APPEALING DESIGN

The evidence of planning appeals and the need to reject poor and mediocre housing design

Main findings
Recommendations
About the Research
Impact

Overview

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 – design has been seen by many as too subjective, potentially opening up planning judgements to challenge.
    2. Quantity not quality is prioritised – in the past government guidance has prioritised other factors over design quality, most notably housing supply.
    3. Housebuilders are too formidable – pragmatically some authorities have taken the approach that it is better to negotiate and accept what you can get, rather than refuse schemes, given that housebuilders will eventually wear them down and get their own way.
    4. Good design takes too long – some believe that negotiation on design takes too much time, time which already stretched planning officers don’t have.
    5. Design is an afterthought – practices of determining the principle of development (in an outline application) prior to determining how schemes will be delivered in design terms (in reserved matters) undermine design-based arguments from the start.
    6. Costs will be awarded – for all the reasons above, cash strapped local planning authorities worry that refusing on design will open them up to costs being awarded against them at appeal.

Drawing on recent planning appeals data, this report reveals that none of these perceptions are any longer true (some never were).

Appealing Design is supported and endorsed by Civic Voice, the RTPI, the Urban Design Group and Urban Design Learning. The research was launched on the 26th of April 2022.

Here you can find the full recording of the event.

Video recorded and produced by UrbanNous.

 

Main findings

Based on the analysis of over 30 design based appeals, the research concluded:

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1 - A LONG STANDING CONCERN
  • The approach of the Planning Inspectorate to design has long been a concern amongst local councillors and planning officers, with anecdotal evidence suggesting that the Planning inspectorate have been systematically placing design quality aside when faced with local authorities that are failing to meet their five year supply of housing land.
  • In doing so Inspectors have simply been implementing Government policy, but the practice placed the achievement of good design in a category where it was seen as a ‘nice to have’ rather than an essential pre-requisite for development.
  • Because of this, many local authorities have been reluctant to reject planning applications on design grounds, unless other factors could be utilised to shore up their position.
  • Deepening their reluctance, the award of costs against local authorities has been a particular concern. However, there has never been any evidence that costs are more likely to be awarded for applications appealed on design grounds than any other matter.
  • The result has been that poor and mediocre design has been getting through the planning system, further raising local opposition against new development. The policy of prioritising numbers over quality was, in that sense, self-defeating; a policy position that seems now to have shifted.
2 - THE ODDS FOR DESIGN IMPROVE (SIGNIFICANTLY)
  • While, prior to July 2021, the picture on design related appeals was not as one-sided as the fears of councillors and planning officers might have suggested, analysis of twelve appeal cases from the first half of 2021 revealed that implementation of the then policy on design (from the NPPF from 2012) was, at best, mixed.
  • The pre-July appeal decisions support 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.
  • Examining a representative sample of thirty-two design related ‘major’ planning appeals from 2021, it is apparent that a marked shift in the likelihood of local authorities successfully defending design-based appeals has occurred.
  • This shift is clearly apparent in the arguments used by Inspectors who, on the face of it, seem to have been liberated to consider design on equal terms with other factors. In doing so they regularly reference the changed policy position in the NPPF, as well as guidance in both the National Design Guide and National Model Design Code.
  • Comparing the decisions after July 20th 2021 to those before, the odds in favour of local planning authorities winning cases on design grounds have 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 the July 20th change (five months as opposed to seven), the success rate for local planning authorities at design related appeals is three times better than before.
  • Compared to historical trends, local authorities were succeeding at design appeals in fewer cases than the national average for all appeals of this class of development. Now they are running significantly ahead of the national average when the focus is on design.
3 - QUALITY, NOT JUST QUANTITY, BUT STILL NOT EVERYWHERE
  • Of particular significance is the fact that design quality seems no longer to be set aside as a sacrificial lamb for other factors, namely housing numbers or viability concerns. 100% of the post-July 20th design-related appeals examined during the research were decided on their design merits.
    In particular, the issue of quality seems finally to be considered on equal terms to quantity, with the spectre of the five year land supply no longer automatically trumping design quality when appellants can prove it is deficient.
  • The research demonstrated the vital importance of the planning system’s regulatory function, which – when working well – prevents untold damage to the country’s cities, towns and villages. This unsung and often invisible function (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 and three in the North (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 of these regions 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 implications for national ‘levelling up’ ambitions.
4 - THE RISK OF COST
  • Of the thirty-two appeals reviewed, eight were accompanied by an application for costs. Of those, one had not been resolved at the time of writing, in five no costs were awarded, and in two, costs were awarded on the basis of ‘unreasonable’ process.
  • In no cases were costs awarded because design was considered an inappropriate concern or any less important than other factors. Costs were only awarded when:
    • design 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), or
    • applied in the absence of a robust planning judgement (e.g. balancing all relevant factors that should inform planning decisions).
  • The two cases on which costs were awarded were decisions made against officers’ advice. Five other schemes rejected against officer advice were not subject to costs, and three of these were decided in favour of the council.
  • When making decisions that go against officer’s advice, the evidence to support the grounds for refusal may not have been prepared in advance. This leaves officers in a difficult position when trying to post-rationalise decisions in order to fight appeals.

