design matters: planning law for …concerned with such matters as discharges from buildings into...

DESIGN MATTERS: PLANNING LAW FOR ARCHITECTS

CHRISTIAAN ZWART R.I.B.A Barrister

39 Essex Street

© [email protected] 2006 2

INTRODUCTION: So what design?

1. There is a finite supply of land in the UK. At the same time, the numbers of people

occupying that land grow daily. This creates opportunities for profitable development. At

the same time, it can create bad neighbours. Consequently, England is subject to a

sophisticated scheme controlling in the public interest the private development of land. The

system operates by way of the Planning Acts, subsidiary legislation (regulations), and

guidance. In 2005 the Government introduced as a fundamental tenet of its planning

guidance1:

Good design is indivisible from good planning.

2. The ramifications of this new policy are clear: architects operating inside the planning

system have an enhanced role. This paper seeks to assist architects in understanding that

enhanced role. It is divided into the following parts:

. The Planning Law System: overview

A. The Planning Acts:

o securing consent

o securing protection

o securing respect

B. Guidance 2006

C. Communication

D. Appeals:

o Second bite at the cherry

o What happens next?

i. 1 PPS1 paragraph 33


A. THE PLANNING SYSTEM

3. The statutory control of the development of land derives from five interlocking Acts,

collectively known as “the Planning Acts 1990”:

• the Town and Country Planning Act 1990,

• the Planning (Listed Buildings and Conservation Areas) Act 1990, and

• the Planning (Consequential Provisions) Act 1990, and

• the Planning (Hazardous Substances) Act 1990, and

• the Planning and Compulsory Purchase Act 2004.

4. Each of these Acts creates a system of statutory regulation in respect of land. The first of

these consolidated previous legislation: the Town and Country Planning Act 1990 (“the

1990 Act”). It is the principal statute whose origin can be traced back to the Town and

Country Planning Act 1947, although planning legislation pre-dates this Act. The 1990 Act

was itself a consolidation of the 1971 Act and a number of subsequent amending Acts. It

has already been subject to important revisions brought about as a result of the Planning

and Compensation Act 1991. These changes have been incorporated within the Planning

Acts 1990.

5. It would be wrong, however, to consider these statutes as representing the totality of the

planning system. In reality, other areas of law play important parts within the planning

system, for example, the law relating to compulsory purchase or stopping-up highways.

6. More recently, the 2004 Planning Act has made important amendments to the current

scheme including to the formulation of the guidance comprising the statutory development

plan. This is to achieve European harmonisation required by the SEA Directive. England

appears on course for a Euro-planning system.

7. European Planning is here to stay. It comprises an environmental planning framework as

follows:


• Strategic Environmental Assessment Directive (SEA Directive).

• Environmental Impact Assessment Directive (EIA Directive).

• Integrated Pollution and Prevention Control Directive (IPPC Directive).

8. The European planning system is designed as a Russian Doll: IPPC has regard to EIA has

regard to SEA. The European system makes provision for large projects or those

engendering a significant environmental impact. This may arise from small projects with

large impacts or large projects with smaller impacts- depending upon the environmental

capacity and sensitivity of the local environment. For example, a small business may be

instructed to build a warehouse or factory on a 1 hectare greenfield. Alternatively, issues

may arise with the design of a small housing development near to a listed building or

within a conservation area. Each may be caught by the English EIA Regulations and

require further scrutiny of its likely main effects (but not lesser effects nor those which are

not likely).

9. Consequently, the practical effect of the European environmental planning system is to

mesh consideration of land use changes with the consideration of nuisances created by that

land uses change at essentially the same time in the decision making process. For example,

a factory which creates a significant environmental impact is likely to some extent have this

matter considered at the planning stage (albeit detail may be deferred to after the grant of

permission). This is different to the traditional English planning system which presently

defers consideration of nuisance issues until after the decision to change the land use has

been taken. Historically the English system has meant that an assessment of what is a

nuisance did not take into account what existed before. Today, it does. Account is taken of

the pre-existing status quo prior to grant of planning permission and not, essentially, the

character of the area after that grant of planning permission. The adverse effects of

nuisance can be reduced at source, in effect, as part and parcel of a unified environmental

impact process. This can be seen in the example of a grant of planning permission for inner

city works being caught by the EIA Directive and EIA Regulations giving rise to a Code of

Construction practice incorporated within the planning permission by condition. This

provides a framework of good practice and obligations against which a breach can be more


readily assessed. This reduces the possibility of nuisance arising from consequential

construction works.

10. The European environmental legislation forms a purposive legal foundation to our own

development control system – transforming it into a system of environmental control in

relation to development. Because of this, and the new express considerations of the

Directives, it is perhaps more pertinent to term “Planning Law” as part of wider

“Environmental Law”.

11. In many ways, the scheme of environmental protection is coming full circle from is origins

in the 1860’s Public Health Acts. This is because the Directives scope of the “environment”

is wider than mere English land use and planning amenity issues. The Directive

environment includes consideration of constructional and operational impacts where these

are likely to have significant effects on the environment – formerly the realm of nuisance in

English Law. Additionally, consideration of environmental activities may also be required,

together with indirect effects which may include economic considerations under “material

assets”.

12. In July 2004 Directive 2001/42/EC on the assessment of the effects of certain plans and

programmes on the environment (“the SEA Directive”) came into force. The SEA

Directive is a strategic first tier to second lower layer of the Environmental Impact

Assessment Directive (“the EIA Directive”)- the latter itself amended in 1997. The IPPC

Directive represents the third tier of detailed emissions based environmental control. It is

concerned with such matters as discharges from buildings into rivers, and other Euro-

nuisances requiring consent.

13. These Directives have engendered changes to the Planning Acts and regulations for the

assessment of likely environmental impacts arising from projects. The Court of Appeal has

held that the Regulations are coloured by and to be interpreted in light of the Directive (see

Maureen Smith v Secretary of State for the Environment [2003] EWCA 262). Therefore, it

is sensible to begin with the primary EIA obligations to gain an overview of the new legal

framework upon which planning is now based. With these obligations in mind, the relevant

regulations are better understood.


14. The objective of the SEA Directive is “to provide for a high level of protection of the

environment and contribute to the integration of environmental considerations into the

preparation and adoption of plans… with a view to promoting sustainable development”

(Article 1). It requires “environmental assessments” to be carried out for a range of plans

likely to have significant effects on the environment. An environmental assessment is

essentially a report on the relevant project with supporting evidence on the risk assessment

process with conclusions in respect of whether or not likely significant effects arise.

Environmental assessment is a tool for integrating environmental considerations into

decision-making by ensuring that significant environmental effects of the decision are taken

into account. The type of environmental assessment required under the SEA Directive is

called “strategic environmental assessment” or SEA.

15. The domestic Regulations are complex. They subject the statutory local planning

authority’s development plans to, essentially, a risk assessment process - where significant

effects arise from plans and programmes - in order to minimise or mitigate identified

adverse significant effects on the environment caused by those plans. For the purposes of

this paper, the primary provisions of SEA Directive are set out in short. They essentially

replicate the EIA Directive (as amended) which we will see below but at a strategic level

and in respect of the environmental effects of the framework within which the EIA

Directive development consent is granted. As with that Directive, SEA will provide a

further statutory backbone to English environmental planning development control.

16. The SEA Directive’s key new areas of emphasis are on:

• Identifying strategic options that make the plan more sustainable;

• Collecting baseline environmental information, particularly for areas likely to be

significantly affected by the plan;

• More rigorous prediction of environmental effects;

• Greater consultation of the public and environmental authorities;

• Mitigating and monitoring significant environmental effects of the plan.


17. SEA as required under the Directive has been described (Smith and Sheate, 2001a; TRL,

2002) as being “baseline-led”: baseline environmental data must be provided, and the

plan’s performance is tested against that. In contrast, a sustainability appraisal can be seen

as “objectives – led”. That is, the plan objectives are developed first, and indicators are then

devised which test whether the plan achieves the objectives. The approach advocated in the

draft SEA guidance is an amalgam of the two: environmental/sustainability objectives must

include the topics listed in the SEA Directive; baseline data are collected on the SEA

objectives; and the SEA objectives may be refined based on the baseline data. However,

whatever approach is taken when the regulations are published in final form, as with the

EIA Directive, no doubt the EIA Directive is likely to be given a purposive construction

which will inform construction of the meaning of the SEA Regulations if the SEA

Directive object of promoting “sustainable development” is not to be defeated.

18. Of particular importance to architects will be involvement with Article 5(1) environmental

reports in respect of Annex I(f) material assets and cultural heritage including

“architectural” heritage. This is triggered where the plan or programme is likely to have

significant effects on the environment. Architects may engage with the SEA process when,

for example, master planning.

19. For practical purposes, EIA Directive, and its attendant domestic regulations, is likely to

engender more issues for architects. This is because it is more building centric than master

plan centric. Before planning permission can be granted by the planning authority or on

appeal, the environmental impacts of certain types of development require scrutiny through

the procedural regime of the Town and Country Planning (Environmental Impact

Assessment)(England and Wales) Regulations 1999 (“EIAR”). The scrutiny takes the form

of an environmental impact assessment (“EIA”). The EIA process requires the developer to

produce a singe accessible document called an “Environmental Statement”, together with a

non-technical summary, in order to inform the decision-maker, the statutory consultees and

the public of prescribed environmental impacts arising from the proposed project.

20. A grant of planning permission for a major project, whether by the planning authority or on

appeal, cannot be made unless the decision maker, whether local planning authority or the

Secretary of State, or his Inspector, has first taken into account the “environmental


information”, and it must state in its decision that it has done so2. The practical effect of

Regulation 3(2) of the EIAR is to render the grant unlawful in the absence of the

consideration by the decision maker of the “environmental information”, and, in

accordance with the prescribed consultation procedures. The “environmental information”

comprises an environmental statement (in the prescribed form) and the consultation

responses that it generates (if any) from relevant consultees, authorities and interested

parties.

21. When “environmental assessment” was introduced into EC law, by Directive 85/337/EEC,

a common assumption in the UK was that it would make little difference.3 Events have

proved otherwise. “EIA”, the term that is now used in the EIAR, in line with the rest of the

EU, is almost certainly the current most problematic procedural issue in environmental and

planning law, in terms of the volume of case law it generates4. At its simplest, the EIA

Directive 85/337/EC, as amended by Directive 97/11/EC, imposes, through the EIAR, an

obligation upon the developer, essentially, to provide within the environmental statement at

least5:

• the data

• required

• to identify, and

• assess

• the main effects

i. 2 Regulation 3(2), Town and Country Planning (Environmental Impact Assessment)(England & Wales) Regulations 1999, SI 1999, No. 293. 3 This part draws from lecture papers previously given by Stephen Tromans in March 2002, and by John Pugh-Smith and Richard Harwood in May 2002 which also benefited from comments and suggestions from their other colleagues at 39 Essex Street, namely Martin Edwards, Jeremy Morgan, Gordon Nardell and Christiaan Zwart. 4 In reading the EIAR, it is worth bearing in mind that a general approach to the interpretation of the regulations within the General Development Procedure Order 1995 was set out in English Clays Lovering Pochin & Co. v Plymouth Corporation [1973] 2 All ER 730 at 735: the Development Order is to be construed in a broad or common sense manner, at any rate in the manner appropriate to a document framed for administrative purposes rather than an instrument couched in conveyancing language. The court applied itself to the ordinary meaning of the language used by the Minister in making the Order. 5 Paragraph 3, Part II, Schedule 4 to the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, SI 1999, No. 293.


• which the described development6

• is likely to have upon

• the environment.

22. Further, where significant adverse effects are identified, a description of the measures

envisaged to avoid, reduce, and if possible, remedy, those effects is to be included within

the environmental statement7. An outline of the main alternatives studied by the applicant

or appellant (on appeal), together with an indication of the main reasons for his or her

choice taking into account the environmental effects, is also to be provided8, as is a non-

technical summary of the contents of the environmental statement9.

23. The EIA process is intended to ensure that the effects of the proposed development on the

environment are taken into account as early as possible in the planning and decision-

making process10.

24. For certain types of developments, such as a large power station or a motorway, Schedule 1

of the EIAR makes clear that there must be such an assessment. However, with other types

of “major development project”, such as mineral extraction, intensive livestock farming and

roads, an assessment will only be required under Schedule 2 if the development "would be

likely to have significant effects on the environment" by virtue of its size or location.

25. Set against this procedural background, some broad and fundamental principles can be

deduced from EC and UK cases.

