Many have noted that I have not posted on this blog for a long time, and that is principally because nothing new has really happened since the local elections in 2022. There have, of course, been several major applications, including Selkirk House, Odeon on Shaftesbury Avenue, and Tavis House, along with a plethora of more minor applications and upcoming proposals in the Holborn area and at the British Museum.

Some years ago I wrote that the only thing that could substantially change matters in the field of conservation and planning would be either a judicial review or local political change. In 2022, the prospect of political change was resoundingly rejected, and any chance of such change is now even slimmer given the much changed political environment. Today, however, an application for a judicial review was lodged and heard at the High Court, presided over by Lang J and brought by Jim Monahan represented by Richard Harwood KC against Camden, seeking to have the permission for Selkirk House quashed.

It is, therefore, something worth writing about as providing some insight and further evidence as to how conservation and especially participation/consultation are the way that they are in this area, while adding some of my own thoughts on the topic. For those who do not know, the application for judicial review was refused, and although there is a prospect of appeal, I expect the chances of success are exceedingly slim, and I will set out my thoughts on why below. This commentary should be read in light of my recent dissertation researching this exact topic, which I will publish as soon as possible for general reading.

Preliminary Observations

It was clear from the 50+ attendees at the hearing that there is significant public interest in the Selkirk House application. By some accounts, it received the ‘most objections ever’ during the statutory consultation period, and was also the cause of one of the area’s most prolonged and substantial community campaigns in recent times. All of this energy has been funnelled into raising public awareness and maximising impact during the statutory consultation period, raising various objections relating to heritage, sustainability, affordable housing, etc.

It is of course frustrating that such a huge volume of objections would be – on the face of it – ‘ignored’ through the approval of the scheme, and this, perhaps, goes to the heart of why a legal challenge was brought today. But it has to be recognised that the statutory mechanism for ‘weighing’ consultation responses really has very little bearing on the overall application process, and the volume of applications is not, in itself, really a material consideration. Of course it provides evidence of public interest, harm to the community, and heritage – at least in an objective sense – but in planning terms, it is for planning officers and committee members to consider and weigh these matters themselves, largely independently of the consultation. So long as the ‘principal matters’ arising from the consultation exercise are considered, the local authority has carried out a lawful consultation exercise.

Perhaps it is an option for planners to weigh objections and campaigns more seriously, and refuse applications where there is evidence of strong public protest? Well, not really. Where harm is identified, whether that be through consultation, or from the local authority’s own investigations and internal discussions, such harm needs to be weighed against the public benefits brought by a proposal. This is expressed very clearly in the NPPF and derives from early case law on the interpretation of the Listed Buildings and Conservation Areas Act 1990. It must be stressed that it is simply not an option for planners to not undertake this exercise. At the point of carrying out this exercise, it is solely up to the planner’s own judgment as to whether public benefits outweigh harm, and therefore, whether a harmful scheme should be approved or refused. This is not my ‘opinion’, this is law. Whether or not objections indicate otherwise is really irrelevant.

Perhaps it is an option for planners to use their own ‘planning judgment’ to weigh heritage harm more strongly, and refuse an application? Well, not really. Such an approach would immediately lead to an appeal by the developer, necessitating a lengthy, expensive, and complex national inquiry for which a developer is inevitably far better resourced. Not only does this result in a contest of power and resource between the developer and local authority, but takes decision-making power, and the ability to influence the scheme, out of the local authority’s hands. And if enough major appeals are lost, local authorities lose their planning powers altogether.

So where does this leave planning officers? I would say stuck between several rocks and hard places. On the one hand they are pressured in social terms by the community, subject to lengthy, politically heated, and occasionally quite aggressive campaigning tactics, with personal attacks made on officers and councillors. Not very pleasant. On the other hand, developers have the threat of appeal if an application is turned down, and thirdly, their planning powers can be altogether revoked by central government if too many appeals are allowed. Finally, the prospect of taking major applications to appeal is hardly attractive to a department poorly resourced and already exceeding statutory timescales on more than 90% of applications in 2023.

