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Muddle Means New Opportunities

With Brexit taking up much of the Government’s energies, there has been a lack of focus on planning. The current Government proposes an agenda to ‘liberalise’ the Planning System, however, there is no clear ideological push as to what that means.

Instead, there is simply a muddle of thought that has resulted in the tensions between, for example, protecting Green Belt at all costs, but not being honest about the constant failure to deliver housing. These tensions also exist with the proposed extension of permitted development, despite the recognition of the poor quality of housing that has been produced in many cases by previous such endeavours.

In addressing the recent Tory Party Conference, former TV personality turned Minister of State for Housing Ester McVey perhaps highlighted her lack of understanding in relation to challenges associated with her new role by trumpeting the benefits of Architects now being able to design homes in 3-D! Up until this point, our Architect friends must clearly have been focussing their attention on seeking 2 dimensional homes to be sold via flatpack.

Two of the Government’s latest measures to seek to remedy the Planning System are to allow developers to demolish commercial buildings and replace them with homes without the need for full planning permission using what is termed “permission in principle” (PiP), and introducing a new permitted development (PD) right allowing buildings to extend upwards without the need for planning permission.

Having recognised that the prior approval process for Office to Residential has created homes, but with many of these being substandard in terms of design and liveability, the new permitted development rules are likely to be subject to a number of hurdles.

The hurdles are likely to include rules to ensure that new homes are “habitable”. What a surprise that deregulation with Office to Residential has resulted in a race to the bottom. A recent appeal even allowed substandard housing for a planning approval because it was ‘less worse’ than what could be done under permitted development. In our opinion the new rights are likely to be either too lax or too complex.

Separate to the headline changes, in terms of PD and PiP, the Government also dressed up old proposals as being dramatic changes. These included changes to reduce the number of conditions, the return of an 80’s classic, an 'A-Team' to improve planning services, hopefully without any blood on the carpet, and being able to charge higher fees where a service provided by a particular Planning Department is deemed to be great ! Again more muddle and lack of direction.

From the muddle of Government thinking, there will ultimately be loopholes that can be exploited to gain development which would otherwise be refused. There will also be opportunities in applying for planning permission but utilising fall-back positions that could or may be granted under the new processes. Walsingham Planning has significant experience in dealing with these type of arguments and is poised to assist clients to gain planning permission using the full extent of the Planning System.

Walsingham Planning – Always Going the Extra Mile……

We always endeavour to ensure our planning applications are approved as quickly and efficiently as possible, adopting sprinting rather than marathon pacing, wherever possible. Simon Millett, a Consultant based in our Bourne End Office, tackled the world famous London Marathon for the second time earlier this year, finishing 52nd overall in a time of 2 hours 28 mins, just 26 minutes behind the race winner. Here he outlines the challenges of training for and undertaking the race itself, alongside managing a varied and demanding caseload as a Planning Consultant.

In April this year I completed my second London Marathon. Training had gone well this time around with no injuries or illnesses and I was feeling optimistic, with an aim of 2 hours 26 minutes and 23 seconds to be exact (5:35 miles). The plan was to go off a little less conservatively this time in order to make sure I left nothing in the tank!

Chatting to some of the guys in the start area, it seemed there were a few of us after a similar time and so when the gun went, a group of around 15 of us all set off together.

The pace was a little quicker than planned but I had committed and running in a group made life easier, so I stuck with it. I went through halfway in 1:12:15 and felt good so was feeling optimistic as I knew I had a bit of time in the bank if I needed to slow.

However, at the 20 mile mark I learnt why the marathon can be so cruel and the dangers of being too gung-ho! My legs started twinging with cramp and by mile 21 the twinges were a lot more frequent and I had to put the brakes on just to make it to the finish line without stopping. I ended up losing half a minute a mile over the last 10km on my target pace, which brought me over the line in 2 hours 28 minutes and 5 seconds for 52nd place. Not the targeted 2:26 but, at the time, I was just relieved to finish!

After the race, one of the Directors at Walsingham Planning asked if I would write a short article on how I managed to train for the marathon alongside working full-time?

100 mile weeks are hard work in the depths of winter with runs before and after work in the dark, cold, rain and sometimes snow. Many of my runs were around the same 1.5 mile loop of grass to avoid running on hard surfaces and aggravating previous injuries. Boredom was therefore a factor but I was motivated by running with friends as much as I could and getting to the start line in the best shape possible (and of course how many miles I could rack up on Strava!). Weekends were all about training and recovery.