• The Directive is intended to have a broad scope and purpose. The obligation that

projects must be subject to EIA where they are likely to have significant

i. 6 Paragraph 1, ibid. 7 Paragraph 2, ibid. 8 Paragraph 4, ibid. 9 Paragraph 5, ibid. 10 The importance of this process, and, of the public’s role in it, was confirmed by the House of Lords in the landmark decision, Berkeley v Secretary of State for the Environment, Transport and the Regions [2001] 1 AC 603 (known as “Berkeley No.1”) in July 2000.


environmental effects limits the discretion of Member States to specify which projects

are or are not subject to EIA, or to lay down criteria or thresholds.11

• Alternative administrative procedures to those contemplated in the Directive (for

example approval by legislation) may not be used unless they satisfy the requirements

of the Directive.12

• The national courts have a role in reviewing whether the national legislature has kept

within the limits of the discretion set by the Directive which is quite apart from issues

of direct effect.13 The individual has an interest in seeing that the relevant EC law is

complied with, even though this may have an effect on another private party (the

developer).14

• Where there has been a breach of EIA requirements, a court is not entitled

retrospectively to dispense with these requirements on the ground that the decision

would have been the same in any event. In order to avoid a decision being quashed,

there must have been substantial compliance, to the extent of “EIA in all but name.”15

26. In 1996, Europe’s Member States endorsed the Directive on Integrated Pollution

Prevention Control (96/61/EC) – the IPPC Directive. This Directive is directed at

controlling emissions and waste. However, it is made without prejudice to the EIA

Directive – which also considers emissions. This means that some projects may require

consideration of detailed effects at the EIA stage (ie prior to the grant of planning

permission). As we know, waste planning is big business – as is construction of waste

facilities. The IPPC Directive dovetails into the EIA Directive. In 1997 the EIA Directive

was amended to become the creature we now know as the “EIA Directive (as amended)

97/11/EC”.

i. 11 Case C-72/95 Kraaijeveld (the “Dutch Dykes case”) [1996] ECR 5403; [1997] Env LR 265. 12 Case C-435/97 WWF v. Bozen [2000] 1 CMLR 149; [1999] ECR I-5613; [2000] PLR 1. 13 Case C-287/98 Luxembourg v. Linster [2000] ECR I-6917. 14 R v. Durham County Council, ex p. Huddleston [2000] 1 WLR 1484. 15 Berkeley v Secretary of State (“Berkeley No.1”) [2000] 1 AC 603. There have been a number of first instance judicial attempts to limit the Berkeley principle on discretion: see Berkeley v. SSETR and LB of Richmond upon Thames and Berkeley Homes (West London) Ltd (“Berkeley No 2”) [2001] JPL 660 para 49-58; R(Murray) v Derbyshire County Council [2001] JPL 730; R (Smith) v SSETR [2001] EWHC Admin 1170 para 70-76.


B. THE PLANNING ACTS

SECURING CONSENT

27. The development of land is a profitable business. It also invariably requires planning

permission. The process of acquiring planning permission regulates the development in the

public interest.

28. At a domestic level, the 1990 Planning Act as amended requires that planning permission

be granted for “development”, whether operational or material change of use. At the outset,

it will be noted that material change of use is concerned with activity. By contrast,

operational development is concerned with volumes- i.e. things that are erected or

constructed. The distinction will be apparent later under PPG2.

29. For most (but not all) planning applications and appeals the most significant part of the

Planning Acts 1990 is Part III of the 1990 Act which deals with the control over

development. Basically no one can “develop” their land without first obtaining the relevant

planning permission (not to mention other consents such as Listed Building consent).

Therefore, the start of the application process is triggered by the requirement for planning

permission for the development of land.16 This is the heart of the planning system. By

contrast, where development has been carried out without planning permission the planning

authority will be entitled to take enforcement action.

30. “Development” is defined in the 1990 Act17 as “the carrying out of building, engineering,

mining or other operations in, on, over or under land, or the making of a material change in

i. 16 Section 57(1) Town and Country Planning Act 1990 (as amended): 57.-(1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land. 17 Section 55, TCPA 1990: 55.-(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development,” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land. (1A) For the purposes of this Act “building operations” includes- (a) demolition of buildings; (b) rebuilding; (c) structural alterations or additions to buildings; and (d) other operations normally undertaken by a person carrying on business as a builder. (2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of land-

(a) the carrying out for the maintenance, improvement or other alteration of any building works which- (i) affect only the interior of the building. or (ii) do not materially affect the external appearance of the building....

(b) the carrying out on land within the boundaries of a road by a local highway authority of any works required for the maintenance or improvement of the road...


the use of any buildings or other land”18. “Building operations” includes the demolition of

buildings, rebuilding, structural alterations of or additions to buildings, and other operations

normally undertaken by a person carrying on business as a builder19. Some forms of

development are excluded from the meaning of “development” and, as such, do not require

planning permission. For example, the carrying out for the maintenance, improvement or

other alterations of any building, works which affect only the interior of the building, or, do

not materially affect its external appearance, and are not works making good war damage

or begun after December 5th 1968 for the provision of additional underground building

space20. Further operations not regarded as “development” include the carrying out on land

within the boundaries of a road by a local highway authority any works required for

maintenance or improvement of the road. The exception to this is where such works are not

exclusively for maintenance21.

31. There can be no substitute for closely reading this section of the 1990 Act when trying to

determine whether a particular activity requires planning permission. The websites of the

local planning authority and the Planning Inspectorate are useful in this respect. If it does

require permission two more provisions in the 1990 Act need to be examined. The first

deals with the general considerations applicable to determinations of planning applications.

This is section 7022. This is the standard statutory requirement for determining planning

applications. However the Planning and Compensation Act 1991 introduced a new highly

controversial provision into the 1990 Act which has had a major impact upon the

determination of all types of planning decision including planning applications since its

introduction. This provision is section 54A23. The requirements of section 54A applies to

the following:

• section 70(2) determination of planning applications; i.

18 Section 55(1) ibid. 19 Sections 55(1A) ibid. 20 Section 55(2)(a) ibid. 21 Section 55(2)(b) ibid. 22 Section 70, TCPA 1990: 70.-(1) Where an application is made to a local planning authority for planning permission-

(a) subject to sections 91 and 92, they may grant planning permission , either unconditionally or subject to such conditions as they think fit;or (b) they may refuse planning permission. (2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.

23 Section 54A, TCPA 1990: Where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.


• section 77(4) called-in applications;

• section 79(4) planning appeals;

• section 91(2) power to vary period in statutory condition requiring development to be

begun;

• section 92(6) power to vary applicable period for outline planning permission;

• section 97(2) revocation or modification of planning permission;

• section 102(1) discontinuance orders;

• section 172(1) enforcement notices;

• section 177(2) Secretary of State’s power to grant planning permission on an

enforcement notice appeal;

• section 226(2) compulsory acquisition of land for planning purposes;

• section 294(3) special enforcement notices in relation to Crown land; and

• Schedule 9, para (1) minerals discontinuance notices.

32. The 1990 Planning Act requires a council to:

• by section 54A, grant of planning permission in accordance with the statutory

development plan unless material considerations indicate otherwise;

• by section 70(2), have regard be had to material considerations.

33. Most recently, section 38(6) of the 2004 Planning Act is now substituted for section 54A –

but is drafted in broadly the same terms24.

34. Consequently, the discharge of these statutory obligation may be by reference to: i.

24 The difference is that the new statutory provision assumes conditionally that the statutory development plan applies (by insertion of the word “if”). Consequently, there may be circumstances where the statutory development plan does not apply at all.


• The statutory plan;

• Guidance;

• Material considerations.

35. It is always open to a decision maker to depart from guidance or to make an exception-

provided that it is justified. For example, in planning law, the human factor is always

present (see Great Portland Estates case).

36. The Secretary of State may himself (or herself) make a development order granting

planning permission for specified development25, or can provide for the granting of

planning permission by the planning authority, whether county or district authority26, or,

sometimes, by the Secretary of State27. By this means planning permission can “granted”

by the order or direction itself rather than requiring an express application for planning

permission to the local planning authority to trigger consideration of whether or not a grant

should be made.

37. A person proposing to undertake development can apply to the planning authority for a

determination in respect of whether planning permission is required28. The application must

be in writing, specify the land in issue, and describe the use or operations, and be

accompanied by a plan29 If the authority is satisfied that the proposed development is

lawful, and that planning permission would not be required, it will issue a certificate to that

effect. The certificate will specify the land to which it relates, describe the use or operation

with reasons in respect of why they are lawful, and specify the date30. If the authority does

not determine the application within eight weeks (or such longer period as may be agreed in

writing between the authority and the applicant), the applicant may appeal to the Secretary

of State31.

i. 25 Sections 58, 59(1), (2)(a), TCPA 1990. 26 Section Sections 58, 59(1), (2)(b), TCPA 1990. 27 Section 77(1), TCPA 1990; section 20, Planning (Hazardous Substances) Act 1990 (as amended). 28 Sections 192(1) (as substituted), TCPA 1990. 29 Article 24(1)(a)-(g), (2)(a), Town and Country Planning (General Development Procedure) Order 1995, SI 1995/419. 30 Section 192(2) & (3) (each as substituted), TCPA 1990. 31 Section 195(1), (as amended), TCPA 1990.


SECURING PROTECTION

LISTED BUILDINGS

38. The 1990 Listed Buildings Act provides a separate freestanding system triggered by,

essentially, works which affect the character of the listed building. Once triggered, a

written consent is required from the local planning authority. It may be the case that both

planning permission and listed building consent are required. If so, each relevant statutory

obligation requires separate consideration under separate criteria, and with the drawing of

separate conclusions in respect of each applicable. For example, a development may require

both a planning permission and also a listed building consent or a conservation area consent

prior to implementation by construction works.

39. In order to understand when listed building consent is required, the following need to be

considered:

a) What does “listed” mean?

b) The listed building system

c) What is the extent of listing?

d) What works are restricted?

e) The statutory obligation

f) What is authorization for works?

g) Why do you need authorization?

h) Conservation Areas

i) Historic Guidance


What does “listed” mean?

40. The Listed Buildings Act section 1(1) enables the Secretary of State for Department of

Culture and Media and Sport to list buildings for their special architectural or historic

interest. The list is known as the “Statutory List”. “Listed building” is defined in the Act.

In addition, the word “Building” includes “any structure or erection, and any part of a

building, as so defined, but does not include plant or machinery comprised in a building”32.

41. Because the definition uses the word “includes”, “building” includes structure but the

reverse does not follow. Consequently, a listed structure does not include the building.

Accordingly, a part of a building only may be listed, or a structure within a building might

be listed in itself. The listed item becomes the “listed building” for the purposes of the Act.

42. For the purposes of considering “listed building” below, it must therefore be recalled that a

“listed building” may mean a structure or erection or part building.

43. “Special architectural interest” includes:

• All buildings which are of importance to the nation for the interest of their

architectural design, decoration and craftsmanship, and also important examples of

particular building types and techniques (e.g. buildings displaying technological

innovation or virtuosity and significant plan forms).

• Group value, especially where the buildings comprise together an important

architectural or historical unity or a fine example of planning (e.g. squares, terraces or

model villages).

44. “Special historic interest” includes:

• Buildings which illustrate important aspects of the nation’s social, economic, cultural

or military history;

• Close historical associations with nationally important people or events.

i. 32 Section 336(1) of the 1990 Planning Act as applied by the 1990 Listed Buildings Act.


45. Listed buildings are listed by grade: I, II*, and II. This reflects their importance in terms

of, for example, numbers, and also relative special interest. About 95% of such buildings

are grade II. A building listed for “group value” is likely to be a grade II building.

46. Consequently, the start point for considering whether listed building consent is required is:

• Whether the address of the development proposed reveals a listed building

• Whether a listed building consent is required is the relevant public list description.

47. However, this description does not prevent new evidence “coming to light” in respect of the

listed building which may alter its special characteristics. As such, careful historical

research should be undertaken by qualified people when considering undertaking works to

a building which is a listed building. In this way, the developer is likely to be forewarned

of the risks of undertaking works to such buildings and can mitigate the risk of the local

planning authority acting suddenly and, perhaps, by surprise, on its own material.

The listed building system

48. The key sections which planning consultants need to be aware are as follows.

• Section 1(5): defining the extent of listing;

• Section 7: the restriction of works to listed buildings;

• Section 8: authorisation for works;

• Section 9: offences for unauthorised works;

• Section 16: listed building statutory obligation on the decision maker;

• Section 20: right to appeal.


What is the extent of listing?

49. The listing of the building has consequential affects for the protection of its physical

surrounds. These are provided by section 1(5) of the Act which deems specified physical

surrounds to be part of the listed building. Section 1(5) provides:

In this Act, “listed building” means a building which is for the time being included in a

list compiled or approved by the Secretary of State under this section; and for the

purposes of this Act –

a) any object or structure fixed to the building;

b) any object or structure within the curtilage of the building which, although not

fixed to the building, forms part of the land and has done so since before July 1,

1948,

shall be treated as part of the building.

50. The section divides associated objects into those fixed and those forming part of the land

within the curtilage of the listed building. Remembering that “listed building” includes

structures, erections or parts of building but not the other way around, this section operates

to extend by operation of law the scope of the listing by reference to factual criteria:

• Is an object or structure fixed to the building?

• Is the object or structure within the curtilage of the building forming part of the land

since before July 1948?

