It’s fair to say that 2021 probably won’t be remembered with any great fondness. But in late July – as holidaymakers sweated over changes to the red list and grappled with the guidance on day two testing – the planning world was preoccupied with the government announcement on building beautiful places and the importance of design in the planning system.
“Banishing ugly developments” was the strap line, as Robert Jenrick, the then housing secretary, announced a revised National Planning Policy Framework, the publication of a new National Model Design Code and the establishment of a new Office for Place. Design was back at the top of the agenda. The press release harked back to the glory days of the post-war planning system, noting that good-quality design was to be embraced and rewarded with consent, while “the ugly, unsustainable or poor quality” would be roundly rejected from then on in.
As the year drew to a close, the effects of the government’s summer flurry of activity began to manifest themselves in a number of significant appeal decisions, with design issues being thrust to the fore. Here we take a look at the recent treatment of design issues and consider what this is likely to mean for those negotiating the new design-led planning system.
What’s the background?
In 2020, the Planning for the Future white paper (now, of course, on ice) brought to the fore the concepts of design quality and beauty in plan-making and decision-taking. Following a consultation and much gnashing of teeth within the industry about the many different meanings of “beauty” and “good design”, the government went live in July 2021 with a revised NPPF and a new NMDC.
In the government’s own words, these documents represent its “commitment to making beauty and place-making a strategic theme in national planning policy”.
To that end, the NPPF was updated to make clear that well-designed, beautiful and safe places are core to the overarching objectives of the planning system. The updated chapter 12 (Achieving well-designed places) expands on this, opening with the assertion that the creation of high-quality, beautiful and sustainable buildings and places is fundamental to the purpose of the planning and development process.
How is this to be achieved? The first step is for planning authorities to establish design guides and codes which are consistent with the principles of the National Design Guide and NMDC, but which reflect local character and design preferences. In the absence of locally produced guides and codes – which will undoubtedly take thinly resourced planning authorities some time to prepare – the national documents should be used to guide decision making.
Paragraph 134 establishes the decision-making framework. Development that is not well designed should be refused, especially where it fails to reflect local design policies and government guidance on design. On the other hand, significant weight should be given to development which reflects local design policies and government design guidance, and/or outstanding or innovative designs which promote high levels of sustainability or help raise the standard of design more generally in an area – so long as they fit in with the overall form and layout of their surroundings.
How is the design-led approach playing out in practice?
It didn’t go unnoticed that the revised NPPF thrust design into the limelight at the same time as Liverpool Maritime Mercantile City was removed from UNESCO’s World Heritage List. This removal was due to the negative impact of the design of new development on the waterfront’s “outstanding universal value”.
As that decision made abundantly clear, the importance of good design is paramount, and few would argue that consent should be granted for badly designed developments. But design is as subjective as it is contentious.
Following the changing of the guard and a rebranding of the Ministry for Levelling Up, Housing and Communities in September, late 2021 saw the first major decisions of the new secretary of state trickle through, giving the planning and development industry a sense of how the golden thread of design would be woven in practice. Let’s take a look at the direction of travel.
Westferry Printworks
The dismissal in November 2021 of the Westferry Printworks appeal – involving the reversal by the secretary of state of his predecessor’s now-infamous decision to grant consent – owed much to the design impacts of the scheme and its failure to accord with the provisions of the revised NPPF.
Local character and context were particularly important to the secretary of state, who found the height, scale and mass of the proposal would “fail to respond to the existing character of the place” and would “not enhance the local context by responding positively to local distinctiveness”.
The secretary of state’s conclusion that the scheme “would not represent high-quality design which responds to its context” carried significant weight against the proposals, contributing to the dismissal of the appeal.
The Tulip
In the heart of the City, the proposed development of the 300m high Tulip viewing gallery fell foul of the focus on design, with the secretary of state finding that “design as a whole carries significant weight against the proposal”.
In informing that view David Nicholson, the inspector, tackled head-on the six criteria for good design which are set out in paragraph 130 of the NPPF and which were carried over, unscathed, from the previous version of the document. Addressing function, visual attractiveness, sympathy to local character and history, sense of place, site optimisation and inclusivity and accessibility, the inspector found the proposal to be lacking in each respect.
Redressing the planning balance?
Although design certainly isn’t the be all and end all, gone are the days where mediocre design could easily be offset in the planning balance by other considerations perceived to be more pressing such as housing delivery and development viability.
The North Finchley Homebase decision is a case in point. The principal issues for the inspector to consider were the effect of the proposed development on the character and appearance of the area, as well as the planning authority’s ability to demonstrate a five-year housing land supply. Although the scheme represented an “appreciable contribution” to redressing the “significant” housing land supply shortfall, the inspector found that it had not been shown that the scheme met the “important criteria which support one of the overarching objectives of the NPPF… to foster well-designed, beautiful and safe places”. While the scheme maximised the potential for densification of the site, it “[failed] to respond appropriately” to policies on design, with “the tallest blocks… a step too far”. Housing delivery couldn’t override design considerations.
Similarly, in the Brighton Marina appeal, the secretary of state concluded that the developer’s proposal of up to 1,000 new homes (including affordable homes) should carry “very significant weight” given the planning authority’s inability to demonstrate a five-year housing supply. However, this was outweighed by harm to natural and heritage assets, as well as the “significant weight” afforded to the failure to accord with the NPPF policies on design.
What are the implications?
The secretary of state’s decisions toward the end of 2021 give a clear steer as to the direction of travel. Good design – with its many different meanings – is of critical importance and, looking forward, we can expect design to receive even greater scrutiny in plan-making and decision-taking terms.
At the plan-making stage, the challenge for planning authorities will be how to harness and manage local engagement to reach a consensus on what constitutes good design, local character and local design preference.
Because of the front-loaded process, landowners, developers and promoters will need to be alive to policy preparation if they wish to influence the design parameters for an area; making representations at the right time and ensuring that their influence is felt in the preparation process.
When it comes to decision-taking, the reforms – and the importance given to them by government – may mean that planning authorities feel emboldened to treat proposals in a more forthright manner when it comes to design, requiring applicants to go the extra mile.
Developers will note Nicholson’s comments in his Tulip report that “the concept of beauty or otherwise, for this appeal, is in the eye of the beholder”. The subjectivity of high-quality design and beauty, when set against the stringent policy requirements, introduces clear risks from the point of view of those promoting schemes.
These risks can be mitigated to some degree by really interrogating scheme design at the pre-application stage and, in particular, stress testing schemes against the criteria in chapter 12 of the NPPF (in particular the “checklist” in paragraph 130 and the decision-making framework in paragraph 134).
For many applicants, this will be par for the course. For some schemes, though, this may involve going back to the drawing board.
David Wood is a senior associate in the planning team at Hogan Lovells International LLP
