritage asset is outweighed by the public benefits of the proposal. Taking into the account the public benefits of the proposal as identified in this decision letter, overall, the Secretary of State agrees with the Inspector at IR238 that the public benefits outweigh the identified less than substantial harm to the significance of the designated heritage asset, and that the proposal would secure the optimum viable use of the site (IR235). He therefore considers that the balancing exercise under paragraph 202 of the Framework is favourable to the proposal.”

Whatever we think of the Secretary of State’s reasoning in granting these permissions, let’s not give him credit for thereby speeding up the development process. These were both applications which had been resolved to be approved by Hounslow and Barnet respectively in 2021!

Finally, how about this for petty point scoring, in relation to the continuing political pawn which is the Mayor’s extended ULEZ scheme? The Secretary of State would like the Mayor to arrange for vehicles that are the subject of his scrappage scheme to be provided to Ukraine to help with its war effort. The Mayor’s position is that this is not within his legal powers. This is Mr Gove’s latest letter dated 21 December 2023 to the Mayor of London. I have no idea what the right answer is on this specific issue but in a year where there are too many real battle grounds around the globe, perhaps let’s try to avoid unnecessary domestic political battlegrounds? Even in an election year?

Simon Ricketts, 30 December 2023

Personal views, et cetera

PS It’s so often been the case that I’ve had some song going through my head when writing one of these posts that I thought as an end of year gift I would present to you this Spotify playlist – a track for each post this year – I’m sure you’ll be able to match them up…

See you in 2024.

From YouGov 9 November 2023 poll

M&S Mess

I never thought I would live to see a chief executive of Marks and Spencer plc (Marks and Spencer plc!) issue a statement such as this:

““After a two-year process where our proposals were supported at every stage, our investment in 2,000 jobs, building one of the most sustainable buildings in London, improving the public realm and creating a flagship store, is now effectively in the deep freeze. Today the Secretary of State has ignored his appointed expert David Nicholson who recommended approval of our scheme.

When 42 of the 269 shops on what should be our nation’s premier shopping street sit vacant, disregarding the expert opinion and approval of the appointed planning inspector and playing to the gallery by kiboshing the only retail-led regeneration proposal is a short-sighted act of self-sabotage by the Secretary of State and its effects will be felt far beyond M&S and the West End. It is particularly galling given there are currently 17 approved and proceeding demolitions in Westminster and four on Oxford Street alone, making it unfathomable why M&S’s proposal to redevelop an aged and labyrinthian site that has been twice denied listed status has been singled out for refusal.

The suggestion the decision is on the grounds of sustainability is nonsensical. With retrofit not an option – despite us reviewing sixteen different options – our proposed building would have ranked in the top 1% of the entire city’s most sustainable buildings. It would have used less than a quarter of the energy of the existing structure, reduced water consumption by over half, and delivered a carbon payback within 11 years of construction. It is also completely at odds with the inquiry process where the analysis on sustainability, including from independent experts Arup, was accepted.

We cannot let Oxford Street be the victim of politics and a wilful disregard of the facts. At a time when vacancy rates on what should be the nation’s premier shopping street are 13% higher than the average UK high street and Westminster Council is pleading for help in managing the growing proliferation of sweet shop racketeers, the Secretary of State has inexplicably taken an anti-business approach, choking off growth and denying Oxford Street thousands of new quality jobs, a better public realm and what would be a modern, sustainable, flag-bearing M&S store.

There is no levelling up without a strong, growing Capital city, but the ripple effect extends well beyond Oxford Street. Towns and cities up and down the country will feel the full effects of this chilling decision, with decaying buildings and brownfield sites now destined to remain empty as developers retreat. The nation’s fragile economic recovery needs Government to give confidence to sustainable regeneration and investment as well as following due process; in London and across the UK. Today the Secretary of State has signalled he is more interested in cheap shot headlines than facts and if it weren’t so serious it would be laughable.

We have been clear from the outset that there is no other viable scheme – so, after almost a century at Marble Arch, M&S is now left with no choice but to review its future position on Oxford Street on the whim of one man. It is utterly pathetic.” (Stuart Machin, 20 July 2023)

I last wrote about this saga in my 23 April 2022 blog post Does My Embodied Carbon Look Big In This?

Let’s remind ourselves of the route this application for planning permission has taken:

Application submission: 2 July 2021
Resolution to grant by Westminster City Council: 23 November 2021
Confirmation by the Mayor that he would not intervene by directing refusal or recovering the application for his own determination: 7 March 2022
U-turn by the Mayor – he would consider intervening after all
Re-confirmation by the Mayor that he would not intervene by directing refusal or recovering the application for his own determination: 4 April 2022
Call-in by the Secretary of State: 20 June 2022
Inquiry held by inspector David Nicholson between 25 October and 4 November 2022
Decision by the Secretary of State to refuse planning permission, contrary to inspector David Nicholson’s recommendations: 20 July 2023 (David Nicholson’s report having been delivered to the Secretary of State on 1 February 2023).

Throughout this process there has been ferocious opposition to the scheme by some prominent groups and individuals – with detailed representations made; lobbying at each stage, and commentary in the media and social media.

I have often criticised the process whereby the Secretary of State can call-in an application, or recover an appeal, for his own decision-making.

What is the point of local democracy? What is the point of a hugely expensive, lengthy, quasi-judicial process, and a 109 page report by one of our most experienced planning inspectors, when you arrive at this sort of outcome?

If Secretary of State didn’t like the scheme when he called it in, and was going to refuse it in any event, why even the pretence of due process?

To dip into the decision. First point: of course it’s written with an eye to being watertight against legal challenge, by way of making sure that the conclusions revolve around the degree of weight to be attached to specific material considerations and around ultimately subjective assessments as to harm and significance (albeit assessments made without the benefit of hearing the evidence, of accompanied site visits or the ability to ask questions of witnesses). Time will tell if that objective has been secured.

Given that some may think (I couldn’t possibly comment) that this is how the Secretary of State reached his decision, I’m going to start with the overall conclusions (paragraph 51 onwards).

The first set of subjective conclusions (paragraph 51) are findings as to “overall conflict with development plan policies D3 and 38 which deal with design, and partial conflict with heritage policies HC1 and 39”.

That enables him to take the position that the scheme is in conflict with the development plan overall. With the onus shifted, the question for him is accordingly “whether there are material considerations which indicate that the proposal should be determined other than in line with the development plan.”

In favour of the proposal are (paragraph 52) “the advantages of concentrating development in such a highly accessible location, which attracts substantial weight; and the potential harm to the vitality and viability of the area which could follow from a refusal of permission, which attracts limited weight. The heritage benefits carry moderate weight, and the possibility of demolition attracts limited weight. The benefits to employment and regeneration through improved retail and office floorspace, and the benefits in terms of permeability and connectivity, safety and shopping experience and the public realm collectively carry significant weight.” As long as properly reasoned, the weight to be attached to each consideration is for the decision maker.

Against the proposal (paragraph 53) “is the Secretary of State’s finding that in terms of paragraph 152 of the Framework, the proposal would in part fail to support the transition to a low carbon future, and would overall fail to encourage the reuse of existing resources, including the conversion of existing buildings, which carries moderate weight. He has also found that harm arising from the embodied carbon carries moderate weight; and the future decarbonisation of the grid carries limited weight.”

In terms of assessing the heritage impacts of the proposal “the Secretary of State has taken into account the requirements of s.66 of the LBCA Act and the provisions of the Framework. He has found that in terms of paragraph 202 of the Framework, the harm to the settings, and so the significance, of the designated heritage assets would fall into the ‘less than substantial’ category. In respect of Selfridges and the Stratford Place CA, he has found the harm would be at the upper end of that category; in respect of the Mayfair CA it would be in the middle of that category; and in respect of the Portman Estate CA it would be at the lower end of the category. Overall he has found that the harm to the settings of, and significance of the designated heritage assets carries very great weight. He has further considered paragraph 202 of the Framework and has found that the public benefits of the proposal do not outweigh the harm to the significance of the designated heritage assets. The Secretary of State considers that harm from the loss of the nondesignated heritage asset of Orchard House attracts substantial weight and has considered paragraph 203 of the Framework in coming to this decision. In respect of paragraph 189 of the Framework, the Secretary of State considers that the proposal would overall fail to conserve the heritage assets in a manner appropriate to their significance, so that they can be enjoyed for their contribution to the quality of life of existing and future generations. He considers that the possibility of an Oxford Street CA attracts limited weight.”

