The English language is wonderfully diverse, with umpteen / loads / lots of words meaning the same thing and still more with the subtlest variance in their meaning. It is the greatest yet most infuriating language in the world, not least to those of us who earn a crust by its written form or by reading the efforts of others. You read of a site “in close proximity to ……” and must ask yourself “what other sort of proximity is there?” (Before I retire, I must get that one off my chest.)
What a shame, therefore, that we must use our language to write the law, especially planning law and particularly conservation law. If only the people producing the CA&LB Act 1990 had considered the chaos that might ensue from their use or misuse of words, they might have thought twice or thrice – you’re OK with numbers.
The problem with the written law, in this context, is that it’s meaningless, or it means something different to each person using it. In my experience, it tends to mean one thing to one group (let’s call them conservation officers) and something different to another group (let’s call them everyone else), but, hey, it keeps us all in work.
Three words that are a particular nuisance in our corner of the conservation world are “alteration”, “repair” and “character”, innocuous chaps around whom arguments rage, appeals are fought and litigation abounds.
You only need Listed Building Consent (LBC) for “demolition” (just understood either side of Shimizu v Westminster), ”alteration” or “extension”, but the last two only apply if those works to a listed building “would affect its character as a building of special architectural or historic interest.” And there is the rub – who knows what constitutes an “alteration” (adaption / amendment / adjustment / modification, etc,)? Why is there no mention, in relation to LBC, of “repairs”? Are they the same or does one start when the other stops? Is there a difference between a good repair and one that is poorly-done? Why does a repair or an alteration need listed building consent, provided it’s done well?
When you’ve sorted that lot out, you can move on to the trickier question of if / how the character of the building might be affected. If it is not, then there is no need for LBC. Here the waters get deeper, because the effect only relates to the building’s special architectural / historic character, not to its use. In refurbishing a pub, you would have to decide whether a new bar affected its character as a listed building, as a pub, maybe both or neither. Maybe the bar fitting was a perfect replica in an unspoilt C19 London boozer? It’s a minefield for which we have section 7 of the Act to thank. If only its creators had used words not in the thesaurus, words with only one meaning, which we knew and understood.
A repair must surely be straight forward. You get a hole in your jeans, you give it to Mum and she repairs it – simple. Nowadays, maybe she doesn’t and it’s a fashion statement, but, in stitching up or flashing some leg, have you changed the character of your jeans? Of course, Mum may consider it to be an alteration, in which case you’re in trouble. Heaven forbid if she cuts them to make shorts, a change in character and probably demolition, or introduced a paisley wedge to create loons (OK, so I remember the Seventies), probably an extension.
The arbiter of what constitutes a repair, an alteration or a change in character is the Conservation Officer. Competent and knowledgeable as they are, this can become a self-fulfilling prophesy, in which all repairs are alterations and all alterations affect the special character. Recently the LB equivalent of a CLOPUD has been introduced, letting applicants spend eight weeks seeking a ruling on the need for LBC before making the inevitable application, for fear of committing an offence. There are any number of equally knowledgeable and experienced experts elsewhere who might make such a judgement – spread the burden - but the government rejected this option.
With the advent of the NPPF / NPPG, we hoped for some clarification, but there was nothing. Conservation muddles along, to the disadvantage of applicants and probably to the detriment of the “heritage assets” – at least the names changed. If anything, conservation seems to have become harder, less flexible and with tougher application regimes. It cannot be beyond the wit of legislators to better define a repair and to exclude it from the need for LBC, perhaps allowing that a positive effect does not require permission. Maybe, when updating the list, Historic England could take the trouble to define / describe/ suggest those features which are important to its character. Any number of historic building experts might help. The day of the unhelpful listing description should have passed by now. Maybe the negative NPPF options of “significant harm” and “less than significant harm” could be extended to encompass “no harm”, “not much harm” or “wow, it’s really rather good”.