However, I actually quite enjoyed it all. I love a challenge so I was quite willing to commit to the training. I also really like eating. Running 100 miles a week makes you hungry all of the time!

Good time management was key. Every once in a while, I did have to miss or cut a run short for work or other reasons, but I felt I was able to find a consistent and healthy balance between work and play (it probably helps that I don’t have any children!).

One month post-marathon and I am back running along with the rest of Walsingham Planning Runners and Triathletes!

The Oxford to Cambridge Sausage?!

Has anyone heard of the Oxford to Cambridge Sausage? No, me neither.

That was until a few weeks ago when I attended a networking event at the MK Dons Stadium in Milton Keynes when the ‘Sausage’ was the latest of many names used to describe the proposals for the ‘Oxford to Cambridge Growth Corridor’.

Numerous phrases have been coined to describe the geographical area that the Government sees as the economic engine of the country – outside of London. The ‘brain belt’, the ‘arc’, the ‘Oxs-Cams Corridor’ – many names being attributed to the same thing – a geographical area of significant focus for investment and growth in the country up to 2050 (which apparently looks like a sausage). I will stick to referring to it as the ‘Growth Corridor’ for the purposes of the remainder of this article!

The headlines around the Growth Corridor are eye watering. 1 million new homes and new jobs, a population increase of close to 2 million people in the next 30 years and the involvement of 26 local authorities. These are figures that have made everyone involved in the development sector sit up and take notice and have made the Campaign to Protect Rural England choke on their Cumberlands.

I have spent the last 3 years advising clients of the implications of the Growth Corridor on their businesses. No sausages were involved in this advice, but what I can say is that there were plenty of references to pigs ears. I’m not one to be negative (honestly) about how the Government goes about changing the planning system to ensure its aspirations for the Growth Corridor can be delivered, but I am afraid that on this occasion I am going to be and here is why.

The Growth Corridor is an area spanning approximately 85 miles between the two varsity cities of Oxford and Cambridge. There are 26 local authorities all having different priorities and political objectives, each having their own particular social, economic and environmental issues to contend with. There are areas of Green Belt aplenty, significant problems with existing infrastructure and some of the most partisan objectors to development you will find in the country. All of that sounds to me like a perfect storm in terms of trying to plan positively for growth.

As currently framed, the planning system would deliver growth across the Corridor through Local Plans (that’s at least 26) and where agreed through combined authority ‘spatial development strategies’ (a new addition to the NPPF). Spatial development strategies such as the Joint Statutory Spatial Plan (JSSP) have now commenced preparation in Oxfordshire. Whilst the NPPF’s introduction of spatial development strategies is welcomed to some degree, it does not go far enough. Spatial development strategies will focus on relatively small geographical areas (i.e. counties) and Local Plans will focus on delivery in individual Districts. In the context of the large geographical area that the Growth Corridor covers, this approach to plan making cannot be a joined up one - it will be too piecemeal.

Locally led decision making in the planning process across the Growth Corridor is extremely important, but……… the only feasible way of tackling the strategic planning issues across such an area is through the preparation and adoption of a single spatial plan that covers the entirety of the Corridor. Strategic infrastructure projects such as the completion of East – West Rail and the route of the proposed Expressway must not in isolation set the strategic framework for each Local Plan to follow.

The implications of a successful Growth Corridor will be felt nationwide. If planned well the Corridor could realise its full potential and beyond. We need a commitment to prepare a Corridor wide Spatial Plan and its needed now.

On a final sausage related pun…………the Oxford to Cambridge Growth Corridor is one juicy planning sausage I am looking to get my teeth into with Walsingham Planning.

Article by Alan Divall

Alan joins Walsingham Planning having spent 7 years at West Waddy in Oxfordshire, the latter part of his time he was as Partner leading the Practice’s Planning Team and working for clients on residential, commercial, educational and mixed used developments.

A New NPPF, but what has changed?

We had a new NPPF arrive on our collective doormats and screens a few weeks ago, accompanied by the usual comments from the usual parties: CPRE assuring us that this will signal the end of our green and pleasant land, politicians telling us that it is the game changing contribution to solve the housing shortage, consultants advising on the minutiae of wording changes.