These preliminary observations mean to pose a fundamental challenge towards community members who charge Camden as being solely responsible for the harm caused by major development schemes, with there somehow being an element of ignorance, greed, corruption, or incompetence at play. While, on the face of it, it appears that Camden wields unilateral power to influence and determine planning applications, that is simply not the case. The statutory framework for planning is set by parliament, and any refusal can be appealed to central government, where decision-making power is then removed and the previous decision is placed under immense public scrutiny. Ultimately, planning powers can be altogether removed by central government. In other words, power over planning is split between Camden and central government. This means that Camden is not itself responsible for many of the problems which community members protest against and seek to resolve by campaigning against Camden, or, indeed, by bringing a legal challenge.

Selkirk House and Judicial Proceedings

This preliminary commentary brings me to the Selkirk House judicial review, which I have not written about before due both to the research I was undertaking, and my own apprehension as to whether such an approach could be successful or even constructive to improving conservation and consultation outcomes. Say, for example, today’s hearing, and potentially even the final judgment found in favour of the community. Where would that leave everyone? Of course, a ‘win’ is scored over the theoretical adversary of local authority and developer. But soon enough a revised scheme would emerge, likely hardly different from the one already proposed, and Camden would simply make their decision in a watertight and robust way responding to the previous judgment. Either that or, more likely, Camden simply appeal the judgment and more than likely win in the Court of Appeal, leaving no recourse whatsoever to the community.

What I mean to say is that at vast expense to everyone involved, almost nothing would have been achieved in the long run. I do not think it realistic that any prospect of development at Selkirk House could be resisted, nor that a replacement or refurbished building could be smaller in size. This takes me into the realm of viability into which I do not wish to stray too far, but suffice it to say that any redevelopment of Selkirk House, in today’s viability-oriented planning world, is going to be bigger in size. I am no expert but some simple sums show that to make redevelopment profitable at 15% or more, and adding CIL and planning obligations, the floorspace simply needs to increase. It is an unfortunate product of its central London location and the almost-statutory role that viability now takes in major development planning decisions.

Nevertheless, today’s application sought to quash the scheme essentially on the grounds that a smaller scheme was not considered. Reference was made to London Plan Policy D9 (?) which recommends (not requires) planning officers to consider alternative schemes in this case. I have to say upon hearing the opening arguments by Richard Harwood KC, I could see that the chances of the application being heard were extremely slim, almost impossibly so. While this may be obvious to planning ‘geeks’ or lawyers, I’ll explain why below, partly in answer to questions people have sent me in the hours since.

Firstly, a legal challenge can only be brought when there is an arguable point of fact or law. Before an application is heard, the applicant must demonstrate that there are such matters to be settled by the court. ‘Planning judgment’, is quite a separate matter, and simply cannot be challenged in a court of law. Planning judgment comprises all the key decisions including the weighing of heritage harm, interpretation and application of policy, and interpretation and response to consultation responses. These matters, therefore, cannot be legally challenged. This may be frustrating, but this is simply the remit of the court – a legal challenge is just not the correct ‘tool’ for challenging such decisions. It would be beyond the power of the court (or ‘ultra vires’) for it to delve into matters of policy or the weighing of heritage harm and public benefit. These are matters protected within the planning profession, and can only be challenged at planning appeal, not at the High Court.

The challenge brought by SMS deals with the interpretation of policy. So ‘straight off the bat’, there is a problem here. The court is being asked to consider a matter which it cannot. Harwood KC provided some arguments as to why Camden had misinterpreted policy D9, but interpretation of policy is itself a matter of planning judgment, not law. He would have to somehow demonstrate that Camden had been irrational in their interpretation of this policy, or significantly misled the planning committee, but even from my ‘lay person’ seat, it hardly seemed irrational to me. Frustrating, yes, that smaller schemes were not explored, but there were clear arguments as to why this was not done – viability being key among them. Counsel for Camden provided some very robust arguments against Harwood’s points but that is almost besides the point – interpretation of policy and the application of it is not a matter which can be challenged by the courts.

Unsurprisingly, then, this ground was wholly dismissed. I do not wish to delve any further into the detail of planning law, but from my perspective it seemed fairly clear cut that the challenge brought did not bring any arguable points of law or fact, and even if it did, proving such arguments in a full judicial review would have been extremely challenging. Obviously I am not a planning lawyer and Harwood KC reasonably believed in a chance of success, but the two grounds of the case hinged entirely upon Camden’s interpretation of fairly standard policy points. The heart of the two challenges really came down to the fundamental test in law and policy of how to weigh heritage harm against the public benefits of a scheme, with Harwood essentially arguing through two avenues that this was not done correctly. Either way, weighing heritage harm against public benefit is a fundamental process to the modern planning system, and undertaking this process is reserved only to planners and planning inspectors, not lawyers. It is not legal for the court to intervene in this process. I had to leave early for a meeting but I was later unsurprised to hear that the application was dismissed for precisely these reasons.

