83. Ending the lottery of design-based planning appeals (mediocre is not enough!)

A personal battle

For over two years I have been helping local residents fight a planning battle against a new development opposite my former home.  The fight is not against the principle of development but solely on its design merits.

The site, a two storey ex-warehouse used for many years as offices, was purchased three years ago by a developer intent on demolishing it and rebuilding as a more lucrative four storey block of single bed flats.  Throughout, officers supported the scheme, dismissing residents’ objections that the proposed development was too homogenous (undermining the sustainable mix of uses), too intrusive and over-bearing (on neighbouring homes) and too ugly.  Planning officers recommended it for approval twice and on both occasions the scheme has been knocked back by the planning committee.  Following an appeal it has now also been rejected by a Planning Inspector.

In this case, as so many others, the drive to deliver more homes – even if just a very few of the many thousands the particular local authority needs to deliver – seemed to trump almost everything else, and notably design quality.  To counter we constructed a comprehensive case against the proposals based on detailed townscape analysis, loss of daylight calculations, market analysis and architectural critique.  Of these the inspector chose only a single narrow aesthetic ground for refusing the scheme, the presence of a somewhat incongruous mansard roof!  I was surprised and delighted; delighted to win this latest round of the battle but surprised that the design of this single element was used to justify the rejection.

Rejected on appeal because of its ugly mansard
Rejected on appeal because of its ugly mansard

Is it a sign that the Planning Inspectorate is taking the new national policy on beauty to heart?

An uncertain picture

The approach of the Planning Inspectorate to design has long been a concern, with anecdotal evidence pilling up that decisions have been systematically placing design quality aside when faced with local authorities that are failing to meet their five year supply of housing land.  It was something that the Housing Design Audit for England confirmed through the case studies conducted as part of the work, namely that poorly designed major new housing schemes were getting through on appeal following rejections by local authorities on design grounds.

Such cases have long fed a perception that rejecting developments solely on the basis of design is inadvisable because it opens up local authorities to the possibility of costs being awarded against them at appeal.  In fact there has never been any evidence that this is more likely for applications argued on design grounds than any other, with the key test for design, as anything else, being that councils need to behave reasonably.  Consequently, a carefully reasoned case against the design of a proposal is never going to be subject to a successful application for award of costs.

Despite this, the uncertainly surrounding design appeals and the lack of confidence amongst many planners to argue the case on design grounds conspire to make design only rejections and subsequent appeals relatively rare.  To examine the subject, let’s look at decisions included so far in 2021 in The Planner decisions digest that have been decided largely on design grounds.  Five seem particularly relevant, four decided in the first half of the year.

Upholding design quality

First two appeals decided in March 2021 in which the original grounds for rejection were upheld.

The first involved the replacement of a former postal sorting office in Harrow with a six-storey building of 60 flats and commercial floor space.  In evaluating the scheme, the inspector found that the proposed new building was “intrusive and overbearing” in its scale, bulk and uninterrupted frontage and criticised the layout of the development for including six single-aspect, north-facing one-bedroom flats.  According to the inspector, the sun-tubes and light wells proposed to mitigate this latter concern only served to “emphasise the inadequacy” of the project.  A very clear conclusion followed that the scheme would “not achieve a high-quality building” and the appeal was dismissed.

In the second, the inspector rejected plans for 97 new homes (revised down from 128) proposed by Persimmon on the edge of Nunthorpe in Middlesbrough.  Here the local authority had previously rejected the proposals on the grounds that they departed from the Nunthorpe Grange Design Code which states that new housing must reflect the density and established character of other parts of Nunthorpe.  The guidance identified the appeal site as suitable for 18 dwellings per hectare, as opposed to the 33.6 proposed by Persimmon.  The inspector also found that the extensive use of rear parking courts would “increase both the actual and perceived risk of crime” and was also contrary to the code.  Again, a clear conclusion was drawn, this time that the proposals would “fail to achieve a well-designed place”, in conflict with the published design code, the use of which, he observed, was advocated in the National Design Guide.