Examples from recent WP experience:- would LBC be required to:-
- Add an air con unit to others on the second floor of a 1980s extension?
- Introduce attenuation into walls before replacing the lathes and plastering in lime plaster?
- Replace irretrievably damaged timber sash windows with new but identical replicas?
- Carcass decayed structural timbers, using materials, fittings and techniques to the appropriate BS?
- Open up an internal doorway last used in 1935?
Of course, LBC was required in each case.
In their near-continuous overhaul of the planning system, recent governments, simplifying the planning system, have continued to ignore conservation legislation, maybe assuming that it’s all perfectly clear - no need for an overhaul – but it is not fit for purpose and this job is long overdue.
In the meantime we struggle on with Section 7, in the fear that the law is indeed an ass / donkey / mule.
The housing market in England is broken. This seems to have become a universal truth and, as such, it’s hard to deny. A harder proposition is to fix the blame for the failure and to fix the problem, whoever or whatever is to blame. The latest in a long line of potential fixers is the newish Communities Secretary, Sajid Javed. In February he released the long-awaited and long-overdue Housing White Paper – but is it a cure for what ails us or just another sticking plaster slapped onto the wound that never heals?
Never one to miss the chance of a football analogy in an article on planning, I’m writing only hours after the unbelievable sacking of Claudio Ranieri, the original Tinkerman, and here, in government, we have yet another tinkerman, pressing all the buttons in no particular order, in the hope that, by chance, he gets the combination right. Sajid should know that it was only when Claudio stopped tinkering that he found the answer, if only for one season – but what an answer it was.
So, what’s in the White Paper that might give us hope or lead to more despair?
Fundamental to SJ’s strategy seems to be a welcome departure from the Thatcherite ideal which, to many observers, broke the housing market in the first place – the ideas that 1) every Englishman/woman should own their own castle, and 2) the country’s prosperity went hand-in-hand with universal home-ownership. Much of the thrust in the White Paper is aimed at making it easier to instead develop purpose-built schemes for the private rental market. Affordable privately-rented homes, rather than home-ownership, is to be made easier, though this will be part of a long-term strategy change rather than a quick fix. In fact, the whole White Paper is very much a statement of intent rather than an action plan for producing the vast number of new homes that the country needs – leading to much criticism, in the press and online, that SJ has already missed an opportunity to shift the market into the higher gear that is needed.
A private rental strategy that provides young couples and families with a place on the housing ladder has got to be better than one in which rented accommodation is actually more expensive than a crippling mortgage. Truly affordable housing for rent, allowing time for all the other lifetime commitments – saving for a deposit, pensions, etc - must better than one false promise of home ownership for all. On the continent, that far-off place to which we no longer belong, most families don’t even think of home ownership until they are in their forties, simply because the private-rented market is affordable and it works. It is to be hoped that SJ has it in mind to use the German or Dutch system as a model and to aim for one like it. Let’s not call it Council Housing this time, but those decades up to Thatcher’s cut-price dismantling of the public rented housing market were perhaps not so bad after all.
Councils no longer build housing, so there is a certain irony in the conclusion reached in the White Paper that blame for the underperformance of the housing market rests with local planning authorities. This is apparent in the “housing delivery test”, to be applied as the means by which LPAs are held accountable for the delivery of new homes, or, more particularly, a failure to deliver. The Local Plan, as ever, is the tool used for establishing a level of assessed housing need, and, if the delivery rate falls below par (25% in 2018, 45% in 2019, 65% in 2020) then, to misappropriate Russell Crowe’s words in Gladiator, the government will “unleash hell”. In this context, hell will appear in the form of uncontrolled but “sustainable” (Hurrah) development in unprepared, but still not Green Belt, locations.
The five-year land supply, for so long a pipe dream for many planning authorities, may, thankfully, have had its day, with the option to agree land supplies on an annual basis. A more hand-to-mouth approach may help, but, when the simplest housing application can take a year or more to resolve, it is not the only answer.
