LL Cool RJ

This is about Robert Jenrick’s 23 October 2019 announcement of the ‘most ambitious heritage preservation campaign for 40 years‘.

Whilst we are in political lock-down, there is time to look at it in more detail and in particular at the concept of locally listed buildings, central to the campaign that Jenrick laid out as Communities Secretary, jointly with the Culture Secretary Nicky Morgan.

The following initiatives were announced, now of course all on pause:

⁃ “The new campaign will challenge every single local authority across England to draw up lists of buildings of significant historical and cultural value to an area, ensuring important local monuments are no longer left neglected and unloved.”

⁃ “Local people will be empowered to nominate heritage assets which are important to them and reflect their local area and identity, supported by a team of heritage experts, funded by £700,000 to help 10 English counties identify areas which need protecting.

⁃ “Historic England will launch a national campaign on local identity getting the country talking about what defines our heritage.

⁃ “The Communities Secretary is taking the direct step of contacting every parish council in England to make sure they are conserving the buildings which have played a remarkable role in their local history and need our support.

⁃ “In addition, a local heritage champion will be appointed to spearhead the campaign and encourage councils to increase local listings.”

I was at the announcement on 23 October, made at a Policy Exchange and Create Streets breakfast event (my, I had imposter syndrome). The transcript of his speech makes interesting reading, particularly the passages I have emboldened:

“I want to encourage local communities and heritage groups to get far more involved in identifying the historic buildings in their area…

… so they can be at the heart of the process of recognising, defining and protecting the buildings they truly value.

Because we know that, where buildings are on local or national heritage lists, they are often shielded from development.

And that, again, builds consent for development and builds better communities.

Until now, this has mostly been the domain of our local planning authorities.

But only 50% of planning authorities even have these lists, and where they do, they are often out of date or incomplete.

This isn’t good enough.

Protecting the historic environment must be a key function of the planning system.

All local planning authorities must play a far more proactive role in supporting local communities and heritage groups to identify and to protect more historic buildings.

In the 1980s, Michael Heseltine reinvigorated our national heritage lists. And now I want to complete that work and to do the same at the local level.

As a first step, I am announcing, what I think will be the most ambitious new heritage preservation campaign since Michael’s work 40 years ago.

We will start with 10 English counties and support them to complete their local lists and to bring forward more suggestions for the national statutory lists as well.

It will see local people coming forward to nominate the buildings and community assets they cherish – protecting them for future generations.

We’re backing this programme with £500,000 of government investment – giving counties the tools, funding and expertise they need to shift their approach to heritage and conservation up a gear.

To help us do this, we will appoint a National Heritage Advisor to support this vital work and to make sure that Government is actually delivering. I want to thank Marcus Binney, Simon Jenkins and the SAVE team for their input and inspiration for this initiative.

We hope this will help boost conservation efforts in these counties, enabling fresh engagement with local communities and heritage groups.

But our work doesn’t stop there.

We are also working with the Department for Culture and with Historic England on developing an entirely new heritage conservation programme. We are going to be supporting Historic England to develop a new process to enable faster community nominations of important heritage assets in the new Heritage Action Zones.”

If the new Government returns to this thinking, great care is needed in my view to manage the public’s expectations, in two ways:

1. What is local listing in the first place? It is not statutory listing.

2. What criteria are to be applied before buildings are locally listed.

Obviously, locally listed buildings do not qualify for the statutory protection that is given to listed buildings and conservation areas, either by way of additional consenting procedures or the specific policy tests to be met in relation to those statutorily designated heritage assets.

Locally listed buildings comprise non-designated heritage assets for the purposes of the NPPF.

The glossary to the NPPF defines “heritage asset” as follows:

A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. It includes designated heritage assets and assets identified by the local planning authority (including local listing).”

The NPPF policy test:

The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining [a planning] application. In weighing applications that directly or indirectly affect non-designated heritage assets, a balanced judgement will be required having regard to the scale of any harm or loss and the significance of the heritage asset.”

Local plans and neighbourhood plans may well have more locally specific policies in relation to locally listed buildings.

The Government’s planning practice guidance explains how non-designated heritage assets (including locally listed buildings) are to be identified. I have emboldened the passages which are potentially in conflict with the approach identified by the Secretary of State:

There are a number of processes through which non-designated heritage assets may be identified, including the local and neighbourhood plan-making processes and conservation area appraisals and reviews. Irrespective of how they are identified, it is important that the decisions to identify them as non-designated heritage assets are based on sound evidence.

Plan-making bodies should make clear and up to date information on non-designated heritage assets accessible to the public to provide greater clarity and certainty for developers and decision-makers. This includes information on the criteria used to select non-designated heritage assets and information about the location of existing assets.

It is important that all non-designated heritage assets are clearly identified as such. In this context, it can be helpful if local planning authorities keep a local list of non-designated heritage assets, incorporating any such assets which are identified by neighbourhood planning bodies. (Advice on local lists can be found on Historic England’s website.) They should also ensure that up to date information about non-designated heritage assets is included in the local historic environment record.”

The content of Historic England’s advice on locally listed heritage assets is identified as “under review” (presumably linked to the Government’s announcement).

More detailed practical advice is contained within Local Heritage Listing: Historic England Advice Note 7 and within Civic Voice’s local heritage list guidance.

There is a lot of advice already out there! Is it just that the lack of local government resources over recent years has meant that too little attention has been given to local lists? Or is it that the Government is advocating a wholly new, “don’t listen to the experts, what buildings in your community do you cherish?” approach?

I do worry that Jenrick is in danger of overselling local listing by describing it as a process to seek to ensure that buildings are protected “for future generations” or that is likely to lead to them being “shielded from development”. Local listing is presently an objective but relatively light-touch process. The Government can’t have it both ways.

If the strategy is to let a million local listings bloom through a less objective, more community based process, plainly the policy tests to be passed, in relation to proposals that might affect them, need to be loosened: brownfield development will become even more difficult. Or if the strategy is to maintain the policy tests, surely we must ensure that that buildings are only locally listed on “sound evidence”?

And what do we think of the suggestion in the speech that this initiative “builds consent for development”?

Simon Ricketts, 9 November 2019

Personal views, et cetera

Heritage PS: Did you see that Yorkshire case, R (James Hall & Co) v Bradford MDC (HHJ Belcher, 1 November 2019), which confirmed that “negligible” or “minimal” harm still equates to “harm” for the purposes of the heritage tests in the NPPF? Thumbs up for the obviousness of the conclusion, to a question which has previously generated much learned London discussion. A bit of a “you can’t be negligibly or minimally pregnant” moment.

Angelic: Public Benefits Of Unlawful Demolition In Conservation Area

There was an interesting piece this week by Sarah Townsend on the Planning Resource website: Why planning enforcement notices have dropped to their lowest-ever level (subscription only, 29 August 2019).