So what did the scheme in was its design, its less than substantial harm to designated heritage assets which he gives “very great” weight, not outweighed by public benefits; harm from the loss of unlisted Orchard House which he gives substantial weight, and, in terms of climate change issues, the failure to support the transition to a low carbon future (moderate weight), failure to encourage the reuse of existing resources (moderate weight), harm arising from the embodied carbon (moderate weight) and future decarbonisation of the grid (limited weight).

Let’s look in more detail at how the Secretary of State reached some of those conclusions.

Design

His conclusion on non-compliance with policy D3 is said by him to follow from his conclusions on the impact on designated heritage assets (paragraph 43). Similarly policy 38 (paragraph 44). Aside from these conclusions, based on concerns as to heritage aspects, he reaches no conclusions on the design of the scheme.

Heritage

So let’s turn to heritage.

The Secretary of State agrees with the Inspector (paragraphs 12 to 15) as to the level of harm caused to designated heritage assets. However, he disagrees as to the weight to be given to any harm (paragraph 15): “Given the significance of Selfridges, and his conclusions in paragraphs 13-14 above, the Secretary of State considers that the harm to designated heritage assets in this case carries very great weight. He does not agree with the Inspector’s assessment that the harm to the setting and so to the significance of Selfridges, including with the additional harm to the settings of the CAs, carries only moderate weight (IR.13.11 and IR13.78).”

The Secretary of State agrees with Historic England rather than the inspector as to the significance of Orchard House as a non-designated heritage asset (paragraph 16) and considers that its loss attracts substantial weight. He recognises, some heritage benefits of the scheme, to which he ascribes moderate weight.

Carbon

This is the area where we need to pay particularly careful attention.

First, to note that he reaches no concluded view on whether the redevelopment would over the life of the building use less carbon than any replacement: “the Secretary of State has also taken into account the applicant’s argument that over the life of the building it would use less carbon than any refurbishment, which would have to rely on an inefficient building envelope (IR13.38). He agrees with the Inspector, for the reasons given in IR13.37 and IR13.39, that the understanding of WLC Assessments and the tools available for calculations are still developing, and therefore it is no surprise that there was disagreement over the lifetime carbon usage for the proposals and, more particularly, for a refurbishment.” (paragraph 21).

That might be seen as surprising given that surely it is the core issue.

It was said by some that redevelopment should be delayed until the grid is decarbonised, when “the extent of embodied energy, particularly from manufacturing materials, and from vehicle emissions would be much lower or eliminated. He agrees that the proposed development now would result in far more carbon emissions than after the UK has achieved a net-zero grid (IR13.99), because a fully renewably sourced electricity grid should allow most construction vehicles, and the manufacture of concrete, steel and other materials, to be undertaken using renewable energy rather than fossil fuels (IR13.40).” However, he recognised that would not be a practical general principle: “An assessment of the weight to give to the fact that development now will give rise to far more carbon emissions than in the future with a net-zero grid depends on the facts of the case and the planning policy context. Evidence has been put before the Secretary of State that the existing store is currently assessed as failing (IR13.71), and M&S has stated that it will not continue to occupy and trade from the store for very much longer if permission is refused (IR13.46). The Secretary of State has also concluded that the development is supported by some current and up to date development plan policies which aim to support the regeneration and economic development of the area (paragraph 26 below). Overall he considers that this matter carries limited weight against the proposal.” (paragraph 22)

Strangely, although possibly because of the lack of empirical evidence on the point at the inquiry, he gives no weight to any possible reduction in pressure for development elsewhere (paragraph 23).

Paragraph 24 is important:

“The Secretary of State agrees with the Inspector at IR13.43 that there should generally be a strong presumption in favour of repurposing and reusing buildings, as reflected in paragraph 152 of the Framework. In the circumstances of the present case, where the buildings in question are structurally sound and are in a location with the highest accessibility levels, he considers that a strong reason would be needed to justify demolition and rebuilding. However, he agrees that much must depend on the circumstances of the case, including how important it is that the use of the site should be optimised, and what alternatives are realistically available. Like the Inspector, the Secretary of State has gone on to consider whether there is a reasonable prospect of an alternative scheme going ahead.”

The Secretary of State’s position as to the prospect of an alternative scheme going ahead is vital to his overall decision:

“31. The Secretary of State considers that given the Inspector could not draw clear conclusions on this matter, and its importance in the determination of this application, a degree of caution ought to be exercised in drawing overall conclusions from the evidence, and considering the weight to be given to this issue. He finds the applicant’s evidence much less persuasive than the Inspector appears to have done in light of the gaps and limitations identified by the Inspector. He does not consider it appropriate to draw such firm and robust conclusions about this issue as the Inspector does (IR13.70- 13.75 and IR13.97). The Secretary of State is not persuaded that it is safe to draw the same conclusion reached by the Inspector, namely that ‘there is no viable and deliverable alternative’ (IR13.74), which leads to the Inspector’s overall conclusion that ‘there is unlikely to be a meaningful refurbishment of the buildings’ (IR13.97).

32. Overall, the Secretary of State concludes that the evidence before him is not sufficient to allow a conclusion as to whether there is or is not a viable and deliverable alternative, as there is not sufficient evidence to judge which is more likely. The Secretary of State also does not consider that there has been an appropriately thorough exploration of alternatives to demolition. He does not consider that the applicant has demonstrated that refurbishment would not be deliverable or viable and nor has the applicant satisfied the Secretary of State that options for retaining the buildings have been fully explored, or that there is compelling justification for demolition and rebuilding.

33. The Secretary of State notes that M&S has stated that it will not continue to occupy and trade from the store for very much longer if permission is refused (IR13.46). Whether or not M&S leave the store following the Secretary of State’s decision is a commercial decision for the company. However, taking into account the locational advantages of the site, the Secretary of State does not agree with the Inspector at IR13.75 that redevelopment is the only realistic option to avoid a vacant and/or underused site. He considers that there is potential for some harm to the vitality and viability of Oxford Street as suggested by the Inspector at IR13.46-47 and IR13.74. However, he does not agree with the Inspector that harm would be caused to the wider West End beyond Oxford Street (IR13.46) as he considers that this overstates the scale of the impact. He also does not agree with the Inspector’s conclusion that the harm would be substantial. The Secretary of State considers that potential harm to the vitality and viability of Oxford Street could arise from a refusal of permission but, unlike the Inspector, he considers that 8 the extent of any such harm would be limited. He attributes limited weight to this possibility.”

Time will tell if he is right.

I find his conclusion on the carbon which would go into construction materials unfathomable given that he failed to reach a conclusion on whether the new building would use less carbon than refurbishment of the existing building (paragraph 21 quoted earlier above):

“45. In respect of paragraph 152 of the Framework, the Secretary of State agrees that a substantial amount of carbon would go into construction (IR13.32), and that this would impede the UK’s transition to a zero-carbon economy (IR13.87). He has found that there has not been an appropriately thorough exploration of alternatives to demolition (paragraph 32 above). He has also taken into account that the carbon impacts would be to an extent mitigated by the carbon offset payments secured via the s.106 Agreement, which would be used to deliver carbon reductions (albeit it has not been demonstrated that the carbon reductions would fully offset the embodied carbon arising from this proposal). He has also taken into account the sustainability credentials of the new building (paragraph 21 above). Overall he concludes that in terms of paragraph 152 of the Framework, the proposal would in part fail to support the transition to a low carbon future, and would overall fail to encourage the reuse of existing resources, including the conversion of existing buildings. The Secretary of State considers that this carries moderate weight against the scheme.

46. The Secretary of State has also considered the Inspector’s conclusion at IR13.99 that of the material considerations in this case, the extent of embodied energy weighs most heavily against the scheme. He has taken into account that a substantial amount of embodied carbon would go into construction. He has also taken into account at paragraph 21 above the sustainability credentials of the new building, and has further taken into account that the carbon offset payments secured via the s.106 Agreement would be used to deliver carbon reductions (albeit it has not been demonstrated that the carbon reductions would fully offset the embodied carbon arising from this proposal). Given his conclusions on these matters, he considers, unlike the Inspector at IR13.99, that in the particular circumstances of this case, the embodied carbon carries moderate weight.”

Finally, a warning against treating this decision as too much of a precedent:

“47. The Secretary of State has considered the Inspector’s comments at IR13.94 that there is a ‘growing principle that reducing climate change should generally trump other matters’; and his comments at IR13.99 that as climate change policy is still developing, the Secretary of State is entitled to use his judgement to give this consideration greater weight than the Inspector has attributed to it. Policy in this area will continue to develop and in due course further changes may well be made to statute, policy or guidance. This decision letter sets out the Secretary of State’s judgement on the weight which attaches to these matters in the circumstances of this particular case.