The big stick approach implicit in the White Paper – “deliver housing where you want it or it will go where it’s not wanted” – cannot surely be the answer; nor can it be right that local authorities, no longer building houses, and local planning authorities, facilitating but not delivering housing, should be made the scapegoat for the broken system. There was a sense, a hope even, that the White Paper would also apply the big stick to the housebuilding industry, in the hope that those whose role is actually delivering new homes would implement the permissions that they have, but this hasn’t’ really happened. The hint that councils might use compulsory purchase powers to bring forward stalled developments is not, in this decade of austerity and local government cost-cutting, going to open that particular floodgate, nor is the threat of “completion notices”, stipulating completion in two years of commencement. This big stick is pretty limp and there is a distinct lack of carrot.
New housing, for purchase or for rent, is only going to come forward when those in need of it can afford to buy or rent it. The sort of threats contained in the White Paper is not going to force housebuilders to implement consents when purchasers simply cannot afford their product. That the definition of a starter home in Greater London is one costing up to £450,000 surely tells the government where the housing problem starts and ends. Having to borrow way beyond your means to get on the housing ladder is what got us all into the mess that we’ve been in since before 2008.
The White Paper does away with the legal requirement that new developments must include 20% starter homes, though it will surely come as a relief to most young families that starter homes should only be available to people with incomes below £80,000 – on which planet? – an income which thankfully just allows MPs to qualify. Backtracking from the commitment to starter homes, only on the table since 2014, has been justified on the grounds that such a commitment would adversely impact on the delivery of other affordable homes. When most LPAs are seeking 40% affordable housing from major schemes, having half of that as heavily discounted starter homes for first-time buyers seemed, to me at least, like a sound idea, with the other half given over to rental or shared-ownership schemes of all shapes and sizes, but apparently it’s not. The government has given up on it before even giving it a chance. For those who aspire to home ownership, giving them access to such houses was surely an idea worth pursuing. Ministers have apparently “listened to concerns” as to the wisdom of their starter homes initiative and, as a result of these “concerns”, given it the elbow. Hopefully, those whose views so swayed the government were concerned at the 20% threshold and not at the concept of a threshold, per se, allowing that the initiative is merely down and not out.
As ever with a government exercise in tinkering, the White Paper promises so much more than it delivers. Maybe expectations were too high. It actually says more about the way in which the housing crisis has been mismanaged by previous governments, of all hues, than it does about how the current government intends to turn things about. Recognising that home ownership is not the be-all-and-end-all of life is a good start, as is a commitment to affordable, good-quality rented housing rather than buy-to-rent slums, but these are ideas and not answers. Much of the press response to the White Paper has been negative – a damp squib, a missed opportunity, etc. When the only organisation that sees the White Paper as a success is CPRE, then we know that we’re still in deep trouble.
When the coalition government decided to make development control a “Noddy and Big Ears” sort of business, easy to understand, even by development control officers, their plan was to make everything Permitted Development. We were going to have new housing, converted from each and every land use that was not housing to start with, huge extensions to houses, factories, warehouses and loads of other freebies that would make the junior DC officer’s role redundant, except for their regular losing battle trying to understand and apply the Advert Regs. Said planners could be diverted to local plans, in an effort to get the Development Plan finished by 2011, no 2012, oh all right 2015, last chance 2017.
Of course, it didn’t happen. What sort of idiot was it who thought the planning system should be or could be simple? Had he/she never been a planning consultant or DC officer, desperate to maintain a degree of mystery about what they do? How could it possibly work if the GPDO was written by Enid Blyton? Regular readers will know that the government were persuaded, instead, to make the system more complicated, rather than less so, by introducing into the team the “holding midfielder”, Prior Approval. He was an untested, probably foreign, player whose role was to slow things down, put his foot on the ball and stop all the long-ball nonsense that the previous Director of Football wanted to play.