There was also an interesting ruling from the High Court, London Borough of Tower Hamlets v Secretary of State and Angelic Interiors Limited (in administration) (Kerr J, 27 August 2019), which will have made every enforcement officer, and indeed conservation officer, blink. Although perhaps the facts are unusual.

In June 2016, enforcement officers at the London Borough of Tower Hamlets were tipped off that the buildings comprising 2, 4 and 6 East Ferry Road London E14, within the Coldharbour conservation area, had been demolished without planning permission. It is of course a crime, as well as a breach of planning control, to cause or permit demolition of a building in a conservation area without planning permission.

The council wasn’t certain who had done it, although an individual has since admitted responsibility, and it did not prosecute.

As was reported at the time (BBC website, 27 September 2017), the council served various enforcement notices, requiring that within 18 months the owner was to “rebuild the building so as to recreate in facsimile the building as it stood immediately prior to its demolition on 26 June 2016 with reference to the photographs and plans (LBTH file reference PA/84/00512 & PA/81/00497 originals of which are available at the Tower Hamlets Council’s Town Hall)

In fact there had been a long-running dispute as to who owned the property, which was only resolved in October 2018, in favour of a company called, ironically, Angelic Interiors Limited, which had been in administration since July 2016. Angelic’s administrators appealed against the enforcement notices.

Enforcement appeal decision letter

The inspector, Simon Hand, allowed the appeals in a decision letter dated 17 December 2018.

In order to place Kerr J’s judgment this month into context, it is illuminating to read the decision letter.

Here are some key passages:

Nos 2-6 were the last surviving remnant of the once large area of Victorian workers housing in Cubitt Town which occupied the whole of the south-eastern side of the Isle of Dogs.”

There is […] no dispute the removal of the buildings causes less than substantial harm to the Coldharbour conservation area. The conservation area is a designated heritage asset and paragraph 193 of the NPPF makes it clear that great weight should be given to any less than substantial harm to the significance of a heritage asset. Paragraph 194 goes on to say that any loss of significance to a heritage asset should require clear and convincing justification (my emphases). Paragraph 196 explains that where there is less than substantial harm to a heritage asset is should be weighed against the likely public benefits arising from that harm.”

If they were to be rebuilt then they would undoubtedly be very nice, but the issue is what role do they play in the significance of the conservation area and the answer would seem to me to be very little.”

Had the demolished buildings been of historic interest in their own right they would have been worth preserving simply for that reason, but they would still have told us little or nothing about Cubitt Town, its development, or its morphology. The development of Cubitt Town does not seem to have been unusual in any way, nor any of its buildings particularly special, it is not until this Inquiry that anyone at the Council has made any mention of it at all. To my mind the dwellings were not the last fragment of a historically significant but now lost development. They were simply three remnant buildings in a sea of modern development. To suggest that this makes it all the more important to preserve them is to adopt a collector’s mentality, particularly as they seemed to have no great historic significance themselves due to the substantial modern changes they had undergone.”

Both parties accepted the loss of the buildings had caused less than substantial harm to the significance of the conservation area, and I would not like to suggest their loss causes no harm at all, but I consider that the harm is very much at the lowest end of that scale. It was argued that if the site is left vacant or redeveloped there would be no reason to retain it in the conservation area and this would seem to be true, but it does call into question the motivation for extending the conservation area in the first place. Had it been deliberately to protect this remnant of Cubitt Town, then I would have expected somewhere for this to have been explained. I accept the conservation area appraisal is lacking in detail, but if Cubitt Town was of such importance as Mr Froneman argued, then I find it hard to believe the reason for the extension to this allegedly key part of the Isle of Dogs is deliberately not mentioned as the appraisal explains only that the extension was in order to protect Glen Terrace. It seems to me more likely the Council just saw these Victorian looking buildings and took the opportunity to include them, as there was nothing else of any historic interest in the area. Whatever the truth of the matter whether or not the vacant site remains worthy of conservation area status is of little importance in this case.”

The inspector found this to be an area of high housing need and “there would appear to be no constraints that would prevent a housing scheme of significantly greater density than 3 units from being successful on the site.”

it would seem highly likely that a suitable development proposal could be found and there are no obvious reasons why the landowner would not want to realise the development potential of the site.”

Paragraph 196 of the NPPF requires that the harm should be weighed against any public benefits. In this case those benefits are the redevelopment of the site with a much larger number of dwellings than would be the case if the demolished houses were rebuilt, including much needed affordable housing, all of which would be in accord with the prevailing policy ethos for the area. I accept these benefits are speculative, but in my view there is a good chance they would be realised. It seems likely to me that even had the buildings still been in place, given their poor condition and lack of any historic significance, they would have been demolished to make way for a comprehensive redevelopment scheme. Consequently, I consider these benefits outweigh the harm identified. The demolition of the three dwellings is thus in accord with the NPPF and the development plan for the area and so I shall grant planning permission accordingly.

So he found that the potential for redevelopment for housing purposes of the unlawfully cleared site amounted to a sufficient public benefit to outweigh the “great weight” to be attached to the (very much) less than substantial harm that had been caused to the character or appearance of the conservation area.

High Court

The council challenged the decision letter.

Kerr J identified the main issue before him as “whether the “public benefits of the proposal” (in the words of NPPF paragraph 196) should extend to likely benefits of new development of a site, facilitated by demolition of buildings on the site, where there is no current application for planning permission to develop the site; or whether those words are restricted to the public benefits of demolishing the buildings, without considering any likely future development.

The judge did not find this to be an easy case:

It is counter-intuitive to propose that unlawful (and criminal) demolition of buildings forming part of a conservation area, harming the significance of that conservation area, can do more good than harm. No sensible planning application to demolish would be made on that basis and a planning consultant suggesting such an application would soon be short of clients.

Still, for the inspector’s decision to be lawful, and for the challenges to fail, it has to be a defensible conclusion that demolition without replacement, leaving the site razed to the ground and vacant, without any replacement development, and doing harm to the significance of the conservation area, is more good than bad. Baldly stated in that way, the proposition is remarkable.

My first thought on hearing argument was that the proposition cannot be correct. If only demolition is on the table, and demolition is harmful, how then can it do more good than harm? Can it be good and bad at the same time, and more good than bad?

The judge concluded that it was simply a matter for factual evaluation for the inspector.

I accept the respondents’ interpretation of the heritage provisions in the NPPF with a degree of hesitation. I am conscious that it is a liberal construction and not a strict pro-heritage construction such as the council is advocating. Nevertheless, on balance I think the respondents’ is the correct one, bearing in mind that the NPPF provisions are statements of policy not law and the language of the provisions is not restricted in the way the council contends.”

