The mysterious case of Dennis and the former Television Centre...
Yesterday, the Secretary of State published his call-in decision for the re-development of the Former London Television Centre.
In it, the Secretary of State granted planning permission for the “demolition of the existing building and phased redevelopment to provide new buildings for office, culture & innovation hub, retail, food and beverage uses with cycle parking, hard and soft landscaping and associated works and plant, each phase being an independent act of development."
It is a fascinating decision and one I am sure will inspire large amounts of commentary. The approach taken to protecting nearby heritage assets; the ‘Beauty’ agenda; whether the decision is consistent with the Secretary of State's approach in other called in or recovered appeals, and how it fits into the wider political picture, * all merit discussion and analysis.
That analysis, however, will have to be done by someone else.
This post is focused on an entirely different question.
Is the Former London Television Centre the Secretary of State's first ‘severable’ planning permission ?
The ‘severability’ of planning permissions is a relatively new concept. It first arrived in the Supreme Court's decision in Hillside and was recently considered further by Mr Justice Holgate in the High Court's decision in Dennis.
The effect of creating a severable permission is to allow parts of the authorised development to be replaced by a different form of development, by way of a ‘drop in’ consent, without losing the ability to rely on the original underlying permission.
It seems clear from the description of development that the permission for the redevelopment of the Former London Television Centre is intended to be severable. Why else would the description of development refer to ‘each phase being an independent act of development’. The question is, does it succeed?
The requirements for creating a severable permission were recently considered by Mr Justice Holgate in his decision in Dennis.
To quote from the judgment for a moment:
"102. Whether a detailed permission is to be treated as severed, or a collection of discrete planning permissions, is a matter of construction of that consent. This question of interpretation will often relate to the permission as originally granted, as in the present case.
103. A detailed planning permission may authorise or require the development approved to be carried out in phases. The Pilkington principle is capable of applying to such a consent. Provisions in a detailed consent for phasing are compatible with that consent being treated as a single planning permission. Consequently, the mere inclusion of phasing provisions in a detailed permission would be insufficient to amount to a "clear contrary indication" that the consent is severed into discrete planning permissions. The same is true of an outline permission.
104. Furthermore, if the inclusion of phasing provisions were to be sufficient to sever a planning permission, whether detailed or outline, that could have consequences which nobody involved in seeking or granting that permission would have envisaged, such as the application of the statutory time limits for the implementation of each separate permission. For example, if the outline permission in Percy Bilton had been treated by the court as severed, the statutory time limits for submitting reserved matters for approval would have applied to each of the resulting discrete permissions and so some of those consents would have become time-expired. That was the issue in the case. Practitioners will therefore need to consider carefully the possible consequences of seeking to argue that a single planning permission should be treated as severed.
105. Because of considerations such as these, and also the variety of ways in which a permission might be severed, it is important that any decision to grant a severed planning permission be expressed unequivocally. Where that is not done, any contra-indications said to support severance must be equally clear."
In Dennis, the outline phased consent being considered was considered to be a single, holistic, permission. This was on the basis that:
- the fact that a permission is in outline or phased (or both) does not in and of itself indicate that it is severable.
- the fact that the permission set different timeframes for commencement for each phase did not indicate severability.
- the permission required the phases to be developed in a specific order, which was considered to be “inconsistent with the grant of a severed permission or a collection of separate permissions. Alternatively, and put at its very lowest, these phasing arrangements are entirely consistent with the grant of a single, integrated planning permission. They do not amount to a contra-indication pointing to severability of the phases.”
- The officer's report to committee considered the development as a holistic whole. It did not consider, for example, the merits of individual phases on the basis that they might subsequently be replaced by a materially different "drop in" application. It was not suggested that the position was any different for the Environmental Statement, or any of the other supporting documents considered by the LPA when it decided to grant the permission and incorporated into the operative part of the permission.
How does the Former London Television Centre permission compare against these indicators?
Now, a quick health warning: I have not looked at the underlying documents before the Inspector at the Inquiry. The analysis below is based purely on the Secretary of State's Decision and the Inspector's report - so there is every chance that I might have missed something important - but on the basis that this is not a legal opinion (but rather something I am doing for my own amusement), I am going to press ahead anyway.
Clear unequivocal expressions of severability.
I have read, re-read and word searched both the Secretary of State's decision and the Inspector's report and the only indication of severability that I have been able to find is that reference in the description of development.
By way of a reminder, this reads as follows:
“planning permission for demolition of the existing building and phased redevelopment to provide new buildings for office, culture & innovation hub, retail, food and beverage uses with cycle parking, hard and soft landscaping and associated works and plant, each phase being an independent act of development, subject to the conditions in Annex B of this decision letter, in accordance with application Ref. 21/02668/EIAFUL, dated 2 July 2021”. (my emphasis).