So, how has he done? His transfer has been made permanent, he’s a regular player, but has the new system worked? Do we have a Leicester City on our hands, burning bright for a season and mediocre in the difficult second, or are we still Sunderland without Big Sam? (say no more).
If the new GPDO changes of use system, post-Prior Approval, were a success, would Martin Goodall’s recent volume “A Practical Guide to Permitted Changes of Use” really need to be 341 pages long? Would it be needed if “Enid” had, after all, re-written the GPDO?
Setting aside the ongoing crisis over new-build housing, DCLG figures for 2015/16 suggest that 12,800 homes were created through offices converting to residential use, so that sounds like a promising start, notwithstanding that 10,400 homes were demolished in the same period. The first figure is actually on the low side, mainly because, as it’s PD and as there is not yet a requirement for a Register of PD applications, no-one really knows how many conversions have actually taken place or how many are in the pipeline. What’s more, we can’t really tell whether Prior Approval has been a hindrance or a help in this process because the figures don’t tell us how many PA submissions were rejected. The third option, under Class W (11) of the GPDO, is even more of a mystery, because, if the LPA makes no decision in eight weeks, the Permitted Development conversion can take place anyway, probably with no record until Council Tax catches up.
The DCLG data shows 30,600 dwellings created through changes of use, but not how many involved Prior Approval and how many needed planning permission. It’s all a bit hit and miss.
Top of the pile for office conversions is Croydon, with nearly 600. Well done them, though it probably just tells us that they built too many offices in the 1980s.
If the jury is still out on the numbers game, there remains a good deal of concern among local authorities over the loss of affordable housing, the loss of s106 contributions, the quality of the resultant accommodation and the surprising number of agricultural buildings that are suddenly capable of residential use.
12,800 new dwellings would, on a good day, give up over 5000 affordable units and vast sums to spend on classrooms, library books and a swanky system to tell you that your bus is late. The loot has been diverted, and, while most of the new dwellings will be in the rented sector, control is clearly lacking as to their allocation and, maybe, their quality. The planning office has no control over the size of the dwellings and no authority to determine a PA submission on the basis of housing size, mix, quality or tenure, but, if they did, you might as well require a full application.
The lack of quality control in the PA system does not seem to stop planning authorities from turning down more PD/PA agricultural conversions than they support. 226 new dwellings in a year has got to be a disappointment. Of course, some of the prospective dwellings were a couple of beams held up by string and their “conversion” was not too far from a total rebuild. Newer rules, which overcame the usual presumption that rural buildings were, by definition, in unsustainable locations, have tightened up on the rules as to what “conversion” actually means.
So, has Prior Approval been worth the inflated transfer fee, or would Team Planning have been better off with another free-wheeling midfielder creatively passing the PD ball to the striker to score a tap in? (Grealish to Kodjia - GOAL). Early days, perhaps he needs another season, but you’d have to say that, so far, Prior Approval has not yet proven his worth. He’s confusing planners, slowing down the game, compared to the original “free PD” idea and he’s doing no favours to Council finances or affordable housing targets. What price on a re-think when the team next gets a new manager? 2017??
With the Rio Olympics a recent and glorious memory, let’s think back to an earlier golden age for British Olympians, a time when Team GB ruled the world and claimed the Gold Medal in a far more taxing and important event than horse dancing, synchronised smiling or slow cycling. The year is 1932, the place is Los Angeles, the event is Town Planning??? And the winner, ahead of a dangerous Dane and a battling Belgian, was John Hughes of Great Britain for his work on a sports stadium and leisure centre in Liverpool.
Can it be true? Was it Anfield or Goodison Park that claimed the accolade of Gold Medal Arena? It was true, but actually it was neither, as the stadium was never built. That’s the thing about planning as a profession – you train and train and train and you put in a podium – finish performance on the day but if no-one turns your dreams into reality, you are soon forgotten, perhaps like poor John Hughes (1903-1977) who, when Googled, comes way down the list, beyond the John Hughes who directed Home Alone.