51. What does “fixed” mean? Whether or not an object or structure is fixed depends upon the

degree and purpose of its annexation to the building or land (see Debenhams plc v

Westminster City Council [1987] AC 396). Therefore, a clock not built as part of an

original Pugin design but which had been specially built to harmonise with its surroundings

was a fixture within the listed building (see R v Secretary of State for Wales, ex parte

Kennedy [1996] JPL 645). The clock was found to be more than a piece of mobile

furniture – it had strong architectural and historic links with Leighton Hall and the Naylor


Estate. It was not a piece of “machinery” (and thus excluded from the definition of

“building” in the 1990 Planning Act).

52. What does “within the curtilage” mean? When a building is listed it may well have

surrounding areas of land upon which may stand other building. A curtilage does not have

to be a small piece of land (see Skerrits of Nottingham Ltd v Secretary of State for the

Environment [2000] EGCS 31). Whether Building A is within the curtilage of Building B

depends on whether:

• The buildings are sufficiently close and accessible to one another; and

• In terms of function, Building A is ancillary (as in subordinate) to Building B.

53. For example, a group of workers cottages located adjacent to a listed mill building but

across a bridge has been found to be also listed (see Att-Gen, ex rel. Suttcliffe v Calderdale

Borough Council [1983] JPL 310).

54. It is therefore important to research and to consider the extent of listing, prior to

undertaking works to buildings within the curtilage of listed buildings if the risk of local

planning authority action is to be avoided. In addition, DCMS consultation has now closed

on new listing guidance.

What works are restricted?

55. The Listed Buildings Act makes it unlawful to carry out works without first having

obtained written consent from the local planning authority (or from the Secretary of State

on an appeal). Section 7 of the 1990 Listed Buildings Act provides:

Subject to the following provisions of the Act, no person shall execute or cause to be

executed any works for the demolition of a listed building or for its alteration or

extension in any manner which would affect its character as a building of special

architectural or historic interest, unless the works are authorised.

56. The section comprises the following parts:


• Works for the demolition of a listed building;

• Works for the alterations to a listed building;

• Works for extension of the listed building; if

• Those works affect the character of the building.

57. “Demolition” means near total or substantial demolition (see Shimizu Ltd v Westminster

City Council [1997] 1 All ER 481).

58. “Alteration” means anything less than “demolition”.

59. “Extension” has a self-evident meaning.

60. The trigger for application of the statutory prohibition is whether the works would “affect”

the character of the building. Accordingly, works which are so small as not to affect that

character do not require consent. Works which affect the character (one way or the other)

require consent.

61. It is apparent that it is open to the local planning authority to consider that works which

either benefit or adversely affect the listed building may trigger this section. That is, beauty

is in the eye of the beholder.

The listed building statutory obligation

62. In deciding whether or not to grant consent the local planning authority is obliged to

consider specified matters. These are set out in section 16(2):

In considering whether to grant listed building consent for any works the local

planning authority or the Secretary of State shall have special regard to the

desirability of preserving the building or its setting or any features of special

architectural or historic interest which it possess.

63. This requirement may be broken down into the following elements:

• The desirability of preserving the building;


• The desirability of preserving the building’s setting;

• The desirability of preserving any features of special architectural or historic interest

possessed by the building.

64. It is open to the local planning authority to apply one, two, or all three of these obligations

(provided it had the relevant evidential foundation), in discharging the statutory obligation

to grant listed building consent. This will entail consideration of expert evidence.

65. For example, an extension to the listed building may engage consideration of the first

obligation, the building, and perhaps the second, its setting. By contrast, works to a

staircase or chimney may not engage the features obligation because that item may not be

“special” architecturally or historically.

66. Whether it is or not may require expert historical analysis. Accordingly, research by

architects before works are undertaken can reduce the risk of local authorities taking pre-

emptive action or refusing the application because they (sometimes incorrectly) consider

the obligations but without historical evidence to back up their considerations. If this is

provided by the applicant for consent, the decision may be made from an informed stand

point and may avoid the need to go to an appeal.

What is authorisation for works?

67. Section 8 provides that alteration or extension of a listed building is authorised if written

consent is obtained from the local planning authority or Secretary of State and the works

are executed in accordance with the terms of that consent. Written consent is required for

demolition.

68. Works are not otherwise authorized. Consequently, close attention needs to be paid to the

terms of the authorization and to any conditions to which it may be subject.

Why do you need authorisation?

69. It is a criminal offence to undertake works to a listed building without authorisation.

Section 9 provides:


(1) If a person contravenes section 7 he shall be guilty of an offence.

(2) Without prejudice to subsection (1), if a person executing or causing to be executed

any works in relation to a listed building under a listed building consent fails to

comply with any condition attached to the consent, he shall be guilty of an offence.

(3) ...

(4) A person who is guilty of an offence under this section shall be liable-

) on summary conviction to imprisonment for a term not exceeding six months or

a fine not exceeding £20,000, or both; or

) on conviction on indictment to imprisonment for a term not exceeding two years

or a fine, or both.

(5) In determining the amount of any fine to be imposed on a person convicted of an

offence under this section, the court shall in particular have regard to any financial

benefit which has accrued or appears likely to accrue to him in consequence of the

offence.

70. This provision is self-explanatory. Unauthorised works to a listed building are a strict

liability offence. If works are carried out, the local planning authority may issue a listed

building enforcement notice requiring reinstatement or alleviating measures to be

undertaken. The notice gives rise to a right of appeal, a second bite at the cherry to gain

planning permission. Appeals are dealt with in brief and later in this paper.

71. Importantly, there is no long stop date prohibiting the local planning authority from taking

listed building enforcement action or from seeking criminal sanction. Consequently,

immunity from works which “affect” a listed building do not gain immunity from

enforcement by effluxion of time as section 171B(3) of the 1990 Planning Act as amended

provides. The practical effect of this is that an incoming purchaser may remain liable for

the works of previous owners- the discovery of which arises upon the incoming purchaser

invites the local planning authority to visit the site, only to discover what is present is

outside of historic consents (if any).


CONSERVATION AREAS

72. Conservation areas have a different focus from listed buildings. This is because the former

are area and not building centric. The genesis of the protection for conservation “areas”

also lies in the 1990 Listed Building Act. The conservation area system provides a system

of environmental control whose primary focus is the character or appearance of the area, as

opposed to, for example, the listed building regime whose focus is more narrow- upon the

listed building itself or at best its wider setting. However, it is important to remember that

there may be overlap between the two regimes which require difference considerations to

be taken into account.

73. Section 72(1) of the Listed Buildings Act provides the scope of the conservation area

obligation as follows:

In the exercise, with respect to any buildings or other land in a conservation area, of

any functions under or by virtue of any of the provisions mentioned in subsection (2),

special attention shall be paid to the desirability of preserving or enhancing the

character or appearance of that area.

74. It will then be apparent that the statutory obligation has different baseline criteria:

• Character;

• Appearance.

75. Each of these criteria should be the subject of assessment by the architect or other qualified

consultant prior to the application for planning permission. The assessment and

conclusions may helpfully be set out in a design statement to assist local authority planning

officers or Members of Planning Committees in reaching their conclusions.

76. The statutory obligation has different thresholds for discharge of the obligation:

• Preserving;

• Enhancing.


77. “Preserving” means leaving the conservation area unharmed (see South Lakeland District

Council v Secretary of State for the Environment [1992] 1 All ER 573). This will be a

matter of fact and degree for the experts, based upon proper consideration of the guidance,

its application to the relevant facts of the project, and the relevant expertise of the historic

expert.

78. The most frequent area for debate will be whether or not the proposal harms the character

or appearance of the conservation area (i.e. falls below the threshold of “preserving”), or

enhances either or both of these features. It is often the case that some proposed matters

may do one and others another. However, it is important that, on balance, at least the lower

threshold of preservation is met in considering a development proposal. Ideally, the

proposal ought to enhance the relevant area. This may arise, for example, where a derelict

building is refurbished and brought back into new use through redevelopment.


SECURING RESPECT

HUMAN RIGHTS

79. The drive for development in ever closer proximity frequently engenders increased

objection from neighbours. Fairly frequently this issue of human rights raises its head in the

context of a planning application. The following is a brief guide to the issues that might be

relevant in the consideration by the local planning authority (whether municipal or

Secretary of State) upon such an application. Statements submitted to the relevant authority

in connection with the application may also require consideration of neighbourly impacts in

order that the local planning authority may itself strike the requisite balance of the basis of

the submitted material.

80. Section 3(1) of the 1998 Human Rights Act provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be

read and given effect in a way which is compatible with the Convention rights.”

81. Section 6(1) provides:

“It is unlawful for a public authority to act in a way which is incompatible with a

Convention right.”

82. Obvious as it may seem, the LPA itself will only ever be responding to human rights

challenges, whether from an applicant or a third party. Public authorities themselves do not

have human rights.

83. Every control or restriction on the enjoyment of an individual’s or a company’s possessions

is a possible interference with their rights under the European Convention of Human Rights

– and may have an adverse impact on the rights of their neighbours. However, under

articles 8 and article1 of Protocol 1, a measure of interference is acceptable, so long as the

authority does not upset the “fair balance” needed between the individual’s fundamental

rights and the demands of the general interests of the community.


84. Section 1 of the Act gives effect to what it calls ‘Convention Rights’ in the UK. The cases

which are relevant to the planning regime have used:

Article 6 – Right to a fair trial

Article 8 – Right to respect for private and family life

Article 14 – Right to freedom from discrimination in respect of protected rights

Article 1 of the First Protocol – The right to property

85. Less obvious rights which are capable of being invoked, particularly in the enforcement

context, are: Article 2 – Right to Life; Article 3 – freedom from torture; Article 10 –

freedom of speech

86. In addition, it will be necessary for decision makers to take into account the European

Court of Human Rights’ judgments (s.2).

87. The practical considerations which arise are as follows. The approach of the courts to

human rights challenges is that human rights issues should be addressed at the local level

by the relevant decision-maker. Accordingly, the best that lawyers can do at this stage is to

prepare for the inevitable range of arguments, particularly in enforcement cases, about the

unfairness of the procedure and the lack of proportionality of the required steps. This may

arise at application or appeal forum. Consequently, it is a nettle best grasped early on and a

response provided. For practical purposes this requires the architect to spell out in the

application material what features of its proposal will address the relevant matter. For

example, noise or overlooking.

88. At the planning determination stage, in addition to identifying the exact policy breaches,

the planning officer’s Committee Report will need to be drafted to ensure that all

representations have been adequately and correctly summarised. A discrete section dealing

with “Human Rights Implications” is also recommended, which a lawyer colleague will

have drafted, so long as it actually deals with the implications. To the extent that you are

able to provide the factual basis for this balancing consideration in the report, do so. For

example, if you accept that there will be overlooking from your proposal, say so, but then


balance this with mitigating factors such as indirect overlooking or accept a condition

requiring obscure glazing be retained in that opening.

89. Human rights also secure fairness. For example, the process during the lead in to an appeal,

for example, in the pre-inquiry preparation, particularly through the Rule 6 Statement of

Case and the writing of the proof, should ensure that the LPA’s case has been sufficiently

made clear to the applicant – the 2000 Changes to the Inquiries Procedure Rules, perhaps

with an eye to the HRA 1998, help in this regard (including the formal right for third

parties to inspect documents).

90. At the planning committee or on appeal the LPA will likely be obliged to consider human

rights points, whether or not they have been raised by the applicant or appellant: (a) as a

rule of statutory interpretation; (b) out of fairness to the appellant (as the tribunal is itself a

‘public authority’ for the purposes of the 1998 Act) so, how should they be dealt with by

you?

91. So far as you can, deal with all matters of substance raised by parties both in the

preparation of the Design Statement, supporting documents or in proofs of evidence. Even

if only vague allegations are made by a third party about a potential violation under article

8 and article 1 of Protocol 1 – it will be necessary to show that:

• a fair balance has been struck between the interests of the public and those of the

individual (in the context of the specific right);

• the LPA has acted proportionately in the public interest, and, that the person

concerned has not had to bear an individual and excessive burden.

92. Increasingly, the argument can be dealt with swiftly – at other times it will need more

careful consideration (e.g. enforcement cases where someone’s home or business is at stake

from the development).

93. In matters of procedure, under Article 6, the decision maker will be concerned to ensure

that the applicant is given a fair and impartial hearing. The following pointers may help the


architect understand the role of the decision maker as arbitrator of the applicant’s planning

proposal, statutory plan policy, and third party objectors:

• Article 6 emphasises the need for a fair hearing – do not be overzealous in resisting

applications for adjournments, for evidence to be given on oath, for cross-

examination, for disclosure of appropriate documents.

• Ensure that all material points have been disclosed by your side, even if the appellant

has failed to meet the proper deadlines.

• Beware relying on hearsay evidence – the more direct evidence you can produce the

better.

• Give third party objectors a fair hearing (they too can be victims), so they too should

be extended adequate facilities (e.g. access to documents, copying facilities, meeting

rooms) and the right to be heard.

• Generally, the public inquiry process is, itself, intended to be less formal than a court

room and has been designed in order to allow everyone (whether legal represented or

not) to take part.


