On Beauty

This article seeks to examine the legal implications of the inclusion of the term beauty , as regards the built environment, in the National Planning Policy Framework ( NPPF ) 2021. The NPPF sets out central government s planning policies and how they are expected to be applied by local authorities[1]. References to beauty in the NPPF 2021 have doubled compared to the NPPF 2019 which used the term five times, exclusively in reference to the natural environment or open space. Contrastingly, the five new references arise in reference to beauty in the built environment[2] [3] [4] [5] [6], implying that not only does the government see beauty in the built environment as a separate category to beauty in the natural environment, but that the former is equally important to central government planning policy.

There has been discussion of beauty in the planning movement for over 150 years, for example in the works of John Ruskin (1877) and the Garden Cities Movement (1913). There are also many references to beauty in the natural environment across the history of planning policy and law[7]. However, historic references to beauty in the built environment in policy and law are rare, possibly due to the fact that previous generations of planners, lawyers and law makers understood that beauty in the natural environment is not relient on human intervention, whereas the built environment is necessarily dependent on an individual or organisational conception of beauty, which may not chime with others conceptions.

In this piece, I shall argue that references to beauty in the NPPF 2021 are either superfluous and unnecessarily conflated with good design or amenity, or they indicate an ill thought out and undefined policy direction. With reference to two recent planning appeals I conclude that either scenario is likely to cause difficulties in both legal and planning decision making.

The NPPF is a material consideration that can weigh heavily in planning decisions[8]. Indeed, the Levelling-up and Regeneration Bill, introduced to Parliament on 11^th May 2022, gives the NPPF equal, and in some circumstances greater weight than a local development plan[9]. Under current planning law, as a result of its inclusion in the NPPF, the term beauty is a material consideration in the contexts of sustainable development, major housing schemes, density, and good design. Beauty s inclusion in the NPPF is a result of the government s response to the Living with Beauty report by the Building Better, Building Beautiful Commission published in January 2020. In it, the authors recommended the planning system ask for beauty and refuse ugliness .

The Commission s definition of beauty is not included in the NPPF or in planning legislation. It is doubtful that the term can be defined in the context of planning or that it would be desirable to do so. Beauty is an emotive and mutable term, which changes from beholder to beholder and from context to context[10]. The effect of defining beauty in policy or legislation would be to fix it temporally and attach it to one person s or institution s conception of beauty. This would not be desirable as conceptions of beauty develop over time and differ between individuals, places and contexts . Whilst the planning system can seek to look forwards, for example by ensuring new buildings are environmentally sustainable, it cannot predict what future generations will see as beautiful. Similarly, if planners are to refuse ugliness they will inevitably do so based on their own, contemporary understanding of beauty, leading to decisions which may be based on unexamined or misguided prejudices.

Beauty, as it appears in the NPPF does not simply mean good design or amenity . These differences are clearly recognised by the authors of the NPPF as they use the three terms separately and not interchangeably. Good design in the NPPF has recognisable criteria[11], whereas beauty does not. Similarly, there have been planning cases that actively distinguish amenity from beauty[12]. Whilst the definition of amenity has been problematic over the history of planning disputes, there are two key differences from the problems arising in defining beauty. First, amenity is not nearly as emotive a term as beauty. Secondly, amenity in planning terms is widely understood as referring to a quality or character of an area, contributing to its overall enjoyment, whereas no such understanding exists as regards beauty.

Beauty has been raised as an issue in two recent planning appeals, the legal mechanism by which an applicant can appeal to the Secretary of State (through appointed planning inspectors) against a refusal of planning permission or against the terms on which permission is granted. On both occasions the inspector has recognised the difficulties associated with the term and avoided dealing with it. The first relates to a mixed-use scheme for 144 flats in Ealing[13]. In this appeal[14], one of the parties placed great emphasis on the concept of beauty. The planning inspector concluded as follows:

There is I believe something of a tension between identifying a building as an exemplary piece of design which is an objective finding based on established architectural principles, and adorning a building with the epithet beautiful , which is a subjective one. To my mind, my finding that the building would attain a very high (or exemplary) standard of design is sufficient to justify a conclusion that the proposal does not fall foul of Government advice on the subject in the Framework, the National Design Guide, and the National Model Design Code. [15]

This seems to suggest that, in the Inspector s view at least, the advice on beauty in the NPPF is repetitious of its advice on good design. However, it should be recognised that this is not necessarily the case, for reasons already mentioned. A second occasion in which beauty in the NPPF has been raised is in the planning inspectorate s recommendation for refusal of the Tulip scheme in the City of London[16]. At [14.82] the Inspector said:

I did not pursue the notion of beautiful found in the draft NPPF. It is evident, for all the reasons that they set out, that the Appellant and its supporters consider that the scheme would be beautiful while objectors think it would not. While I certainly accept that innovative designs can be beautiful, in other regards I consider that the concept of beauty or otherwise for this appeal is in the eye of the beholder and that any further discussion is unlikely to be helpful.