1932 was an Olympic year when, as you won’t recall, Team GB did not exactly cover itself with glory. John Hughes’ gold was one of only five that we achieved (town planning, mens 800m, mens 50,000m walk, coxless pairs and coxless fours, if you really want to know), so maybe his efforts deserve a belated “thank you” (if you’re listening, Claire Balding).
The Arts were celebrated at The Games between 1912 and 1948 and Team GB gloried in a total of nine medals over seven Olympiads, really hitting their stride in 1948, in London of course, when, in what might have been termed Amazing August, John Copley took the silver in Engraving and Etchings, Alfred Thomson won gold in Paintings, Rosamund Fletcher was awarded a bronze medal in Reliefs (for “The End of the Covert”) and who can forget Chintamoni Kar’s silver medal-winning Statue “The Stag”. One might have felt especially sorry for Ms Fletcher who, justifiably proud of her bronze medal, may have been concerned to find that neither the gold nor the silver were even awarded, like coming third in a one-horse-race. Times were particularly hard for our Artist-Athletes in those days, all the more so when the whole concept was dropped after 1948.
Thank heavens for the Royal Town Planning Institute and its annual, sought-after Placemaker Awards, not be confused with the Laying-the-Table Oscars. If only the RTPI secured lottery funding, maybe Placemaking could relive the glory days of L.A. in 1932. Maybe the BBC would jump on the bandwagon, with Strictly Come Placemaking or The Great British Placemake. The opportunities open up before us, and ahead of the World Cup in 2018, maybe the RTPI can become official sponsors to the Team GB Placekicking team. What’s in a name?
Art and artists continue to play an intriguing role in town planning and architecture, not least in the penchant for naming buildings as if they were statues. The Shard, The Gherkin and The Cheese-Grater, in presentation-model form, may well have given The Stag or The Sulky Driver (Gold for Sculpture 1936-Berlin) a run for their money.
At Walsingham Planning we’ve had a couple of run-ins with the Spencer family, Sir Stanley (1891-1959) and his lesser-known brother Gilbert (1892-1979). Stanley Spencer’s work in his home turf of Cookham is well-known, and rightly so, but his paintings of the area, done in the 1930s, have now formed the basis of a conservation area extension and the motivation for a local pressure group seeking to resist development in the area, despite the artistic licence used by Sir Stanley in his placement of local landmark buildings. Gilbert’s residence in Upper Basildon and his use of a shed in the back garden as an artist’s studio prompted, mid-appeal, the listing of the said structures and the dismissal of that appeal, in part on the basis of a painting that Gilbert knocked off of the garden. You never know when art and planning are going to cross swords, but it is clear that works of art can indeed be material considerations. Better check, before building that changing room by the swimming pool, that David Hockney did not get there first.
Back to the Olympics and our efforts to have town planning restored to the event. It is, as we know, a multi-disciplined event and, sadly, it is more often than not run over a long distance and with very slow performance times. With all due deference to Ms E-H and Ms J-T, the planning application process is at least a heptathlon. You start with the sprint, hoping that pre-app will be over quickly, though it rarely is. There are any number of hurdles races, though the submission, validation and consultation processes, with validation maybe the highest. For weeks you may be throwing stuff at the LPA, hoping that your persuasive arguments will travel farthest (shot putt) or skewer the opposition (javelin). There’s a long jump before you get to the committee, maybe with a couple of no-jumps along the way, and a high jump in dealing with the members’ curve ball questions on the night of the meeting. If all goes well, you struggle through to the last event, the long-distance haul that is the s106 agreement and the discharge of conditions, never forgetting the Anti-Doping Agency of the planning world, the judicial review. Hopefully, it’s a team event. Go, go, go Team TP.
If you can mix more metaphors than this in one article, than it would indeed be a PB and worthy of Gold at the next Olympics. Roll on Tokyo 2020. Start training now!