48. The Secretary of State has considered the Inspector’s comment at IR13.95 that fear of precedent could be a material consideration of sufficient weight to justify dismissing the application. However, he is confident that any future decision-maker would pay attention to the whole decision and the detailed reasoning and not just to the outcome of the decision. In any event, the decision turns on its own very specific facts, including the relevant development plan policy matrix, the Inspector’s report and the evidence which was before the inquiry, which are all unlikely to be replicated in other cases.”

Easy to say but of course there will be attempts to read across these findings to other projects.

My overall prediction? An important part of Oxford Street may well indeed become vacant or subjected to uses which will do nothing for this vulnerable commercial area – which is currently frankly a disgrace. A project has been first stalled, then killed, brought forward by one of the country’s most respected companies, for reasons which aren’t even based on any finding that demolition and rebuild will lead to greater release of carbon over the lifetime of the building than a hypothetical refurbishment of the existing building – and, in so far as they are heritage-based, on the one hand ascribe a surprising amount of weight to the moderate levels of harm arising and on the other ascribe little weight to the public benefits that would surely arise from a twenty first century flagship department store in Oxford Street.

Some of you will get very upset by this blog post I’m sure. But not as upset as Mr Machin is about Mr Gove.

Simon Ricketts, 21 July 2023

Personal views, et cetera

Mind Blowing Decisions

“Mind blowing decisions causes head on collisions

Mind blowing decisions causes head on collisions”

(Heatwave, 1978)

Decisions, decisions.

The Secretary of State’s 6 April 2023 decision to refuse planning permission for Berkeley Homes’ proposed development of 165 new dwellings in Cranbrook, Kent (a decision in fact taken by planning minister Rachel Mclean on behalf of the Secretary of State) = a head on collision for sure.

Tunbridge Wells Borough Council had resolved to approve the scheme but Natural England, concerned as to the prospect of harm to the High Weald Area of Outstanding Natural Beauty, secured its call in by the Secretary of State.

The council has slightly less than five years’ housing land supply. The scheme included 40% affordable housing: 50/50 rented and shared ownership.

To cut a long story short (read the decision letter and inspector’s report), the Secretary of State disagreed with the inspector’s recommendation that planning permission be granted.

On the main issues:

⁃ AONB: “Overall the Secretary of State agrees with the Inspector at IR823 that there would be some harm to the HWAONB, which would be limited, and that the harm to the landscape and scenic beauty of the HWAONB attracts great weight.”

Tucked within his conclusions on AONB this turns out to be a crucial passage in the decision:

“The Secretary of State recognises that both the HWAONB Management Plan and the High Weald Housing Design Guide emphasise that housing development in the HWAONB should be landscape-led. Whilst he agrees with the Inspector that the proposed development would deliver landscape enhancements (IR826), he does not find the proposal to be of a high standard which has evolved through thoughtful regard to its context (IR723). Overall, he does not find that the scheme is sensitively designed having regard to its setting. He finds that the design of the proposal does not reflect the expectations of the High Weald Housing Design Guide, being of a generic suburban nature which does not reproduce the constituent elements of local settlements. He also considers that the layout of the scheme does not respond to its AONB setting. Rather than being a benefit of the scheme, as suggested by the Inspector, the Secretary of State considers that the design of the scheme is a neutral factor in the context of paragraphs 176 and 177 of the Framework and the planning balance.”

Not “sensitively designed”? “… of a generic suburban nature”? It’s worth looking at the scheme drawings, design and access statement etc on the council’s planning portal. I would disagree. More fundamentally, there is something very odd about a minister (and civil servants) arriving at a conclusion like this, in the face of the elected local planning authority and hands on consideration, site visits and so on conducted at that stage and in the face of the conclusions reached by an inspector after many inquiry days and a site visit. And in the face of Government assertions that it still wants to see 300,000 homes built annually. Frankly why bother with all that if this is the outcome?

⁃ Air quality: “…there would be very limited harm to air quality, and he affords this very limited weight in the planning balance.”

⁃ Site allocation strategy: Whilst he agreed with the inspector that the local plan policies should be treated as out of date because of the lack of five years’ housing supply, because the shortfall was slight he disagreed with the Inspector’s assessment that both the policies and the conflict with them carry limited weight.

⁃ Historic environment: “For the reasons given at IR767-774 the Secretary of State agrees with the Inspector at IR773 that the proposed development would not harm any significant historic landscape resource and all of the individual features which could be of potential interest would be retained.”

⁃ Sustainable transport: “For the reasons given at IR790-793 the Secretary of State agrees with the Inspector that the development would promote sustainable transport in the terms of the Framework and accord with relevant development plan policy in that regard (IR794).”

Turning to the benefits of the scheme:

⁃ Housing delivery: “For the reasons given at IR763-764 the Secretary of State agrees with the Inspector that there is a clear need for both market and affordable housing in the Borough and that the proposed development would make a significant contribution to the delivery of both (IR764).”

⁃ Biodiversity: “…the proposed development would secure significant BNG such that it would accord with the Framework, including paras 174, 179 and 180 and development plan policy, as well as the eLP, in this regard (IR747).

⁃ Other benefits: “The Secretary of State agrees for the reasons given at IR774, IR720 and IR811 that the proposed reinstatement of hedgerows along historic boundaries and of the shaw in the southern fields would be beneficial to the time-depth character of the HWAONB (IR774). Furthermore, the proposed re-creation of Tanner’s Lane would also be beneficial in heritage terms as it would reinstate a historic feature in the local landscape (IR774). The Secretary of State agrees for the reasons given at IR720 and IR811 that the new woodland planting and management of existing woodland would be to the benefit of the environment and landscape. He further agrees for the reasons given at IR786 that the proposed highway works may result in improving highway safety. In addition, for the reasons given at IR811 the additional footpaths and substantial new publicly accessible amenity space would enhance recreational opportunities.”

Overall conclusion on benefits:

“The Secretary of State has had regard to the Inspector’s view at IR824 as to weight attaching to the benefits of the scheme, and notwithstanding his conclusion at paragraph 36 below that there is not a ‘very compelling case’ for the need for development of this type and in Cranbrook, overall he agrees that the combined weight of the benefits is substantial. However, he does not agree with the Inspector’s characterisation at IR826 that it constitutes ‘a package of exceptional benefits’.”

So “the combined weight of the benefits is substantial”….

Application of policies in the NPPF relating to development in the AONB:

⁃ Great weight should be given to conserving and enhancing landscape and scenic beauty in AONBs – conclusion that limited harm but that harm should be given great weight.

⁃ Planning permission for major development in the AONB should be refused unless there are exceptional circumstances justifying the development, and where it can be demonstrated that the development is in the public interest – no exceptional circumstances, not in the public interest.

Overall conclusions:

“Weighing in favour of the development are the need for and delivery of housing, the Biodiversity Net Gain, enhanced recreation opportunities, improvements in highway safety, heritage benefits to the historic landscape and landscape benefits by way of woodland planting and management, which collectively carry substantial weight.

Weighing against the proposal is the harm to the landscape and the scenic beauty of the HWAONB which attracts great weight. There is further harm by way of conflict with the spatial strategy which attracts moderate weight, harm to air quality which is afforded very limited weight and harm to the plan making process through prematurity which is afforded very limited weight.

The Secretary of State has concluded for the reasons given above that exceptional circumstances do not exist to justify the proposed development in the AONB and that the development would not be in the public interest. Therefore, paragraph 177 of the Framework provides a clear reason for refusing the development proposed and as such under paragraph 11(d)(i) of the Framework the presumption in favour of sustainable development is no longer engaged.

Overall, the Secretary of State’s conclusion on section 38(6) of the Planning and Compulsory Purchase Act 2004 is that the conflict with the development plan and the material considerations in this case indicate that permission should be refused.”

The decision appears to have been the final straw for housebuilders, already riled by the overtly anti-housebuilding theme of the proposed amendments to the NPPF (final version soon to emerge). See for example Builders lambast Michael Gove after he blocks plan for ‘generic’ homes in Kent (The Times, 15 April 2023 – behind paywall).

There were no costs applications in this decision but I do note that costs applications and awards appear to becoming more frequent. Often of course these are in favour of appellants where the case against grant of planning permission simply has not been made out by the relevant local planning authority (particularly where the decision to refuse was against officers’ recommendations) – e.g for one example amongst many this decision letter dated 20 April 2023, plus accompanying costs decision letter in relation to a student housing scheme in Bath.