I have to caveat this with the fact that I was unfortunately absent from the judgment, and that the second ground was considered arguable by Lang J, but the chances of this materially influencing the decision was considered too slim to be heard at judicial review. After an hour of the two sides giving arguments however it seemed fairly clear that this was the key matter at play. The exact detail of the judgment is really irrelevant to the key points that I want to make so I will gloss over this point. I should also note, tangentially, that Lang J is typically very favourable towards community campaigns, having allowed LTDA’s challenge against the Mayor’s LTN schemes a couple of years ago, for example, although this was overturned at appeal. In my eyes, if an application is not even allowed leave to be heard by Lang, the case must be weak indeed.

Discussion

It might be said that today’s proceedings are somehow ‘bad luck’ and that a refreshed challenge at the court of appeal will somehow be successful. I have already explained why I think in this case that is very unlikely. What I want to discuss instead is whether the whole approach of taking Camden to court and attempting to fundamentally challenge their approach to the built environment is productive, or whether it is fundamentally misguided. If it is indeed misguided, this might go some way to explaining, in broader terms, why the challenge was unsuccessful, and perhaps plot a better path to successful and meaningful community participation.

I would like to return to the idea of Camden being an ‘adversary’, which is quite fundamental to SMS’s campaign and the wider approach towards planning participation in the area. The general idea is that Camden – and specifically the planning department – is motivated by greed, incompetence, ignorance, etc, etc, and is some sort of ‘evil’ entity which perpetrates ‘crimes against heritage’ or ‘crimes against community’. I would like to posit a fundamental challenge to this idea, and argue that it is indeed misguided, and consequently leads to all sorts of difficult, costly, and wholly unnecessary conflicts in the conservation of the area.

One must start with the recognition that Camden’s planning department is an organisation of people – individuals, carrying out their jobs, 9-5. As described in the previous commentary, these individuals are constrained by a complex, power-laden, and risk-averse system which does not afford either individuals or the organisation as a whole unilateral power to control the built environment. The idea of Camden as ‘Goliath’ and the community as ‘David’, is a rhetorically convincing one, but I would say this really is no more than rhetoric. More than that, this very idea – or I would posit – illusion – leads individuals in the community to go to vast effort and expense in lengthy ‘battles’ to ‘defeat’ an ‘enemy’ which does not really exist.

It is clearly a vast oversimplification of what actually goes on ‘behind the scenes’, and I suspect it is one meant to make the impossibly complex planning system somewhat comprehensible, and one which also serves a purpose in galvanising people to action. But as soon as decisions are made on the basis of this fallacy, it inevitably leads to problems. I would say that today’s judicial review application is a prime example of this, as an attempt to use the power of the courts to ‘win’ a ‘battle’ against the ‘enemy’, but looking into the detail of what actually goes on within planning, it’s fairly easy to see that a legal challenge is not the correct mechanism to give voice to the interests and concerns of the community. Nor, indeed, is the public consultation period, which is of very little significance in the planning process.

I am afraid to say that if blame is to be placed anywhere for poor consultation and conservation outcomes, it is squarely on central government, from where power over the built environment as a whole is derived. Merely from my own, non-expert opinion (albeit semi-expert now, with an MSc), Camden officers are more or less carrying out their work in line with the national statutory framework, and responding to the risks and pressures of managing major development schemes in a reasonable, and certainly, legal, way.

None of this means at all to undermine or call into question the very significant problems raised by schemes such as Selkirk House, nor the strength of feeling within the community against such a development. I also agree that such schemes are extremely harmful to conservation causes, and the way in which the development and planning process is managed only further inflames existing problems and contributes to creating new ones. Where I differ from the community is that perhaps in having a greater understanding of the very real complexities at play, the idea of Camden as a ‘force of evil’ just doesn’t make any sense. And because of that, directing community anger towards ‘fighting’ Camden doesn’t really address the problems that we all face. If there is an ‘enemy’ to be fought, it is the wider planning system, and the ‘viability-led’ planning approach which has become commonplace in urban areas in response to quite severe budget cuts since 2010 (Ferm & Raco, 2020).

