James Souter and Claire Fallows continue to draw from their firm’s recent Skyscraper vs Groundscraper report, this time looking at whether our planning and rights of light laws help deliver the ideal development where it is needed.
Last week, we summarised the key themes arising out of our discussion paper on 21st century real estate development in a post-pandemic world, Skyscraper vs Groundscraper, and accompanying polls on building typology.
The conclusion was that building typology is a function of many factors and, while we detected a palpable fear of tall buildings in some quarters, others see them as a mark of success and a demonstration of what the future might hold. Loved or loathed, tall building development, including skyscrapers, is set to continue.
The question then arises: do our planning and rights of light laws serve us well in securing the right building typology? How are those systems evolving and what might be done to improve the situation?
Planning for new buildings
Government policy (the National Planning Policy Framework) supports an increase in density. It emphasizes the promotion of efficient and optimal use of land, including the reuse of previously developed land and the effective use of underutilised land. This is subject to ensuring the safeguarding and improvement of the environment and healthy living. High-quality tall buildings can achieve those aims and provide sustainable development.
An increased emphasis on the use of design guides, codes and masterplans need not stymie high-rise development. Guidance expressly directs that it can be used to help ensure efficient use of land in accessible areas and avoid low-density development in areas of housing need. A flexible approach to daylight and sunlight policies is encouraged.
There was concern, however, from more than half of the respondents to our polls that the new national policy requirement for “beauty” will result in a decrease in the number of tall buildings obtaining planning permission. The concept of beauty is not defined – a dictionary definition suggests that it is the quality of being pleasing, especially to look at. The intent to drive up design quality should apply to all building typologies equally, but it is hard to escape the feeling that the inherent subjectivity in the concept may militate against what are often controversial tall buildings.
Voice from the report
“A city that remains the same and whose skyline is preserved in aspic is telling the world that it is complete – maybe even finished”
Peter John, Five Paper Chambers and former leader of Southwark Council
Plans are increasingly looking to direct the pace on high-rise development. What is considered “tall” depends on the context – what feels tall and will cause significant impact will be different in a lower-density, residential environment than in a city cluster. That dynamic changes over time as places densify and developers build upwards.
The latest London Plan recognises the positive contribution that tall buildings of an exemplary design can make to London’s cityscape, while noting that not every tall building needs to be an iconic landmark. Accepting that what is tall is relative, borough plans are to define what is tall in a particular locality, being not less than six storeys or 18m, and determine acceptable locations for such buildings. It is, of course, good sense for development plans to set broad parameters, which may include clusters of tall buildings, particularly around transport hubs.
However, development plans should guard against being too prescriptive. The optimal balance of height across regeneration areas, for example, may only be ascertainable at masterplan or application stage following detailed design work. Our report highlighted the benefits of including taller buildings in outline applications, allowing flexibility for large schemes to evolve over time.
At the time of writing, the government’s commitment to identifying areas of “growth”, in which outline permission is effectively granted for what is in the plan, is in doubt. If that proposal were to proceed, particular care would be needed to ensure that the plan preserves necessary flexibility.
The London Plan goes further, stating that tall buildings should only be developed in identified locations. This may tilt against one-off schemes coming forward and could lead to opportunities being missed to deliver landmark tall buildings on sites that were not promoted during the plan-making cycle.
The combination of a national requirement for “beauty” and increased prescription at a local level seems likely to continue to drive applications for taller buildings to appeal. National policy provides support for the debate regarding the desirability of maintaining prevailing character and setting as against promoting regeneration and change to take place during decision-taking, as well as plan-making.
It is an oddity of the system that appeals for tall buildings are often decided by politicians who do not actually hear or get the opportunity to question detailed evidence given on design. Perhaps that is appropriate for controversial schemes. But could more be done to capture people’s views – including through non-expert as well as expert panel reviews, and use of social media surveys – during design development?
Our report highlighted the continued opportunity for carefully designed and innovative taller buildings to make a positive impact on all our towns and cities, not just London. In particular, the need for reinvention of our high streets provides scope for densification and evolution of place. Only time will tell whether the government’s commitment to the use of permitted development rights to build upwards or change use to residential will do more to help breathe life into failing commercial areas or will adversely impact wider regeneration.
Rights of light
The impact a new building will have on the light enjoyed by the windows of the buildings around it has always been a concern for developers. In recent years, owing to the uncertainty surrounding the law in this area and some high-profile decisions from the courts, it is now to be found close to, if not at the very top of, the developer’s risk register. This is especially the case for developments in an urban environment, where light is already at a premium.
The risk faced by the developer increases with the height of the development, and also in higher-density locations. This is not only an issue for tall buildings – it wasn’t that long ago that the development of Goldman Sachs’ groundscraper headquarters on Farringdon Street in London was challenged by two of its neighbours, claiming interference with their right to light. Goldman asked the City of London Corporation to step in and use its planning powers to remove the risk of an injunction, but the Corporation’s reluctance to do so left the company having to agree confidential settlements estimated to be in the region of a few million pounds each. While this example shows that rights of light can affect both building typologies, as you might expect, the risk faced by skyscraper developments is that much greater.
Despite several high-profile cases since the turn of the century, there remains uncertainty in every aspect of how rights of light are protected. This includes how light should be measured, how much light should be considered sufficient, the vexed question of when an injunction should be granted and, if it isn’t, how the courts should approach the question of damages.
The need for change has been acknowledged by many for some time now. The Law Commission produced a report in 2014 making a number of recommendations aimed at striking a balance between competing interests and, importantly, providing much-needed certainty for developers. As with many of its reports, this one remains on the shelf, and without an intervention from parliament we await a case from the higher courts to provide guidance and certainty. Beaumont Business Centres Ltd v Florala Properties Ltd [2020] EWHC 550 (Ch); [2020] EGLR 20, decided by the High Court a few weeks before the pandemic struck, was thought by many to be that case but, surprisingly, the Court of Appeal refused permission to appeal earlier this year.
In light of the uncertainty, the industry has in recent years turned to increasingly sophisticated insurance policies to mitigate the risk posed by rights of light. While these policies will not stop a neighbouring owner from obtaining an injunction to halt the development (or even worse require parts of a completed building to be torn down), they do provide a financial safety net.
In effect, these policies have acted as a sticking plaster to ease the situation, but they cannot and will not provide a cure for the problem. The need for a long-term cure via legislation or case law remains. Until then, the insurance market will continue to support the development of both skyscrapers and groundscrapers and provide developers with the confidence they need to bring their developments out of the ground.
Final thought
In summary, both skyscrapers and groundscrapers will be required to meet future commercial and residential needs, and there is scope for both the planning and rights of light regimes to evolve to facilitate delivery of the right scheme in the right place.
As part of that, we may need a shift away from our very British desire to preserve the past toward a more forward-thinking concept of building the future.
James Souter and Claire Fallows are partners at Charles Russell Speechlys LLP
Click here to download the report on which this article is based