But it’s not just appellants who achieve costs awards. Did people see this recent costs decision letter where Mid Suffolk District Council achieved a full award of costs against the appellant, arising from flooding and access issues which led the inspector to conclude that the appeal had no reasonable prospect of success? Proceed with caution.

By way of reminder (ok gratuitous plug), if you sign up to our free Town Library appeal decisions service you get a list each week of the most recent major planning appeal decisions (namely all those arising from inquiries as opposed to hearings or the written representations process) with links to the decision letters themselves.

Oh finally, another mind blowing decision: the Government continuing to press on with the proposed Infrastructure Levy. Truly a terrible proposal. You may have logged on to our recent clubhouse discussion (hopefully soon to emerge as a 50 Shades of Planning podcast), ahead of the 9 June deadline for responses to the Government’s current technical consultation. If there is anyone out there who can articulate why IL would be an improvement over the current system I would love to hear from you.

Simon Ricketts, 22 April 2023

Personal views, et cetera

Call-In: Article 31 Directions Likely To Be More Common

The Secretary of State has the power, pursuant to section 77 of the Town and Country Planning Act 1990, to call in any application for planning permission for his own determination.

This joker card can be applied at any time before the local planning authority issues the planning permission. There are no statutory constraints on use of the power.

The Government’s policy as to when the power will generally be used is as follows:

“The Secretary of State will, in general, only consider the use of his call-in powers if planning issues of more than local importance are involved. Such cases may include, for example, those which in his opinion:

– may conflict with national policies on important matters;

– may have significant long-term impact on economic growth and meeting housing needs across a wider area than a single local authority;

– could have significant effects beyond their immediate locality;

– give rise to substantial cross-boundary or national controversy;

– raise significant architectural and urban design issues; or

– may involve the interests of national security or of foreign Governments.

However, each case will continue to be considered on its individual merits.”

(Written ministerial statement, 26 October 2012).

By virtue of a written ministerial statement from the former Secretary of State the late James Brokenshire (26 March 2019), the Government’s policy has now reverted (after the Paddington Cube case I referred to in my 5 October 2018 blog post A Promise Is A Promise) to a policy that it will not give any reasoning for its decision to call in or not to call in any application:

“I am concerned that to give reasons in either eventuality risks blurring this distinction and, as there is no duty in this respect, I will call in those applications where I conclude that such a decision needs to be taken by me and I will not call in applications where I conclude that the decision is best left with the local planning authority.

Therefore, so that my position is clear, I am announcing today that the policy set out in the statement of 12 December 2001 is hereby withdrawn and that, from today, I will not give reasons for calling in or declining to call in planning applications. The call-in policy set out in the statement of 26 October 2012 remains in place.”

Whilst it precedes that statement, useful background information on the process more generally is set out in the House of Commons briefing paper, Calling-in planning applications (England) (31 January 2019).

Objectors to an application for planning permission will often seek to urge the Secretary of State to play the call-in joker card. It is a low-cost, potentially high-impact, step – to use another gaming analogy it’s a last roll of the dice. But if the process is not both closely circumscribed and as transparent as possible, it introduces yet further uncertainty (real political uncertainty – what are the factors about the application which in the current national short-term political climate may lead the Secretary of State to consider intervening? – and administrative uncertainty – how much longer is this going to take and who is talking behind closed doors to whom?).

Call-in requests are dealt with by DLUHC’s planning casework unit in Birmingham. Its work and the decisions of ministers pursuant to its recommendations are informed by guidance on planning propriety: planning casework decisions (last updated 16 December 2021).

When a request for call-in is received by the planning casework unit, it needs to decide whether to recommend to the Secretary of State that an application should be called in. In order to ensure that planning permission is not issued before a decision as to call-in has been made, a direction can be made under Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. There is no limit as to the duration of an Article 31 Direction. In the case of the now abandoned proposal by Leeds Bradford Airport for a new terminal, the Direction was in place for nine months until the Secretary of State eventually took the decision to call in the application. Nine months!

Many of us have had anecdotal experience over recent years of differing approaches being taken by the Planning Casework Unit in different situations – sometimes to issue an Article 31 Direction, sometimes to rely on informal assurances from the relevant local planning authority that it will not issue the planning permission until the Planning Casework Unit has had time to do its work and allow time for the Secretary of State to reach a decision. However, until the recent case of R (GOESA Limited) v Eastleigh Borough Council and Southampton International Airport Limited (Holgate J, 23 May 2022), there has been nothing in the public domain to explain what precisely has been going on.

GOESA is a campaign group formed of residents opposing the proposed expansion of Southampton Airport. Objectors had been seeking the call-in of the planning application. The Planning Casework Unit and Eastleigh Borough Council officers had exchanged emails whereby the Casework Unit sought assurances from the Council on an informal basis that permission would be delayed. When planning permission was then issued ahead of any final decision as to whether the application was to be called-in, GOESEA challenged the grant of planning permission on various grounds, the first of which was that this was in breach of a legitimate expectation that no permission would be issued until the Casework Unit’s work has been concluded. In the course of rejecting the claim on all grounds, Holgate J examined the correspondence and found on the facts that there had been no clear and unequivocal promise on the part of the local planning authority that could give rise to a legitimate expectation. However, this summary in the judgment of the Casework Unit’s internal processes is illuminating:

26. A third party may also ask the Secretary of State to consider exercising his power to call in an application. However, an informal request of that nature is not to be treated as a formal application which has to be determined by the Secretary of State. In Save Britain’s Heritage the Court of Appeal stated that a decision on whether or not to exercise the power under s.77 is not a substantive decision. It does not go to, or determine, the merits or demerits of a planning application. It does not affect the substantive rights of anybody. Instead, it is a procedural decision as to who should deal with the planning application, the LPA or the Secretary of State ([19]). The Secretary of State is under no general common law duty to give reasons for a decision on whether or not to call in an application ([19] and [22] – [30]).

27. In the present case, the Secretary of State did not exercise his power to issue an article 31 direction preventing the grant of planning permission by EBC while he decided whether to call the matter in. Instead, he sought to enter into an agreement with EBC delaying the issuing of the LPA’s decision. This reflected an internal practice within the PCU and the Ministry.

28. The court was told that this internal practice has not been published. However, it was described in a witness statement by Mr. Simon Carpenter, a Senior Planning Manager in the PCU dated 11 September 2019, which was filed in Royal Borough of Kensington and Chelsea v Mayor of London (CO/3044/2019). Once a request is received from a third party, the PCU contacts the LPA to ascertain when it is likely to be determined. The PCU’s practice is to allow the LPA to decide whether to grant planning permission before considering the request for a call-in. “In order to safeguard the Secretary of State’s position an undertaking is sought from the case officer that the local authority will not issue the decision notice until the Secretary of State has decided whether call-in is warranted. If the case officer is unwilling or unable to provide this assurance, an article 31 holding Direction is placed on the application”.

29. On 9 December 2021 Lang J ordered the Secretary of State to file a witness statement in the current proceedings stating whether, and to what extent, the standard procedures for handling requests to call in planning applications during the period April to June 2021 were as described by Mr. Carpenter.

30. As a result, a witness statement by Mr. Andrew Lynch, Head of Planning Casework in the PCU was filed. He noted that where a request for a call-in is made after a LPA has resolved to grant permission, an article 31 direction might need to be issued very quickly. He confirmed that the standard procedures remained the same, save in one respect. At the time of Mr. Carpenter’s statement, a case officer had to seek authorisation from the Head of Planning Casework before issuing an article 31 direction. By the time the PCU was dealing with the request to call in SIAL’s application the procedure had changed, in that all proposals to issue an article 31 direction were reviewed by the Secretary of State’s private office or other Ministers. Either the private office or a Minister would decide whether an article 31 direction should be issued. Where possible, the private office would be given 72 hours in which to respond. In some cases where a swifter response was necessary, for example where a request for a call in was made at a late stage or the LPA had not given an undertaking, PCU officials would liaise directly with the private office.

31. The fact that an article 31 direction needed to be authorised by the Head of the PCU, or subsequently by the Secretary of State’s private office or a Minister, reflects the rarity of the use of the call-in power, as was acknowledged in Save.

32. In my judgment it undoubtedly follows from this analysis that it would be ultra vires for a LPA to give an irrevocable undertaking or promise that it will not issue a decision notice granting permission until the Secretary of State decides whether to call in the application, without any limit as to time. A public authority cannot enter into any undertaking or agreement incompatible with the due exercise of its duties (Birkdale District Electric Supply Company v Southport Corporation [1926] AC 355, 364; De Smith’s Judicial Review (8th Ed), para. 9-022 et seq). An agreement by a LPA to defer issuing a decision for a short period which could be considered de minimis would be a different matter.

