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).

Net Heritage Harm: Bramshill

Sometimes I think, why buy a legal text book when you can read it in a court judgment? Lindblom LJ has provided some useful practical guidance, in City & Country Bramshill Limited v Secretary of State (Court of Appeal, 9 March 2021), on how to go about the assessment, required by the NPPF, as to whether development proposals would be likely to cause harm to listed buildings and other heritage assets.

(The case also considers the interpretation of policies in the NPPF against the development of “isolated homes in the countryside” but I’m limiting this blog post to heritage aspects.)

The case arose out of a decision letter dated 31 January 2019 by inspector Vicki Hirst into no fewer than 33 appeals against refusals of planning permission and enforcement notices issued by the second respondent, Hart District Council, relating to development at Bramshill Park in Hampshire. The third and fourth respondents to the proceedings, Historic England and the National Trust, were objectors. The inquiry had sat for 26 days.

From Lindblom LJ’s judgment:

“The site, which extends to about 106 hectares, lies between the villages of Hazeley and Eversley. It was previously used as a national and international police training college. On it stands a grade I listed Jacobean mansion and various other buildings. It also contains a grade I registered park and garden. The proposed development included the conversion of the mansion to 16 apartments and the adjoining stable block to five (appeal 1), or its conversion to a single dwelling (appeal 2), or to class B1 office space (appeal 3); the construction of 235 houses in place of some of the existing buildings (appeal 4), 14 more to the south-west (appeal 5), and nine to the north of an existing lake (appeal 6); the use of 51 residential units – once occupied by staff employed at the training college – as separate dwellings (appeal 7), retaining those against which the council had taken enforcement action alleging a material change of use without planning permission (appeals 8 to 33).

The inspector held a long inquiry into the appeals, which ended in February 2018. In her decision letter, dated 31 January 2019, she allowed appeals 2 and 3, granting planning permission for those proposals. She also allowed appeals 15 and 17 to 33, quashing the enforcement notices in those appeals. She dismissed appeals 1, 4 to 14 and 16. In a separate decision letter dated 14 March 2019 she dismissed City & Country Bramshill’s application for costs against the council. City & Country Bramshill challenged her decisions on appeals 4 to 14 and 16, and on the application for costs. Waksman J. upheld the challenges to the decisions on appeals 7 to 14 and 16. He rejected those to the decisions on appeals 4 to 6 and on costs. The appeal before us is against that part of his order. Permission to appeal was granted by Lewison L.J. on 28 February 2020.

The key dispute before the court in relation to heritage policy was as follows:

“Historic England and the National Trust provided their evidence on the basis that paragraphs 195 and 196 of the [NPPF] would always be engaged where any element of harm was identified. The appellant held that this was not the correct approach […]. The appellant’s case is that an “internal heritage balance” should be carried out where elements of heritage harm and heritage benefit are first weighed to establish whether there is any overall heritage harm to the proposal. Paragraphs 195 and 196 would only be engaged where there is residual heritage harm. This should then be weighed against the public benefits of the scheme.”

I’m now handing the microphone over to my Town Legal colleague, Victoria McKeegan – the rest of this post is largely hers.

So, the key matter was whether, prior to engaging paragraphs 195 and 196 of the NPPF (which apply to cases where a development proposal will lead to substantial / less than substantial harm), an ‘internal heritage balance’ should be carried out where elements of heritage harm and benefit are first weighed up to establish whether there is any overall heritage harm. The appellant argued that this was the case and, as such, that these paragraphs are only engaged where there is residual heritage harm, this then being weighed against the public benefits of the scheme. Put another way, only if “overall harm” (i.e. net harm) emerges from the weighing of “heritage harms” against “heritage benefits” must the “other public benefits” of the development be weighed against that “overall harm“.

On this point, the Court held as follows:

Like the judge, I cannot accept those submissions. It is not stipulated, or implied, in section 66(1), or suggested in the relevant case law, that a decision-maker must undertake a “net” or “internal” balance of heritage-related benefits and harm as a self-contained exercise preceding a wider assessment of the kind envisaged in paragraph 196 of the NPPF. Nor is there any justification for reading such a requirement into NPPF policy. The separate balancing exercise for which Mr Strachan contended may have been an exercise the inspector could have chosen to undertake when performing the section 66(1) duty and complying with the corresponding policies of the NPPF, but it was not required as a matter of law. And I cannot see how this approach could ever make a difference to the ultimate outcome of an application or appeal.