He considered whether the inspector’s decision could be said to have been irrational:

I reject the council’s free standing contention that, quite apart from the interpretation of the NPPF provisions, it was irrational to decide that the market would produce suitable and beneficial housing development soon. It is true that the inspector could not say what type of development that would be, nor that it would certainly occur; but those were points he was entitled to weigh when considering the public benefit side of the balance.

I do not see any want of rationality in reasoning that the site would soon attract developers like flies to a honeypot and that this would probably have led to demolition of the three houses soon anyway. The circumstantial evidence supporting that finding was not lacking: the prime location, the pressing need to build housing in the borough, the appetite shown by other housing developments nearby, the indicative Turner scheme and the intention to sell and strong likelihood of sale of the site for development.”

Lastly, he considered whether the inspector’s decision was adequately reasoned:

As for the reasons challenge, did the inspector properly set out his thinking? Manifestly, he did. The reasoning need not be discursive. It is commendably succinct but clear and full. He explained exactly why he was confident that delivery of the public benefit he anticipated could be left to the market. He made all the points I have just mentioned, in support of his conclusion. The council cannot complain that it does not know why it lost the appeals.

I did consider carefully whether the reasoning touches adequately on the possibility of a development scheme that would leave the three houses intact, whereby the developer would build round them and keep them in place. If the inspector had simply assumed, without considering the issue properly, that the public benefits derived from anticipated development would be lost unless the demolition were permitted, that could have been a flaw in the reasoning.

However, I have concluded that the inspector did adequately, though briefly, consider this point and that it was a matter for his planning judgment. His consideration of likely development proposals such as the one illustrated by the Turner scheme (involving 22 new dwellings) included the council’s 2005 discussions which would have involved demolition of the three houses.”

He dismissed the challenge, albeit with a final bit of judicial hand-wringing:

I do so without much enthusiasm, reminding myself that the enforcement system is remedial not punitive. I must put aside the affront to the rule of law and criminal activity seen in this case, as well as the loss of the three houses and their contribution to our historic environment, however limited some may consider it. My discomfort does not make the inspector’s decision unlawful and I must and do uphold it.”

Implications

Plainly, unlawful actions should in principle not go unpunished and it is disappointing that there have been no prosecutions.

Plainly also, Angelic’s administrators now have an unearned windfall by virtue of a cleared site for development with no obligation to reconstruct the buildings that others had unlawfully demolished on the site.

That is not to say that the enforcement notices should have stood and that replicas of these apparently unexceptional buildings should have been required, simply to discourage others from similar conduct, but what is there in this unfortunate chain of events to encourage appropriate behaviour on the part of future Angelics?

Simon Ricketts, 31 August 2019

Personal views, et cetera

Secretary Of State Throws Another Curve Ball

My 15 June 2019 blog post National Lottery: 2 Problematic Recovered Appeal Decisions focused on two appeals dismissed by the Secretary of State against inspectors’ recommendations.

Well, here is another one, in relation to the Chiswick Curve scheme on the Great West Road within the London Borough of Hounslow, the 19 July 2019 decision letter out just before Parliament rises on 25 July (by which date we will have a new prime minister). Another long inquiry (15 days), long delays (the initial application was made over three and a half years ago, the inquiry was a year ago), detailed analysis from an experienced inspector who had heard the evidence and seen the site first hand, ultimately counting for nothing.

The Secretary of State’s decision followed an inquiry held by inspector Paul Griffiths BSc(Hons) BArch IHBC, into appeals by Starbones Limited against the decisions of the London Borough of Hounslow to (i) refuse planning permission for a mixed use building of one part 32 storey and one part 25 storeys comprising up to 327 residential units, office and retail/restaurant uses, basement car and bicycle parking, residential amenities, hard and soft landscaping and advertising consent with all necessary ancillary and enabling works and (ii) refuse to grant advertising consent for 3x digital billboards. The applications were dated 11 December 2015 and amended in October 2016.

The differences of judgment as between the inspector and Secretary of State appeared to boil down to the following:

⁃ The Inspector considered “that the proposal would bring a massive uplift to the area around it” and would be in accordance with various local plan policies. “While the Secretary of State recognises that public realm improvements and the publicly accessible elements of the scheme…do offer some improvement to current conditions, in terms of accessibility and movement, he does not agree that this constitutes the massive uplift as described by the Inspector.

⁃ Both agreed that the harm to designated heritage assets (the Strand on the Green Conservation Area plus its listed buildings; Kew Green Conservation Area plus its listed buildings; Gunnersbury Park Conservation area plus its listed buildings and Registered Park and Garden, and the Royal Botanic Gardens Kew World Heritage Site plus its listed buildings) would be less than substantial but the Secretary of State disagreed with the inspector’s finding that the public benefits of the proposals would be sufficient to outweigh the harm.

⁃ The Secretary of State disagreed with the Inspector that there would be no conflict with a local plan policy concerning the impact of tall buildings proposed in sensitive locations such as conservation areas, listed buildings and their settings, and World Heritage Sites.

⁃ Accordingly the Secretary of State disagreed with the Inspector and found that the proposals did not comply with the development plan when read as a whole.

⁃ The Secretary of State “considers that the site has a strategic location, and he recognises the constraints and challenges associated with it. While he agrees with the Inspector […] that the proposed design seeks to respond to those challenges in a positive way, he does not find the proposal to be of such high quality as to be a brilliant response to its immediate context. He finds the scale and massing of the proposal to be such that the proposal does not relate to its immediate surrounding. While he recognises that attempts to minimise this impact have been taken with regard to glazing and fins, the building would still dominate the surrounding area. He considers the design to be a thoughtful attempt to respond to the challenges and opportunities of the site, but due to its scale, he disagrees with the Inspector […] that it is a significant benefit of the scheme.”

⁃ The Secretary of State considered that the proposals “would not provide the levels of private and communal amenity space that [the relevant local plan policy] requires. While he has found this to be a limited departure from this policy, the Secretary of State also recognises that the on-site provision, supplemented by the relative proximity of Gunnersbury Park does reduce the weight to be attached to this conflict.”

⁃ Given his finding that the proposals would not be in accordance with the development plan he went on to consider whether whether there were any material considerations to indicate that the proposals should be determined other than in accordance with the development plan. After a detailed analysis in paragraphs 34 to 38 of the decision letter, he concludes:

Overall, the Secretary of State disagrees with the Inspector […], and finds that the moderate weight to be attached to the benefits of the appeal scheme in terms of housing provision, workspace provision and economic benefits, are not collectively sufficient to outweigh the great weight attached to the identified ‘less than substantial’ harm to the significance of the above heritage assets. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.

Local MPs Ruth Cadbury (Labour) and Zac Goldsmith (Conservative) were recorded as having objected to the proposal. The objectors appearing at the inquiry included Historic England, the Royal Botanic Gardens Kew and the Kew Society (the first two instructing Richard Harwood QC and James Maurici QC respectively). Russell Harris QC and Richard Ground QC appeared for the appellant and for the London Borough of Hounslow respectively.