The judge went on to deprecate the Casework Unit’s practice of seeking informal assurances, in terms which I believe will inevitably lead to an immediate change to the Unit’s approach:

72. I would add for completeness that, although the claimant did not rely upon the general power of competence in s.1 of the Localism Act 2011, that provision could not overcome this incompatibility with the LPA’s duty to determine the application.

73. Planning legislation does provide a solution for a situation where the Secretary of State wishes to prevent a LPA from granting planning permission while he considers whether to call in the application. He has a broad power to issue an article 31 direction. It is a transparent and public procedure. The use of that simple procedure avoids the uncertainty which can arise, as in the present case, over the meaning and effect of exchanges of emails and letters, whether they give rise to any binding legitimate expectation and, if so, the nature of that expectation. It hardly seems desirable for the interests of an applicant, the LPA and potentially other public bodies and many members of the public, whether for or against the proposal, to be affected by such legal uncertainty. As the evidence from the Secretary of State shows, an article 31 direction can be issued rapidly where that is thought to be appropriate.

74. The claimant has not gone so far as to suggest that any undertaking or assurance given by EBC was irrevocable. It accepts that the authority could have terminated the undertaking by giving reasonable notice to the Secretary of State that it intended to issue a decision notice granting permission. But I very much doubt whether revocability would overcome the LPA’s lack of vires in the first place to enter into a promise to delay issuing the decision notice without any limit as to time. The legal position does not seem to me to be any different where a LPA gives an undertaking to the Secretary of State to delay issuing a decision notice which is simply silent on the issue of timescale.

75. In my judgment, it follows that the particular undertaking which the PCU asked EBC to give, and which the claimant says was given, was inconsistent with planning legislation, and in particular the LPA’s duty to determine the planning application before it, and so it would have been legally incapable of giving rise to a legitimate expectation. On this freestanding basis also, ground 1 must be rejected.

Surely we shall be seeing even more Article 31 Directions in future. But what is important is that this does not slow down our planning system even further or introduce even further political uncertainties or opportunities for legal challenge. I see no logical (as opposed to political) reason why the call-in power should not either be abolished in its entirety or clearly restricted by way of clearly defined criteria and thresholds. There, I’ve laid my cards on the table.

No Clubhouse event again this week, but there is the Town Legal/Landmark Chambers webinar at 5pm on 6 June 2022 that we have previously publicised: “Will the Bill deliver more or less housing? Yes or no?” Simon Gallagher (Department of Levelling Up, Housing and Communities) will join Zack Simons (Landmark Chambers), Kathryn Ventham (Barton Willmore now Stantec) and myself in a session chaired by Town Legal’s Meeta Kaur. We are now over-subscribed but I will circulate a link to the recording afterwards.

Simon Ricketts, 5 June 2022

Personal views, et cetera

Extract from photograph by Josh Appel, courtesy Unsplash

Does My Embodied Carbon Look Big In This?

M&S used to be the bellwether of the retail sector but its proposed demolition and redevelopment of its 456 – 472 Oxford Street store, in preference to refurbishment and extension, is as likely to be a bellwether of decision makers’ approach to carbon efficiency and in particular to justifying the loss of embodied carbon.

Siri, give me a definition of embodied carbon:

“Embodied carbon means all the CO2 emitted in producing materials. It’s estimated from the energy used to extract and transport raw materials as well as emissions from manufacturing processes.

The embodied carbon of a building can include all the emissions from the construction materials, the building process, all the fixtures and fittings inside as well as from deconstructing and disposing of it at the end of its lifetime.” (UCL engineering faculty).

Plainly, maximising the carbon efficiency of new development should be a significant material consideration in the determination of planning applications. But it’s not easy. How, for instance, to weigh longer term operational carbon savings against the one-off carbon costs associated with demolition and rebuild? And how much weight is to be given to carbon saving in the planning process as against other considerations?

You can look in vain for any specific guidance in the National Planning Policy Framework. The “planning for climate change” section (paragraphs 153 to 158) is of course woefully out of date, with an update promised mañana. Climate crisis what crisis?

Even so, the issue was raised by the Secretary of State when he dismissed the Tulip appeal (11th November 2021): “Although considerable efforts have been made to adopt all available sustainability techniques to make the construction and operation of the scheme as sustainable as possible” the result would still amount to “a scheme with very high embodied energy and an unsustainable whole life-cycle.” The Secretary of State also agreed with the Inspector: “that the extensive measures that would be taken to minimise carbon emissions during construction would not outweigh the highly unsustainable concept of using vast quantities of reinforced concrete for the foundations and lift shaft to transport visitors to as high a level as possible to enjoy a view.”

Notwithstanding the lack of national policy guidance, the London Plan does have a policy hook, Policy SI 2:

Not only that, as of 17 March 2022 the policy is supported by London Plan Guidance, Whole Life-Cycle Carbon Assessments and on the circular economy.

I want to scoot through the sequence of events so far in relation to the M&S proposal.

Its application for planning permission was submitted to Westminster City Council on 2 July 2021, proposing the demolition of the three buildings that comprise its 456 – 472 Oxford Street store, to make way for a comprehensive redevelopment to provide a building comprising two basement levels, ground and nine upper floors. The proposal would provide an office and retail led mixed use development. The oldest of the buildings, Orchard House, dates from the 1930s. Two comprise basement plus six storeys and one being basement plus seven storeys. Given the changing retail economy, the need for substantial changes to buildings such as this is of course no surprise. The scheme is by architects Philbrow & Partners.

Fred Philbrow stresses the lower lifetime carbon emissions that will arise from the new building, rather than a retrofit:

“It’s not always right to refurbish” old structures, Pilbrow told Dezeen, claiming that the contentious project is akin to trading in a gas guzzler for a Tesla.

“I would liken this to a discussion about a not-very-well-performing diesel car from the 1970s,” he said. “And what we’re trying to do is replace it with a Tesla.“

“In the short term, the diesel car has got less embodied carbon,” he added. “But very quickly, within between nine and 16 years, we will be ahead on carbon because our Tesla will perform better.” (Dezeen, 17 December 2021).

The application was resolved to be approved by Westminster City Council on 23 November 2021, despite last minute objections from Save Britain’s Heritage and others. The report says this on carbon:

“The applicant has submitted a Whole Life-Cycle Carbon Assessment (WLCA) prepared by Arup, as required by Policy SI2 of the London Plan and City Plan Policy 36.

The WLCA includes a comparative assessment of the whole life carbon emissions of a ‘light touch’ refurbishment versus new build development options. The report sets out that refurbishment option has the lowest embodied carbon impact initially because minimal works (and materials) are required. However, this increases over time due to the required maintenance and poor operational performance of the existing buildings.

The assessment concludes that the new build option is the most efficient scenario, especially through the implementation of the low-carbon opportunities recommended in the report. Whilst it has a higher initial embodied carbon than the refurbishment option as it needs to be built (with a high carbon expenditure) – over its operational lifetime it will require much less maintenance than the refurbishment option and be a more efficient building, providing a betterment from years 15/16.

The GLA in their stage 1 response requested the applicant to complete the GLA’s WLCA assessment template. This has been submitted to the GLA and an update on this position with regard to London Plan policy S12 will be reported verbally at the Committee meeting.”

The resolution was subject to referral to the Mayor of London and completion of a section 106 agreement, including an index linked carbon offset payment of £1,198,134 payable prior to the commencement of development.

On the same day as Westminster’s resolution to grant, Historic England turned down a request by objectors that the building be listed.

The Mayor confirmed on 7 March 2022 that he was not going to intervene. However, Save Britain’s Heritage complained that he had not taken into account representations that they had made, including a report they had commissioned from Simon Sturgis Why a Comprehensive Retrofit Is more Carbon Efficient than the Proposed New Build. Simon had previously advised the Mayor on his emerging carbon policies. [NB see Simon Sturgis’ subsequent comments on this blog post at the foot of the page]

Unusually, the Mayor then decided he was going to reconsider the issue:

“A spokesperson for the Mayor of London, said: ‘In line with London Plan policy on Whole Life Carbon, the question of retention and refurbishment or demolition and new build was considered in the GLA’s assessment of this application, and based on officer advice that there was no sound planning reason to intervene, on 7 March the Mayor made the decision to allow Westminster to determine the application.

‘However, City of Westminster is yet to issue its planning decision, and the GLA has now published its planning guidance on Whole Life Carbon and Circular Economy. In light of this situation GLA officers consider it would be prudent to consider a further Stage 2 report, which would also allow consideration of the detailed report by Simon Sturgis examining the carbon emissions impacts of the proposed demolition. An updated Stage 2 report will be presented for consideration at the Mayor’s meeting on Monday 4 April.’” (Architects Journal, 1 April 2022).