There is also some useful commentary regarding the s66(1) duty and the concepts of ‘harm’ in the NPPF, which I set out below:

1. Matters of weight:

• Section 66(1) duty

Section 66 does not state how the decision-maker must go about discharging the duty to “have special regard to the desirability of preserving the building or its setting …”. The courts have considered the nature of that duty and the parallel duty for conservation areas in section 72 of the Listed Buildings Act, and the concept of giving “considerable importance and weight” to any finding of likely harm to a listed building and its setting. They have not prescribed any single, correct approach to the balancing of such harm against any likely benefits – or other material considerations weighing in favour of a proposal. But in Jones v Mordue this court accepted that if the approach in paragraphs 193 to 196 of the NPPF (as published in 2018 and 2019) is followed, the section 66(1) duty is likely to be properly performed.

• NPPF paragraph 193

The concept in paragraph 193 – that “great weight” should be given to the “conservation” of the “designated heritage asset”, and that “the more important the asset the greater the weight should be” – does not predetermine the appropriate amount of weight to be given to the “conservation” of the heritage asset in a particular case. Resolving that question is left to the decision-maker as a matter of planning judgment on the facts of the case, bearing in mind the relevant case law, including Sullivan L.J.’s observations about “considerable importance and weight” in Barnwell Manor.

2. The concepts of “substantial harm” and “less than substantial harm

The same can be said of the policies in paragraphs 195 and 196 of the NPPF, which refer to the concepts of “substantial harm” and “less than substantial harm” to a “designated heritage asset”. What amounts to “substantial harm” or “less than substantial harm” in a particular case will always depend on the circumstances. Whether there will be such “harm”, and, if so, whether it will be “substantial”, are matters of fact and planning judgment. The NPPF does not direct the decision-maker to adopt any specific approach to identifying “harm” or gauging its extent. It distinguishes the approach required in cases of “substantial harm … (or total loss of significance …)” (paragraph 195) from that required in cases of “less than substantial harm” (paragraph 196). But the decision-maker is not told how to assess what the “harm” to the heritage asset will be, or what should be taken into account in that exercise or excluded. The policy is in general terms. There is no one approach, suitable for every proposal affecting a “designated heritage asset” or its setting.

3. Identifying benefits

Identifying and assessing any “benefits” to weigh against harm to a heritage asset are also matters for the decision-maker. Paragraph 195 refers to the concept of “substantial public benefits” outweighing “substantial harm” or “total loss of significance”; paragraph 196 to “less than substantial harm” being weighed against “the public benefits of the proposal”. What amounts to a relevant “public benefit” in a particular case is, again, a matter for the decision-maker. So is the weight to be given to such benefits as material considerations. The Government did not enlarge on this concept in the NPPF, though in paragraph 196 it gave the example of a proposal “securing [the heritage asset’s] optimum viable use”.

Plainly, however, a potentially relevant “public benefit”, which either on its own or with others might be decisive in the balance, can include a heritage-related benefit as well as one that has nothing to do with heritage. As the inspector said (in paragraph 127 of the decision letter), the relevant guidance in the PPG applies a broad meaning to the concept of “public benefits”. While these “may include heritage benefits”, the guidance confirms that “all types of public benefits can be taken together and weighed against harm”.

Cases will vary. There might, for example, be benefits to the heritage asset itself exceeding any adverse effects to it, so that there would be no “harm” of the kind envisaged in paragraph 196. There might be benefits to other heritage assets that would not prevent “harm” being sustained by the heritage asset in question but are enough to outweigh that “harm” when the balance is struck. And there might be planning benefits of a quite different kind, which have no implications for any heritage asset but are weighty enough to outbalance the harm to the heritage asset the decision-maker is dealing with.

4. Interaction with the overall planning balance and statutory duties

One must not forget that the balancing exercise under the policies in paragraphs 195 and 196 of the NPPF is not the whole decision-making process on an application for planning permission, only part of it. The whole process must be carried out within the parameters set by the statutory scheme, including those under section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) and section 70(2) of the 1990 Act, as well as the duty under section 66(1) of the Listed Buildings Act. In that broader balancing exercise, every element of harm and benefit must be given due weight by the decision-maker as material considerations, and the decision made in accordance with the development plan unless material considerations indicate otherwise (see City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447). Within that statutory process, and under NPPF policy, the decision-maker must adopt a sensible approach to assessing likely harm to a listed building and weighing that harm against benefits.”

Thanks Victoria. Me again now. With the retirement of Lord Carnwath from the Supreme Court, Lindblom LJ is now our most senior “planning” judge. It is good to see him underlining yet again that it is for the decision maker to take a rational course through the various NPPF policy tests, based on judgment and circumstances – surely we all now know that, although great care is required to take into account what the individual paragraphs in the framework require (for what can go wrong see e.g. my 12 December 2020 blog post Where’s The Harm In That: Misreporting Heritage Effects), this should not be an overly technocratic or legalistic exercise with only one correct methodology?

Simon Ricketts, 12 March 2021

Personal views, et cetera