I note that on 19 July 2019, the Secretary of State also refused, against his inspector’s recommendation, Veolia’s called in application for planning permission for an energy recovery facility in Ratty’s Lane, Hoddesdon, Hertfordshire.

The Secretary of State accepted that there is an “urgent and pressing need” for the facility, that there is “no obvious alternative site”. “Given the urgent and pressing need, the Secretary of State considers that the provision of an ERF with sufficient capacity to accommodate the waste demands of the county carries substantial weight in favour of the proposal, and the climate change benefits of the proposal also carry substantial weight”. However, he considered that in view of the fact that the proposal was contrary to the development plan and there were unresolved concerns over highways matters, together with “significant adverse landscape and visual impacts”, the application should be refused. I thought that “need” means “need” but there we go.

Not much getting past this Secretary of State is there? An inference of his recent letter to the Planning Inspectorate (see my 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism) might be that he considers that inspectors may on occasion be too robust in their examination of local plans and yet an inference of his approach on recovered appeals and call-ins might be that he considers that on occasion inspectors are not robust enough in assessing development proposals that are before them at inquiry. For my part, neither inference would be justified.

Simon Ricketts, 20 July 2019

Personal views, et cetera

Beauty

How can the planning system seek to achieve “beautiful” buildings and places?

What is beauty? How do you arrive at objectivity in matters largely of subjective judgment? Is the customer always right (and who is the customer)?

These thoughts were prompted this week by a few things:

⁃ The resolution of the Corporation of London’s Planning and Transportation Committee on 2 April 2019 to grant planning permission for the Tulip following officers’ recommendations. The application will now be referred to the Mayor who will need to decide whether to intervene (whether by call in or by directing refusal). His stage 1 report dated 14 January 2019 set out his initial concerns.

Obituaries of Bill Heine, responsible for the Headington shark. Is there any inspector’s decision letter with a better passage than this (when allowing an appeal against an enforcement notice)?

“It is not in dispute that this is a large and prominent feature. That was the intention, but the intention of the appellant and the artist is not an issue as far as planning permission is concerned. The case should be decided on its planning merits, not by resorting to “utilitarianism”, in the sense of the greatest good to the greatest number. And it is necessary to consider the relationship between the shark and its setting…. In this case it is not in dispute that the shark is not in harmony with its surroundings, but then it is not intended to be in harmony with them. The basic facts are there for almost all to see. Into this archetypal urban setting crashes (almost literally) the shark. The contrast is deliberate … and, in this sense, the work is quite specific to its setting. As a “work of art” the sculpture (“Untitled 1986”) would be “read” quite differently in, say, an art gallery or on another site. An incongruous object can become accepted as a landmark after a time, becoming well known, even well loved in the process. Something of this sort seems to have happened, for many people, to the so-called “Oxford shark”. The Council is understandably concerned about precedent here. The first concern is simple: proliferation with sharks (and Heaven knows what else) crashing through roofs all over the City. This fear is exaggerated. In the five years since the shark was erected, no other examples have occurred. Only very recently has there been a proposal for twin baby sharks in the Iffley Road. But any system of control must make some small place for the dynamic, the unexpected, the downright quirky. I therefore recommend that the Headington shark be allowed to remain.”

⁃ a nagging awareness that I probably need to cover the Government’s “Building Better, Building Beautiful” initiative in one of these blog posts.

Section 12 of the July 2018 NPPF sought to give more weight, in plan making and decision taking, to design considerations – see MHCLG’s press release Government’s new planning rulebook to deliver more quality, well-designed homes (24 July 2018) and there is more detailed guidance in the PPG. The press release, as with so many Government announcements, focused on the relevance of the policy changes to the construction of new homes.

Is poor design one reason why new development is often not accepted by communities? That’s the thesis leading to James Brokenshire’s announcement on 3 November 2018 of the Building Better Building Beautiful Commission, chaired by Professor Sir Roger Scruton.

The Commission has three aims:

1. To promote better design and style of homes, villages, towns and high streets, to reflect what communities want, building on the knowledge and tradition of what they know works for their area.

2. To explore how new settlements can be developed with greater community consent.

3. To make the planning system work in support of better design and style, not against it.

The commission has five commissioners:

• Sir Roger Scruton (Chair)

• Gail Mayhew

• Mary Parsons

• Nicholas Boys Smith

• Kim Wilkie

It also has an impressive list of “specialist advisors”:

• Stephen Stone, Executive Chairman of Crest Nicholson

• Sunand Prasad, Senior Partner and co-founder of Penoyre & Prasad and past President of the RIBA

• Ben Bolgar, Senior Director of Prince’s Foundation

• Dame Fiona Reynolds DBE, Master of Emmanuel College, Cambridge

• Adrian Penfold OBE, Advisor in Planning and Public Affairs

• Peter Studdert, Chair of Quality Review Panels for the LLDC and LB of Haringey

• Patrick James, Founding Director of The Landscape Agency

• Paul Monaghan, Director of AHMM and Design Council Trustee

• Yolande Barnes, Professor of Real Estate at UCL

The deadline for the Commission’s call for evidence is 31 May 2019.

This “Building Beautiful” initiative, ironically as with the resi PD rights initiative where there no controls over matters of aesthetics and design, has its roots in think tank the Policy Exchange. The Policy Exchange published Building More, Building Beautiful: How design and style can unlock the housing crisis by Jack Airey, Sir Roger Scruton and Sir Robin Wales, and with a foreword by James Brokenshire, in July 2018. It published a collection of essays on the design, style and economics of the built environment Building Beautiful in January 2019.

Stating the position neutrally, it is right to record that the initiative, and Scruton, have their detractors, such as Robert Bevan in the London Evening Standard – I wouldn’t build my dream home in joyless, moralistic Scrutopia (25 January 2019):

The beauty commission has emerged from a report called Building More, Building Beautiful, by Policy Exchange, a Right-of-centre think tank. One of its three authors was Scruton himself. From its cover onwards — a drawing of Georgian houses that gets the historical details all wrong — it has been many decades since a more ludicrous or ignorant report on architecture was published.”

What on earth is going to come from this process?

The visual appearance of new homes is a curious thing. Largely a private sector product with paying consumers, why are we the public often not satisfied with what the market produces, even when the direct customers appear to be?

I won’t reveal the house builder, but there was a piece this week on the BBC website about a couple who had bought their “dream home” but were dissatisfied with a number of defects in its construction. I looked at the photo below with its wrong proportions, verge/garden, largely blank side flank and clay coloured rendering, and initially wondered how a such an ugly, presumably not cheap, house could be anyone’s dream. But beauty is in the eye of the beholder – it’s a new detached home with garden, and home ownership has been promoted by successive governments as to what we should aspire.