There is undoubtedly significant change from the 2012 version, in particular with regard to urging Councils toward allocating more housing land, hopefully the desired results will be achieved.

But………change is much less significant for other sectors and it continues to be the case that those politicians and their advisors who believe (and tell us) that changing NPPF makes the attainment of planning permissions easier and quicker are deluding themselves. It remains my abiding impression that none of these politicians or advisors have ever tried actually using the planning system.

Politicians of all stripes may huff and they may puff, the NPPF and Ministers can threaten Councils with all manner of sanctions, but none of that helps if Councils do not have the resources, or the desire, to fulfil their duties and whilst the system seems to be constantly made more elaborate and demanding.

I hope they do not mind, but a poor nameless (to protect the innocent) Council in the south recently took 5 weeks to validate a relatively straightforward application we had submitted – I am sure they would much prefer to have validated it on the day we submitted (as we used to decades ago when I was a Council Planning Officer) – but they clearly do not have the resources - now we are agreeing to a time extension as almost the first step in the process. Despite our own frustration, we can see that it is not the Council’s fault and that they are by no means alone. The NPPF and Minsters can say what they like but our application is not going to be dealt with in the remaining 3 weeks of the statutory period.

NPPF may say what it likes about applications needing only to supply proportionate and necessary information packages but a lot of Councils are not listening - this is where my sympathy for their plight begins to run a bit thin. There continues to be a seemingly insatiable appetite for information, often of questionable usefulness - not only do we have to write this stuff, applicants have to pay for it and, presumably, Council Officers have to read it and then summarise it in their reports.

NPPF may urge us all to make full use of the Pre-App enquiry process, but bouncing the simplest of enquiries into the system is a plain nonsense. We act for clients seeking to change the external cladding on some of their buildings, we will do all we can to get the appearance and finish as close as possible to the previously approved external materials - all we wish to do is upgrade the specification of cladding panels. In response to precisely the same enquiry we have had one south eastern Council immediately agree this could be a Non Material Amendment and then deal with the NMA with exemplary expedition, whilst another Council responded to the enquiry by saying they could only respond whether the application could be NMA via a formal paid Pre-App process.

Recently, one of my colleagues struggled with a Council insisting that a building was Listed when this was plainly not the case and then only accepting the obvious after wasting weeks of delay and hours of time that the applicants have had to fund.

If the Minister, or his advisors, were to have greater experience of the practicalities of the system, perhaps using the “mystery shopper” technique, maybe, just maybe, we might see more progress and less need for huffing and puffing.

Article by Stephen Brooker

The People Over Wind Ruling ? – Does it matter ?

The ruling relates to 931 EU-protected Special Areas of Conservation (SACs) and Special Protection Areas (SPAs) in the UK, covering 17 and 11 per cent of the land surface respectively. For example, it affects the Thames Basin Heaths SPA, which extends across 82 square kilometres in Hampshire, Surrey and Berkshire.

There are two steps that a decision maker must follow in determining whether a plan or project is likely to affect a Special Area of Conservation under the Habitats Directive or a Special Protection Area under the Birds Directive (given domestic effect by the Conservation of Habitats and Species Regulations 2017). For plan making this is carried out in what is termed a Habitat Regulation Assessment (HRA).

The first step is what is commonly called “screening”, although it is not a formal procedural process as there is with EIA. At this stage the question is whether the plan or project is likely to have a significant effect on an SAC or SPA (either alone or in combination with other plans or projects). “Likelihood” is a low threshold – as summarised in People Over Wind). The practice has been for mitigation to be offered at this stage to allow the decision maker to conclude that the risk is not significant and therefore the more detailed second step of “appropriate assessment” is not required.

Appropriate Assessment (AA) is a detailed process to ascertain that an adverse effect on the integrity of the site can be ruled out. Where such an adverse effect on the site cannot be ruled out, and no alternative solutions can be identified, then the project can only then proceed if there are imperative reasons of over-riding public interest and if the necessary compensatory measures can be secured.

To pass the Appropriate Assessment stage, Natural England will need to be consulted and the test that a site allocation or project will have "no significant effect" upon protected sites "on the basis of objective information". To pass the Appropriate Assessment test, this has to be proved "beyond reasonable scientific doubt".

The consequences will be slower decision making both in terms of plan making but also decisions on individual sites. This will also be more expensive for all concerned in the process at a time when Local Authorities and Natural England lack expertise and resource to answer these complex questions.