C. GUIDANCE: 2006

94. Guidance is not law. It is guidance only.

95. Originally the Secretary of State was under a duty to “secure consistency and continuity” in

land use policy33. However, this was repealed. Nevertheless the policies promulgated by the

Secretary of State (as distinct from policies in statutory adopted development plans)

continue to be a major influence upon the operation of the planning system. Consequently,

a sound understanding of the national guidance will facilitate an understanding of the

municipal authority’s enunciation of that policy in its statutory development plan or local

development framework.

96. The Secretary of State’s national guidance is capable of being taken into account as a

material consideration in development control including determining planning applications.

Indeed the failure to take into account central government policy (even of Departments

other than the D.O.E.) may render a decision open to challenge in the High Court.

97. Central government policy filters down to local planning authorities by a variety of means

including circulars and PPGs/PPSs, ministerial statements and appeal decisions. The most

common method is through circulars and PPGs/PPSs. It must be stressed, however, that

unlike statutory instruments, policy statements are not legally binding upon local planning

authorities. Guidance is only guidance. It is not law. Consequently, given the relevant

information, a local planning authority may depart from the guidance in the circumstances

of the case.

98. Whilst the merits of the policy (or the merits of its application) cannot be reviewed by the

courts the actual application or interpretation of policy can. It is possible to discern a few

general propositions regarding central government policy:

• A local planning authority or the Secretary of State are entitled to adopt a policy and

apply it in decision making as a material consideration under section 70 of the 1990

Act;

i. 33 See section 1 of the Minister of Town and Country Planning Act 1943


• A policy cannot convert an immaterial consideration into a material one or vice versa.

What constitutes a material consideration is ultimately a matter for the courts to decide;

• A policy need not be promulgated in a particular fashion. It need not take the form of a

circular or PPG. However, inspectors themselves are not policy makers and their

decisions cannot be regarded as setting precedents – e.g. Sears Blok & Co v Secretary of

State for the Environment [1980] JPL 523. Whilst any statement of policy may be taken

into account, the weight to be attached to it will vary in accordance with the formality of

its expression. Policy proposals that are still in the formative stage may not yet

constitute policy e.g. where a draft policy has been issued for consultation, although in

some circumstances it might still be necessary to take it into account – Richmond upon

Thames LBC v Secretary of State for the Environment [1984] JPL 24;

• If a policy is lawful, and its provisions are material to the application, the decision-

maker must have regard to it;

• However, the decision-maker need not slavishly follow the policy but if he does not

follow it he must give sound and clear cut reasons why not “in order that the recipient of

his decision would know why the decision was being made as an exception to the policy

and the grounds upon which the decision was taken” – per Woolf J in Gransden (E.C.)

& Co Ltd v Secretary of State for the Environment [1986] JPL 519;

• It is not essential for the inspector or Secretary of State to cite each material policy in

order to establish that regard has been had to it;

• However, in order to have regard to a policy it is necessary for the decision-maker to

have interpreted it properly otherwise the decision will have been as defective as if not

regard had been had to it whatsoever. Thus the interpretation of a policy becomes a

question of law. If regard has not been had to the policy then the court will quash the

decision unless it is satisfied that the decision would be the same even if regard had

been had to the policy;


• In a time of rapidly changing central government policy it must be stressed that where a

policy changes the decision-maker must have regard to the changed policy even though

it may not have been known to the parties at the time of the public inquiry – Newham

LBC v Secretary of State for the Environment [1986] 53 P & CR 98.

99. Policy statements originally were found in circulars issued by the relevant government

department. However, in recent years the Department of the Environment has introduced a

change to this arrangement so that circulars now tend to concentrate on legislative and

procedural matters leaving PPGs/PPSs as the principal source of policy guidance on

planning matters. PPGs are in the process of being replaced by Planning Policy Statements

in a rolling Governmental programme. PPS1 General Principles was issued in 2005.

100. Presently, PPSs fall into three categories:

• Planning Policy Statement notes (PPSs)

• Regional Planning Guidance notes (RPGs) [England only]

• Minerals Planning Guidance notes [MPGs]

101. Of these, the principle guidance dealing with design issues are as follows:

• PPS1 General Principles

• PPG2 Greenbelt

• PPG3 Residential Development

• PPS7 The Countryside

• PPG15 Historic Environment

102. Guidance is applied by reference to the relevant legal test. For example, PPG15 is applied

pursuant to the Listed Building Act provisions. By contrast, PPS1 and PPG2 and 3 are

applied under the provisions of the 1990 and 2004 Planning Acts. The guidance may itself

seek to apply itself under a different Act. If so, care needs to be taken to ensure that if so,


the guidance is backed up by the relevant statute. This is because, if not, the weight (that is,

the importance attached to that part of the guidance), may be different.

103. At a regional level, in London, the Mayor of London has recently published his London

Plan in 2004. London Boroughs are required to provide their parochial guidance consistent

with this guidance.

104. Guidance may pull in different directions in respect of the same proposal. Consequently, as

in a tug-o-war, the decision maker gives different weight to different policies in order to

assess whether or not to grant planning permission. The weight given by the decision maker

is dependant upon factors including how up to date the policy is, and how much

consultation it has been subject to. For example, section 54A of the 1990 Planning Act

(now section 38 of the 2004 Planning Act) requires, essentially, that the planning

application be determined in accordance with the statutory plan unless material

considerations indicate otherwise. Accordingly, the applicant will need to demonstrate that

the relevant statutory plan policy has been complied with, and if not, provide justification

for non-compliance. Justification may arise from more recent national guidance, or from

the particular circumstances of the application. The decision maker will then exercise a

discretion in the balance of the section 54A decision system.

105. Architects should familiarise themselves with these national and regional guidance

documents because they contain much information about design matters and which

architects are mostly better placed than planning officers to deal with.

106. Architects should familiarise themselves with design policies in the local authority’s

statutory plan: the adopted plan. This is sometimes known as the UDP (unitary

development plan). After the 2004 Planning Act, this is being replaced over time with

LDFs- local development frameworks. The policies within these documents are most likely

to be substantially the same as the national guidance but tailored to the individual planning

authority’s local environmental planning requirements. However, they may contain

structured criteria which the architect is likely to have to demonstrate have been met. Once

again, a written document spelling out how the criteria have been met can only assist the

relevant officer or Planning Committee to understand the benefits of a design scheme.


107. The relevant national guidance presently comprise:

• PPS1

• PPG2

• PPG3

• PPS7

• PPG15

108. I address these below in so far as they relate to design matters.

PPS1 2005

109. Since 1997 PPG1 guidance required the developer to be able to demonstrate how he has

taken into account good design in a scheme. Today’s PPS1 injunction to good design had

its genesis in PPG1 but goes a considerable step further in raising the ante of design from

annex to equivalence with the planning system.

110. PPS1 provides for design in terms including the following:

33. Good design ensures attractive usable, durable and adaptable places and is a key

element in achieving sustainable development. Good design is indivisible from good

planning.

111. Le Corbusier may be turning in his concrete grave.

112. The newly enhanced role of the architect is clear.

113. The guidance further provides:

34. Planning authorities should plan positively for the achievement of high quality and

inclusive design for all development, including individual buildings, public and private

spaces and wider area development schemes. Good design should contribute positively to

making places better for people. Design which is inappropriate in its context, or which fails


to take the opportunities available for improving the character and quality of an area, and

the way it functions, should not be accepted.

114. Importantly: “Good design is indivisible from good planning”.

PPG2

115. Green Belt guidance is directed to regulating the spatial development of areas of designated

green belt. For example, County Durham’s green belt has just been dramatically increased.

The regulation is by way of a control on “openness”. Openness is a 3-dimensional concept

entailing consideration of volume and actual and perceived enclosure.

Very special circumstances (“VSCs”)

116. The discretion of the decision maker in discharging its obligation or power will be a matter

of fact and degree, governed by the usual principles of administrative law.

117. What does very special circumstances mean? It can mean simply out of the ordinary or

exceptional and of a weighty nature. It will, inevitably turn on its facts by degree.

118. Of their nature very special circumstances are capable of individually and/or cumulatively

engendering significant weight to outweigh the substantial weight given to the PPG2 para

3.2 presumption.

119. Consequently, the key questions in a very special circumstances case is to ask:

• What circumstances makes this proposal very special?

• What are the out of the ordinary factors of the proposal?

• What factor(s) contribute to the content of the “very special circumstances” of the

proposal?

• Is there a single factor or many?

• Which factor is the deal breaker?


• Which factor prevents a precedent being set elsewhere?

A practical example

120. Issue:

Whether there are very special circumstances justifying the proposal such as to

discharge the presumption against the development to which substantial weight is

attached by PPG2 paragraph 3.2. Consequent, upon which:

a) the proposal complies with GRB1 of the statutory development plan; or if not

b) whether other material considerations of substantial weight militate in favour

of a grant under section 54A;

121. This identifies the difference between:

• Very special circumstances;

• Material considerations.

122. Very special circumstances attract substantial weight to offset the paragraph 3.2

presumption of harm by reason of inappropriateness itself engendering substantial weight.

123. By contrast, material considerations are non-development plan matters. The weight given to

these matters is not subject to the same guidance as very special circumstances. It would be

open to the decision maker to attach substantial weight to a material consideration such as

to elevate it to a factor itself a very special circumstance or adding cumulatively to the

weight of other factors. For example:

i. “Very special circumstances.

ii. This particular proposal is justified by its clear cut very special circumstances

including the following factors to which very substantial weight be given outweighing

the PPG2 para 3.2 presumption:


a) The ASD population is a subset of the County’s 258,000 school age population.

This ASD subset is further subset to 749 whose primary need is ASD. 220 of

these engender a further subset of the most complex ASD population in the

County: 0.04% only of those in mainstream schools, a very special sub-sector

of school society (Mr Baird’s evidence in XX);

b) ASD pupils have very different environmental requirements from mainstream

pupils, perceiving their world extraordinarily differently to neurotypicals (Mrs

Buchan in XX). Consequently they have very different and larger space

demands including calm inducing single storey land hungry buildings

unsuitable for urban environments;

c) ASD pupils are incapable without this particular educational service provision

from entering mainstream schooling – at all- ever (see Mr Baird’s App

diagram), because of an existing spatial inadequacy in its existing site- a gap

ultimately and inevitably engendering shut doors to new identified ASD pupils;

d) Unusual public interest support: on behalf of the Government, Ofsted 2003

report endorses the public interest in continuance of the service provision for

these ASD pupils in its injunction to provide “urgent” facilities for Key stage 3-

a pressing need to which greater weight be attached than mere need;

e) absent (as here) available alternative sites, it is agreed with the County Planning

Authority that the ASD need is a very special circumstance in itself (see Mr

Shonfeld at para 5.7.36). This was endorsed by Mrs Buchan’s balanced reply

in XX by the inspector: “This special school shows very special circumstances

in the Green Belt”;

f) unusually by happenstance, the suitable Mayford site became available post site

search commencement (Mr Evans PoE para 7.3 “Since commencing the site

search…the site became a viable option for Freemantles”);


g) unique planning history of the Mayford Site coupled with the nature of the

proposal: it is agreed with the County Planning Authority (see SoCG para 15)

that the combination of site history and proposal is a very special circumstance;

h) unique environmental benefits: the proposal enables: an increase in Green Belt

openness by secured demolition of buildings in accord with PPG2 para 1.5

bullet 1 and 3 (sprawl); access to and recreation in the countryside for the ASD

pupil in accord with PPG2 para 1.6 bullets 1 and 2; landscape enhancement and

removal of unsightly buildings in accord with PPG2 para 1.6 bullet 4 and 5;

tree, wildflower and bird protection by conditions 8, 9, 10 and 11; the limited

glimpsed – sometimes fleeting - public views of the site (Mr Leonard in XX);

i) unique relationships and community interaction: the proposal is uniquely more

than bricks and mortar- it is a community in itself (Mrs Buchan in XX). The

Mayford location is the right site because it enables maintenance of a web of

existing sophisticated relationships important to ASD pupils, and enables

forging of new local ones. Existing staff can travel to this site, ASD pupils

travel time will be reduced and made equitable by a centralised west County

location- lack of vicarious learning ability means every minute is important to

enable progression to normality for these children; Parental support links

improved by accessibility in place of lost old friends (Mr Linin in chief);

j) uniquely self-limiting size: the social nature of the ASD pupil subset ensures

the proposal will be self-limiting (Mrs Buchan in XX endorsed by the

National Autistics Society Local Representative). The School Governors

would also resist an increase beyond about 105 (Mr Enticot in chief);

k) uniquely a centre of excellence: ASD provision including its MA in Autism,

outreach and ASD links to the outside world (Mrs Buchan in chief), an

Investors in People award and Partnership in parenting (Mr Enticot in chief);

l) a unique purpose built school (as at the Ridgeway) has a calmer and ordered

world making improved provision for the learning ASD pupil who is unable to


express a choice or preference (Mr Linin and Mrs Buchan) in a specialist

(robust) building where Every Child Matters- even ASD children;

m) absence of precedent: a search of Green Belt proposals demonstrates no other

proposal comes close to the vsc of this proposal. The unique combination of

circumstances means that there is no danger of setting a precedent if planning

permission were to be granted- the circumstances are impossible to replicate.”

