The Commonwealth Institute decision - a dangerous precedent
The door needs to be shut on Kensington and Chelsea’s stall before listed buildings bolt like horses, says Tim Taylor
It is not always easy to put planning and heritage decisions into a legal context. However, doing so is sometimes essential. The recent decision by the Royal Borough of Kensington and Chelsea (RBKC) planning committee to approve OMA’s revised plans for the former Commonwealth Institute building (see page 9), incorporating the Design Museum, is one such occasion.
Consistency in decision making is a well-recognised expectation in planning law (see North Wiltshire DC v Secretary of State, 1993). For example, a decision made on Application A should reasonably be reflected in any decision on Application B. Planning committees are not legally bound by previous decisions, but a departure from a relatively recent, similar decision could fall foul of the ‘consistency’ requirements in North Wiltshire.
This is just one of the problems that the RBKC planning committee may have created for itself with its decision last Thursday. Whether English Heritage decides on direct refusal or the Secretary of State calls it in for his own determination, RBKC has set out its stall. And it’s fairly ominous – the destruction of a Grade II*-listed building and the dominating impact of new buildings on it and its setting may well be permitted in the borough if the eventual occupier ticks enough of the council’s boxes. One can only imagine how many horses (disguised as listed buildings) will try to bolt from that stall.
Many people hope the door will be shut before it’s too late. In its recent Statement of Significance, English Heritage described the Commonwealth Institute as being ‘of international significance’, and the grounds in front as ‘a rare surviving example of a registered post-Second World War landscape’.
It is worth keeping this assessment in mind when looking at another legal duty. Section 16(2) of the Planning (Listed Building and Conservation Areas) Act 1990 imposes that local planning authorities ‘have special regard to the desirability of preserving the [listed] building or its setting or any features of special architectural or historic interest which it possesses’.
Many will argue that RBKC has shown it is unwilling to give such ‘special regard’ to preserving a building of ‘international significance’. For that reason, those same people might also argue that it is time for English Heritage to use its wide-ranging statutory powers to ensure that the final decision is one made at a public inquiry, based on a proper assessment of the planning and heritage issues. At least that would be a more appropriate and reasonable legal context for a decision than whether the Design Museum might be coming to town.
Tim Taylor is a planning lawyer at Forsters