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After a series of controversies and embarrassments caused by Birmingham’s dated skyscraper policy, the dispute now seems set to end in court.
Birmingham City Council is defending a claim that it breached its own skyscraper policy by insisting the policy is so old it doesn’t matter very much.
Benacre Properties has given notice of its intention to seek judicial review of the decision to grant approval for 26- and 29-storey towers as part of a £220M development on the Monaco House site, Bristol Street. It claims it breaches the High Places skyscraper policy document agreed in 2003.
The 18-year-old High Places document was agreed when Tony Blair was prime minister, Steve Jobs was four years away from launching the iPhone, and Facebook was still just a geeky college kid’s idea.
The High Places policy has been under review since 2018 with, as yet, no outcome.
Benacre’s claim is that because the site, where MCR Property vehicle Orchitame plans 1,009 residential units, is not located on the city centre ridge where tall buildings should cluster, nor on maps of other appropriate locations, and because no exceptional circumstances for deviating from policy have been given, the permission should be struck down. It has an interest in nearby 96-104 Bristol Street.
City councillors meet on 21 January to consider the dispute.
A report to councillors admitted that the High Places policy is so far out-of-date that it does not deserve much role in deciding planning applications.
“Given its age and the changes in the character of the city in the 18 years since [High Places] was adopted, it may reasonably be concluded that reduced weight can be attached to the guidance,” the report said.
“This policy is currently under review and whilst its overall aim remains relevant, an awareness of the emerging city centre townscape and wider policy changes are also entirely relevant considerations. Therefore given the changes since adoption of this policy, including the adoption of the [Birmingham Development Plan], I consider less weight, with particular reference to its restrictive locational requirements, should be attached to [High Places],” the report to councillors said.
For good measure, the council argues that the Bristol Street site “is positioned immediately to the north of an approximate location marker as shown on map four of the SPG and the site is therefore considered to fall within the defined circumstances of the policy.”
If the council is right, and the site is within High Places, then there is no need to show “exceptional circumstances” to justify permission, but despite the risk of undercutting the council’s own argument, the report to councillors offers one anyway.
The report said that redeveloping “an existing vacant, brownfield and highly sustainable site” that “would also provide significant social, economic and environmental benefit not least by providing on-site affordable housing, much needed new housing and public highway improvements,” could “comfortably satisfy an exceptional circumstances test”.
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Benacre also claimed that councillors were not told that the council was the freehold owner of the large part of the site before it made its decision to approve it, contrary to policy.
A report to councillors replies that the council, in its role as local planning authority, didn’t know it owned the site because although the promoters of the Bristol Street scheme told it, by serving the council with the appropriate notice, it didn’t explain the “extent” of the council’s ownership. The report does not say why nobody thought to ask.
“At the time of the original committee report the only information available to the local planning authority in terms of land ownership was that provided by the applicant on the planning application form in terms of notices served on other parties with an interest," the report said.
"[Birmingham City Council] was one of three other parties served with a notice by the applicant and details of the extent of their ownership were not provided. Birmingham Property Services have confirmed they are freeholders of the site with a long leasehold interest granted to a tenant."
The report added that mentioning council ownership to councillors is not “necessary, relevant or routine” in planning decisions, so it didn’t matter whether councillors knew or not, but councillors know now, so they can take it into account if they think it matters.
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