(Photo: BBC)

The aesthetic appearance of a new car is probably the only element of its design or function that is not subject to prescriptive regulation and requirements for testing. But it is plainly critical for car makers to invest in the visual appearance of the product, so as to attract the consumer for whom the car will be an extension of the personality that he or or she wishes to express, emphasising qualities such as speed or ruggedness, elegance or urban quirkiness.

So why is the new housing market apparently so different? Is there a lack of choice such that we’re still at Model T Ford “any style as long as it looks like a child’s drawing of a detached house and garden“? Or is it the case, more likely, that the products that we see are those that have been proven to sell? In which case, aren’t there dangers in trying to funnel house builders towards a different approach?

If different products would make it more likely for permission to be obtained and for homes to be built and sold, why hasn’t this been achieved by operation of the market? What is the overlap with the Letwin “delivery” initiative (see my 3 November 2018 blog post Oliver’s Twist: Letwin’s Proposals For Large Housing Sites)?

It is all very well for the Commission’s first aim to refer to local styles of building but where is the architectural integrity in adopting a particular local building style as pastiche simply to gain community buy-in? Surely beauty simply comes from producing well-proportioned good quality buildings with a form that reflects their function (can we ban fake chimneys?) and with as much attention paid to space and landscape as built form? Do we really need the Scuton Commission or indeed any more prescriptive planning policies? Simply assess schemes against those principles, at outline and reserved matters stages, and make sure that there is no room for post-permission dumbing down. And ensure that there is a properly functioning, competitive house building market. Start with getting the market right, not the detailed design requirements (only local stone here, even though it has to be shipped in from abroad).

After all, whilst planners love to arrive at quasi-objective ways of assessing largely subjective matters (needs must, I suppose) and the tools for doing that are getting ever better (for instance, primarily in an urban context, vu.city and Cityscape Digital), save where particularly justified surely we should restrict the role of the state in telling us what we are going to find beautiful? Heritage decisions based on assessment of architectural quality are difficult. Decisions in relation to NPPF paragraph 79(e) (the green light for proposed isolated homes in the countryside where the design is of “exceptional quality” in that it is “truly outstanding or innovative, reflecting the highest standards in architecture..”) are difficult. It is quite something to appoint a planning committee or inspector as cultural arbiter on our behalf and to expect their decisions not to be underpinned, consciously or unconsciously, by political or social priorities and assumptions.

I still like that shark. Jury out on Tulip.

Simon Ricketts, 6 April 2019

Personal views, et cetera

Is It A Listed Building? No Statuary Right Of Appeal

Or, before you sell your garden ornaments best to check that they aren’t listed buildings.

I missed the 50th anniversary, on 25 October 2018, of the enactment of the Town and Country Planning Act 1968. Part V of the Act introduced our modern system of listed buildings, and the prohibition on the demolition of any listed building, or its alteration/extension in any manner that would affect its character as a building of special architectural or historic interest, without listed building consent. The background to the provisions, which replaced a much weaker system of building preservation notices, is well described in an Institute of Historic Building Conservation blog post.

I was only reminded of the anniversary by an interesting ruling by the Court of Appeal, Dill v Secretary of State (Court of Appeal, 26 November 2018).

The facts are odd. Two early 18th century limestone piers, each surmounted by a lead urn, were moved to Idlicote House, a grade II listed building, in 1973 by the appellant’s father. The two sets of piers and urns were separately grade II listed in 1986. The appellant came into ownership of Idlicote House on 1993, didn’t appreciate that the items were listed and sold them abroad in 2009 for £55,000. He does not know where they are now. Stratford-On-Avon District Council found about this in 2014. Correspondence ensued. The appellant made an application for retrospective listed building consent to remove the items, which was refused in 2016. The council issued a listed building enforcement notice requiring their reinstatement and the appellant appealed against both the refusal and the notice.

An inspector dismissed the appeals and in so doing rejected submissions that it was open to him to conclude that they were not listed buildings. The decision was challenged and Singh J agreed with the inspector at first instance.

Singh J’s judgment (28 September 2017) contains some interesting additional factual context (as well as usefully quoting from most of the inspector’s report). These items had previously been at four other country houses before being placed at Idlicote House:

The items were originally at Wrest Park in Bedfordshire. In 1939 Mr J G Murray sold Wrest Park and took various items of statuary, including these items, with him to Coles Park, Buntingford in Hertfordshire. In 1954-5, following the death of Mr Murray, the estate was left to a trust, with his grandson, Major R P G Dill, being a lifetime beneficiary. In 1955-6, under Major Dill, Coles Park was sold and the items went with him to the Dower House, Buntingford. Major Dill sold Dower House in 1962 and moved to Badgers Farm, Idlicote. Again the items went with him. He positioned them at Badgers Farm. The farmhouse at Badgers Farm was listed in 1966 but the list description makes no mention of the items.

In 1973 Major Dill sold Badgers Farm and bought Idlicote House. These items followed him. These two items were positioned on either side of a path in the gardens which had served as the front drive to the house since the 1820s. No alteration was made to the garden design to accommodate the items.”

Back to the Court of Appeal. The judgment of Lord Justice Hickinbottom goes through the statutory regime, noting that “building” isn’t defined in the Listed Buildings Act but rather in the Town and Country Planning Act 1990. It “includes any structure or erection, and any part of a building, as so defined, but does not include plant and machinery comprised within a building“.

Hickinbottom LJ agrees with the inspector and Singh J: the decision-maker cannot determine that something on the list is not in fact a building. The list is determinative. Whilst the question as to whether something is a building does involve questions as to the purpose and degree of annexation to the land or property, such issues eg as to the application of property law concepts (see London Borough of Tower Hamlets v London Borough of Bromley (Norris J, 8 July 2015) – the Henry Moore’s Old Flo statue case) or the approach taken to what was part of a building in other rating and planning cases (eg see Skerrits of Nottingham Limited v Secretary of State (Court of Appeal, 22 March 2000) – marquee in grounds of listed building) were not relevant here. He separates out the three ways in which something may qualify as a listed building:

⁃ by being listed in its own right, as here.

⁃ by being an object or structure fixed to a listed building.

⁃ by being an object or structure which lies within the curtilage of a listed building.

So, Mr Dill now has a problem. How to comply with a listed building enforcement notice, and potential criminal sanctions, when no one knows where in the world these objects now are.

The case is a reminder of a couple of things:

⁃ The absence of a time limit for service of listed building enforcement notices, which when taken with the criminal offence arising from doing works without listed building consent, leads to complications for those of us carrying out legal due diligence in relation to transactions concerning listed buildings.

⁃ The curiosity of the definition of “building” which enables a wide range of structures or erections to become “listed buildings“.