Will leaving the European Union help ? Probably not in the short term as it will need the UK courts to take a different view to the European Courts, but in the longer term there are major questions still to be answered over what does the UK want to protect. Is this say habitats and species that are common in the UK, but are rare in Europe ?

As with all judgements of this nature, it is often the following judgements that allow better understanding and how future decision trends might follow. We will watch such matters with interest, and will be sure to update our clients appropriately in relation to their specific sites and interests.

The Draft NPPF: A New Dawn?

I was contacted recently by a planning student who asked me to fill out a questionnaire for his dissertation. After remembering the pain and agony of writing my own dissertation a few years ago (ahem), I gladly obliged.

  • Question 1: What role do I play in the planning process?
  • Answer: Planning Consultant
  • Question 2: how long have I held that role?
  • Answer: Over 20 years (depressingly this option was the last available box to tick so let’s move on!)
  • Question 3: Some residential developers have a land bank or ‘pipeline’ of sites at various stages of planning, why do you think this is?

…and that got me thinking. According to the Government (and to set the mood for the arrival of a new draft of the NPPF) the fault lies with the development industry. This is obviously not the first time that such a suggestion has been made and whilst my allegiances lie firmly and unashamedly with the private sector I recognise that there are some who seek to delay the release of development land. However, based on my experiences as a private practitioner at the forefront of the planning process I can safely say that the vast majority of developers I act for want to deliver long lasting, well designed schemes at the earliest possible opportunity.

The answer to Question 3 depends on how land banking is defined. The finger of blame for delays in the planning system will of course be pointed in all directions. However, at no point since the current version of the NPPF was published in 2012 has anyone I have met during the course of my working day (planning officer, local resident, consultee or other) described the planning system as simple. That in my view is the big problem.

It is fair to say that the expectations of pre-application engagement, the pressure on local planning authority resources (and the Planning Inspectorate) and the rise of localism, let alone the time it takes to navigate post-application requirements such as pre-commencement conditions and Section 106 agreements do not always entice landowners and developers to engage in the process. During a recent pre-application meeting with an LPA in relation to a policy compliant scheme of around 40 dwellings where a full suite of technical reports were provided in advance the Case Officer suggested that the developer should obtain further pre-application advice with the Council, consultees and the local community, engage in a design review and agree to a s106 agreement securing a design code. Clearly the simplified planning process we were promised via from the current version of the framework is not working.

As for the draft NPPF published earlier this month ( there are a number of suggested changes that you should be aware of which I have set out below. However, these changes will impact most on the residential sector and in other respects it is very much business as usual. Notably the overall approach to town centres remains the same other than in relation to offices where the expectation that office developments outside town centres are subject to an impact assessment has been removed. Green Belt policy has been tightened. Before concluding that exceptional circumstances are justified local authorities should have examined all other reasonable options. Limited affordable housing for local community needs has however been added to the list of exceptions, on previously developed land, where the construction of new buildings would not be considered inappropriate development. Reference to the “golden thread” has also disappeared

Other notable changes are:

  • Policies providing a specific reason for restricting development, such as Green Belt and National Parks, are set out as a defined list rather than as examples, as in the present framework.
  • Local plans should provide for objectively assessed needs for development, including unmet need from neighbouring areas, unless particular policies provide "a strong reason for restricting the overall scale" of development.
  • The three ‘tests’ of sustainability – social, economic and environmental should be matters for plan making, not matters used to gauge applications.
  • The presumption in favour of sustainable development would be triggered where a council cannot demonstrate a five-year housing supply "or where the housing delivery test indicates that delivery of housing has been substantially below the housing requirement over the previous three years".
  • Local plans will be considered sound if, as a minimum, they meet as much as possible of an area's objectively assessed needs, particularly for housing.
  • A standard methodology for assessing housing need will be implemented via the revised framework.
  • A housing delivery test will impose sanctions on Councils failing to meet housebuilding targets in their local plans.
  • Where a Neighbourhood Plan exists, and promotes a suitable scale of land for housing allocation, the 5 year requirement becomes a 3 year target.
  • Planning authorities must fully examine "all other reasonable options" for meeting their identified development needs before releasing green belt.
  • Strategic plans should set out a housing requirement figure for designated neighbourhood areas and this should not need retesting at neighbourhood plan examinations.
  • The sequential approach to town centre uses is amended to make clear that out-of-centre sites should be considered only if suitable town centre or edge-of-centre sites are unavailable or not expected to become available within a reasonable period.
  • The government expects minimum density standards to be used in town and city centres and around transport hubs in areas where there is a shortage of land for meeting identified development needs.
  • Where policy requirements have been tested for viability at the plan-making stage, such issues should not usually need to be visited again at the planning application stage.

