Comment
To reuse or redevelop? It’s not always black and white; or even green and greener
Following last week’s significant High Court decision to overturn the Government’s refusal of the proposed redevelopment of the flagship Marks and Spencer store on Oxford Street, Senior Director, Mat Jones and Director, Sustainability and ESG, Fiona Lomas-Holt give their views on the judgment and consider the future implications.
The most notable thing about the High Court’s judgment to quash the Secretary of State’s (SoS) decision to refuse the proposals for the redevelopment of the M&S store in London, was that few people seemed surprised by the outcome.
While it is easy to say “I knew it!” after the event, this does genuinely seem to a case where, regardless of views of the merits of the proposals themselves, most people anticipated that the court would correct the erroneous misinterpretation and misapplication of national planning policy that led to the controversial decision to refuse the proposals in the first place.
Few planning practitioners had suggested that (what is now) Paragraph 157 of the National Planning Policy Framework (NPPF) which supports the transition to a low carbon future in a changing climate and which encourages the re-use of existing resources, could reasonably be construed as representing a “strong presumption in favour” of the reuse and repurposing of existing buildings. Sometimes, no matter how hard one tries, the wording of the policy has to be taken to mean what it says. And Paragraph 157 says nothing about a strong presumption. For that reason, the court suggested that the SoS “has not applied the policy, he has re-written it”.
The consequences of delay
As many others have commented, including eloquently and comprehensively by Zack Simons (in his trademark style), the main scandal seems to be that it was even necessary for the court to reach the judgment it did, when so many professionals, advisors and decision makers had already taken care to ensure an appropriate balancing of the key considerations, based on extensive technical evidence, produced by appointed experts.
Indeed this is what appears to have happened at several stages in a protracted process; including by qualified planning officers at Westminster LBC; the Greater London Authority; the Members of Westminster’s planning committee and in the end by a highly experienced inspector, over a year ago, following a lengthy inquiry, involving a number of expert witnesses and detailed evidence, taking account of the significant level of common ground between the parties.
There are of course consequences from such delays, including the missed opportunity for major investment together with the host of associated benefits it could bring, not least those relating to the sustainability of the new proposed buildings, which would arguably set a new standard and example for others to follow.
Some may suggest that the decision to call-in the planning application, and then refuse it, may have been politically motivated. At least in part, and giving some benefit of the doubt, there was a degree to which the SoS may have been making the case for planning decisions to involve a greater level of consideration of the carbon impacts resulting from demolition and redevelopment. Although given the number of revisions to national planning guidance introduced over the last year, one might have assumed that if the Government had something to say about the approach to be taken in situations such as the M&S application, then they had plenty of opportunity to be explicit about it.
The impact on future cases
However, it would be entirely wrong to presume, or even imply, that every future case can or should entail a straight forward balance of whether it is right or wrong/good or bad to demolish an existing building in favour of redevelopment, notwithstanding whether the replacement itself achieves high standards of quality and sustainable design.
In common with all major redevelopment and regeneration projects there will continue to be many complex and nuanced issues to consider. Much will depend on the relevant local circumstances, including the policy context being used to determine the overall acceptability of the proposals. This complexity is nothing new for local planning authorities across the country, including those responsible for the planned renaissance of many urban areas outside of London.
The declaration of climate emergencies by many of these local authorities has been widespread, although in only a small number of cases has so far resulted in meaningful planning policies that can be applied consistently, based on an agreed approach to the assessment of carbon emissions against the relative advantages of different sustainable construction techniques, never mind other material considerations in the planning balance.
A balancing act
The consideration of carbon impacts in the planning industry will undoubtedly, and rightly, become much more prevalent over the next few years as we head towards the Government’s stated aim of reaching Net Zero by 2050. Indeed it already is. But it is critical that this growing level of attention towards the climate impacts of the development and construction industry is coupled with a much greater level of focus on the evidential assessment of carbon impacts when balanced against various other considerations, even where decisions on the merits of demolition may seem clear cut on their face.
Otherwise, there is a very real risk that plans for transformative regeneration across the country, which will serve to meet identified development needs such as new affordable housing, and which will deliver multiple other benefits for the vitality, health, wellbeing and future economic prosperity of many communities, could become excessively burdened by a potentially onerous starting point that “the most sustainable building is the existing one”. Even though we remain in the formative stages of the planning system’s evolution towards the proper and effective consideration of carbon impacts, we already know that is not always true.
Planners, supported by various technical experts, will need to continue to apply judgement and good sense to the balancing of different considerations that are always inevitable for major development proposals, especially in large urban areas.
It has been suggested that this might involve a move towards a ‘retain/retrofit first’ principle to the assessment of options for the potential reuse and repurposing of buildings (as is already being formulated into policy in London and Edinburgh), depending on what is feasible and viable, and subject to the level of accordance with what national policy requires.
I could be prepared to support such an approach given the huge scale of the growing climate challenge. However, what can’t happen is that decisions are made, even in good faith, to protect against climate change without first weighing up the actual expert evidence produced for a range of key considerations, including those relating to the carbon effects, enabling a conclusion to be reached about what that evidence tells us about the right and justified judgement to be made in each individual case.
As the inspector for the M&S inquiry correctly summarised, there are always many competing considerations when dealing with major urban regeneration projects, not least where a whole range of interests are directly and indirectly affected. The weight to be given to these considerations will always vary based on the circumstances and timing of each balanced assessment and the relative strength of available expert evidence.
The right answers and outcomes in each case won’t be achieved by a binary approach or even necessarily by applying a hierarchy to the relevant considerations involved. When facing into a climate crisis, as undoubtedly we are, this will mean collectively seeking a sustainable, greener and more urgent emphasis on the carbon effects associated with development to ensure these are properly and fairly assessed when making decisions. That’s always been the nature of planning and the appropriate balances that need to be struck in each case in the interests of future generations.
To further discuss the judgment and its planning implications, please contact Mat Jones or Fiona Lomas-Holt to discuss carbon impacts associated with redevelopment.
7 March 2024