The two decisions represent an interesting contrast, the first emphasising the challenges of designing at higher densities in urban areas, and the second of designing in lower densities in more rural settings.  Both came down on the side of reducing density in order to properly integrate with the character of their respective localities.

Trumping design quality

Next, I found two schemes from March and June 2021 in which the pursuit of design quality was trumped by other factors, notably the pursuit of housing numbers.

In this category, first, we have a proposal for 250 new homes on greenfield land near Tonbridge in Kent.  In this case the developer – Wates – contended that the council only had a two-year housing land supply while the council argued that they could count on a 4.3-year supply.  The inspector ruled that the uncertainly of supply and the failure of the authority to have an up to date (adopted) local plan meant that the balance tilted in favour of approval and that the harms to the local character and appearance of the landscape should be set aside in view of the benefits of the new homes.  Curiously, despite indicative design propositions being included in the application, the Inspector supported the developer’s request to largely set aside the local authority’s design policies on the basis that the application was for an outline rather than a detailed permission.  In doing so he argued that as they dealt with “detailed design” rather than “matters of principle” they were not relevant.  The case demonstrates the difficultly in properly testing the suitability of schemes for sites – in this case the impact on landscape character and appearance – when consideration of design matters is considered a mere detail and held over for later consideration.

A second appeal concerned 424 new houses by Fairview Homes on two related sites in Loughton, Essex.  In this case the council argued that both applications “lacked vision” and amounted to “generic placemaking” with an “over-provision of parking” undermining the pursuit of a lower carbon future.  The inspector disagreed, and citing the council’s housing shortfall, noted that there would be “very significant benefits” arising from the early delivery of housing at both sites.  Unlike the Harrow scheme, the fact that a minority of units would, in the inspector’s words, receive “very limited sunlight” and deliver poor living conditions was not considered grounds enough to reject the appeal.

In both these cases, design was seen as a significant factor in decision-making, but also one that could be compromised in the pursuit of other matters.  They revealed housebuilders and their consultants skilled at weaving their way through the policy landscape in order to bypass design considerations in favour of delivering housing numbers.

July 20th – a turning point?

The four cases from the first half of 2021 reveal that evidence of a stronger national emphasis on design quality in planning was, at best, mixed.  The appeal decisions support the anecdotal evidence that design is sometimes prioritised in national decisions on design whilst elsewhere it is considered expendable.  However, on the 20th July, a revised National Planning Policy framework was published with new very clear and unambiguous words on design: “Development that is not well designed should be refused”.  The test was now the achievement of ‘good design’ and not just the avoidance of ‘bad design’.  In other words the dominance of ‘mediocre’ design as revealed in the Housing Design Audit was no longer considered good enough.

Has this made any difference?  It is probably too early to tell, but I was heartened when, in connection with my own planning battle described above, the Inspectorate asked both applicant and objectors to submit supplementary cases reflecting on the implications of the new policy framework.  In my case, the new wording striving for beauty and by implication rejecting ugliness, seems to have been decisive.

An appeal decision decided in September, relating to an application by Taylor Wimpey for 307 homes in North Finchley, offers further cause for hope.  Like my own case, against officers advice the planning committee took it on themselves to reject the proposals solely on design grounds.  In this example the inspector needed to balance arguments that the shortfall in affordable housing in the Borough was significant (the scheme promised 35% affordable units) against the views of the committee that the density of the scheme, with blocks up to nine stories, was out of character with its low rise suburban context.  In summing up the Inspector concluded “The Government has stated that the design of new development is too often mediocre and that systematic change is needed to ensure that design and beauty is a core part of the planning process.  The national design guide and reforms to the NPPF further place emphasis on granting permission for well-designed buildings and refusing it for poor quality schemes. … For these reasons the appeal must be dismissed”.

Rejecting mediocre design

If other inspectors follow the lead, then July 20th may indeed be a turning point.  It may also represent a warning to those housebuilders (and it is certainly not all) that for too long have systematically played the system to get around previous warm words on design in our national planning policies but with little bite.  For my part I will be keeping a closer eye on those planning decision letters (somebody has to!).

Matthew Carmona

Professor of Planning & Urban Design

The Bartlett School of Planning, UCL


October 2021