Moreover, I believe that by perpetuating a constant state of conflict, there is even less chance that any constructive dialogue can be had between planners and the community. After this judicial review, I would argue that any planning officer is going to be on extremely high alert in any communications with individuals involved with this campaign, especially for major development schemes. In this sense, the prospect of collaboration in the near future is quite severely limited. On the other hand, the quite significant failure to bring an arguable case to the courts means that the threat of judicial review now in itself holds much less weight than it used to. In one ‘fell swoop’ the community’s carrot and stick have been pulverised, and I don’t see how they can be replaced without a long period of reconciliation.

This is all slightly theoretical, as I am not a planner at Camden and haven’t spoken to anyone at Camden about this JR. But as you can probably tell, really what I am arguing for is a more holistic understanding of the planning system, a recognition of the pressures and risks that planners face, and an attempt to work with Camden to address community concerns at an earlier stage. For better or for worse, the public consultation is a ‘tick box exercise’ and judicial review is a very blunt and disproportionately expensive tool to address what is essentially a disagreement over quite subjective matters.

Resolving disagreements is a process of negotiation with individuals, in which both sides attempt to understand the other. Through such a process conflict can be alleviated and better outcomes can be achieved for both sides. Slamming an application with hundreds of objections, making personal attacks against officers and councillors, and threatening or bringing legal challenges clearly does not alleviate conflict, it only inflames it and deepens divides. I appreciate that such an approach has been successful in the fairly distant past, but I do not believe that within the current planning system and wider economic and political context it is an approach that any longer has a prospect of success.

Concluding Remarks

I hope that the dismissal of this JR can be a learning point for community members involved in conservation. I suspect that there is considerable anger and disappointment at ‘the system’ for not allowing such a challenge to be heard, but at some point one must accept that the system is what it is, and short of bringing down the whole government, it is not going to change any time soon. It is far more effective, and certainly less energy intensive, to acknowledge the restrictions and flaws of the system and seek to work within them. Planners always will be working within this system, and until community members can ‘meet planners half way’, I don’t see how any of the key issues raised by SMS can be meaningfully resolved.

Of course, I have myself taken part in many such inflamed conflicts on major development schemes, and made many personal attacks on councillors and officers, and in that sense I can both empathise with campaigners but am also guilty of buying into what I now call a ‘fallacy’. But with the benefit of hindsight and a sprinkling of semi-expert knowledge, I can confidently say that that was fuelled by a simple lack of understanding, and anger towards what I viewed as outcomes that are simply morally ‘wrong’. Nobody in the community would argue that Selkirk House, Belgrove House, etc are good for community, heritage, or indeed planning. The question then arises as to what do we do about it? I have argued here that concerted protest, threats, attacks, and legal challenges are completely ineffective at addressing the key issues, and the idea of ‘Camden’ as an ‘adversary’ to be ‘challenged’ is a rhetorical fallacy. There are far bigger issues at play which neither we nor Camden officers are able to control, and by focusing efforts on essentially attacking an imaginary adversary, we are all wasting a huge amount of time and money.

The only alternative solution, short of ‘giving up’ entirely, is to somehow work within existing national and local constraints and influence planning decisions in a collaborative and constructive way. It sounds like a difficult and time-consuming task, but it is far less intensive than running large campaigns and bringing legal challenges. Collaboration also does not tap into the somewhat primal need to ‘defend’ and ‘attack’ an ‘enemy’, and in that sense seems less urgent, but I would argue it would achieve far better outcomes, and lead to much less frustration and anger, while keeping at least one foot in reality. Planning is and always has been a process of balancing competing aims in a process of negotiation and measured consideration of the merits and harms of development proposals. If – as seems to be the case – the community wants to take part in the planning process, then the community must somehow enter these negotiations, rather than seek to fundamentally challenge and override them through campaigns and legal proceedings.

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Ferm, J., & Raco, M. (2020). Viability Planning, Value Capture and the Geographies of Market-Led Planning Reform in England. Planning Theory & Practice, 21(2), 218–235. https://doi.org/10.1080/14649357.2020.1754446