Whilst the conditions themselves are clearly effectively phased, with phase specific commencement requirements etc. This is and of itself not an indication of severability and is wholly consistent with a phased ‘holistic’ planning permission.
Indications that the permission is not severable.
Should the reference in the description of development not be sufficient, what indications do we have that the permission should be considered as a single consent?
Well, there are actually quite a lot of these:
- Firstly, much like the decision considered in Dennis, the conditions in the Former London Television Consent prescribe the order in which the phases are to be delivered. The consent expressly requires that Phase 1 commence first. Admittedly, phase 1 is not a construction phase - but nonetheless the specificity of order was considered in Dennis to be an indication of a single (rather than a severable) planning permission.
- Secondly, outside of the description of development, I have not been able to find a single mention in the Inspector's Report or the Secretary of State's decision letter of the fact that the permission granted was intended to be a severable one. There is no discussion of this, or its likely impacts, at all as far as I can see; and
- Perhaps most importantly, all of the analysis of the benefits of the scheme - in both the Secretary of State's decision and the Inspector's Report - are conducted and reported on the basis of the scheme as a whole. For example: the discussion of the public benefits of the scheme when approaching the heritage balance includes the following:
"14.69 The proposal would deliver substantial benefits to the public realm of the area, through the delivery of new public squares and enhanced permeability around the site. However, these benefits extend beyond the ground level public realm. The proposal would deliver opportunities within the external space of the building itself to appreciate a significant number of the heritage assets in the vicinity from new vantage points. This would include the shared terrace on level 6 looking to the north-east towards St Paul’s and beyond958, the Sky Pod/roof top terrace on level 12 and also the vista towards St Paul’s and the City beyond959. Furthermore, the significant amount of amenity space provided through balconies and landscaped terraces for all of the upper floors of the scheme would open up new vantage points from which to appreciate both the IBM building, RNT and the wider South Bank Conservation Area beyond. Indirectly, these high-quality terraces and balconies which would form an integral part of the office accommodation would relieve pressure on the existing amenity spaces in the area such as Bernie Spain Gardens. These are all very significant and weighty public benefits for the historic environment which also deliver a number of social, environmental and economic objectives. Attached to these public realm benefits, the proposal would provide for active frontages to Queen’s Walk, a clear positive contributor to the South Bank Conservation Area, which would follow the established townscape pattern of the area along this stretch of the South Bank and forms a key component of the river walkway in this location.
14.70 A number of parties have stated that any scheme could deliver these benefits. I disagree. The design, scale and overall massing enables these views to be opened up and the setting back of the building allows the ground level public realm to be maximised. They are integral design components of the scheme. I have no evidence before me to support the assertions that an alternative lower rise scheme could maximise the opportunities for these enhancements. The weight I can place on these arguments is therefore limited. "
A similar approach is taken when reaching the overall planning balance:
“14.170 In terms of other material considerations, the proposal would deliver significant public realm and permeability benefits to the area, as well as improvements to urban greening and biodiversity of the site. The public realm strategy would deliver significant placemaking benefits and accordingly, I attach substantial weight to this benefit. The proposal would deliver significant employment generating opportunities for the borough, this would be both through the construction phase as well as operational phase of the development. I attach substantial weight to both of these benefits. The commitment towards an employment and skills strategy over and above the policy requirements as well as the provision of affordable creative workspace also attracts moderate weight.”
So, to attempt to answer my own hypothetical question, is the Former London Television Centre the Secretary of State's first severable planning permission?
In all honesty. I don't know. If it weren't for the reference in the description of development, I would definitely say ‘No’… however that reference is there and does state that each phase will be an “independent act of development”.
Given how rapidly the case-law in this area seems to be developing, I would not like to predict whether that reference would be enough for the court to conclude that this permission is truly severable - when interpreted as a whole.
However, given that the test is a ‘clear and unequivocal expression of severability’ the fact that I am even having this debate with myself seems to suggest that the answer might be ‘no’….
*I mean, isn't the review of the London Plan due out soon?
40.Accordingly, for the reasons given above, the Secretary of State agrees with the Inspector’s recommendation. He hereby grants planning permission for demolition of the
existing building and phased redevelopment to provide new buildings for office, culture & innovation hub, retail, food and beverage uses with cycle parking, hard and soft
landscaping and associated works and plant, each phase being an independent act of development, subject to the conditions in Annex B of this decision letter, in accordance
with application Ref. 21/02668/EIAFUL, dated 2 July 2021.
41.This letter does not convey any approval or consent which may be required under any enactment, bye-law, order or regulation other than section 57 of the TCPA 1990”