124. The test of very special circumstances enables the decision maker to justify relaxation of

strict Green Belt policy. In the example cited, planning permission was granted in early

2006.

125. Always consider:

what makes my proposal very special?

Will it set a precedent elsewhere? If not, why not?

PPG3

126. In March 2000, the Labour Government issued radical housing guidance in the form of

PPG3 – Residential Housing. This created a policy locational imperative in favour of

previously developed land. This steers development away from the controversial marginal

greenfield votes, under cover of developing second hand greenfields in the form of

brownfields as “sustainable development”. At the same time, and overnight, the change in

guidance negatived the significant financial investment of developers in land banks and

consultants’ fees in getting them that Greenfield land bank- sometimes gained over

decades.

127. The Government reinforced its commitment to design as a key sustainability objective in

PPG3: Residential Housing 2000 guidance as follows:

1. The Government intends that everyone should have the opportunity of a decent

home. They further intend that there should be greater choice of housing and that

housing should not reinforce social distinctions. The housing needs of all in the


community should be recognised, including those in need of affordable or special

housing in both urban and rural areas. To promote more sustainable patterns of

development and make better use of previously-developed land, the focus for

additional housing should be existing towns and cities. New housing and residential

environments should be well designed and should make a significant contribution to

promoting urban renaissance and improving the quality of life.

128. The starting point for consideration of PPG3 is Annex C. This is where previously

developed land is defined and advantage may be taken of the locational imperative within

the guidance. Annex C of PPG3 defines previously developed land as follows:

There are various definitions of previously-developed land in use. For the purposes of this

guidance, such land is defined as follows:

Previously-developed land is that which is or was occupied by a permanent structure

(excluding agricultural or forestry buildings), and associated fixed surface infrastructure34.

The definition covers the curtilage of the development35. Previously-developed land may

occur in both built-up and rural settings. The definition includes defence buildings and

land used for mineral extraction and waste disposal36 where provision for restoration has

not been made through development control procedures37.

The definition excludes land and buildings that are currently in use for agricultural or

forestry purposes, and land in built-up areas which has not been developed previously (e.g.

parks, recreation grounds, and allotments – even though these areas may contain certain

i. 34 In other words, the urban land uses as defined by the DETR’s Land-Use Change Statistics (excluding ‘urban land not previously developed’). See Annex B of Land Use Change in England No 14 which is available at http://www.odpm.gov.uk/groups/odpm_plannings/documents/page/odpm_plan_607174.hcsp. 35 The curtilage is defined as the area of land attached to a building. All of the land within the curtilage of the site (as defined above) will also be defined as previously-developed. However, this does not mean that the whole area of the curtilage should therefore be redeveloped. For example, where the footprint of a building only occupies a proportion of a site of which the remainder is open land (such as at an airfield or a hospital) the whole site should not normally be developed to the boundary of the curtilage. The local planning authority should make a judgement about site layout in this context, bearing in mind other planning considerations, such as policies for the protection of open space and playing fields or development in the countryside, how the site relates to the surrounding area, and requirements for on-site open space, buffer strips, landscaped areas, etc. 36 These land uses are in addition to the Land-Use Change Statistics ‘urban’ groups. 37 This relates to minerals and waste sites which are to remain unrestored after use because the planning permission allowing them did not include a restoration condition. All other such sites will be restored to ‘greenfield’ status, by virtue of the planning condition.


urban features such as paths, pavilions and other buildings). Also excluded is land that

was previously developed but where the remains of any structure or activity have blended

into the landscape in the process of time (to the extent that it can reasonably be considered

as part of the natural surroundings), and where there is a clear reason that could outweigh

the re-use of the site – such as its contribution to nature conservation – or it has

subsequently been put to an amenity use and cannot be regarded as requiring

redevelopment38.

129. Of significance for architects presently are paragraphs 41 and 54. Paragraph 41 provides:

Re-use of Buildings/Conversions

1. Conversions of housing, buildings formerly in other uses and the upper-floor space

over shops, can provide an important source of additional housing, particularly in

town centres. Local planning authorities should adopt positive policies to:

• Identify and bring into housing use empty housing, vacant commercial buildings

and upper floors above shops, in conjunction with the local authority’s housing

programme and empty property strategy and, where appropriate, acquire

properties under compulsory purchase procedures; and

• Promote such conversions, by taking a more flexible approach to development

plan standards with regard to densities, car parking, amenity space and over

looking.

130. PPG3 paragraph 54 is the heart of this guidance. It provides:

Designing for quality

54. Good design and layout of new developments can help to achieve the

Government’s objectives of making the best use of previously-developed land

and improving the quality and attractiveness of residential areas. In seeking to

achieve these objectives, local planning authorities and developers should think

imaginatively about designs and layouts which make more efficient use of land

without compromising the quality of the environment.

i. 38 The definition does not supersede or in any way change the policy in respect of the redevelopment of major developed sites in the Green Belt set out in Annex C to Planning Policy Guidance note 2: Green Belts.


131. Brownfield is often found in tight urban locations. Amenity impacts will frequently arise

within the inner cities. This requires good design if the decision maker is to be persuaded

that amenity impacts on neighbours have been reduced to a minimum, even if still present.

Individual neighbours’ Convention rights may be engaged where new development seeks to

make best use of the land pursuant to PPG3. The amenity impact of a conversion may

necessarily be less than new build because their existed previously an impact on the

environment – an existing fallback position. However, where new high density build is

proposed, the paragraph 54 guidance test is tougher – the environmental quality must not be

“comprised”.

132. At a stroke the Government shifted the development battle from Greenfield to brownfield

streets. At the same time it appears to have wiped many £s from the value of Greenfield

sites. The urban development cake is necessarily smaller, and more complex. Interfering

with a neighbour’s Convention or property rights because the windows are designed in the

wrong place and allow a garden to be overlooked may render a simple grant of planning

permission amenable to legal challenge.

133. Many more people live and work on brownfields than on green. They have Convention

rights which may be engaged by a development proposal. They may rely directly upon

European Directives to give effect to that environmental protection. Minimal interference

which is proportionate can be achieved by good design, including both architectural and

urban.

134. At the same time, increased flexibility in standards, and therefore acceptance of increased

degrees of amenity interference, enable the achievement of excellence by design – but not

all design is excellent. The spatial relationship and impacts between buildings (the public

realm) caused by new development is often ignored and triggers hostility from neighbours

who feel excluded from the process. Consequently, good design – both architectural and

urban - is a key skill to shoehorning in the maximum development and at the same time

enabling the scheme to interfere with the existing status quo with apparent less detriment.

This may well reduce the likelihood of successful objection by a disgruntled neighbour or

rival developer to a planning application or a subsequent appeal.


PPS7

135. Gummer’s “law”39 remains alive in the recent PPS7. This provides as follows:

10. Isolated new houses in the countryside will require special justification for planning

permission to be granted. Where the special justification for an isolated new house relates

to the essential need for a worker to live permanently at or near their place of work in the

countryside, planning authorities should follow the advice in Annex A to this PPS.

11. Very occasionally the exceptional quality and innovative nature of the design of a

proposed, isolated new house may provide this special justification for granting planning

permission. Such design should be truly outstanding and ground-breaking, for example,

in its use of materials, methods of construction or its contribution to protecting and

enhancing the environment, so helping to raise standards of design more generally in

rural areas. The value of such a building will be found in its reflection of the highest

standards in contemporary architecture, the significant enhancement of its immediate

setting and its sensitivity to the defining characteristics of the local area.

136. The application of this guidance to the particular planning application will be a –

interestingly – a matter of fact and degree for the decision maker.

PPG15

137. PPG15: The Historic Environment provides guidance on the day to day application of the

statutory process. All architects dealing with historic buildings should read this guidance.

It contains the criteria against which applications for listed building consent are judged and

outlines the processes by which the local planning authority will assess an application.

Preparing a report together with all relevant information supporting the application for

consent to the planning officer is more likely to assist the officer or Members of the

Planning Committee reaching a conclusion favourable to your client because, as an

architect providing important design expertise, you are best placed to facilitate the decision

maker’s understanding of the issues at stake.

i. 39 Albeit that the ‘law’ is in fact guidance and not law.


138. This, and other planning guidance, is available from the Planning Inspectorate website. In

addition, English Heritage publish on the web www.english-heritage.org.uk guidance to

assist planners and designers to assess the initial historic reference point for their proposals.

This includes:

• Conservation Area Practice (“CAP”);

• Conservation Area Assessments (“CAA”);

• Shopping in Historic Towns.


D. COMMUNICATION

139. To explain and facilitate the achievement of its key design objective, the Government has

published advice in two design guides. In 2006, everyone in the development industry can

speak from the same methodological hymn sheet(s). These hymn sheets explain “how” to

achieve good design and will not be news to architects trained to apply such criteria as their

daily bread.

140. Firstly, Better places to live: by design. A companion guide to PPG3 (2001), and By

Design: urban design in the planning system – towards better practice (2000). This

guidance sets out methodology familiar to both architects and urban designers but which is

rarely expressed – it being taken as read by these consultants. The advice in By Design:

urban design in the planning system – towards better practice (2002) (“By Design: Urban

Design”) further notes that:

The success of the public realm depends on the arrangement of its paving, planting,

lighting, orientation, shelter, signage, street furniture, and the way it is overlooked, as

well as the routes which pass through it, and the uses in and next to it. The public realm

is made up of the parts of a village, town or city that are available, without special

charge, for use by everyone. This can include streets, parks, squares, arcades and public

buildings, whether publicly or privately owned. It provides the setting not only for

everyday life, but also for more formal civic occasions. It is enlarged and enriched by

developments designed to welcome a broad range of people, and by creative

management. It is restricted and impoverished by buildings and spaces designed to keep

out or discourage all but a narrow range of users, and by over-regulation. Anyone who is

designing a building, or any other structure, is helping to shape the public realm.

141. The Government has helpfully defined urban design within this document as:

… the art of making places for people. It includes the way places work and matters such as

community safety, as well as how they look. It concerns the connections between people


and places, movement and urban form, nature and the built fabric, and the processes for

ensuring successful villages, towns and cities.

Urban design is a key to creating sustainable development and the conditions for a

flourishing economic life, for the prudent use of natural resources and for social progress.

Good design can help create lively places with distinctive character; streets and public

spaces that are safe, accessible, pleasant to use and human in scale; and places that inspire

because of the imagination and sensitivity of their designers.

142. Most recently, the Government has reinforced its commitment to design as a key

sustainability objective in PPG3: Residential Housing 2000 Guidance as follows:

1. The Government intends that everyone should have the opportunity of a decent home.

They further intend that there should be greater choice of housing and that housing

should not reinforce social distinctions. The housing needs of all in the community

should be recognised, including those in need of affordable or special housing in both

urban and rural areas. To promote more sustainable patterns of development and

make better use of previously-developed land, the focus for additional housing should

be existing towns and cities. New housing and residential environments should be

well designed and should make a significant contribution to promoting urban

renaissance and improving the quality of life.

143. By Design: Urban Design endorses PPG3 and design matters as follows:

The Need for Better Urban Design

Purpose of the guide

The aim of this guide is to promote higher standards in urban design. It does not set

out new policy. The Government’s policy for design in the planning system is

contained in Planning Policy Guidance Note 1 General Policy and Principles (PPG1)

and expounded further in other PPGs. The challenge in PPG1 is clear: “good design

should be the aim of all those involved in the development process and should be

encouraged everywhere”.


This guide will help to encourage better design and is intended as a companion to the

PPGs. But it is not intended to be the last word, nor should it be. It has been written

to stimulate thinking about urban design, nor to tell the reader how to design. The

central message is that careful assessments of places, well-drafted policies, well-

designed proposals, robust decision-making and a collaborative approach are needed

throughout the country if better places are to be created.

The guide is relevant to all aspects of the built environment, including the design of

buildings and spaces, landscapes and transport systems. It has implications for

planning and development at every scale: in villages as well as cities and for a street

and its neighbourhood as well as regional planning strategies.

144. Once again the Government has injuncted that poor design be rejected. Reinforcing its

former guidance in PPG1, and foreshadowing PPS1, PPG3 further provides:

Rejecting poor design

63. In determining planning applications, local planning authorities should reject poor

design particularly where their decisions are supported by clear plan policies and

adopted supplementary planning guidance, including village design statements.

Applicants for planning permission for housing development should be able to

demonstrate how they have taken account of the need for good layout and design and

how their proposals reflect the guidance set out in this PPG.