However, his decision on 4 April 2022 was the same – no intervention. The stage 2 report and addendum report are available here.

Given the assessment that the Mayor will have made as against his own policies, more up to date and stringent than those of the Government, it is perhaps disappointing for those who believe in devolved decision making then to read that Michael Gove has, presumably in response to further representations (see eg Save Britain’s Heritage’s letter dated 20 April 2022) issued a holding direction preventing Westminster City Council from issuing planning permission until he has decided whether to call it in. The holding direction, under Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015, is only a precautionary procedural step to buy time and doesn’t at all mean that the Secretary of State is definitely going to call the application in, just that he is considering whether to do that. Indeed holding directions are not particularly unusual in relation to controversial proposals where the Secretary of State has received requests from objectors for him to use his call in powers. seeking call in. But frankly it’s anybody’s guess what will now happen.

The planning system is certainly curious in its inconsistencies. What about the “demolish and rebuild” permitted development rights for some categories of building, introduced in August 2020? Or that demolition of itself does not usually require formal planning permission?

Concluding thoughts:

⁃ climate change considerations should increasingly be central to planning decision making

⁃ but it’s no use the Government reacting in an ad hoc way to specific proposals – up to date, practical, guidance is needed to manage everyone’s expectations – a lengthy call in inquiry is in no-one’s interests

⁃ it shouldn’t be about the easy headlines and twitter pile-ons, but about robust detailed calculations.

⁃ watch how heritage campaign groups continue to accentuate the embodied carbon issue: embodied carbon vs operational savings via more efficient buildings is going to be a constant battleground.

For further reading: Material Considerations: Climate change, embodied carbon and the role of planners (Lichfields’ Alison Bembenek, 11 Feb 2022).

For further listening: Blackstock’s PropCast podcast M&S refurbishment row: experts say demolition decisions need to be about more than just carbon (21 April 2022).

Talking of listening…no clubhouse Planning Law Unplanned discussion this week but plenty of previous episodes to listen to here and some good sessions lined up….

Simon Ricketts, 23 April 2022

Personal views, et cetera

The Very Specials

What are “very special circumstances” which may justify the grant of planning permission for inappropriate development in the green belt?

Of course there is no definitive answer to that question. As set out in the National Planning Policy Framework (this is about application of national policy, rather than a matter of legislation), it is for the decision maker to determine whether the potential harm to the green belt by way of inappropriate development (the NPPF defines what is “inappropriate”) is “clearly outweighed by other considerations”.

I highlighted the difficulties of calibrating terms such as “very special circumstances” and (the test for changing green belt boundaries by way of plan making) “exceptional circumstances” in my 9 May 2020 blog post Zen & The Art Of Very Special Circumstances and also referred to a number of recent decisions.

We have now had more.

Colney Heath

Much has of course been written about the inspector’s decision letter dated 14 June 2021 in relation to a proposed residential development in Colney Heath, Hertfordshire (see eg my 19 June 2021 blog post People In Houses…).

I thought I would briefly point to the following other examples:

Focus School, Stoke Poges

This was an inspector’s decision letter dated 24 May 2021 relating to proposed works to a listed school, comprising “erection of a multi-purpose space and ancillary rooms, removal of existing modular classrooms, creation of a new footpath link with Khalsa Academy, creation of temporary construction access on School Lane and related landscaping, SUDS and other drainage works and associated works to 6 no. TPO trees.”

These were the inspector’s conclusions on “very special circumstances”:

“33. The proposal would be inappropriate development in the Green Belt. The Framework establishes that substantial weight should be given to any harm to the Green Belt, and development should not be approved expect in very special circumstances. In addition, I have found that the scheme would also have a modest adverse impact on the openness of the Green Belt and the significance of the listed building. Very special circumstances will not exist unless the harm to the Green Belt and any other harm are clearly outweighed by other considerations.

34. The other considerations before me are substantial and carry significant weight. I am satisfied that the need for the proposal to provide additional accommodation at the school for exams, assemblies and PE has been clearly demonstrated. Paragraph 94 of the Framework gives great weight to the need to expand or alter schools and pupils at the school are currently severely disadvantaged by inadequate facilities at Pioneer House. I am satisfied that there are no alternative locations within the existing building or alternative development proposals that could satisfy this need but result in less Green Belt harm or other material harm.

35. The harm to the significance of the listed building would be less than substantial, with reference to paragraph 196 of the Framework. Paragraph 193 of the Framework establishes that great weight should be given to the conservation of a heritage asset. The statement of common ground establishes that the Council is satisfied that the harm to the listed building would be significantly outweighed by the public benefits that the proposal would bring to the Academy as an educational facility, through the improved facilities it would deliver and improvements to how the Academy operates, and the experience it provides for its pupils. I see no reason to take a contrary view. I am therefore satisfied that the benefits of the proposal, which are significant benefits of a public nature, clearly outweigh the less than substantial level of harm.

36. I find that the other considerations in this case clearly outweigh the harm that I have identified. Looking at the case as a whole, I consider that very special circumstances exist which justify the development.”

Land west of Wingates Industrial Estate, Wimberry Hill Road, Westhoughton, Bolton (ref: 3253244 – 21 June 2021)

This was a decision of the Secretary of State in relation to an application, that he had called in, for a large employment development which Harworth Group had made to Bolton Metropolitan Borough Council. Bolton had resolved to grant planning permission on 10 January 2020. As described by the inspectors, B J Sims BSc (Hons) CEng MICE MRTPI and D M Young JP BSc (Hons) MA MRTPI MIHE:

“The Part A outline development concept is to form an extension to the Wingates Industrial Estate where the stated intention of the Applicant Company is to create a high quality employment park incorporating the range of uses described in the application and providing 100,000sqm of floorspace.

The Part B full application is to first remove some timber animal shelters and then to create the site access and form development platforms. This is in anticipation of future proposals for buildings, including one very large scale, key storage and distribution warehouse and a number of smaller units in a range of sizes. The detailed Part B works would also include boundary landscaping works and the creation of an ecological enhancement area at the north western end of the site.”

Other proposals were considered by the same panel of inspectors at four separate inquiries including the Symmetry Park proposal referred to below.

These were the Secretary of State’s conclusions on “very special circumstances”:

“33.For the reasons given above, the Secretary of State considers that the application is not in accordance with Policies CG7AP, CG1,CG3 and OA3 of the development plan, and is not in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

34.The material considerations which weigh against the proposal are the harm to the Green Belt and the landscape and visual impacts. The Secretary of State affords the Green Belt harm substantial negative weight and the landscape and visual harm significant negative weight.

35.The Secretary of State considers that the evident need for development of the type proposed carries substantial weight, and the economic benefits of the proposal carry very substantial weight in favour of the scheme. He considers that the benefits of effective landscape mitigation, a net gain in biodiversity, sustainable drainage to obviate flooding concerns, off site highway works to accommodate generated traffic, new or diverted footpaths where affected by the development, improved bus services and enhanced pedestrian and cycle access to the site each carry limited weight.

36.The Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and the other harms he has identified, are clearly outweighed by other considerations. Overall, the Secretary of State considers that the economic and other benefits of the proposal are collectively sufficient to outweigh the harm to the Green Belt and to the landscape such that very special circumstances exist to justify permitting the development.

37.For the reasons given above the Secretary of State considers that the material considerations in this case indicate a decision other than in accordance with the development plan.

38.The Secretary of State therefore concludes that planning permission should be granted.”

Symmetry Park, Junction 25 of the M6, Wigan (ref: 3253242 – 21 June 2021)

This was another call-in decision, following an inquiry held by the same inspectors, into proposals submitted by Tritax Symmetry Limited to Wigan Metropolitan Borough Council, “for the demolition of existing buildings and reprofiling of the site for development comprising:

• Full planning permission for the erection of 27,871 square metres of employment floor space (Use Class B8 with ancillary integral Use Class B1a floor space), comprising two units and the provision of associated infrastructure including sub-station, car parking, landscaping, access from the A49 roundabout and internal estate road; and

• Outline planning permission for the erection of up to 106,095 square metres of employment floor space (Use Class B8 with ancillary integral Use Class B1a floor space), including car parking, internal estate road and landscaping. All matters except for access are reserved, with access proposed from the A49 roundabout.”

Wigan had resolved to grant planning permission in January 2020.

