Planning: The perils of presumption

The highly publicised legal battle over the redevelopment of Marks & Spencer’s flagship Marble Arch store in London threw the spotlight on how the balance between retrofitting or rebuilding existing buildings is treated in both planning policy and practice. Both sides of the retrofit vs rebuild debate put forward persuasive arguments including the impacts of decisions on the environment, heritage and local need as defined in local development plans. The M&S decision confirmed three things: the absence of a national policy presumption in England requiring retention of buildings; the need to start with the development plan requirements for the site when considering options for redevelopment (against which alternatives can sensibly be judged); and the need for realism – any alternative must be viable and deliverable for potential developers and investors. The policy landscape is evolving Some local authorities are considering “retrofit first” policies, arguing that refurbishment releases fewer emissions than demolishing a building and constructing a new one. The extent to which those policies are consistent with national and (in London) regional policies will be tested this year. Questions arising include: whether there is sufficient understanding of these policies’ impact on the pattern of growth, recognising that parts of central London are already deliberately “zoned” for optimum use of previously developed land in a way that supports the critical contribution of the capital to UK growth; whether carbon considerations should always trump townscape, employment and placemaking objectives; and whether the policies are coherent and compatible with predictability in a plan-led system. Doctrinaire approaches to policy, which leave little room to adapt decision-making to actual circumstances, rarely work in practice. The courts have long recognised that development plan policies may pull in different directions and the overall view of compliance with the plan requires a judgment that lawyers should generally keep out of. Engineering and policy tools for managing carbon issues have improved exponentially since 2021. In London, for instance, the rulebook for assessing whole life cycle carbon is increasingly transparent and sophisticated, and could be used as a starting point for other local authorities when tackling this issue. The Greater London Authority has led the way in assessing the carbon emissions of a building generated across its lifecycle, from construction to demolition. The suite of policies and guidance produced by the GLA offers an increasingly clear basis on how to work through optioneering, so buildings are retained where doing so still achieves the development goals and gives the best outcome in the public interest. Principle-driven planning The English planning system is much maligned, often unfairly. In fact, there is a clear track record of taking controversial planning debates, considering the issues and reducing them to principles that can be applied sensibly to future applications. The establishment of principles has gradually removed much of the need for the English courts to define approaches to planning, although novel questions still arise. Planning decisions that objectively result in the most satisfactory outcomes are based on vision but rooted in principles and policies that can be applied objectively. The planning system has matured in a way that ensures outcomes today are very rarely purely subjective. Section 38(6) of the Planning & Compulsory Purchase Act 2004 states that applications for planning permission must be determined by local authorities in accordance with the relevant development plan for an area, unless material considerations indicate otherwise. The courts have confirmed this means: understanding each relevant development plan policy; applying it to the circumstances of the application; considering alignment with individual policies and then looking at the development plan as a whole; and thinking about other relevant factors and how much weight to give them compared to the development plan position. Breaking each task down and doing them thoroughly and properly should generate objective outcomes that reward responsible choices by all parties. The courts also rightly expect decision-makers to avoid arbitrary, perverse or inexplicable decisions, and take a dim view of lawyers who attempt to make the planning process a legal assault course. The future The M&S decision shows how local circumstances and a sensible approach can be used to decide applications where there is a debate over whether to retrofit or redevelop. It has helped clarify that there is no “retrofit first” policy nationally. It also laid bare some of the problems that creep in where policies are adopted without a transitional period. One of the challenges for decision-makers in the medium term is where to draw the line on the volume of information required to get complex schemes across the line. For policy-makers, there is a need to close the gap in the stages of the policy cycle, so that investment in place-making, job creation and renewal do not get stuck in the weeds. Roy Pinnock is a planning partner at Dentons