This quote offers further insight. Once again, the Inspector assessed the equation of beauty with good design, accepting that good or innovative design can be beautiful but that need not necessarily be the case. He then goes on to suggest that, due to the subjectivity of the term, beauty is unlikely to be a helpful concept in planning appeals.

Beauty s status as a material consideration in planning decisions raises the issue of the weight decision makers should give to the criterion. As can be seen from the two appeals, the outcome is likely to be that the term becomes an often ignored and therefore unnecessary inclusion in the text of the NPPF that can be easily equated with good design or amenity. However, planning decision makers should be wary of ignoring it. By its inclusion as a separate and distinct term beauty is a material consideration in its own right. Therefore, by ignoring it decision makers may find they have fallen foul of the statutory imperatives in s.70 Town and Country Planning Act 1990 and s.38(6) Planning and Compulsory Purchase Act 2004, meaning that a decision may be open to statutory[17] or judicial[18] review.

The task of interpreting the term beauty in the NPPF on a day-to-day basis will fall to planners. However, planners interpretations of terms such as beauty can be challenged in the courts[19] [20]. There are already many terms in the planning system that require interpretation, such as openness [21] [22] or special regard [23]. It is a cornerstone of public law that when faced with an issue of interpretation in planning policy or legislation, the courts will, so far as possible, attempt to interpret words and expressions in an ordinary, everyday manner, whilst avoiding absurdity and ambiguity. The difficulty in applying these principles to a term such as beauty is clear beauty cannot be read in an ordinary or everyday manner when its meaning and conceptualisation is so fluid.

The implication the inclusion of the term beauty in the NPPF 2021, and especially in such key paragraphs, is that the term is enshrined at the heart of national planning policy. The lack of definition ultimately leads to the type of confusion the courts could normally step into resolve. However, with a term like beauty they may be unable to. Furthermore, the use of the term in the creation of design codes leads to the perpetuation of unacknowledged prejudices and the undue dominance of a notion of beauty from one section of a community responsible for the creation of design codes.

National policy makers should avoid the inclusion of superfluous language in the NPPF, especially terms as emotive and fluid as beauty. Alternatively, if the use of beauty is purposive, it is incumbent upon national policy makers to define the term to avoid confusion and inconsistency in decision making. It may appear controversial to suggest that beauty should not factor into decisions relating to the built environment. However, I have argued in this piece that whilst planning can, and should, concern itself with achieving good design and amenity, it should not concern itself with beauty. Beauty is temporally and individually mutable and is therefore ill suited to decisions which affect many people over a long period.

References

Table of Statutes

Countryside and Rights of Way Act, c.37 (2000). (Eng).

https://www.legislation.gov.uk/ukpga/2000/37/contents

National Parks and Access to the Countryside Act, 12, 13 14 Geo. 6. c.97 (1949). (Eng).

https://www.legislation.gov.uk/ukpga/1949/97/pdfs/ukpga_19490097_en.pdf

Planning and Compulsory Purchase Act, c.5 (2004). (Eng).

https://www.legislation.gov.uk/ukpga/2004/5/contents

Senior Courts Act, c.54 (1981). (Eng).

https://www.legislation.gov.uk/ukpga/1981/54/contents

Town and Country Planning Act, c.8 (1990). (Eng).

https://www.legislation.gov.uk/ukpga/1990/8/contents

Table of Cases

Barnwell Manor Wind Energy Limited v. East Northamptonshire District Council and Others, EWCA (Civ) 137. [2014]. (Eng).

https://www.bailii.org/ew/cases/EWCA/Civ/2014/137.html

Heath Hampstead Society v London Borough of Camden EWHC, (Admin) 977. [2007]. (Eng).

https://www.bailii.org/ew/cases/EWHC/Admin/2007/977.html

R (Timmins and Lymn Family Funeral Service) v. Gedling Borough Council and Westerleigh Group Limited EWCA (Civ) 110 [2015]. (Eng).

http://landmarkchambers.co.uk/wp-content/uploads/2018/05/Timmins.pdf

R (Lisle-Mainwaring) v. Isleworth Crown Court and Royal Borough of Kensington and Chelsea, EWHC (Admin) 904. [2017]. (Eng).

