The chosen one: Stonehenge, the Holocaust Memorial & alternative sites
Welcome back to your desks, #planoraks.
We can’t miss checking in on the funniest (albeit, in its own way, hugely depressing) planning story of the summer. You must’ve seen it by now. Only this week, a hapless member of the Mid Kent Planning Support team managed to issue 5 decision notices totally by mistake. You want a flavour? Well, the reasons for refusing permission for the Happy Pants animal sanctuary in Sittingbourne were unforgettable:
“Your proposal is whack
No mate, proper whack”
Link here. Not going to stand up well on appeal, I fear. Other reasons for approval/refusal included "Incy. Wincy. Spider" and “Why am I doing this am I the chosen one". 😬. Isn’t the English planning system ticking along well! Meanwhile, we’re still waiting for that long-promised resourcing and skills package to bring it creaking into the mid-20th century. Still waiting. Proper whack.
So. To business. Did you get away this summer? What does “getting away” even mean anymore. Nothing says “UK” like a national spat over the meaning of the word “staycation”: here. Well, after an August spent trying (and failing) to navigate my family to and from the West Country, here’s my authoritative definition of a “staycation” for you:
“Staycation [noun]: Spending time stuck in / worrying about traffic on the A303.”
Ah, the A303. What a garden of delights it is. You want to get from London to Devon without a 50 mile diversion via Bristol… the A303’s the only game in town. Which means when those cloudy, cold, windswept British summers come along, the A303 is beset with unhappy holidaymakers (I speak from recent and raw experience). Now, as you may know, the coolest bit about the A303 is that as it traverses the Salisbury Plain, you get a view of Stonehenge. It’s a cracking view. Have a look: here. But with all that traffic comes pollution, delays, crying toddlers (again, recent experience 😬), and harm to the experience of those who have come to bask in the Neolithic magnificence of the World Heritage Site.
Many years ago, the bods at Highways England hatched a plan to solve this A303 conundrum. Here it is. Lots of dual carriageway. And a swanky tunnel that burrows beneath the ground around Stonehenge. Back in 2017 they consulted on different routes, then came the preferred route announcement. The chosen one. Proper whack. The scheme was examined by a panel of planning inspectors under the Planning Act 2008 which covers nationally significant infrastructure projects. That examination went on for most of 2019. The panel’s report was produced in 2020: here. It recommended to the Secretary of State for Transport that consent be withheld. Why? Well, the report’s 550 pages long, but in a nutshell: the panel accepted a need for the scheme, but it also found that the scheme would cause substantial and permanent harm to the World Heritage Site. And the public benefits were, the panel thought, outweighed by that harm.
A year later, the Secretary of State issued his decision. He disagreed with the panel. He thought the harm to the World Heritage Site would be “less than substantial” and that public benefits outweighed the harm.
Alas, on 30th July this year (only days before my most recent confrontation with the A303), Mr Justice Holgate quashed the Secretary of State’s decision: judgment here. He quashed it for a couple of reasons, but I want to focus on one…
Alternatives.
One of the claimant’s grounds of challenge was that there was a legal requirement to think about other ways of bringing a scheme forward which could’ve reduced the extent of harm to the World Heritage Site. Now, there had been a full “options appraisal”. But neither the panel of Inspectors nor the Secretary of State went further than noting that the appraisal had happened. Was the Secretary of State legally required to go any further? To ask himself, for example, whether the public benefits which he’d identified could be delivered in a less harmful way? Through a different scheme? Through a longer tunnel? Or did he just have to think about the scheme before him?
