87. Appealing design – the tide turns on poor and mediocre housing design

A Housing Design Audit for England revealed that three quarters of new housing developments were mediocre or poor when assessed against a broad basket of urban design considerations.  Given that, why isn’t more of it simply rejected by the planning system?

Answers can be found in earlier Place Alliance research which examined Councillors’ Attitudes to Residential Design.  Their views can be summarised in four quotes:

“There is no point in turning down on design grounds as an inspector will overturn on appeal”

“Design is a very weak reason for planning refusal and likely to lead to costs against the council”

The pressure is to come up with the numbers, so design is less important than the delivery of the sites”

Officers are reluctant to decline because they are fearful of the stress, timewasting and cost of appeals”.

For too long the balance of risks between giving consent to poor quality development and losing the inevitable planning appeal has, more often than not, tilted in favour of not fighting the battle and instead simply giving consent to poor and mediocre schemes.  The result has been that poor and mediocre design have been getting through the planning system, further raising local opposition against new development in a manner that seems self-defeating if the aim is to build more homes.

The balance shifts

On the 20th July last year, a revised National Planning Policy Framework (NPPF) was published containing new, very clear and unambiguous words on design.  It says:

“Development that is not well designed should be refused” (para. 134, 2021).

The wording stands in sharp contrast to that in the 2012 version of the NPPF which simply required that:

“Permission should be refused for development of poor design” (para. 64, 2012).

This means that the test is 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 A Housing Design Audit for England is no longer considered good enough.

The new policy also went further to unambiguously extend the definition of what is considered ‘good design’, to aesthetic concerns; in the past regarded as the most subjective of planning issues.  This has been introduced care of a statement added to the new policy calling for the:

“Creation of high quality, beautiful and sustainable buildings and places” (para. 126, 2021).

So has this made a difference?  Evidence in our new Place Alliance report – Appealing Design – suggests yes!

Examining design-based planning appeals

First, what we did.  In order to examine design related planning appeals, all English appeals reported in the weekly Decisions Digest from The Planner magazine, were examined.  Around 400 appeals are written up annually in this source, with links provided to the original planning decisions.

Around half of major planning applications in England are included in the Decisions Digest, ensuring that a representative sample of appeals could be analysed.  From this source it was possible to identify 32 applications heard in 2021 where design was the major grounds for refusal; 12 in the first half of the year, prior to the change of policy on July 20th, and 20 following the change.

In each case the Inspector’s decision letter was examined as well as application documents lodged on the relevant planning portals for each local authority.  Any separate applications for award of costs were also examined.  Together these gave a good insight to the issues at stake and the decision-making process, and on that basis conclusions were drawn.

Pre-July 20th – a lottery

Analysis of the pre-July appeal decisions supports the anecdotal evidence that design quality was sometimes prioritised in decisions made by the Planning Inspectorate, while elsewhere it was considered expendable.  The result was a lottery that, understandably, made local planning authorities reluctant to reject developments on design grounds.

Some decisions came down in favour of supporting local character and living conditions.

“Site cramming” rejected in Horley
“Site cramming” rejected in Horley

But a majority clearly prioritised housing numbers despite the poor quality of design.

“Underminning landscape character” but still supported in East Malling
“Underminning landscape character” but still supported in East Malling

While, prior to July 2021, the picture on design related appeals was not as one-sided as the fears of councillors might have suggested, analysis of twelve appeal cases from the first half of 2021 revealed that implementation of the then policy on design was, at best, inconsistent.

Post-July 20th – improved odds (three times better)

Analysing the post-July cases, it was immediately apparent that a marked shift in the likelihood of local authorities successfully defending design-based appeals had occurred.  The shift was particularly apparent in the arguments used by Inspectors who, on the face of it, seemed to have been liberated to consider design on equal terms with other factors.  In doing so they regularly referenced the changed policy position in the NPPF, as well as guidance in both the National Design Guide and National Model Design Code.

“Wanting for discipline” in Brighton
“Wanting for discipline” in Brighton

Comparing the decisions after July 20th to those before, the odds in favour of local planning authorities winning cases on design grounds had shifted from just 5:7 (against) to 13:7 (in favour).  In other words, previously there were more losses than wins (for local authorities), and now there are close to two times more wins than losses.  Extrapolating to account for the shorter period covered by the research after July 20th (five months as opposed to seven), the success rate for local planning authorities at design related appeals was three times better than before.

“Incongruous” in Earls Colne
“Incongruous” in Earls Colne

Compared to historical trends, local authorities were succeeding at design appeals in fewer cases than the national average for all appeals in this class of development.  Now they are running significantly ahead of the national average when the focus is on design.

“Heavy and oppressive” in Newcastle
“Heavy and oppressive” in Newcastle

Design quality seems no longer to be set aside as a sacrificial lamb for other factors, namely housing numbers or viability concerns.  Indeed 100% of the post-July 20th design-related appeals examined during the research were decided on their design merits with quality considered on equal terms to quantity.

Celebrating planning – but not everywhere!

The research can be seen as evidence of the vital importance of planning’s regulatory function, which – when working well – prevents untold damage to the country’s cities, towns and villages.  This unsung and often invisible function (because rejected schemes do not get built) deserves greater celebration.

Less positively, it is no surprise and no coincidence that of the thirty-two design related appeals examined, twenty six were in London or the South-east, with three in the Midlands, three in the North and none in the South-west.  While the numbers of major housing developments nationally are heavily weighted to the South-east, this degree of skew in the appeals data seems to reflect a particular reluctance to challenge design outside of London and the South-east.

It reflects findings in A Housing Design Audit for England that generally demonstrated poorer design outcomes outside the South-east, and wider reports that planning in these regions has suffered from particularly deep funding and associated service cuts.  The appeals data demonstrates further regional disparities with significant ‘levelling up’ implications.

Local authorities should not fear the award of costs

Turning to the spectre of costs.  Of the thirty-two appeals reviewed, eight were accompanied by an application for costs, but in only two of these were costs actually awarded, in both cases because of ‘unreasonable’ process, variously because arguments were being:

  • inappropriately applied, e.g. at the wrong time, when it was too late given earlier decisions
  • inappropriately justified e.g. without a clear contextual justification
  • applied in the absence of a robust planning judgement e.g. balancing all relevant factors that should inform planning decisions.

Importantly, in no cases were costs awarded because design was considered an inappropriate concern or any less important than other factors.

A new era for design in planning?

For decades local planning authorities up and down the country have been reluctant to refuse poorly designed residential and other developments on design grounds.  Six perceptions have underpinned this reluctance:

  1. Design is too subjective
  2. Quantity not quality is prioritised
  3. Housebuilders are too formidable to battle
  4. Good design takes too long to achieve
  5. Design is an afterthought
  6. Costs will be awarded on appeal

Based on the analysis, none of these perceptions are any longer true (some never were).  The tide has turned on design quality and it is time for local authorities to stand up against poor and mediocre housing design, rejecting it when they see it based on carefully reasoned objective decision-making underpinned by local contextual analysis, an assessment of the planning balance, and by relevant national and local policy and guidance on design.

 Properly done, the consequences of standing up to bad design is unlikely to be negative and, over time, can help to build a local culture whereby design quality and not design compromise is the expectation.  Surely this should be the minimum that we should expect.

Matthew Carmona

Professor of Planning & Urban Design

The Bartlett School of Planning, UCL