Consultation on the draft NPPF runs until May 10 and a final version is due for publication before the summer. A consultation on developer contributions and viability also runs alongside the NPPF consultation. It is worth stressing that the draft is likely to be subject to change before it is finalised. Interestingly though the Government has indicated that planning authorities will have six months from publication of the new National Planning Policy Framework (NPPF) to submit local plans for examination under the old framework. Read into that what you will.

Whatever framework we find ourselves with, now or in the future, the basic advice remains:

  • Seek professional advice as soon as possible and where necessary allow for engagement with the key stakeholders and the local community;
  • Ensure your proposals are well designed, well considered and justified by appropriate technical evidence;
  • Remain optimistic about the value of working collaboratively with the local planning authority but challenge unacceptable delay in the system robustly.

Having completed my questionnaire I decided to find a clever phrase to sum up my thoughts which led me to the following:

‘There are only two options: Make progress or make excuses’

‘Be patient: sometimes you have to go through the worst before you get the best’

That didn’t make me feel any better so I decided to stop googling and get on my representations to the NPPF! Good luck out there and gives us a call if you want to discuss any of the issues I have raised.

Article by Ian Jewson

Draft London Plan published with Clear Focus on Increasing Housing Land Supply

The London Mayor, Sadiq Khan, has published a new Draft of the London Plan, with consultation comments invited until 2 March 2018. With the population of London projected to increase to 10.5 million by 2041, there is a clear focus on housing provision as a key element of delivering sustainable growth, and seeking to address the lack of housing availability and affordability in the capital.

Some notable proposed policies for upping the delivery of housing include:

  • A target for the provision of at least 65,000 homes per year (up from just over 42,000), across London to meet the current demand. Over one third of these houses are identified to be built in 13 outer suburban boroughs. Barnet, Brent, Croydon and Ealing are the four outer-London Boroughs where the greatest number of dwellings will need to be provided.
  • Ten-year housing targets are set for boroughs, encouraging the preparation of delivery-focused Development Plans, the development of windfall sites and enabling housing delivery within Opportunity Areas. The Boroughs of Barnet, Greenwich, Newham and Tower Hamlets will all need to provide in excess of 30,000 new homes between 2019 and 2029, according to the Draft Plan.
  • Councils should re-evaluate land use designations in order to optimise the potential of land for housing, particularly where new sustainable infrastructure is planned to accommodate higher density residential and mixed-use developments.
  • Subject to certain criteria, there will be a specific presumption in favour of residential schemes providing up to 25 new homes where it is:
    • infill development or an underused site;
    • an increase in density of existing housing, within sustainable and accessible locations; or
    • the redevelopment or upward extension of flats and non-residential buildings.
  • A target of 50% of all new homes to be affordable. There is an emphasis on the provision of affordable housing ‘on-site’ unless there are exceptional circumstances. There is also a minimum threshold for affordable housing provision of 35% on privately-owned development sites, sites providing 10 or more units, or a combined floor space of greater than 1,000sq.m.

Turning to matters away from housing, the Draft Plan includes a Policy specifically seeking the protection of pubic houses. The Policy, interestingly contained within the Heritage and Culture Chapter of the Plan, states that boroughs should:

  • protect public houses where they have a heritage, economic, social or cultural value to local communities, and where they contribute to wider policy objectives for town centres, night-time economy areas and Creative Enterprise Zones; and
  • support proposals for new public houses to stimulate town centre regeneration, cultural quarters, the night-time economy and mixed-use development, where appropriate.

With regards visitor and tourist infrastructure, the Draft Plan generally seeks to enhance and improve provision, with a particular encouragement for new Serviced Accommodation – particularly focussed for business visitors and also the provision of Apart-Hotels and short-term lettings, providing this does not compromise localised housing provision and delivery.