By coincidence DCMS on 19 November 2018 updated its principles for selection of listed buildings. More on that in due course perhaps (particularly on the implications for modern buildings) but in the meantime the advice in paragraph 5 is relevant to this blog post:

For the purposes of listing, a ‘building’ includes any structure or erection and a ‘listed building’ includes any object or structure: (a) fixed to it; or (b) within its curtilage which, although not fixed to it, forms part of the land and has done so since before 1st July 1948, unless the list entry expressly excludes such things. In some cases, such as for works of art or sculptures, it will be necessary to consider the degree and purpose of annexation to the land or building to determine whether it may be listed under the 1990 Act.

The Dill case reminds us that in practice the stage to argue that something is not a “building” is obviously when listing is being considered, not when you are facing enforcement or making a listed building consent application. Surely listing of such itinerant objects, with no historical connection with Idlicote House, would not have been an obvious procedure to follow? Of course applications for de-listing can also be made when it is considered that the listing was in error in some way, but the Historic England guidance warns that applications for de-listing will not normally be considered when enforcement is in hand – so perhaps not an easy route for Mr Dill.

Simon Ricketts, 1 December 2018

Personal views, et cetera

The Loneliness Of The Long Distance Planning Inspector: Courts Support Approach To Setting & Valued Landscape

Two cases last week reminded me as to how difficult the role of the planning inspector is. The two inspectors in question, architect John Gray and solicitor Karen Ridge, both faced conflicting evidence and submissions on issues which were largely matters of evaluation and judgment, albeit within narrow policy tramlines, at inquiries lasting six and eight days respectively. Congratulations are due to them both given that their decisions survived legal challenges – or, following Lord Carnwath’s approach in Suffolk Coastal (“the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly“) and the regular judicial criticism as to “excessive legalism” on the part of claimants, is it simply that the hurdle for a successful challenge is nowadays higher?

In Catesby Estates Limited and Secretary of State v Steer (Court of Appeal, 18 July 2018) at first instance Lang J had quashed John Gray’s decision letter in which he had allowed two appeals by Catesby, one relating to a proposal for up to 400 dwellings and a convenience store and the other for up to 195 dwellings, both on land about a mile away from the grade 1 listed Kedleston Hall.

The arguments at inquiry and subsequently revolved around the extent to which the site should be treated as within the setting of the hall and other designated heritage assets. Since the 1960s, views of the site from the hall and vice versa had been blocked by a belt of trees known as the “Derby Screen”, planted at the time to obstruct views of the expanding suburbs of Derby. Given the protection given to the setting of listed buildings by way of section 66 (1) of the Listed Buildings Act 1990 and the NPPF, supported by Historic England guidance, much turned on that question.

Lang J had agreed with submissions of the claimant and Historic England that “the Inspector adopted an artificially narrow approach to the issue of setting which treated visual connections as essential and determinative. In adopting this approach, the Inspector made an error of law.

However, the Court of Appeal undertook a close examination of the inspector’s reasoning and overturned Lang J’s ruling. They found that the inspector had correctly considered two potential ways of looking at the setting of the hall, one considering visual and physical connections and the other looking at wider historical, social and economic connections. The court determined that he had then gone on to consider all the relevant issues before, in the particular circumstances, arriving at a narrower interpretation. His conclusions did not “betray an unlawful approach, in which considerations other than the visual and physical were disregarded“.

In reaching that conclusion, McFarlane LJ’s judgment in the Court of Appeal does usefully set out the approach to setting that should be taken by decision makers:

Although the “setting” of a listed building is a concept recognized by statute, it is not statutorily defined. Nor does it lend itself to precise definition (see R. (on the application of Williams) v Powys County Council [2017] EWCA Civ 427, at paragraphs 53 to 58). Implicit in section 66 of the Listed Buildings Act, however, is that the setting of a listed building is capable of being affected in some discernible way by development, whether within the setting or outside it. Identifying the extent of the setting for the purposes of a planning decision is not a matter for the court, but will always be a matter of fact and planning judgment for the decision-maker. And as Sullivan L.J. said in R. (on the application of The Friends of Hethel Ltd.) v South Norfolk District Council [2011] 1 W.L.R. 1216, “the question whether a proposed development affects, or would affect the setting of a listed building is very much a matter of planning judgment for the local planning authority” (paragraph 32 of the judgment).”

As McFarlane LJ had set out previously in the Williams case, “the circumstances in which the section 66(1) duty has to be performed for the setting of a listed building will vary with a number of factors – typically, “the nature, scale and siting of the development proposed, its proximity and likely visual relationship to the listed building, the architectural and historic characteristics of the listed building itself, local topography, and the presence of other features – both natural and man- made – in the surrounding landscape or townscape”, and possibly “other considerations too”, depending on “the particular facts and circumstances of the case in hand” (paragraph 53). To “lay down some universal principle for ascertaining the extent of the setting of a listed building” would be, I thought, “impossible”. But – again in the particular context of visual effects – I said that if “a proposed development is to affect the setting of a listed building there must be a distinct visual relationship of some kind between the two – a visual relationship which is more than remote or ephemeral, and which in some way bears on one’s experience of the listed building in its surrounding landscape or townscape” (paragraph 56).

This does not mean, however, that factors other than the visual and physical must be ignored when a decision-maker is considering the extent of a listed building’s setting. Generally, of course, the decision-maker will be concentrating on visual and physical considerations, as in Williams (see also, for example, the first instance judgment in R. (on the application of Miller) v North Yorkshire County Council [2009] EWHC 2172 (Admin), at paragraph 89). But it is clear from the relevant national policy and guidance to which I have referred, in particular the guidance in paragraph 18a-013-20140306 of the PPG, that the Government recognizes the potential relevance of other considerations – economic, social and historical. These other considerations may include, for example, “the historic relationship between places“.”

The judge drew out three points:

First, the section 66(1) duty, where it relates to the effect of a proposed development on the setting of a listed building, makes it necessary for the decision- maker to understand what that setting is – even if its extent is difficult or impossible to delineate exactly – and whether the site of the proposed development will be within it or in some way related to it.”

Secondly, though this is never a purely subjective exercise, none of the relevant policy, guidance and advice prescribes for all cases a single approach to identifying the extent of a listed building’s setting. Nor could it. In every case where that has to be done, the decision- maker must apply planning judgment to the particular facts and circumstances, having regard to relevant policy, guidance and advice. The facts and circumstances will differ from one case to the next.

Thirdly, the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the “significance” of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker, subject, of course, to the principle emphasized by this court in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 45 (at paragraphs 26 to 29), Jones v Mordue [2016] 1 W.L.R. 2682 (at paragraphs 21 to 23), and Palmer (at paragraph 5), that “considerable importance and weight” must be given to the desirability of preserving the setting of a heritage asset. Unless there has been some clear error of law in the decision-maker’s approach, the court should not intervene (see Williams, at paragraph 72). For decisions on planning appeals, this kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 W.L.R. 1865 (at paragraph 25) – that “the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly“.”