145. The foreword to By Design: Urban Design underscores the heightened importance of

design in respect of reducing environmental impacts:

Good urban design is essential if we are to produce attractive, high-quality,

sustainable places in which people will want to live, work and relax. It is

fundamental to our objective of an urban renaissance. We do not have to put up

with shoddy, unimaginative and second-rate buildings and urban areas. There is a

clamour for better designed places which inspire and can be cherished, places

where vibrant communities can grow and prosper. To achieve this we need to effect

a culture change, and this guide is designed to help this process.

146. What should a designer demonstrate to the local planning authority or a planning inspector?


147. An architect may be expected, in securing planning permission under a particular policy, to

demonstrate how he or she has achieved good design. For example, sensitive sites might

include those in which there is a sensitive environmental receptor – for example, high

density areas where there is little room for further development. Most recently, PPG3:

Residential Housing provides, as we have seen, further guidance on the process of

achieving design quality as follows:

56. New housing development of whatever scale should not be viewed in

isolation. Considerations of design and layout must be informed by the wider

context, having regard not just to any immediate neighbouring buildings but the

townscape and landscape of the wider locality. The local pattern of streets and

spaces, building traditions, materials and ecology should all help to determine the

character and identity of a development, recognising that new building technologies

are capable of delivering acceptable built forms and may be more efficient.

148. The guidance expects an informed and express consideration of the immediate and wider

environment in order that the inspector can know whether or not the scheme is good or bad

design. A scheme which is “poor design” may be regarded as “inappropriate” and rejected.

Therefore, a poorly explained design may be regarded as inappropriate. Post-rationalisation

is not good design. By contrast, good design is what we all of us as development

consultants strive to achieve in any event. In terms of architecture and urban design, good

design is simply demonstrating that competing requirements have been considered, and that

issues between the proposed built fabric and the public realm and potential interests have

been successfully reconciled. This requires:

• An understanding of the relevant factors including the facts, and the relevant legal test

to be met by the proposal;

• The ability to manifest in both words and diagrams the process of assessment,

identification of issues, and their amelioration or reconciliation by design;

• Informed and expert conclusions in respect of the impact of the proposed design on

the environment.


Design Statements and Assessments

149. The ability to undertake an assessment of the design for which planning permission is

sought is an important aspect of an architect’s role in obtaining planning permission.

Architects are highly skilled in communication by drawing. However, of equal importance

to obtaining planning permission is the ability to communicate in words the design intent.

This often takes the form of a design statement submitted with a planning application.

Tying the design intent to relevant policy and criteria, and demonstrating the discharge of

the relevant statutory test is an important skill if a planning application is to have an

increased chance to be permitted.

150. The issue for most designers is an absence of methodology by which to objectively assess

the scheme design. The Government has recognised this and provided and example of an

assessment methodology in By Design: Urban Design. This provides guidance on the

framework approach to be taken to urban design but its principles apply equally to an

architectural design. The urban design assessment is as follows:

Place-making

Successful urban design requires a full understanding of the conditions under which

decisions are made and development is delivered. Many factors determine or

influence the outcome of the design process and the sort of places we make.

Success, nowadays, rarely happens by chance. It depends on:

• A clear framework provided by development plans and supplementary

guidance delivered consistently, including through development control;

• A sensitive response to the local context;

• Judgments of what is feasible in terms of economic and market conditions;

• An imaginative and appropriate design approach by those who design

development and the people who manage the planning process.

151. What form should the assessment take? By Design: Urban Design provides a useful

methodology for assessment of local context, set against an understanding of the objectives

of urban design. Most designers already have regard to these factors implicitly. The

difference in the brownfield battlefield is that express demonstration of that assessment,


and how its built form is finally manifested, will greatly assist showing the decision maker,

whether planning authority or inspector, how a proposal is well-designed and demonstrate

the sustainability of the development. By Design: Urban Design has set out a useful

methodology with criteria which can form the basis of a report; design statement; and then,

if need, a proof of evidence for a planning appeal:

Objectives of urban design

Successful streets, spaces, villages, town and cities tend to have characteristics in

common. These factors have been analysed to produce principles or objectives of

good urban design. They help to remind us what should be sought to create a

successful place. There is considerable overlap between the objectives and they are

mutually reinforcing.

i) Character

A place with its own identity.

To promote character in townscape and landscape by responding to and reinforcing

locally distinctive patterns of development, landscape and culture.

ii) Continuity and enclosure

A place where public and private spaces are clearly distinguished

To promote the continuity of street frontages and the enclosure of space by

development which clearly defines private and public areas.

iii) Quality of the public realm

A place with attractive and successful outdoor areas

To promote public spaces and routes that are attractive, safe, uncluttered and work

effectively for all in society, including disabled and elderly people.

iv) Ease of movement

A place that is easy to get to and move through

To promote accessibility and local permeability by making places that connect with

each other and are easy to move through, putting people before traffic and

integrating land uses and transport.

v) Legibility

A place that has a clear image and is easy to understand


To promote legibility through development that provides recognisable routes,

intersections and landmarks to help people find their way around.

vi) Adaptability

A place that can change easily

To promote adaptability through development that can respond to changing social,

technological and economic conditions.

vii) Diversity

A place with variety and choice

To promote diversity and choice through a mix of compatible developments and

uses that work together to create viable places that respond to local needs.

152. These objectives may provide useful headings against which to assess the existing

environment and the proposed development. As to the built development, the following

objectives may provide further headings:

Aspects of development form

i) Layout: urban structure

The framework of routes and spaces that connect locally and more widely, and the

way developments, routes and open spaces relate to one another.

The layout provides the basic plan on which all other aspects of the form and uses of a

development depend.

ii) Layout: urban grain

The pattern of the arrangement of street blocks, plots and their buildings in a

settlement.

The degree to which an area’s pattern of blocks and plot subdivisions is respectively

small and frequent (fine grain), or large and infrequent (coarse grain).

iii) Landscape

The character and appearance of land, including its shape, form, ecology, natural

features, colours and elements, and the way these components combine.

This includes all open space, including its planting, boundaries and treatment.

iv) Density and mix


The amount of development on a given piece of land and the range of uses. Density

influences the intensity of development, and in combination with the mix of uses, can

affect a place’s vitality and viability.

The density of a development can be expressed in a number of ways. This could be in

terms of plot ratio (particularly for commercial developments), number of dwellings,

or the number of habitable rooms (for residential developments).

v) Scale: height

Scale is the size of a building in relation to its surroundings, or the size of parts of a

building or its details, particularly in relation to the size of a person. Height

determines the impact of development on views, vistas and skylines.

Height can be expressed in terms of the number of floors; height of parapet or ridge;

overall height; any of these in combination; a ratio of building height to street or space

width; height relative to particular landmarks or background buildings; or strategic

views.

vi) Scale: massing

The combined effect of the arrangement, volume and shape of a building or group of

buildings in relation to other buildings and spaces.

Massing is the three-dimensional expression of the amount of development on a given

piece of land.

vii) Appearance: details

The craftsmanship, building techniques, decoration, styles and lighting of a building

or structure.

This includes all building elements such as openings and bays; entrances and

colonnades; balconies and roofscape; and the rhythm of the façade.

viii) Appearance: materials

The texture, colour, pattern and durability of materials, and how they are used.

The richness of a building lies in its use of materials which contribute to the

attractiveness of its appearance and the character of an area.

153. These factors may be drawn together to provide an urban design assessment of the local

context. For example, by way of headings, with diagrams and written explanation. As By


Design: Urban Design notes, this understanding and process is a pre-requisite to the

planning design process:

Understanding the local context

Understanding the local context should be the prelude to drawing up the planning

‘toolkit’. Developing this understanding will involve considering a wide range of

matters. Some will be matters of simple observation or professional judgment.

Others will be matters of opinion, raising questions about whose perspective counts in

the particular circumstances, and how those people are to be involved in the process

of appraising the context. A range of techniques is available, but carrying out an

appraisal is more important than the specific technique used and a simple assessment

is better than none.

An appraisal can consist of three elements; the emphasis will differ depending, for

example, on whether the aim is to produce policy for a plan or a brief for a specific

site.

• First, there is likely to be a mainly qualitative assessment of how the area

performs in terms of urban design objectives.

• Second, the characteristics of the area or site could be assessed in terms of

constraints, opportunities and capacity for development.

• Finally, these factors which overlay the local context, such as government

advice, would need to be built into the appraisal.

154. The guidance identifies, for example, an urban design assessment as a first step in the

process of achieving good design. Each of the individual factors identified in the By

Design: Urban Design checklist may be broken down to components for the appraisal. For

example, the components comprising the character of the local context within an urban

design assessment might include, for example, analysis of the following elements:

• Memories and associations, local traditions and cultural diversity;

• The origins and development of the topography of the area, including surviving

elements of historic street patterns, plot subdivisions, boundary treatments and the

relationships between buildings and spaces;


• The archaeological significance and potential of the area;

• The architecture and historic quality, character and coherence of buildings, both listed

and unlisted, and the contribution they make to the special interest of the area;

• The character and hierarchy of spaces and their townscape quality;

• Prevalent and historic building materials;

• The contribution made to the character of the area by green spaces, trees, hedges and

other cultivated elements;

• The area’s prevailing (or former) uses, plan forms and building types;

• The relationship of the built environment to landscape or open countryside, including

significant landmarks, vistas and panoramas;

• Features which have been lost, or which intrude on or detract from the character of the

area.

155. The assessment may then feed into, for example, PPG3, paragraph 31 considerations.

These provide:

31. In deciding which sites to allocate for housing in local plans and UDP’s, local

planning authorities should assess their potential and suitability for development

against each of the following criteria:

• The availability of previously-developed sites and empty or under-used

buildings and their suitability for housing use;

• The location and accessibility of potential development sites to jobs, shops

and services by modes other than the car, and the potential for improving such

accessibility;

• The capacity of existing and potential infrastructure, including public

transport, water and sewerage, other utilities and social infrastructure (such as


schools and hospitals) to absorb further development and the cost of adding

further infrastructure;

• The ability to build communities to support new physical and social

infrastructure and to provide sufficient demand to sustain appropriate local

services and facilities; and

• The physical and environmental constraints on development of land,

including, for example, the level of contamination, stability and flood risk,

taking into account that such risk may increase as a result of climate change.

156. It is apparent from the above that the architects now have a lead role in delivering

development proposals. Success will depend on good communication to the relevant

decision makers.

WHEN SHOULD THE ABOVE BE UNDERTAKEN?

157. PPS1 paragraph 12 seeks to ensure that the decision making process is improved. The

guidance injuncts applicants to undertake pre-application discussions before making the

application.

158. Consequently, architects may be expected to prepare the above documents in advance of

the application- to front load the information – and to discuss the matter with the planning

authority. Whilst this increases costs to the client, it is also designed to facilitate achieving

a planning consent without the need to appeal.

159. I address appeals below.


E. APPEALS

160. At the end of the day, the law may be regarded as a commercial tool to achieve the client’s

objective. Consequently, appeals from refusals of planning permission should not be seen

as failure. Rather, a planning consultants view them , appeals are a necessary second step to

achieve the client’s objectives. In preparing an application well, an appeal will entail less

work because it is essentially a client’s entitlement to a re-run of its application but before

an independent tribunal of fact.

161. Planning is becoming ever more controversial. The Planning and Compulsory Purchase Act

2004 has set in place an inherent conflict between the need for the planning system to be

fast and responsive to development needs and greater public expectation of participation.

Planning authorities, the last area of important local political control, have always struggled

to reconcile these two conflicting needs but now that these needs have been enshrined in

law (as opposed to being policy requirements) there is now an increased likelihood of

conflict. We are seeing this already in the area of residential development where many

authorities are resisting government mandates to increase the supply of new homes.

162. The mechanism for resolving conflict in the planning appeal system where the success rates

for appeals depends on the appeal route chosen. For many years it has been the case that:

• a written representation appeal will have a success rate in the region of 30%; whereas

• an appeal by informal hearing will have a success rate of about 38%; whereas

• inquiries the success rate has hovered between 45-50%.

The precise figures can be seen on the Planning Inspectorate’s website in the section

containing the Annual Report. A moment’s reflection on the respective procedures explains

the difference in success rates – it is only at the inquiry when evidence and opinion gets

thoroughly tested.


163. So, with an increased likelihood of an appeal arising and with planning inquiries enjoying

the highest success rate it is likely that some clients will only opt for an appeal by way of a

planning inquiry.

164. A planning appeal is made to the Planning Inspectorate which acts on behalf of the

Secretary of State. This organisation is both highly experienced and most fair in its conduct

of appeals. It is frequently a better tribunal than a local authority tribunal. To a large extent

the Planning Inspectorate is apolitical.

165. An appeal is set in motion by a notice of appeal. The notice of appeal must be given to the

Secretary of State within six months of the date upon which the right to appeal arose40, or,

in the case of a notice, expiry of the appropriate period, or such longer period as is allowed

by the Secretary of State41. The appeal form itself is available from the Secretary of State

and must be accompanied by decision of the planning authority and all documents provided

to it by the appellant, together with relevant correspondence42. On the form the appellant

must state whether he agrees to have his appeal determined by way of written

representations, or prefers it to be determined by way of a hearing. If either appellant or

planning authority wishes, a hearing must be given43. Hearings come in two forms: i)

informal hearings; and ii) inquiries. The appellant must state, accurately and reasonably, his

grounds of appeal so that the planning authority can respond with its pre-inquiry statement,

or with its response if written representations are made.

