Charles Wright: Why can ministers wield planning powers like Henry VIII?

Charles Wright: Why can ministers wield planning powers like Henry VIII?

Michael Gove’s decision to approve a South Bank office scheme, memorably described by one objector as looking like a “great crouching toad on the riverbank”, has raised new questions about ministerial powers to take planning decisions out of the hands of London’s councils and City Hall.

The secretary of state’s controversial verdict follows his similarly contentious decision last year – now facing a High Court challenge – to throw out the Marks & Spencer proposal to demolish and rebuild its flagship store at the Marble Arch end of Oxford Street, and his recent blocking of Sadiq Khan’s rejection of plans for the 300 foot-high, brightly-illuminated MSG Sphere entertainment dome in Stratford.

The many opponents of the South Bank scheme, positioned next door to the listed National Theatre and IBM buildings, are pondering how a minister who has put the creation of “high quality, beautiful and sustainable buildings and places” at the heart of planning policy could sign off a scheme he himself concluded would be neither “attractive” nor provide a “positive contribution to the townscape of the South Bank”.

Planning experts are questioning too why Gove’s sustainability-driven articulation of a “strong presumption in favour of repurposing and reusing buildings” along with his concern for neighbouring heritage sites, considerations which prompted his dismissal of the M&S scheme, did not carry the day on the Thames river bank. “Can anyone work out how you get from M&S to the South Bank decision?” asked one.

Those decisions have put the process as well as the substance of ministerial decision-making under scrutiny. Westminster City Council, backed by Mayor Khan, granted permission for the M&S plans in 2021, Gove exercised his “call-in” powers to take over the application in June 2022, a two-week public inquiry took place later that year, and the final decision came in July last year, some 20 months after the original council verdict.

The South Bank decision took even longer: Lambeth Council approved the scheme in March 2022, it was called in five months later, a 12-day inquiry straddling Christmas and New Year reported in May last year, and it then took a further nine months for Gove to pronounce – almost two years in all.

In all, national government’s exercises of its call-in power have added almost 15 months on average to the planning processes for London applications since the beginning of 2018.

Call-ins are relatively rare – 12 in London over the period – but are generally used for major projects. The ten relating to housing or office schemes have meant delays to plans for almost 4,700 new homes, 35 per cent of them affordable, as well as often considerable legal and expert witness costs for applicants, councils and objectors alike.

In almost every case, though, the final ministerial decision has been the same as the original council stance – to grant permission. Over the past six years a secretary of state has disagreed with a council just twice – with Westminster over the M&S Oxford Street scheme and with Lambeth over a 443-home Albert Embankment project.

So, why were these decisions called in, with all the uncertainty that causes? We don’t know the answer. Government policy suggests call-in powers should only be used where “planning issues of more than local importance are involved”, yet the secretary of state is not legally required to give specific reasons, apparently so as not to blur the distinction between the process of deciding an application and its merits.

That makes the call-in process akin to a “Henry VIII style” power allowing rule by decree, making it vulnerable to “accusations of politicking and ministers indulging themselves”, according to Alexander Jan, economic adviser to the London Property Alliance which represents the property industry across the City and the West End.

“The problem with such unbridled ministerial authority is that it creates an added layer of uncertainty in the planning process for everyone and prises open what should be a rules-based approach,” he said.

“It also means, as is arguably the case with Marks & Spencer’s Oxford Street, that campaigners may look to a path to overturn a decision on the whim of the minister in question. All this creates significant additional cost and blight, as sites earmarked for development can remain in a no-man’s-land for much longer than would otherwise be the case.”

Call-in does have a role where developments have city-wide or national impacts, said Jack Brown, lecturer in London Studies at King’s College. “But this should be an emergency brake, pulled only briefly and in exceptional circumstances when necessary.”

He added: “If the vast majority of call-ins are resulting in no change of decision, you can’t help but wonder if this power is perhaps being misused, leading to unnecessary hold-ups in an already laborious and stilted process and holding the capital’s growth back.”

For Jan, statutory guidelines and criteria for call-ins “could create a higher degree of certainty for decision-making and tilt the system back towards being rules-based”. This would bring the process in line with the one governing intervention by City Hall, where specific criteria must be met before the Mayor can exercise his own powers to take over an application.

Brown agrees: “I’m not sure that this is an issue where the rules need changing or powers should be abolished, so much as a higher bar being set for interference. Perhaps looking at strengthening the incentives and disincentives to call in could help reduce their over-use.”

Are these sorts of changes on the agenda? In one respect, Gove seems sympathetic. This week he announced a consultation on increasing the threshold for intervening on large housing scheme applications from its current 150-unit level – not for Whitehall interventions though, but for City Hall’s.

The government “wants to make sure that this threshold is set at the right level, in order that it adds value to the process of determining applications for potential strategic importance (especially for residential development), and does not inadvertently slow down or disincentivise developments that could be appropriately determined by the London borough,” Gove said.

Could this argument be applied to the secretary of state’s own powers, perhaps under a new administration? Unlikely, according to Jan: “It would be naive to think ministers of any government would be likely to voluntarily relinquish their, in effect, unfettered powers any time soon. The ghost of Henry VIII’s way of governing may well continue to haunt us for the foreseeable future.”

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