These were the Secretary of State’s conclusions on “very special circumstances”:

“41.For the reasons given above, and in the light of his conclusion in paragraph 43 of this letter, the Secretary of State finds no conflict with development plan policies, and thus concludes that the application is in line with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

42.The material considerations weighing against the proposal are the definitional harm to the Green Belt by virtue of inappropriate development, the limited and localised harm to Green Belt openness and the moderate harm from encroachment into the countryside. The Green Belt harm carries substantial weight. Also weighing against the proposal is the moderate visual and landscape harm, which carries moderate weight.

43.Weighing in favour of the proposal are the delivery of logistics floorspace which he accords very substantial weight. The locational benefits carry further significant weight. The socio-economic benefits also carry substantial weight. The biodiversity net gain and highway benefits collectively attract moderate weight.

44.The Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and the other harms he has identified, are clearly outweighed by other considerations. Overall, the Secretary of State considers that the economic and other benefits of the proposal are collectively sufficient to outweigh the harm to the Green Belt and to the landscape such that very special circumstances exist to justify permitting the development. As such he finds no conflict with CS Policy CP8 or Green Belt policy in Section 13 of the Framework.

45.Overall the Secretary of State considers that the material considerations in this case indicate a decision which is in line with the development plan – i.e. a grant of permission.

46.The Secretary of State therefore concludes that planning permission should be granted.”

We will continue to see decisions like this, and those referred to in my blog post last year, for so long as local plans do not properly meet the needs for development and/or manage green belt boundaries, although:

⁃ the value of call-ins versus the cost and delays arising may be another question, and

⁃ It is a brave local authority that even attempts to plan for release – see e.g. Green Belt housing plans approved by councillors (Enfield Dispatch, 12 June 2021) and the surrounding brouhaha.

Meanwhile of course the rather dull debate continues as to whether there should be a proper reconsideration of green belt policy – dull only because it is clear how politically toxic (and therefore utterly hypothetical as an idea, whatever its merits) this would be. The HCLG Select Committee’s June 2021 report The future of the planning system in England recommended:

“We agree with evidence that called for the protection of the green spaces in the Green Belt; whilst also recognising that not all Green Belt land are green spaces. A review should examine the purpose of the Green Belt, including whether it continues to serve that purpose, how the public understand it, what should be criteria for inclusion, and what additional protections might be appropriate. The creation of new Local Plans also provides an opportunity for local reviews of Green Belts and the Government should help identify those local authorities where such reviews are particularly urgent. Local Plans can also relieve pressure on Green Belts by prioritising developments on brownfield sites. The Government should ensure there is sufficient funding provided to support their decontamination.”

That recommendation was roundly rejected by housing minister Christopher Pincher in the House of Commons on 14 June 2021:

“We are committed not only to protecting the green belt but to enhancing it, and those protections will remain in force when we bring in planning reforms. I can assure you, Mr Speaker, that we will not be taking the advice of the Select Committee, which suggested that we should undertake a wholesale reform of the green belt. We have committed to protect it, and so we shall, because only in exceptional circumstances may a local authority alter a green-belt boundary, using its local plan and consulting local people on where essential new housing should go, and it needs to show real evidence that it has examined all other reasonable options before proposing to release the green belt. We are committed to the green belt, and we will fight for it.”

i.e. , when it comes to any green belt reform, the Government will continue to…

Do Nothing.

Simon Ricketts, 25 June 2021

Personal views, et cetera

This week’s Clubhouse Planning Law Unplanned session will be at 5pm on Monday, so as not to draw too many people from the Tuesday evening football. We celebrate Pride month with Planning with Pride. There will be a series of special guests from the planning world, curated by my Town colleague Spencer Tewis-Allen. We would love your support. An invitation to the app and event is here.

Whitechapel Bell Foundry: Facts, Media, Politics

Government approves plan to turn Whitechapel Bell Foundry into boutique hotel (The Standard, 17 May 2021). Well, what do we think about that?

Bell foundry that cast Big Ben can be turned into boutique hotel, UK government says – Decision has drawn wave of criticism from culture and heritage professionals, accusing government of ‘money-grabbing philistinism’ (The Art Newspaper, 14 May 2021). Crumbs.

From the piece:

“Andrew Wilson, a curator at Tate, wrote on Twitter that this is “another example of the normalisation of money-grabbing philistinism that this government promotes”. Writing on his blog, Charles Saumarez-Smith, the former chief executive of the Royal Academy of Arts in London, says that the government “is play-acting, [putting] a superficial veneer over rather brutal capitalists, who are happy to use British history for their own purposes… a hotel for foreign tourists is more important than a bit of living history”.

Saumarez-Smith also criticises the heritage body Historic England, which backed the boutique hotel project, saying: “I hope that the Commissioners of Historic England, who have so conspicuously failed in their public duty, might consider what went wrong: why they did nothing; why they have allowed this to happen in such a conspicuously supine way.” Historic England said in a statement: “We believe that the proposals have the makings of a successful heritage regeneration scheme, and would provide a sustainable future for this important group of listed buildings.”

Whitechapel Bell Foundry to be turned into a hotel, after Government greenlights plans (The Telegraph, 14 May 2021) – a piece that also quotes the tweets from Andrew Wilson and Charles Saumarez-Smith (Saumarez-Smith then writing a long piece in the same newspaper on 18 May 2021, If Robert Jenrick doesn’t act now, the Whitechapel Bell Foundry will be lost for good – A priceless piece of our heritage is on the brink of being turned into a hotel. Why won’t our public institutions protect it? ).

Bell tolls for historic Whitechapel foundry that created Big Ben (The Times, 14 May 2021), a piece which starts:

“The housing secretary has ordered a review of planners’ approach to heritage after a decision was made to allow a 450-year-old bell foundry that cast Big Ben to be turned into a boutique hotel.”

Away from the traditional media, there has inevitably also been much tweeting and perhaps it is apt that the Secretary of State took to twitter to announce that review, the announcement so far taking the form just of the final sentence of this thread of tweets:

The one thing you get from the newspaper headlines is that the foundry is being turned into a hotel. Isn’t it interesting/worrying how these stories take on a life of their own, reduced to compelling headlines.? Of course, it’s inevitable – who has the time to read even the Secretary of State’s 13 May 2021 decision letter and accompanying inspector’s report, let alone any of the underlying documents? The foundry is not being turned into a hotel.

To take a step back…

First, what was the site? As described by the inspector:

“2.2 The entry in the statutory list provides a great deal of information about the Whitechapel (or what it terms the Church) Bell Foundry. It suffices to set out here that it is a Grade II* listed building. However, the situation is complicated, to a degree, by the fact that parts of the overall foundry site are specifically excluded from the listing.

2.3 Put simply, the application site has three main elements. Firstly, there is the front range (including 32 and 34 Whitechapel Road and 2 Fieldgate Street). Secondly, behind that front range, lie the courtyard and old stables and thirdly, beyond those, are the old foundry and former cottages. Together, these elements comprise the Grade II* listed building.

2.4 Beyond that lies what has been termed the 1980s building. This building is specifically excluded from the listing. Beyond and adjacent to the 1980s building are two areas of car park and hardstanding which were not part of the Whitechapel Bell Foundry but are parcels of land that have been assembled by the applicant.”

The foundry use had ceased in 2017.

What are the proposals by the applicant, Raycliff Whitechapel LLP? Again, as described by the inspector:

“4.1 In simple terms, there are two main components of the proposals that can loosely be classified as the listed building and the new building. In terms of the listed building itself, it would play host to a modern foundry, interpretation spaces, a café and events space, workspaces and workshops. The proposed uses and improved circulation are intended to allow the maximum number of people to access and experience the building.

4.2 The new building would be home to a hotel, with 103 bedrooms, a restaurant, a bar, and a roof-top terrace and pool, and a workspace at ground floor level.

4.3 The ground floor across both the listed building and the new building would be open to the public, with the foundry, interpretation spaces and the café in the historic building, the restaurant bar and hotel reception in the new building. The main entrance to the buildings would be common to both.”

Tower Hamlets Council resolved to grant planning permission and listed building consent on the advice of its officers on 14 November 2019 and the Secretary of State then issued a holding direction on 2 December 2019.

Remember Rory Stewart’s campaign to be London Mayor? Back in December 2019, his campaigning included support for the Save the Whitechapel Bell Foundry campaign (Rory Stewart Declares His Support To Save The Whitechapel Bell Foundry, Spitalfields Life, 19 December 2019).