166. If the Secretary of State considers that planning permission could not have been granted,

whether or not conditionally, by the planning authority, he may decide to not proceed with

the appeal44. Further, the Secretary of State has a power to dismiss the appeal if, for

example, there is undue delay in its prosecution by the appellant, or the appellant fails to

take steps that he has specified in his notice45. Upon expiry of the six month period for

making the appeal, the Secretary of State will refuse to accept it in the absence of reasons

which go beyond negotiations with the planning authority. In this case, it may be

i. 40 Article 23(1) & (2)(a), Town and Country Planning (General Procedure) Order 1995. 41 Article 23(2), ibid. 42 Article 23(1(a), & (3) ibid. 43 Section 79(2), TCPA 1990. 44 Section 79(1), TCPA 1990. 45 Section 79(6A)(as inserted), TCPA 1990.


appropriate to make a new application for the approval sought. Time limits are relevant for

all types of appeal. Whilst in theory the Secretary of State may in exceptional

circumstances accept an appeal out of time in practice this is rarely done, and in the case of

enforcement appeals the time limits are strict46.

167. The appeal is made to a person appointed by the Secretary of State. In the case of planning

appeals, this will be a planning inspector, who is himself an emanation of the Planning

Inspectorate which is an Executive Agency, ostensibly independent from its master the

Department of the Environment (or the Welsh Office)47. The Inspectorate is headed by the

Chief Planning Inspector/Chief Executive who is currently Chris Shepley. He was formerly

the Chief Planning Officer at Plymouth City Council and assumed the post at the

Inspectorate in September 1994 following the retirement of his predecessor Stephen Crow.

168. When an appeal is lodged with the Planning Inspectorate it will be assigned to a case

officer. They tend to deal with a few local planning authorities so it is easy to identify the

relevant case officers. Case officers to be extremely helpful and co-operative. Inquiry dates

are fixed by the Chart Room which is on a different floor to the case officer which explains

why you suddenly start talking to different officers. The Chart Room has to be seen to be

believed. All in all the administration of the appeals system is highly commendable.

169. Planning inspectors themselves come form many walks of life. Most inspectors are not

lawyers - in fact hardly any are. The majority of inspectors are chartered surveyors and

chartered town planners although some are architects and others engineers. There are

approximately 300 full-time inspectors who are graded. The most senior are Grade 1

followed by Grade 2. Grade 3 is sub-divided into 3a, 3b and 3c who are the most junior

inspectors. Some of the more senior inspectors concentrate on enforcement inquiries and

most concentrate whenever possible on particular areas of interest or expertise. It is

unlikely that any inquiry will be handled by a junior inspector below Grade 3a. The most

junior inspectors tend to handle the written representations appeals and informal hearings.

i. 46 See for example, section 174 (3) TCPA 1990, and the decisions in Lenlyn v Secretary of State for the Environment [1985] JPL 482 or R v Secretary of State, ex p Jackson [1987] JPL 790. 47 The Planning Inspectorate is currently based at: Temple Quay House, 2, The Square, Temple Quay, Bristol BS1 6PN.


170. The life of the planning inspector is a solitary one where they are effectively prohibited

from any form of “socialising” with the parties. A case has highlighted the need for

inspectors to be and to be seen to be scrupulously impartial48. This is not as easy as it may

first seem. Most inspectors work from home and will be away from their home during the

inquiry. They are on limited allowances so that it is unlikely that they will be staying in the

same lavish hotel as the appellant and its team. Further, there can be few jobs where any

mistake (or alleged mistake) will be scrutinised with forensic detail in the High Court.

171. Inspectors determining appeals consider them as if for the first time so and they have a

broad discretion conferred upon them. Furthermore inspectors are not allowed to handle

appeals in the areas where they live or in the areas of planning authorities they have been

employed by. Thus inspectors are no more likely to be biased than a judge or a magistrate.

172. A decision by the Secretary of State is made in the public interest and so in section 78

planning appeals there is no burden of proof as found in ordinary civil or criminal cases.

Nevertheless, the local planning authority, having refused planning permission (or given

reasons why it would have refused planning permission in an appeal involving a deemed

refusal) are required to substantiate each reason for refusal by evidence which demonstrates

why it was correct to refuse permission49. It follows from this that at the inquiry the

appellant “challenges” the reasons for refusal and the local planning authority “defends”

them.

173. However an inspector, or the Secretary of State, determines the issues afresh50. This means

that the inquiry is concerned with all the planning circumstances and not just those

identified by the local planning authority as being issues justifying refusal.

174. On enforcement notice appeals the onus is placed on the appellant to show that there has

been no breach of planning control against which action can be taken. The test is the civil

burden of proof i.e. the balance of probabilities rather than beyond reasonable doubt.

i. 48 See Jones v Secretary of State for Wales [1995] EGCS 14. 49 See paragraph 8 of Annex 3 to Circular 8/93 (the “costs” circular). 50 See section 79 (1), Town and Country Planning Act 1990 (as amended).


What happens next?

175. For the expert architectural witness, an inquiry should be relished. It’s a chance to really

make a difference to your client. It is also a chance for you to put your professional

judgment to the test. It is your chance to show the world what you are made of. It is not an

occasion to be feared or to shy away from. It is what you spent all those years studying for

and now is an opportunity to demonstrate the depth and breadth of your knowledge and the

value of your experience.

176. Witnesses are often nervous before giving evidence. This is normal. There are only two

occasions when you need to be worried about nerves. The first (and by far the more serious

occasion) is when you are not nervous. Some nerves are essential. They keep you on your

toes. If you don’t have some nerves then there is a real possibility that you are either being

overly complacent or that you have not fully prepared your case. The second occasion is

when your nerves get the better of you. This can easily be overcome by a number of simple

techniques to keep their nerves under control. Most of your more experienced colleagues do

these almost by habit.

177. You should never ever let your nerves get on top of you and you should never use your

nerves as a reason for not giving evidence.

Professional Duties of Architect Expert Witnesses

178. The following observations are relevant to witnesses both in the private practice and in

local planning authorities. They apply irrespective of whether you are appearing in support

or against a particular application, at a planning appeal or on a statutory appeal or other

matter in the High Court.

179. The golden rule is that it is essential that the architectural expert witness at all times retains

his or her own independence and integrity. Therefore you should strive to avoid creating

the impression that “you would say that wouldn’t you”? If you sell your opinion you

cheapen your reputation. It is sometimes difficult but there may be times when you will

have to stand up to pressure from your client. Never be pressurised into compromising your

professional integrity.


180. In effect this is a legal duty placed on the architect in his or her role as a promoter of the

applicant’s proposal. It is worth bearing in mind the criticisms of Richard Southwell QC

sitting as a deputy judge of the High Court in the listed building case Burroughs Day v

Bristol City Council (1996) EG 126 where he questioned the status of two expert witnesses

for the Council who were long-serving council officers and who considered that part of

their role as expert witnesses was to also act as advocate.

181. The judicial re-statement of the expert’s responsibilities by Mr Justice Cresswell in the case

of National Justice Compania Naviera SA v Prudential Assurance Co. Limited (“The

Ikarian Reefer”) [1993] 37 E.G. 158 is as follows:

• Evidence should be, and should be seen to be, independent, and uninfluenced by the

case.

• The expert should assist the court by objective, unbiased opinion in relation to matters

within his expertise and should not try to be an advocate.

• The expert should state facts or assumptions on which his opinion is based. He should

not omit material facts which might detract from the case.

• The expert should make it clear when a particular question falls outside his field of

expertise.

• The expert should make it clear if his opinion is not properly researched because of

insufficient data; this must be stated.

• If the expert witness, after the exchange of reports, changes his view, then he has a

duty to communicate without delay.

• Where the evidence refers to plans, calculations, surveys etc. These must be provided

at the same time as the exchange of expert reports.

Application and appeal preparation

182. Always remember the old military saying:


IF YOU FAIL TO PREPARE THEN PREPARE TO FAIL

183. The key to enhancing your client’s prospects of successfully acquiring planning permission

or other consent is preparation. It can be long and tedious, it may be expensive, but it is

never time wasted.

184. Preparation for a committee, hearing, or inquiry should begin long before the planning

application is submitted. Indeed, PPS1 paragraph 12 requires pre-application discussion to

improve the quality of decision making by the local planning authority committee or

relevant officer under delegated powers. It should be possible in most cases to assess

relatively early on whether the development is likely to be granted without too much

trouble. If, however, it is possible that it might end up at an inquiry then consider how some

of your letters or meetings will be viewed in the sterile atmosphere of a planning inquiry.

185. For example, a careless use of the phrase “The proposal will not cause undue visual harm”

in a letter accompanying a planning application can be subsequently turned against the

applicant. The use of the word “undue” assumed “harm” but which was not “undue”.

Proofs of Evidence

186. Evidence on a planning appeal is given by way of a document called a proof of evidence.

This stands as the expert’s evidence in chief. It production saves a lot of time and expense.

187. The following principles should be borne in mind in the drafting of a proof of evidence:

• Provide personal background and relevant expertise

• Identify the purpose and scope of it and, if necessary, the source material

• Prepare “[Executive] Summary (with Conclusions)”

• Explain, by way of a logical process of analysis and reasoning how you have reached

conclusions

• Always identify your sources and reference


• Always re-check your law/policy – principles and quoted extracts

• Appendices (e.g. plans, photographs and historic sources) should be legible and easily

found through separate pagination, dividers and reference numbers

• Any supporting photographs (video recordings) should always be capable of proof by

way of date, location and photographer

• Always check and re-check (with help from a colleague) your calculations/figures

• Always re-check your proof against the Appeal Statement of Case

188. See also Circular 5/2000 Annex 3(i): A Guide to Presenting Written Evidence at Public

Inquiries.

189. The structure of the evidence should be as follows:

• Introduction

• Site Description – could be in SCG

• Planning History – could be in SCG

• Cascade of Relevant Policies (National/Strategic/Local). Basic polices could be in

SCG with extracts already an appendix to Appeal Questionnaire, Rule 6 or SCG.

Need to concentrate on arguments

• Considerations e.g. using Reasons for Refusal as framework (relevant to the planner)

• (Summary and) Conclusions

• If you have a Summary, separately identify it (e.g. yellow paper)

190. If – as in often necessarily the case with design proofs - the proof is longer than 1500

words, a summary ought to be provided. Reducing the summary to 2 or 3 pages is a good

disciple to adopt. It is this summary which is read out at an appeal.


191. The following principles apply to supporting appendices:

• Separately bound

• Pagination

• Dividers

• Index

192. Inside the proof of evidence you will set out the main issues for consideration, and your

view. An expert’s view is “considered”. It is not his or her “belief”. For example: “It is my

view that…” or “I consider that…”.

193. The structure of the consideration of the main issues takes the following form:

• Section 38(6)) starting point – the “development plan”

• Reasons for refusal –esp. identified (alleged) policy breaches

• Other points raised in Appellant’s R.6 Statement (etc.)

• Third Party objections – if directly relevant to LPA’s case

• Conclusions/Summary

o Check with Statement of Case

o Check law/policy

Hearing Preparation

194. The following principles apply to preparation for a hearing, whether at committee, informal

hearing, or inquiry or other matter.

• Discuss your role (as advocate or support solicitor) and that of the other witnesses in

advance. Understand in which ways you each mutually reinforce one another


• Ensure preparation of adequate briefing notes/comments for you, as advocate, and for

other team members

• Ensure that witnesses complete any further research

• Ensure witnesses organise “Blue Peter Box” (copy supplemental documents for cross-

examination and any other documents that may need to be disclosed)

• Discuss progress of case with witnesses, particularly if likely to be absent, and likely

lines of cross-examination, including what points should be conceded or resisted

• Ensure adequate stationery for note-taking (and back-up through assistant/secretary)

• Annotate your copies of reports etc, for ease of access as part of your cross-

examination preparation and planning

• Ensure that all your witnesses have re-checked all their figures (and have a colleague

further check them as well)

• Identify any corrections that will need to be made to your proof(s) (and have copies of

corrected pages if there are several changes)

• Have original files to hand if you or your witnesses need to refer to contemporaneous

notes (e.g. at the time of an inspection)

• Check availability of extra Proofs and Supplementary Proofs for third parties

• Check and have copies of address list and letter of notification to neighbours

Evidence presentation

195. The following may assist in presenting evidence:

Principles

• “The 4 C’s” (comfort, confidence, clarity, control)


• “The 3 S’s” (sit up, speak up and shut up)

Procedures

• Evidence in Chief – brief presentation, clarification and supplemental evidence on

additional points arising since exchange of written material

• Cross-Examination – purposes are (i)to identify and narrow the issues in dispute; (ii)

to test the validity of the facts and assumptions on which the report is based and to

expose any defects; and (iii) to explore any other relevant areas of the evidence

• Re-examination – clarification of answers given in cross-examination but not by

leading questions (!) nor to introduce new evidence (unless this is unavoidable)

• Inspector’s residual questions

Practical advice to Witnesses

• Remember that the purpose of evidence is to represent and clarify your evidence

• Know your proof(s), the other side’s proofs and the case that you are presenting

• Listen to the questions and confine your answers to them

• The five answers:

o Yes

o No

o Yes but

o No but

o I don’t know


• Deliver answers sufficiently slowly and clearly for them to be noted by keeping one

eye on the inspector and one on the advocate

• Do ask questions to be repeated or clarified, if this is necessary

• Don’t argue with the advocate or try to score points

• Don’t offer opinions unless asked

• Don’t, needlessly, try to baffle with technical terms and knowledge

• Don’t lose your temper

• Don’t wear uncomfortable clothing or a tie, or jewellery that could convey the wrong

message

• Don’t eat/drink too little or too much – public inquiries are as much about endurance

and stamina as the promotion/resistance of land uses (in the public interest)

• Remember the rule about speaking to your advocate. The witness may communicate

with his advocate (and any other team members) at any stage up until the start of

cross-examination.