Based on the analysis, it is possible to rebut and reframe the six perceptions that have underpinned a reluctance to refuse poor and mediocre housing design:

DESIGN IS NOT TOO SUBJECTIVE

It was clear from the analysis that Inspectors are very comfortable constructing reasoned and objective design arguments. They tend to utilise
established and objective design principles when evaluating schemes, rather than attaching their own value judgements to them, for example by declaring that a building is ‘beautiful’ or ‘ugly’.

QUANTITY AND QUALITY ARE PRIORITISED

Post July 20th, Inspectors were no longer dismissing design arguments just because a shortfall existed in housing land supply; a quality threshold – “well designed development” – now also needs to be met.

HOUSEBUILDERS ARE NOT TOO FORMIDABLE

The July 20th changes have re-balanced the power of local authorities on design, but only if they have up to date policy and guidance in place. In deciding recovered planning appeals, the Secretary of State has made it clear that the updated NPPF gives stronger weight to the need to follow local design guidance.

GOOD DESIGN SHOULD NOT TAKE TOO LONG

If maximum clarity about design expectations is provided at an early stage in design codes and / or guidance tailored to local circumstances, negotiation on design can be streamlined and development projects that meet design expectations can be approved without delay. By these means there is a clear design dividend for developers.

DESIGN IS NOT AN AFTERTHOUGHT

It is incumbent on local planning authorities to ensure that they, in partnership with applicants, sufficiently test sites to determine their suitability for sustainable development. This should include testing the reasonable capacity of sites, for example through the preparation of indicative design layouts. On this basis, outline applications can be rejected on design grounds when such testing proves to be wanting.

COSTS ARE VERY UNLIKELY TO BE AWARDED

A carefully reasoned and supported case against the design of a proposal is never going to be subject to a successful application for award of costs as long as rigorous planning process is followed.

Based on the findings, the following recommendations are made:

The evidence from the thirty-two design-related planning appeals and associated applications for costs suggests that we have moved into a new era in which design quality should be prioritised by all local planning authorities. Authorities should have the courage of their convictions and reject schemes that they judge to feature poor or mediocre quality on design. This should include outline applications if site capacity and sustainability has not been adequately tested through design.

Using the expertise of a qualified design officer and / or the judgement of a design review panel to underpin and reinforce design decision-making can ensure that decisions are robustly made.

When decisions are made against officers’ advice they run the risk of being poorly grounded in evidence and a full appreciation of the planning balance. In particular, unpalatable truths should not be ignored, including that land may have been previously inappropriately consented, that a shortfall in housing land exists, or that contexts have already been subject to irreversible character change. In such circumstance it may be better to defer decisions in order to collect and examine any missing contextual evidence rather than making decisions in haste and opening up the possibility of an award of costs at appeal.

The new national emphasis on design does not mean that every appeal will be won, ultimately there is a planning judgment to be made and Inspectors may judge things differently to local authorities. However, success is much more likely if decisions on design quality are objectively made based on local contextual analysis and relevant national and local policy and guidance on design.

Authorities with less than a five year housing land supply should be open and up-front about this and ensure that the planning balance properly reflects the need for new housing, but also that new housing is built to the standards set down in the NPPF – in other words that it is “well designed”. Design should not be used as a grounds for refusal simply to bolster other weaker grounds but only if design quality falls below the ‘well designed’ threshold set in the NPPF as interpreted through national and particularly local policy and guidance.

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. This should be the aim, everywhere.

About the Research:

Why did we conduct this research?

The research in this report aimed to examine whether the national change of policy on design has had an impact on the conduct of Section 78 Planning Appeals in England.

In 2021 the Planning Inspectorate made almost 17,000 appeal decisions. According to the House of Commons Library, over 50% of appeals involve housing but only between 500 and 900 annually have been for major applications (e.g. over ten housing units). They note that around one third of planning appeals are allowed each year – in other words found in favour of the appellant – and this rises closer to one half in the case of major developments. Appeals of this type are typically heard as an inquiry (rather than as written representations) and developers are often represented by a formidable range of professional experts, including legal counsel, consultant planners, chartered architects and specialist advisors on matters such as ecology.

How did we conduct the Research?

To examine design related 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. Removing the Welsh and Scottish cases, around half of major planning applications in England are included in the Decisions Digest, ensuring that a representative sample of appeals could be analysed. The criteria for selection of these appeals was:

  • Section 78 appeals in England
    Applications rejected largely on design grounds
  • Appeals heard in 2021
  • Major developments with a focus on housing (but excluding care facilities)
  • Decisions reported in the Decisions Digest by 31st January 2022.

Very small or single house developments were not analysed, nor were schemes in predominantly non-residential uses. Reflecting the historic lack of confidence amongst many planners to argue appeal cases on design grounds alone, design focussed rejections of planning applications and subsequent appeals are relatively rare. Despite this, it was possible to identify thirty-two applications heard in 2021 where design was the major grounds for refusal. Twelve of these were heard in the first half of the year (prior to the change of policy on July 20th) and twenty (seventeen from the Decisions Digest and three from other sources) were decided following the change of policy.

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

Further reading: