Merry Christmas and a Happy New Year!

Merry Christmas and a Happy New Year

from all of us at Alsop Verrill

This year instead of sending Christmas cards,

Alsop Verrill will be supporting the following three charities:

The Royal Hospital for Neuro-disability, Putney

http://www.rhn.org.uk/support-us/ways-to-donate/

The St Martin-in-the-Fields BBC Radio 4 Christmas Appeal

http://www.smitf.org/christmas

Médecins sans Frontières

http://supportus.msf.org.uk/support_donate

We wish you all a very Merry Christmas!

Please note that our office wil be closed from Friday 21st Dec (5pm) to Thurs 3rd January 2013 (830am)

Dundee and the Sequential Test: A Question of Suitability

You have probably heard about an important judgment handed down by the Supreme Court that has significant implications for the sequential test for main town centre type development, like retail, offices, and leisure. It is so important to what you do, that we wanted to remind people about it and clarify its main points. 

In short, it means that a sequentially preferably site must be suitable to accommodate the development as proposed (with due regard to flexibility), rather than being suitable for the development for which there is an acknowledged ‘need’.  The result is that a local planning authority cannot refuse an application for an out-of-centre development on the basis that a smaller development is all that is needed, and which might be accommodated on a site in or on the edge of the town centre.

We have summarised the Judgment below - please get in touch with us if you would like to discuss how this could affect your development proposals.

The Decision

In Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, on the 21st March 2012 the Supreme Court rejected Tesco’s challenge to Dundee City Council’s decision to grant planning permission to an Asda store.  The case hinged on whether, in making its decision, Dundee City Council had misunderstood one of its policies relating to the sequential test.  The judgment established two important principles relating to interpretation of planning policy generally, and the sequential test specifically.

Firstly, it established that, contrary to popular belief, decision makers cannot interpret planning policy in any way they choose, subject only to the limits of rationality.  Rather, the interpretation of planning policy is a matter of law. 

The second principle follows on from the first, in that it established the objective interpretation of the sequential test within planning policy.  The key question was, when assessing whether a ‘suitable’ town centre site was available, whether ‘suitable’ meant suitable for the proposed development, or suitable to meet identified deficiencies in retail provision in the area.  It was concluded that the natural reading of the policy is that the word ‘suitable’ refers to the suitability of sites for the development specifically proposed.

The Dundee Judgment reinforced the views expressed by Lord Glennie in Lidl UK GmbH v The Scottish Ministers [2006] CSOH 165.  Lord Glennie said a site would be suitable in terms of policy only if it was suitable for, or could accommodate, the development as proposed by the developer.  The question was whether the alternative town centre site was suitable for the proposed development, not whether the proposed development could be altered or reduced so that it could fit into it.

Whilst the Dundee Judgment related to the application of Scottish planning policy, the judgment and statements hold true for planning policy in England.  A natural reading of paragraph 24 of the National Planning Policy Framework is that ‘suitable’ refers to suitability for the proposed development.  To say that ‘suitable’ refers to suitability to meeting an identified need would be to attribute a meaning to the policy which is not contained within the policy wording.

Dundee in Action

In granting outline permission at appeal for an out-of-centre foodstore in Newport, Shropshire, the Appeal Inspector’s comments on the sequential test support the Dundee Judgment that the suitability of sites should be assessed against the proposed development rather than ‘need’.  The Inspector noted that, in a previous appeal case, two sites near the town centre were found by an Inspector to be suitable, but that this was in the context of a proposal for a smaller retail unit.  The Inspector stated “even allowing for some flexibility it is difficult to see how either site would be suitable in terms of its configuration and size for the type of foodstore being proposed in the present appeal”.

Demonstrating Flexibility

The Dundee Judgment also made important statements upon the need for applicants to demonstrate flexibility.  The emphasis is on both flexibility and realism.  Lord Reed referred to R v Teesside Development Corporation, ex parte William Morrison Supermarkets plc and Redcar and Cleveland BC [1998] JPL 23, 43, and stated that

“to refuse an out-of-centre planning consent on the ground that an admittedly smaller site is available within the town centre may be to take an entirely inappropriate business decision on behalf of the developer”.

Lord Hope emphasised the need for the sequential assessment to function in the real world, stating

“developments of this kind are generated by the developer’s assessment of the market that he seeks to serve.  If they do not meet the sequential approach criteria, bearing in mind the need for flexibility and realism to which Lord Reed refers in paragraph 28, above, they will be rejected.  But these criteria are designed for use in the real world in which developers wish to operate, not some artificial world in which they have no interest doing so”.

The Dundee Judgment confirmed ,that a flexible approach must be  adopted towards development proposals.  Asda did not confine its assessment to sites which could accommodate the development in the precise form in which it had been designed, but examined sites which could accommodate a smaller development and a more restricted range of retailing.

Our Advice to You: Whilst you will need to demonstrate a degree of flexibility, this does not mean you have to compromise on the form and scale of development you consider to be necessary, based on your assessment of the market.

Planning and Heritage in Post-Conflict Kosovo

Ben Eley of Alsop Verrill is a heritage planner who was lucky enough to be offered the opportunity - courtesy of the EU and a combination of PEM Consult and Swedish NGO ‘Cultural Heritage without Borders’ - to take part in the first ever Beledije Regional Restoration Camp in Prizren, southern Kosovo.  This took place in the first Regional Cultural Heritage Centre in the Balkans.

Having declared independence on 17th February 2008, the new generation of the world’s youngest country, Kosovo, probably have bigger issues -  such as the small task of building the infrastructure of a peaceful society in the aftermath of ethnic conflict - than political wrangling over the merits of express permission for first-generation ‘super conservatories’. 

Closer to home, the Post-Big Society agenda has its own unique tensions as local communities are set to become divided along lines of outlook, privacy and right to light; yet this is somewhat put into context when compared with the enormous economic, social and environmental re-build faced by the newly crowned 'Kosovars'.

Beledije Regional Restoration Camp

Firstly, in the likelihood that you have never considered a trip to Kosovo before, Prizren is a beautiful city.  It is an ecclesiastical smorgasbord; a real melting-pot of east meets west where the minarets and church towers of the Ottoman and Orthodox townscape  compete with the wider renaissance architecture of pastel colours and terracotta roofs. All of this may be appreciated from the imposing medieval fortress which overlooks it.

The course introduced young architects, planners, craftspeople and historians to the holistic nature of heritage planning: from the theory and philosophy first espoused by the Society for the Protection of Ancient Buildings (SPAB), to contemporary theory in planning for the historic environment which has been developed, over time, by institutions such as English Heritage.  It combined seminars with work on site and left a new generation of young professionals ready to champion the cause of planning for better places.

Notwithstanding the much broader ‘place-making’ issues of building a new country; the provisional Kosovo Assembly took action soon after the 1999 war when they passed the ‘Law on Spatial Planning’ (Law number 2003/14) and adopted it for the purpose of:

‘‘ensuring rational spatial planning and development, achieving balance between development and preservation of open space and protection of the environment and bringing the spatial planning regime of Kosovo into consistency with European and International standards.’’

Under Article 14, all Municipalities are to prepare Urban Development Plans for all urban areas within their territories and these are to be strategic, multi-sectoral and determine long-term development projections and management of urban areas.

It all sounds very familiar.

The Prizren Conservation and Development Plan is a rather comprehensive document encompassing everything from strategic vision to socio-economic profiling including very detailed matters of land-use and urban design (such as the type of use acceptable and the length of fascias on individual buildings).  Despite multiple issues in actually implementing this plan, the intention is clear – that there is a desire for town planning and a realisation from above (rather than from below) of its importance to the future sustainable growth of Kosovo.   

Restoration in process

As one perambulated around the town one observed recent (largely UN, EU and US funded) initiatives of urban regeneration proudly indicated on signs erected by the Ministries of Culture and Urban Planning.  There was a very Mediterranean feel, with vital and seemingly viable shops spilling out onto the streets and squares and a general ambiance which, I for one, did not expect from a place emerging from deeply rooted ethnic conflict.

Despite this, at the time of writing, the unemployment rate in Kosovo is 45%, the highest in the Western Balkans; 37% of the population live in poverty and 17% in extreme poverty. Additionally, ethnic tension is again raising its head in Mitrovica, a region in the north with a significant Serbian minority. 

However, it is becoming evident, and it was my experience, that there is a genuine belief that planning and heritage will be fundamental to driving future growth and investment into the new State.  There are those within the built environment profession and in Government who, rather than seeing their inherited legacy as a hindrance to the need for economic growth, in fact, see it as part of the answer.

There has been much good come about through planning in Britain; we have been at the forefront in both the consideration  and the conservation of the historic environment.  Countries, such as Kosovo, look in our direction for guidance.  However, should they look today, they may be excused in thinking that sustainable growth owes more to the unimpeded proliferation of over-sized U-PVC conservatories and attic extensions.