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21/05/2021

Called in: 450-year old east London bell foundry conversion approved

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Whitechapel Bell Foundry / Shutterstock: 1928956073

A junior minister at MHCLG has approved a US venture capitalist's plans to redevelop a grade II* listed bell foundry in Whitechapel, leading the housing secretary to announce a review into 'how PINS and planning policy considers and defends heritage'.

LOCATIONWhitechapel
AUTHORITYTower Hamlets Borough Council
INSPECTORPaul Griffiths
PROCEDURECalled-in decision
DECISIONAllowed
REFERENCEAPP/E5900/V/20/3245430

The decision concerned the Whitechapel Bell Foundry in east London. The foundry was the oldest manufacturing company in Britain, having started up in the year 1570, and was known for manufacturing the Liberty Bell and for recasting Big Ben, the bell in the Elizabeth Tower at the Houses of Parliament.

In 1739, the business moved into its Whitechapel premises, a former pub originally built in 1670, where it operated until its closure in 2017. Since then, the future of the grade II* listed building has been the centre of a high-profile planning battle.

In December 2018, the US venture capital firm Raycliff Capital sought permission to redevelop the site. The first part of the scheme proposed the conversion of the listed building into a cafe, along with "interpretation spaces, workspaces and workshops". A miniature foundry was also proposed, separated from the cafe by a glazed screen, to allow visitors to observe small handbells being cast. 

The second part of the proposal involved the replacement of an unlisted 1980s building to make way for a seven-storey hotel with 103 bedrooms, a restaurant, bar, and rooftop terrace and pool. 

Alternative plans had also been put forward by the charity Re-Form, which sought to reinstate the building's original foundry use in a similar way to its award-winning work at the grade II* listed Middleport Pottery, near Stoke-on-Trent.

The decision was called in by the secretary of state Robert Jenrick in January 2020, and a nine-day public inquiry - run on a virtual basis due to the pandemic - was convened by Inspector Paul Griffiths that October. 

In June 2020, however, housing minister Christopher Pincher mistakenly told Parliament that the scheme involved the demolition of the listed building, and that it had already been refused by Jenrick. Both Pincher and Jenrick therefore recused themselves from the case for legal reasons.

When the decision letter was published, it was signed "on behalf of the secretary of state". MHCLG later clarified that it had been junior minister Luke Hall who had made the decision. 

In his decision, Hall described the design of the proposed hotel as "subtle and pleasingly understated", commenting that the inclusion of a bell and gantry on the roof "seemed an appropriate reference to the former use of the site". He also praised the proposal's "reintroduction of foundry operations into the building in areas where traditional bell founding used to take place".

The "comprehensive nature of the proposals" meant the building would not be at risk of future harm through incremental changes, Hall noted. He agreed with his inspector's opinion that Re-Form's alternative proposals and the issue of optimum viable use was "of limited consequence", because "the presence of an alternative scheme offers no justification to resist a proposal that is otherwise acceptable". Overall, he found, material considerations justified a grant of permission.

After the decision was published, Jenrick issued a statement on Twitter stating that he had commissioned a review into "how PINS and planning policy considers and defends heritage". 

The inspector’s decision – case reference 3245430 – can be read here.

"Heritage harm first?"

“By the standards of planning decisions, this one rather exploded on impact. 

"The bells cast at Whitechapel have been described as “the voices of nations”, marking the world’s “celebrations and sorrows” and representing “principles of emancipation, freedom of expression and justice” and therefore some of the most important intangible cultural heritage in Britain. With the secretary of state having accepted the inspector’s recommendation that permission be granted for a scheme including a boutique hotel, campaign group Save The Whitechapel Bell Foundry considers this the death knell for any future for the building as a fully working foundry, even given the plan for the public to watch the casting of hand bells in a mini foundry behind a glass screen; that was castigated by those acting for objector Re-Form as “about as much use as a chocolate teapot”. Perhaps the former owner is correct: “The foundry was the people. And that has gone.”

"The decision has been widely reported and there have been outcries in various quarters asking what went wrong and why the foundry has not been protected. The effectiveness and impartiality of Historic England has been called into question, described by Charles Saumarez Smith as 'conspicuously supine.'

"The case underlines the importance of being able to fully demonstrate the viability of any alternative case: having fought and won the right to an in-person inquiry, which was in the event conducted virtually, Re-Form’s rival plan to return the foundry to active use went down in flames, dismissed as 'well-intentioned' by the inspector who referred to its 'mere presence' and found no firm financial footing for it.

"Curiously, given that it was an application determined by his own minister, the case has also caused the secretary of state to announce that there will be a review of 'how the Planning Inspectorate and planning policy considers and defends heritage.' The implications of this are unclear, given that the inspector simply applied the law and policy as he saw them to be. The main point of contention seems to be the vexed issue of whether it is correct to apply an approach of ‘netting off’ heritage harm before weighing all benefits and harms in the overall planning balance.

"The Court of Appeal in Bramshill recently addressed the appropriate approach to the assessment of benefits and harms to heritage assets. There has been a struggle played out at planning inquiries between two competing approaches: one, following the Court of Appeal in Palmer, endorses carrying out an ‘internal’ heritage balance, in other words balancing first the identified heritage harms and benefits against each other, to see whether any net harm results, and if so only then proceeding to apply NPPF 195 or 196, as the case may be, depending on whether that net harm would be ‘substantial’ or ‘less than substantial’. Thus if net harm resulted, then the other public benefits of the scheme would be weighed against that harm to see how they balanced against each other. If not, those provisions would have no utility. 

"This bumped up against the requirement in the NPPF for the decision-maker to give 'great weight' to an asset’s conservation and for there to be clear and convincing justification for 'any' heritage harm. With the Court’s decision in Bramshill, the Palmer approach has now been effectively discredited, though not outlawed; the Court said that doing a self-contained or ‘internal’ balancing of heritage harms and benefits is not stipulated or implied by the statutory provisions and nor was there any justification for reading that into NPPF policy. Importantly however, the Court also remarked that it was hard to see how the ‘internal balance’ approach could ever make a difference to the ultimate outcome. And while there isn’t any one prescribed correct approach to balancing harm against benefits in a heritage case, if the approach in NPPF 193-196 was followed then the decision-maker would not go far wrong.

"It is interesting then that the secretary of state has agreed with the inspector that 'the approach of an internal heritage balance is a perfectly legitimate one' and that, there being no residual harm found on that basis, there was no need to consider NPPF 196. That does not accord with the effect of Bramshill, and the inspector preferred Palmer expressly on the basis that it was at the time the higher court authority. By the time of the secretary of state’s own decision, the Court of Appeal’s decision in Bramshill had arrived. However, the inspector was careful 'in recognition of the lack of certainty in this area' to do the exercise by the other route as well, and on that basis found some less than substantial harm only at the lower end of the scale, which was then outweighed by the heritage and other public benefits for the purposes of NPPF 196. The secretary of state agreed, in line with that, that the harmful elements were outweighed 'whichever route is taken'.

Kate Olley is a barrister at Landmark Chambers

Image credit | Shutterstock

 

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