CONCLUSIONS

196. As architects have long recognised, good design is the key to many aspects of land

development. Today the Government has placed good design at the top of its planning

agenda. Architects should rise to that challenge, embrace their enhanced role, deliver

sustainability By Design, and communicate the same, in order to secure consents.

CHRISTIAAN ZWART R.I.B.A

Barrister, 39 Essex Street, London WC2R 3AT [email protected] M: 07760 22 11 24 DD: 0207 832 1113


Christiaan Zwart RIBA CALL 1997 EDUCATION Abingdon School Newcastle University City University DEGREES AND ACADEMIC AWARDS 1989 First Class BA (Architecture) with Honours 1992 First Class Bachelor of Architecture with Honours 1995 RIBA Part III 1996 Common Professional Examination (City University) 1997 Bar Vocational Course (Inns of Court School of Law) Duke of Edinburgh Scholarship (Inner Temple) CAREER Since coming to the Bar in 1997 Christiaan has specialised in building-related public and private law - planning and environmental law, European law, and commercial and property law. His experience ranges from compulsory purchase for transport infrastructure projects, through proposals for land clearance and for speculative urban regeneration, to environmental assessment of aviation fuel depots in Hong Kong, rock salt mines for waste in Cheshire, rock’n’roll venues in Camden, licensing and operational regulation, contaminated land and construction adjudication. Christiaan is on the Treasury Solicitor’s C Panel and is instructed by the Environment Agency. He is qualified to accept instructions under the Bar Licensed Access Scheme. He is also CEDR mediation trained. Christiaan’s technical qualification and background gives him added perspective in his legal practice. He has constructional expertise having qualified as an architect before coming to the Bar and remains a corporate member of the RIBA. Since 1986 his architectural experience has included work on many types of new build and redevelopment including Olympic projects, offices, retail, residential, leisure buildings including hotels and cinemas, banks and airports, and community buildings, mostly with CAD. Many of these projects were within sensitive environmental areas and others involved listed buildings. He has also worked on projects in France, Czechoslovakia and India. During his RIBA Part II year in industry, he worked in Barcelona on its Olympic projects. After graduation in 1992 his design entry for an international architectural competition was commended amongst 150 entries by international firms.


EXPERIENCE/PRACTICE AREAS/IMPORTANT CASES Environmental, Planning & Regulatory Administrative: central & local government Construction & Engineering Infrastructure, Utilities & Compulsory Purchase Historic buildings Licensing & Permitting Planning Magazine places Christiaan in its top under 20 senior juniors. Chambers and Partners 2003-2004 places 39 Essex Street joint leading chambers for Environmental law in London. The Lawyer Award 2005 shortlisted 39 Essex Street Chambers for Environmental and Planning Chambers of the Year, citing its CPO work at Camden Town TWA Tube Inquiry in which Christiaan was instructed. The Lawyer Award 2004 shortlisted 39 Essex Street Chambers for Pro Bono Chambers of the Year for its work in saving Nelson from Pathfinder demolition, and in which Christiaan was instructed. Christiaan is a property development barrister. His practice encompasses public and private law involving built development and structures, their construction, environmental impact, operation and other consequential impacts, and related disputes. He practices within the inter-related 39 Essex Street practice groups of Environmental and Planning, Parliamentary, Commercial, and Oil, Gas and Utilities. His environmental, planning and regulatory practice encompasses advocacy and advisory work in representing all parties, from developers and local authorities to interested parties, at hearings, inquiries and in the Courts. His experience includes land development and urban regeneration, the historic and natural environments, compulsory purchase, highways and infrastructure including tube station development and aviation fuel facilities, design issues, statutory utilities, environmental enforcement and injunctions, EIA and IPPC, the contaminated land regime, waste, minerals and landfill, water resources and flooding, pollution offences and nuisance, health and community care development, section 106 agreements and their modification, property and boundary disputes including injunctions and freezing orders, transactional environmental liability and planning due diligence, entertainment related licensing, and technical permitting. He advises on a range of property development matters including, for example, Tramlink Croydon Limited at the Park Place planning and compulsory purchase inquiry; the House of Commons OPDM: Housing, Planning, Local Government and the Regions Committee “Empty Homes and Low-Demand Pathfinders”, Session 2004-2005 (HC 295-1 at p.34); Camden Town


Tube Station and South Kensington Tube Station redevelopments; obtaining trust development consents; matters relating to the re-constitution of the Commission for Architecture, Building, and the Environment (CABE); the Police Authority on telecommunications masts in conservation areas, parties to planning appeals; asbestos contaminated land and consequential residual Part IIA liability; section 106 enforcement; highways and rights of way; Lands Tribunal matters, and on technical environmental risk assessments. Aside from other section 78 planning inquiries and hearings, his significant inquiries include: Croydon Park Place scheme, the first Urban Development Act 1993 proposals by English Partnerships for Edge Lane West for a new road and development in Liverpool, City of Culture 2008; the London Underground cpo proposals including the Electric Ballroom for development of Camden Town Tube Station by a Transport and Works Act statutory instrument; the 2005 Southern Water Drought Order Statutory Instrument; a new school for autistic children in the Surrey green belt; Housing Act 1985 clearance order cpo of 450 homes proposed for the first Pathfinder demolition in Nelson, Pendle; 22 storey residential skyscraper adjacent to Tate Modern; residential developments in conservation areas,; enforcement and proposals for listed buildings; the first section 106B Planning Act 1990 modification appeal; haulage & reclamation yards, and waste sites in the Greenbelt; EIA waste transfer station in the East Sussex AONB; 50 hectare mixed use B2/B8 & C3 EIA development at RAF Quedgeley, Gloucester; 130 hectare mixed use B2/B8 & C3 EIA development at RAF Lympne, Folkestone; residential care homes in Surrey; Blackfriars CPO, Gloucester, mixed leisure/retail urban regeneration; and the Millennium White Horse at Folkestone above the Channel Tunnel Rail Terminal. His important cases include: Shiu Wing Steel v Director of Environment of Hong Kong (2004 -2006)- the Final Court of Appeal in Hong Kong quashed the grant of an environmental permit by the Director of Environment in respect of EIA Development comprising an aviation fuel storage depot serving Hong Kong airport proposed adjacent to a neighbouring hot steel mill. Christiaan acted as junior for the owner of the steel mill. The challenge entailed analysis and consideration of the Hong Kong EIA regime, international EIA law, a technical study brief, and HSE evidence of the environmental risk of a collapsing column of aviation fuel sloughing into the mill with attendant immolation; Park Place cpo, Croydon (2006) – acting on behalf of objector Tramlink Croydon Ltd to maintain tram operations through Croydon during the currency of the retail development. Edge Lane West, Liverpool (2005 & 2006) – acting on behalf of objectors under Direct Professional Access provisions at inquiry in respect of the first use of section 162 Urban Development Act 1993 powers by English Partnerships for cpo and speculative regeneration for road and development in the 2008 City of Culture. The inquiry included analysis of the housing market. Statutory challenge proceeding including into the scope and application of powers. Further instructed to draft pleadings for the High Court proceedings, the Court agreed with Christiaan’s objection and the pleadings: namely, that EH had acted outside its statutory power. Southern Water Drought Order (2005) – acting on behalf of the Environment Agency in respect of the inquiry into the terms of the Statutory Instrument 2005 No. 2088: The Southern Water


Services Limited (Weir Wood Reservoir) (Drought) Order 2005. The inquiry included consideration of water compensation required for maintenance of stream biodiversity; Camden Town Tube Station Development CPO and TWA Inquiry (2004)- acting on behalf of the Electric Ballroom objecting to London Underground Limited’s proposals under the Transport and Works Act proposed statutory instrument to CPO, and a Planning Act 1990 and Listed Buildings Act 1990 proposal to develop land for tube train infrastructure and commercial property development. The inquiry considered technical deep concrete box foundation and deep fire evacuation evidence; Kent Nos 1 & 2 v First Secretary of State (ENDS Report 361, February 2005 at page 58) - challenges to the planning permission for EIA development comprising use of salt mine for waste disposal purposes, where the particularised nature of the proposed waste and its environmental impact was deferred for IPPC assessment. The challenges entailed analysis of the environmental risk assessment undertaken of gaseous release engendering underground explosion or employee asphyxiation, and the relationship between EIA and IPPC regimes in the domestic and European contexts; Lough v First Secretary of State [2004] 1 WLR 2557 - statutory challenge to planning permission for 22 storey tower block outside Tate Modern causing some £1m diminution in neighbouring property values and land interests, and interference with television reception for a city block; R (Prokopp) v London Underground & Others [2004] JPL 44 – the challenge considered the meaning of “development consent” and substantial compliance within Environmental Impact Assessment Directive in respect of the development of East London Extension Line regeneration scheme at Bishopsgate Goodsyard, and the use of section 106 Planning Act 1990 statutory contracts in place of planning permission; Smith v First Secretary of State [2003] JPL 1361- acting in a statutory challenge to a grant of planning permission for EIA development comprising landfill in disused quarry where environmental assessments appeared left over to the IPPC regime, and where a section 106 agreement was used to secure a mitigation measure; R (PPG11 Ltd) v Dorset County Council: (2003) CO/1084/2002 – acting for the interested party in considering the approach to EIA Regulations1999 Schedule 4 and the grant of planning permission conditions dealing with mobile creatures; R (Hammerton) v London Underground [2003] JPL 984 –consideration of the demolition of Bishopsgate Goods Yard by London Underground Limited of historic structures under a TWA statutory instrument for East London Line Development, but without the benefit of planning permission; Nelson CPO Inquiry No 1 and No 2, SRB Regeneration Scheme, Pendle (2003 & 2004) – acting for objectors at both inquiries in respect of the first Pathfinder HMRI section 289 Housing Act 1985 cpo and clearance inquiry of 450 homes adjacent to a conservation area;


Gloucester Business Park, section 106B Planning Act 1990 inquiry (2001)- acting on behalf of the City Council in the first section 106B modification/discharge appeal seeking revision of the terms of a section 106 statutory agreement requiring construction of a road serving an office development. The inquiry considered technical evidence on road construction and engineering; Millennium White Horse, Folkestone (2001)- obtaining planning permission on appeal for chalk cut in SSSI, AONB and candidate European SAC to assist in town's regeneration, with English Nature objecting. Constructed by Ghurkas in 2003; Blackfriars Regeneration Scheme, Gloucester (2000)– local authority promoting a mixed use/retail and leisure urban regeneration scheme within a conservation area of central Gloucester under section 226 of the Planning Act 1990 cpo powers, involving a car park over a scheduled ancient monuments, two cinemas, and a shopping mall. The cpo entailed detailed consideration of the technical and engineering requirements of British Telecom and Midland Electricity Board, and of constructing foundations through a scheduled ancient monument; Hudscott Estates (East) Ltd v Secretary of State for the Environment & Wokingham District Council (82 P&CR 71) - concerning purchase notices & Schedule 3, Planning Act 1990 and whether Act contemplated right to rebuild from old foundations; Collier v Collier (2004)- private property dispute over scope of interests in London nightclub and cogency of leases, including freezing orders; Eid v Al-Kazemi (Nos 1 & 2) (2004 & 2005)- private property dispute over several properties subject to freezing orders, entailing issues of unconscionable bargain and variations to agreements. PUBLICATIONS Christiaan is the author of the 39 Essex Street publication: “Licensing Guide”, available by email request from Chambers. He is the author of “Town and Country Planning - the Built Environment” chapter of the practitioners’ procedural text “Civil Appeals” (EMIS), and case editor for “Environmental Due Diligence and Risk Management” (EMIS), identifying case law of practical use and that is of day-to-day relevance to industry. He is also a contributor to Grand Designs Magazine, featuring in its November 2005 issue. MEMBERSHIPS Christiaan is a member of the RIBA, PEBA, UKELA & ELF.

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