Before I answer that one, let me give you another recent example:
Also at the end of the July, the Minister for State granted planning permission for the UK Holocaust Memorial and Learning Centre in Victoria Tower Gardens next to the Palace of Westminster. This is a scheme I’ve commented on already in these pages. I acted in support of the scheme for a Holocaust education charity. The Inspector’s report - if you haven’t read it already - is a model of compassion, good sense, clarity and humanity. What a scheme. What a decision. Can I commend to you section 11 of the report which sets out the representations the Inquiry from the most remarkable range of participants (a number of survivors of the Holocaust, several ex-Prime Ministers, the current and previous Archbishops of Canterbury, the Chief Rabbi, academics and educators from all over the world). Being involved in the inquiry was the highlight of my professional life. Annnnyywaaayyy… one of the grounds of objection in that case was that if we’re going to have a UK Holocaust Memorial, it should be placed elsewhere, e.g. at the Imperial War Museum. How did the Inspector and the Minister of State weigh the putative alternatives in the planning balance?
What does the law say about all of this? I refer you to this post from last year and the Lisle-Mainwaring case which tell us that:
In the context of planning control, a person may do what she wants with her land provided ger use of it is acceptable in planning terms. There may be a number of alternative uses from which she could choose, each of which would be acceptable in planning terms. The existence of an alternative site for a development may be a material consideration. But it normally isn’t. In fact, it’s only relevant in exceptional circumstances. And a legal challenge for failures to consider alternative sites (absent any express law or policy requirement to do it) is a bit of an uphill struggle. Because you’d need to show that alternatives were so obviously material that no reasonable decision maker could’ve omitted to deal with them.
What kind of exceptional circumstances do we mean? Well, the kind where there are clear planning objections to an otherwise desirable development on a particular site which are so strong that it becomes relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. To be contrasted with cases where environmental impacts are relatively slight and objections not especially strong.
What about different uses on the same site? Well, the starting point is that people may do what they like with their land provided their use of it is acceptable in planning terms. There may be any number of alternative uses to pick from, each of which would be acceptable in planning terms. And absent serious policy conflict, alternative uses on the same site are normally irrelevant.
But again, in exceptional circumstances where you have major planning objections, alternative uses only become material if they are not vague or inchoate, and if there is a real possibility that they’d actually happen if planning permission is refused.
So how did all of that play out in the case of A303? And the Holocaust Memorial?
For the A303, Mr Justice Holgate decided that it wasn’t enough to just note the existence of an options appraisal and move on. In the “wholly exceptional” circumstances of that case, decision-maker had to evaluate the options - “the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the Secretary of State was required to assess”. Why obviously material? Because (in a nutshell) of:
The importance of the World Heritage Site designation in play;
The agreed position that the World Heritage Site’s attributes would be - at least to some extent - harmed in a way which is permanent and irreversible.
So the Secretary of State erred in law by failing to do the obvious, i.e. considering for himself the merits of alternative schemes (i.e. extended tunnel options). But NB, as the judge made clear, there was no suggestion in that case that the alternative schemes were vague or inchoate.
What of the Holocaust Memorial? There, the Inspector accepted the possible relevance of alternative sites. But accepted the applicant’s reasons for having discounted the Imperial War Museum and the other sites. He found that:
“whilst seeming to offer a benign alternative, Imperial War Museum lacks a detailed scheme that would meet the core requirements of the Holocaust Memorial Commission and carries clear potential constraints that may hamper its delivery. Together this suggests that the weight to be afforded the IWM alternative in the planning balance is very limited. The two other sites, even more lacking in detail and feasibility, merit still lesser weight.
The Minister of State agreed.
So there we have it. Two very interesting decisions for high profile schemes. One explaining why alternative sites - albeit relevant - could only be giving very limited weight in the planning balance. The other striking down an enormously important decision of the Secretary of State for failing to give adequate consideration to alternatives. Sound easy? It doesn’t, does it. This is complicated stuff. The mission-critical obligations arise not out of policy or legislation but the case-law. And the case-law isn’t always easy to access, process or understand (hence this blog!). So take care out there, #planoraks. Particularly if you have a substantial scheme which is inevitably going to cause harm. Planning decision-makers should only exceptionally be thinking about alternative sites or schemes. But if you’re not careful, as the flying finger used to say on the National Lottery ads, the exception could be you.
In the meantime, stay well #planoraks. Not long now until red and orange crunchy leaves, gloves and scarves. Enjoy the occasional outing into the office. And, most important, #keeponplanning.