In CEG Land Promotions II Ltd v Secretary of State (Ouseley J, 18 July 2018), inspector Karen Ridge had dismissed an appeal in relation to a scheme for up to 175 dwellings and associated development on land adjoining Wendover in Buckinghamshire.

The challenge revolved around two issues:

⁃ Whether the inspector was correct to conclude that there would be “the irrevocable loss of part of a valued landscape” for the purposes of paragraph 109 of the NPPF (which sets out the principle that the planning system should protect and enhance valued landscapes) given that the appeal site itself was not “valued landscape” but rather formed part of a wider “valued landscape”

⁃ whether the inspector had double counted the effects on landscape in weighing up the considerations against grant of planning permission, by taking into taking into account breach of paragraph 109 separate from breach of relevant local plan policies in relation to landscape, together with related points as to whether paragraph 109 amounts to “specific policies” that “indicate that development should be restricted“, to be taken into account in the paragraph 14 “tilted balance”.

Ouseley J introduces consideration of the NPPF with a note of caution as to its status:

In relation to development control, despite some of its language, it is no more than a material consideration, to be taken into account in deciding planning applications under s70 of the Town and Country Planning Act 1990. It is a material consideration which may indicate that a decision should be made which does not accord with the development plan; s38(6) Planning and Compulsory Purchase Act 2004.

After a detailed analysis, Ouseley J found no evidence of “double-counting” harm:

There is a danger of over-analysing decision letters, with the risk that in doing so, error is found where none exists.”

He similarly found nothing wrong with the inspector’s “valued landscape” conclusion:

It would be […] bizarre to adopt a wholly artificial approach to landscape evaluation where, in most cases, a development site is but part of a wider landscape. In my judgment, the Inspector, in the case before me now, has analysed the issue very well and come to the entirely correct conclusion.”

Both judgments, together with the inspectors’ decision letters under challenge, would make good case studies for the current independent review chaired by Bridget Rosewell into the planning appeal inquiry process. Neither development proposal was particularly large but both led to relatively long inquiries. Against the context of unclear, multiple layers of policy and guidance and the predictable dissection by each of the main parties as to policy meaning and application, is there really any room for shortening the process without affecting its quality? Controversial question: Are the layers of abstraction, and the lonely task of sitting down to write a lengthy decision that is bullet-proof in its reasoning, necessary for a high quality process, or simply impeding it?

And regardless of the answer to that question, let us recall that only 2% of planning appeals proceed by way of inquiry and it should surely be at least as important that the Planning Inspectorate urgently reduces its timescales for processing appeals that are conducted by way of written representations or hearings, as well as by way of simpler (ie “non-bespoke”) inquiries, given the statistics set out its latest annual report (12 July 2018).

Simon Ricketts, 20 July 2018

Personal views, et cetera

Courts Interpret NPPF Paras 14, 133/134, 141 (But Couldn’t It Be Clearer In The First Place?)

The Government’s chief planner Steve Quartermain has confirmed this week that the revised NPPF will be published before the end of the year. To what extent will it reflect the proposed changes set out in the previous Government’s ‘response to consultation’ document that was published alongside the February 2017 housing white paper and to what extent will it take on board any changed political priorities since the June 2017 election or indeed various inherent uncertainties and ambiguities which have continued to occupy the courts?
Paragraph 14
I have previously blogged as to the Supreme Court’s ruling in Suffolk Coastal, which resolved (by way of a judgment of Solomon in which all parties, by operation of unexpected judicial reasoning, both won and lost) the question as to how the paragraph 14 presumption applies where there is no five year supply of housing land. 
The Court of Appeal in Barwood Strategic Land II LLP v East Staffordshire Borough Council (30 June 2017) has now resolved the question as to the presumption in favour of sustainable development applies in the mirror image position, where there is a five year supply and where the plan is not in other respects out of date. 
As in other matters, the NPPF is unclear on the meaning and application of the presumption in favour of sustainable development. Perhaps the presumption is oversold in the ministerial foreword: “Development that is sustainable should go ahead, without delay – a presumption in favour of sustainable development that is the basis for every plan, and every decision.
Paragraph 14 expresses the presumption as a “golden thread running through both plan-making and decision-taking“, before going on to set out what this means for plan making and decision making. For decision making it means:
” ◦ approving development proposals that accord with the development plan without delay; and

    * where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless: 
– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

– specific policies in this Framework indicate development should be restricted.

The question that has exercised the courts in a series of cases is whether the presumption applies outside these specific instances, for example even where a scheme is contrary to an up to date plan. 

Lindblom LJ first sets out how judges should approach questions of policy interpretation, referring back to his first instance judgment in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government (19 March 2014): 
“Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context.”
He refers to his statement having been “underscored” by the Supreme Court in Suffolk Coastal where they set out that “the interpretation of policy will be suitable, in principle, for legal analysis – though only to a degree that depends on the context and content of the policy in question.”
Lindblom LJ followed the approach taken by Holgate J in Trustees of the Barker Mill Estates v Test Valley Borough Council (25 November 2016) in finding that is no freestanding presumption in favour of sustainable development outside para 14. 
Of course that is not to say that, as long as paragraph 14 is correctly interpreted, applicants cannot pray in aid other matters (factors where the development would accord with other policies in the NPPF) as material considerations, to overcome the presumption. It was a shame that (because in this case the judge was found to have misinterpreted paragraph 14) Lindblom LJ did not find it necessary expressly to put right some curious reasoning of the first instance judge, Green J, as to the operation of the statutory presumption in favour of the development plan set out in section 38(6) of the Planning and Compulsory Purchase Act 2004. In his judgment Green J tries to box in the exercise of a decision maker’s discretion with odd passages such as this:
Insofar therefore as paragraph [14] permits of a residual discretion it must be recognised that the outcome arrived at by the operation of paragraph [14] should carry considerable gravitational pull. It should yield only as an exception to the norm where there exists objective and substantial reasons which can be readily demonstrated to a high degree of probative value and which takes into account the particular reasons why a development has been found to collide with the Local Plan. I should add however (see paragraph [54] below) that I express no concluded view on exactly how exceptional “exceptional” actually is; this being an issue better explored in a case where that issue truly arises.”