Photo courtesy of Spitalfields Life website

The applications were called in by the Secretary of State on January 2020. There was an early hiccup in the process when housing and planning minister Chris Pincher mistakenly told MPs in a debate on 11 June 2020 (seeking to defend the Secretary of State’s position in relation to another scheme in Tower Hamlets, Westferry – now incidentally back at inquiry for redetermination but that’s another story):

“I am obliged to the hon. Gentleman for his question. As I said, it is not unusual for Ministers to look at and call in significant applications, and for them to come to a different conclusion from that of the Planning Inspectorate. My right hon. Friend’s reasons for his decision were clearly outlined in his decision letter of 14 January. He makes it clear that one reason for his decision to allow the application was the very significant number of homes that were going to be built as a result of it, including affordable homes. I might say in response to the hon. Gentleman that in the same week, in an application to the same authority, my right hon. Friend came to a very different conclusion when he refused a planning application made by and supported by the local authority to demolish the Whitechapel Bell Foundry, the one that created Big Ben and the Liberty bell. The local authority, the well-known tribunes of the people in Tower Hamlets, wanted to demolish it and build a luxury boutique hotel. My right hon. Friend will always come down on an application based on its merits and in the interests of the people. That is what he did on this occasion and that is what he will always do.”

He later apologised for his mistake – it had only been called in by the Secretary of State, not refused, but an unhelpfully politically charged note in the process for sure.

An inquiry took place, which opened on 6 October 2020 and sat for nine days. The main objectors to the proposals were a group known as Re-Form Heritage, which appeared at the inquiry as a Rule 6 Party, represented by Rupert Warren QC and Matthew Dale-Harris, who called four witnesses including professional evidence on heritage and planning – no “David and Goliath” contest this). Tower Hamlets Council was in support of the proposals (Alexander Booth QC appearing), as was Historic England. David Elvin QC appeared for the applicant.

(Thanks to my Town Legal colleague Tom Brooks for much of the following summary, although any views expressed are mine).

Re-Form argued that:

– Raycliff’s proposals were unacceptable in heritage terms, and would cause, in the language of the NPPF (paras 193-196), “substantial harm” to the significance of the listed building; and

– Re-Form’s alternative vision for the future of the site, as a working foundry for casting both bells and other artistic commissions, was less harmful, so the applications should be refused.

Raycliff’s position was that only a low level of less than substantial harm would be caused by the proposals, that this would be outweighed by their public benefits (heritage and otherwise), and that Re-Form’s idea was undeliverable and unviable.

The inspector concluded that the listed building was “of profound significance” (IR 12.14), noting that all agreed there were elements of the proposals that would cause harm to that significance (IR 12.17), whether substantial (leading to NPPF 194-195) or less than substantial (leading to NPPF 196).

As spelt out by the inspector: the end of the bell foundry business in 2017 was unconnected to the present proposals (“Traditional bell founding on the site…ended for economic reasons mainly to do with a drop in demand for tower bells, and the difficulties, both operational and environmental, the business encountered in operating from a Central London address”); and therefore the starting point for the assessment was a “largely vacant Grade II* listed building that formerly housed traditional bell founding…It is not a situation where a traditional bell foundry is to be closed in order to be replaced by something else”. IR 12.23).

Following the inspector’s conclusion that the proposals cannot be taken to cause harm to the listed building as a result of the closure of the business, the only harm possible was any arising from the physical works now proposed. No harm was found to the other heritage asset in this case, the Whitechapel Conservation Area, and that the hotel extension was said by the inspector to be a “subtle and pleasingly understated” addition (IR 12.52).

The inspector concluded that the harm to the listed building “would be very much at the lower end of the scale of less than substantial” (IR 12.44), would be outweighed by the public benefits of the scheme (albeit with some non-consequential discussion as to how this balancing should be carried out – see below), and so planning permission and listed building consent should be granted.

This advice was accepted by the Secretary of State.

There are some interesting issues arising:

– Obviously, there is no planning control whatsoever to preserve as operational the specific use that was said to be significant in heritage terms – as a “large church bell foundry” (IR 8.46) – clearly the planning system cannot require a business to continue to operate or indeed to prevent other industrial uses of the site, or uses which may be possible by way of permitted development. The Secretary of State concluded that “the end of traditional bell making on the site has…nothing whatsoever to do with the proposals at issue”.

– Re-Form argued that that Raycliff needed to demonstrate that its scheme was the “optimum viable use” of the site (following the reference in NPPF 196). This suggestion was dismissed by the inspector: optimum viable use is an example of the public benefits that are to be weighed against harm in the balancing process, but in such “a situation where the heritage and other public benefits of the proposals so far outweigh the harm they would cause, it appears to me unnecessary” (IR 12.82).

– The inspector followed Bramshill at first instance (Waksman J, 16 December 2019) that not much detail of an alternative scheme for a heritage asset is needed for that scheme to be a relevant consideration. Nonetheless, he found Re-Form’s scheme to be “somewhat sketchy, and lacking in detail [with…] far too many uncertainties” (IR 12.92). Moreover, even if it had been shown to be viable, “the mere presence of an alternative scheme offers no justification to resist a proposal that is otherwise acceptable, and statute and policy compliant” (IR 12.77).

– One of the more surprising aspects of the decision is the inspector going out of his way to endorse the so-called “internal heritage balance” method of assessing heritage harm following Palmer (Court of Appeal, 4 November 2016), despite numerous subsequent judgments emphasising that such an approach should be used with caution (see recently the Court of Appeal judgment on Bramshill which I covered in my 12 March 2021 post).

While the inspector was at pains to make his view clear that such an “internal heritage balance” approach was “perfectly legitimate”, and this was endorsed in the Secretary of State’s letter, it actually made no difference to the conclusion reached.

The inspector thus carried out an initial balancing exercise of heritage harm against heritage benefits, prior to the NPPF 196 test considering the wider public benefits. In doing so, he found that “there would be no harm caused to the special architectural and historic interest of the listed building […and] no need to consider paragraphs 195 or 196 because considered in the round, the proposals would cause no harm to the significance of the designated heritage asset affected” (IR 12.75-12.76).

What the inspector had done, though, was exactly the same as carrying out the NPPF 196 test, and simply stopping after the heritage benefits because the scales were already tipped in their favour, and so there was no need to include the wider public benefits too. In fact, the inspector then carried out the NPPF 196 test doing this anyway (at IR 12.78-12.81), leaving it unclear as to why the “internal heritage balance” approach was taken in the first place.

It’s certainly a topical issue. In the middle of my writing this post, judgment was handed down in Juden v London Borough of Tower Hamlets (Sir Duncan Ouseley, 21 May 2021) – another social media cause celebre, the “mulberry tree” case. See discussion at paragraphs 59 to 87 on ground 3 (“inclusion of heritage benefits when assessing the level of heritage harm”).

– It is common, thanks partly to the shared application form these days, for applications for planning permission and listed building consent to share the same description of development. Unusually, in this case, the inspector sought during the inquiry to understand exactly which works should be the subject of each application, resulting in an amendment to the description for the listed building consent – a useful reminder of the proper scope of listed building consent in section 7 of the Act (for “works which would affect its character as a building of special architectural or historic interest”), and that despite their often parallel consideration by planning authorities, they are separate regimes with separate legislative and policy considerations.

Here was a proposal that was supported by Tower Hamlets officers and members, supported by Historic England, recommended for approval by an independent inspector and approved by the Secretary of State (the decision apparently taken by another minister but “on behalf of” the Secretary of State). In the meantime, commentary in social media and the broadsheet newspapers continues to attack the conclusions reached, repeating arguments that have already been rejected throughout this process.

There are plenty of participants to go at of course – the Secretary of State mentions the Planning Inspectorate (why?); Charles Saumarez-Smith (who appeared at the inquiry) alleges that Historic England “conspicuously failed in their public duty” (how?), and as always everyone has a go at the developer, without putting forward any realistic alternative proposals.

What has led to the Secretary of State’s announcement of a “review of how the Planning Inspectorate and planning policy considers and defends heritage”? An attempt to appease, without implementing substantive changes to the current system, those who wish that somehow a different decision could have been reached? Or something more fundamental? If the latter (and I’m struggling to visualise what form that might take), it needs to get hitched pretty quickly to the planning white paper bandwagon.

Finally, I of course recommend Zack Simons’ 19 May 2021 blog post Old buildings: what’s new in heritage planning? – a brilliant analysis as always.

Simon Ricketts, 21 May 2021

Personal views, et cetera

This week’s 6pm Tuesday 25 May #PlanningLawUnplanned Clubhouse session, provocatively titled, looks more widely at the treatment of planning issues in the media, already with a fascinating list of guest contributors in addition to our usual panel. Invitation to the app here (and, hooray, no longer limited to iphone users).

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