It should be noted that whilst the publication of the Draft London Plan does propose measures specifically designed to increase housing supply across London, these are not expected to be formally adopted until the autumn of 2019, at the earliest. The draft does, however, provide a clear message to the London Boroughs that the Mayor is serious about addressing issues of housing supply in the capital by removing some of the perceived obstacles to obtaining planning permission. This being said, as the Plan maintains and reiterates the importance of protecting and conserving Green Belt and Metropolitan Open Land, creative and in some cases very difficult solutions will need to be arrived at, and supported by Officers and Members, if the ambitious housing targets are to be met within an already heavily urbanised area.

Should you require further guidance on the contents of the Draft London Plan, or wish to discuss the scope for making representations in support of your interests, please contact our Bourne End Office, in the first instance.

Consultation Launched Regarding the Calculation of Housing Need

The Government has launched its long-awaited consultation on a proposed standardised methodology for the calculation of housing need across England; responses are invited until 9 November 2017.

Presently, disagreements as to the most appropriate methodology for defining housing need have increased the timescale and costs of many applications, appeals and Local Plan Examinations. The adoption of a single methodology is proposed as a means of addressing this situation.

The proposed methodology seeks to utilise household growth projections, provided by the Office for National Statistics, to set a consistent baseline. Thereafter, plan-makers are required to use the workplace-based median house price-to-median earnings ratio from the most recent data available, to factor affordability into the housing need calculation process. Applying this approach would see a significant increase in the potential housing need in some parts of England, said the Government, so the final proposed stage caps the level of any increase according to the current status of the local plans:

  • For authorities with a Local Plan adopted in the last five years, a cap of 40 per cent above the annual requirement set in the local plan is proposed.
  • For authorities that don’t have an up-to-date local plan, the cap is 40 per cent above whichever is higher of the projected household growth for their area over the plan period or the annual housing requirement in their local plan.
In some areas, particularly in the South of England, the proposed methodology sees significant increases in the number of houses proposed to be built annually. Via the proposed methodology, the London Borough of Greenwich, for example, would see its annual housing target rise from 350 to 3,317 units. The above being said, despite the consultation being proposed as part of the Government’s measures to address the housing delivery crisis, a number of areas see substantial decreases in proposed housing delivery. Oxford, regularly cited as one of the least affordable places to live in the country, sees its housing need figure slashed by more than half. Birmingham, a key regional city and regeneration focus with a very recently adopted Local Plan, sees its annual housing figure reduced by 870 homes per annum, compared to its most recent housing needs assessment. Barrow Borough Council are told, via the consultation, that its housing need figure should be zero.

The consultation document is at pains to note that ambitious Councils can plan for higher growth, but one must question what incentive do they have to plan for more? Considering that the Government has retained its commitment to protecting the Green Belt, options to increase housing delivery in many locations will remain difficult, especially with the influence of local politics and neighbourhood planning across the Country.

For all of the population projections in the world, and their subsequent fiscal manipulation, the following points remain hugely pertinent when considering housing delivery:

  • 'Five year land supply’ is not and never was intended as a means of resisting or restricting housing delivery. Instead, it sets the onus on Councils to identify and deliver a minimum number of houses, not a ceiling figure as it is so often construed. Whilst setting a ‘need’ figure is crucial to supply analysis, it is perhaps more important that Officers and Members understand that ticking the box of delivering a minimal housing requirement target does not mean that further housing could and should not be delivered beyond this point;
  • The NPPF enshrines a presumption in favour of sustainable development. It does not contain a caveat that this ‘golden thread’ of national planning policy should be ignored where minimal housing targets are met or exceeded. If a site is sustainable and logical, it should remain so regardless of the localised housing land supply position. This position is frequently overlooked and is a direct inhibitor to housing being delivered in suitable locations; and
  • The Government still seems at a loss as to how best to stimulate house building. One must ask how this centralised push to set housing targets sits alongside the thrust for greater localism and neighbourhood planning? The planning system remains a key barrier to the delivery of much needed housing and further attention must, we feel, be directed towards getting the system to function more effectively, inclusive of Councils having sufficient resources and high quality Planning Officers to appropriately prepare Local Plans and assess planning applications or their respective merits.

We would be delighted to advise you further regarding how this current consultation might impact on any schemes or sites you might be considering, and to assist you in making representations. We look forward to answering any queries you might have in due course.

What’s in a Word?

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.

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30 Years in business 1984 to 2014

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2014 saw Walsingham Planning celebrate 30 years in business as a town planning consultancy. We would like to thank all of our clients for their continued support and look forward to the next 30 years.