Whilst not specifically tackling this approach, Lindblom LJ pointedly follows the Supreme Court in Suffolk Coastal and Holgate J in Barker Mill with a warning against excessive legalism in matters of policy interpretation:

“I would, however, stress the need for the court to adopt, if it can, a simple approach in cases such as this. Excessive legalism has no place in the planning system, or in proceedings before the Planning Court, or in subsequent appeals to this court. The court should always resist over-complication of concepts that are basically simple. 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. The making of a planning decision is, therefore, quite different from the adjudication by a court on an issue of law (see paragraphs 8 to 14, 22 and 35 above). I would endorse, and emphasize, the observations to the same effect made by Holgate J. in paragraphs 140 to 143 of his judgment in Trustees of the Barker Mill Estates.

Paragraphs 133/134

What is the extent of the setting of a listed building for the purposes of assessment of harm?

In Steer v Secretary of State (Lang J, 22 June 2017) the main issue was treatment by an appeal inspector of the impact that proposals in Allestree, Derbyshire, for residential development and associated development would have on the landscape character of the area and heritage assets, namely Kedleston Hall (a grade 1 listed building), Kedleston Park (a grade 1 listed park), Kedleston Conservation Area, Kedleston Hotel and Quarndon Conservation Area. The Council, Historic England, the National Trust and others had opposed the appeals on the basis that whilst the proposed development was at some distance from, and would not be visible from the assets, there were historic and social/economic connections between the areas which meant that the appeal site was properly to be regarded as within the setting of the listed hall and park. 
The definition of ‘setting’ in the glossary to the NPPF is unspecific: “The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve.”
Lang J concluded that the inspector adopted an unlawfully narrow approach when determining whether the appeal site was part of the setting of Kedleston Hall and misdirected himself that a visual connection was necessary or determinative, in addition to the evidence of a historical connection.
The judge found that the inspector’s “focus was upon identifying a visual connection, and assessing the proposal’s impact upon it. The historic social and economic connections were set to one side in this exercise.”
“The evidence was that the appeal site was part of the setting of the Hall because it had formed part of the estate, managed historically as an economic and social entity, and it remained in its historic agricultural use, with hedges and mature trees characterising the field boundaries. From the Hall and the Park, the surrounding rural context was important in preserving a sense of a parkland landscape at the centre of a managed rural estate, rather than in a suburban context. The site was on the primary visitor route to the Hall and Park and so visitors would experience the historical narrative, and the concentric influence of the Hall on its landscape, as they traversed the agricultural estate, then entered the enclosed, designed park and gardens, enjoying the drama of anticipation as a great English country house was revealed to them.
In reaching her conclusion it is interesting to see the reliance that Lang J places on Historic England’s good practice guide on the setting of heritage assets. 

Paragraph 141

Hayes v City of York Council (Kerr J, 9 June 2017) concerned a planning permission granted by York Council for the construction of a visitor centre at the base of the motte at Clifford’s Tower in York and the installation of a new staircase and tower floor, with walkways, balustrading, a roof deck with a café and other restoration works. A car park next to the site is to be removed. The project includes archaeological works and disturbance to buried artefacts. 

The case concerned the meaning of paragraph 141 of the NPPF, which states that where heritage assets are lost or partly lost, local planning authorities and developers should make archaeological records publicly available, but “the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted”. 
The challenge was brought by a member of the council. One of his complaints was that the council had taken account of a legally irrelevant factor, namely the ability to record evidence of the past.
Kerr J reviewed the more detailed national heritage policies that preceded the NPPF and the way in which the precise wording changed and finally was summarised in, and replaced by, the NPPF:

The codification exercise which created the NPPF delivered commendable brevity, at the price (well worth paying) of replacing detailed exposition with general policy statements that can be Delphic, as in this instance.”

He turned to paragraph 141:
“The difficulty arises from the wording in the last sentence: “the ability to record evidence shall not be a factor in deciding …”. Those words do express, as a matter of language, what appears in conventional public law parlance to be the exclusion of a material consideration. Read literally, those words say not only that the ability to record evidence cannot be the sole justification for the harm; it cannot even contribute to the justification for the harm.”
Kerr J had real difficulty with this literal reading:
“Why should the preservation of information about an asset not be weighed in the balance along with other factors in favour of a development that harms a heritage asset? The harm is attenuated by the preservation of information and making it publicly available, which enhances and better reveals the significance of the harmed asset and hence its positive contribution to the locality and to our heritage.”

“This difficulty can only be overcome, in my judgment, once it is recognised that a non sequitur crept in when PPS 5 replaced PPS 16, and then found its way into the language of NPPF paragraph 141. In my judgment, the last sentence of that paragraph only makes good sense if interpreted so that the words “should not be a factor” are taken to bear the meaning “should not be a decisive factor”, in deciding whether the harm to the asset should be permitted.

I appreciate that, even allowing for the fact that the NPPF is a policy document and not a statutory provision, this interpretation stands uneasily with the actual words of the last sentence of the paragraph. But unless the paragraph is interpreted in that way, it would be very difficult to apply in a coherent manner.”

Kerr J rejected paragraph 141’s “literal interpretation in favour of a sensible and liberal construction of the paragraph in its proper historical context“.
Wider thoughts

So, three recent examples of the way in which the courts embark upon interpreting policy (whether national or local) and its application, consistent of course with the Supreme Court’s approach in Tesco Stores Limited v Dundee City Council (21 March 2012) that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context. 

That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”
Despite the reference to interpreting policies “objectively”, it will be seen that the courts will draw upon context, previous gestations of guidance and extraneous guidance documents to assist them. Sometimes, as in Hayes, the strict meaning of words will be stretched in a way that potentially leads to uncertainty. 
A broader approach to the interpretation of development consents by reference to extraneous documents than has traditionally been the case was signalled by the Supreme Court in Trump International Golf Club Scotland Limited v the Scottish Ministers (16 December 2015):
“When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference (as in condition 7 set out in para 38 below) or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.”
To my mind, this all takes us into dangerous territory. Isn’t the public, or a purchaser of a development site, entitled to take words as meaning what they say. The courts are having to step in and complete the gaps left by inadequate drafting. Whilst its focus is a long way away from planning law, Lord Sumption’s speech The Supreme Court and the Interpretation of Contracts given at Keble College Oxford on 8 May 2017 is a thought-provoking read. One of the concluding passages:
“It is I think time to reassert the primacy of language in the interpretation of contracts. It is true that language is a flexible instrument. But let us not overstate its flexibility. Language, properly used, should speak for itself and it usually does. The more precise the words used and the more elaborate the drafting, the less likely it is that the surrounding circumstances will add anything useful. I do not therefore accept that the flexibility of language is a proper basis for treating the surrounding circumstances as an independent source from which to discover the parties’ objective intentions.
I agree! Let’s aspire to use words precisely, whether in the drafting of policies, permissions or indeed agreements, rather than relying on the courts as a slow, expensive and unpredictable backstop. And given their broad effect, surely policies ought to be written even more carefully than contracts?
Simon Ricketts, 8 July 2017
Personal views, et cetera
Image by Rob Cowan.