https://www.bailii.org/ew/cases/EWHC/Admin/2017/904.html

Suffolk Coastal District Council (Appellant) v Hopkins Homes Ltd and anor, UKSC 37 [2017]. (Eng).

https://www.bailii.org/uk/cases/UKSC/2017/37.html

Tesco Stores Ltd v Dundee City Council (Scotland), UKSC 13 [2012]. (Eng).

https://www.bailii.org/uk/cases/UKSC/2012/13.html

Planning Appeals

51-56 Manor Road and 53-55 Drayton Green Road, West Ealing, London W13 0LJ, Appeal Ref: APP/A5270/W/21/3268157. (2021). (Eng).

https://acp.planninginspectorate.gov.uk/ViewCase.aspx?caseid=3268157

Land Adjacent to 20 Bury Street, London EC3A 5AX, Appeal Ref: APP/K5030/W/20/3244984. (2021). (Eng).

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1032817/21-11-11_DL+IR_20_Bury_Street_3244984.pdf

Bibliography

Building Better, Building Beautiful Commission. (2020). Living with beauty promoting health, well-being and sustainable growth.

Carmona, M. Giordano, V. (2022). Appealing Design: The evidence of planning appeals and the need to reject poor and mediocre housing design.

Hume, D. (1757) Of the Standard of Taste and Other Essays. Bobbs-Merril, 1965.

Levelling-up and Regeneration HC Bill 006 2022-23 (as introduced)

Department for Levelling Up, Housing and Communities and Ministry of Housing, Communities Local Government. (2021). National Planning Policy Framework.

https://www.gov.uk/government/publications/national-planning-policy-framework__2

Department for Levelling Up, Housing and Communities and Ministry of Housing, Communities Local Government. (2021). National Planning Policy Guidance.

https://www.gov.uk/government/collections/planning-practice-guidance

Department for Levelling Up, Housing and Communities and Ministry of Housing, Communities Local Government. (2019). National Design Guide.

https://www.gov.uk/government/publications/national-design-guide

Department for Levelling Up, Housing and Communities and Ministry of Housing, Communities Local Government. (2021) National Model Design Code.

https://www.gov.uk/government/publications/national-model-design-code

Note on the Contributor

Oliver is a PhD student at the Bartlett School of Planning, University College London. Before undertaking his PhD, Oliver qualified as a barrister with a particular interest in planning and public law. Oliver s PhD research focuses on the contributions of judges and case law to spatial planning in the United Kingdom.

[1] Ministry of Levelling Up, Housing and Communities, 2021

[2] Paragraph 8(b): As part of the definition of sustainable development and the overall social objectives of the planning system

[3] Paragraph 73(c): As a policy criterion for major housing schemes, including new settlements or extensions to existing villages or towns

[4] Paragraph 125: As a policy criterion for achieving appropriate densities

[5] Paragraph 126: Under the policy criteria for achieving well-designed places

[6] Paragraph 128: Calling upon local authorities to produce design guides

[7] See, for example, protection of Areas of Outstanding Natural Beauty in the Countryside and Rights of Way Act 2000 and before that the National Parks and Access to the Countryside Act 1949

[8] National Planning Policy Guidance 2021, Paragraph: 006 Reference ID: 21b-006-20190315

[9] Sections 5(A)-(C) Levelling-up and Regeneration Bill, 2022

[10] David Hume, Of the Standard of Taste and Other Essays, 1757

[11] For example, the National Design Guide 2019 and National Model Design Code 2021.

[12] R (Lisle-Mainwaring) v Isleworth Crown Court and Royal Borough of Kensington and Chelsea [2017] EWHC 904 (Admin)

[13] Appeal Ref: APP/A5270/W/21/3268157

[14] About which more can be read here: Carmona, M. Giordano, V., Appealing Design: The evidence of planning appeals and the need to reject poor and mediocre housing design , 2022, p.26

[15] Paragraph 23

[16] Appeal Ref: APP/K5030/W/20/3244984

[17] Section 288 Town and Country Planning Act 1990

[18] Section 31 Senior Courts Act 1981

[19] Tesco Stores Ltd v Dundee City Council (Scotland) [2012] UKSC 13

[20] Suffolk Coastal District Council (Appellant) v Hopkins Homes Ltd and anor [2017] UKSC 37

[21] Heath Hampstead Society v LB of Camden [2007] EWHC 977

[22] R (Timmins and Lymn Family Funeral Service) v. Gedling Borough Council and Westerleigh Group Limited [2015] EWCA Civ 110

[23]

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