This article is taken from the December-January 2024 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

Controllers like to control. Many things need to be controlled (and some things don’t), but once there is an obligation to secure some level of planning permission, the applicant is a hostage to the decision-maker. And, as controllers are often frustrated by the limitations of their powers, they are naturally tempted to push for their extension.

Rules and regulations are always done with the best of intent. But once some apparent improvement is put in place, however ill-conceived or impractical it transpires to be, it establishes a benchmark from which any relaxation is seen as a drop in standards.

The recent proposed removal of the “nutrient neutrality” regulations is an example. It started off as an EU-derived stipulation following a November 2018 European Court of Justice ruling on a Dutch case that thereby took effect across the EU and — because Brexit did not take effect until January 2020 — in the UK too. It was, of course, taken up with enthusiasm by the government quango, Natural England, which used it to issue 42 advice notices to local planning authorities in 2022 alone (on top of the 32 it issued them in 2019). By hampering construction near rivers, the regulation has the consequence of blocking much development near waterways.

These are the outcomes of piecemeal thinking, misguided zeal and the law of unintended consequences

The regulation has a purpose (to protect natural habitats in rivers) but was aimed at the wrong target. For the real threat to an unchanged nutrient balance in waterways is not from housing but from agriculture. But when in August the Government proposed removing the regulation in order to help ensure that the estimated 100,000 new homes (many of which already had planning permission) could go ahead, it met with a near hysterical response about going back on environmental promises. The House of Lords duly defeated the proposed amendment and the Government backed down.

There’s no doubt that the right to build needs control to make sure the community is protected against projects that might cause harm as also from the dangers of bad construction. However, the concept of “harm” is continuously stretched. As a consequence, planning applicants are being asked for ever more material. The days have long gone when you just needed a simple set of drawings and a form that described the design. Now you not only need endless reports. There will be surprise taxes. You may, for instance, have to pay for the upkeep of some heath that is five kilometres away that you didn’t know existed.

Undaunted, once you get through the document jungle and get your planning permission, you have to pass building regulations before work can commence. This is about standards and safety and so it should be. But, whilst we want buildings that are safe and resistant to climate, what are the limits and what level do they conflict with other considerations in where and how to build? Do we want to see the end of our old friend the sash window or be denied the ability to look out of our bedroom windows? These are the outcomes of piecemeal thinking, misguided zeal and the law of unintended consequences.

The documentation required for planning can be devised by each local authority. There’s a generally-required document called a “Design and Access Statement” which was introduced in 2006 with the purpose of explaining the design.

What should be submitted in this process has grown over the years. One local authority, advising that it should be “short and concise”, gives a huge list of subjects to cover. These include past design decisions — something the local authority has on file anyway — and a list of current social objectives such as demonstrating how the design will, “value and embrace diversity and difference”.

How you do that in a building plan is a bit of a puzzle, but it will probably necessitate several pages of meaningless waffle to be submitted, nonetheless. It is not surprising that these “short and concise” documents are often well over 100 pages and usually just repeat words and expressions such as “high quality”, “sustainable” and “character” over and over again.

You can add to this a series of reports on things like noise, smell, newts and so on. There can be up to 30 reports for a single building.
Most of these requirements — all requiring time and cost to compile — have been introduced to answer the demands of single-issue pressure groups and commentators, whose influence upon government regulation cannot be underestimated. Generally, they only care about their particular subject, be that pavement widths, wildlife, flood risk and so on. They have no interest in the look or usefulness of the building let alone seeing it built or addressing wider considerations beyond their own preoccupation.

Construction standards regulation has moved from protecting the innocent home occupant from shoddy or dangerous building work to restricting occupants’ enjoyment and freedom within their home

Their influence can be as surprising as it is significant. For an existing building, you often need a bat survey. There used to be a general agreement that results would be accepted when they came in — so you could get on with the application, but that’s gone. Now you can only do a survey when the bats aren’t hibernating. So, this has reduced the period for making planning applications for existing buildings to a seven-month window, based on the cycle of bat hibernation.

Even if you are building in an area with less than a one in 1,000 chance that it will flood, if the project is big enough, you still have to submit a flood-risk report. In somewhere costal like Poole in Dorset, you have to build two metres in the air in case it floods that much in a hundred years’ time. (Did anyone in 1923 have any idea what it would be like now?)

And, if that happened, when you’re living on stilts surrounded by water, not only have your neighbours disappeared but the entire centre of Poole, along with the most expensive real estate in Britain, Sandbanks, would be long gone.

Sometimes the reports have the reverse effect to that intended. Many authorities ask for a tree report, even if the trees aren’t protected. You can bet that they will be protected if you get a permission, so it is logical to fell the trees before you make the application.

Construction standards regulation has moved from protecting the innocent home occupant from shoddy or dangerous building work to restricting occupants’ enjoyment and freedom within their home. Much of this is driven by moral righteousness based on climate change.

You might want to open a window at night to cool the room. But if you do so on the ground floor, you might worry about security — but then again you might not. To this, the state has decreed the answer through the Building Regulations Approved Document O (2021) which imposes a new building requirement: if you want to have big opening windows then they need to be at least 2 metres off the ground.

This is among the regulations that delivers the death knell to one of our most characteristic architectural features: the sliding sash window. It also works on the assumption that, with the predicted rise in temperature (on which all this is based) British people — unlike inhabitant of existing hot countries — lack the gumption to adapt their behaviour.

Shutters, for example, almost universal in hot countries and once routine here, would solve a lot of anticipated problems: shading, night ventilation, heat loss, heat gain, security. But in pursuit of the perfect over the practical, simple shutters won’t pass half the tests.
Many of these new regulations will transform the appearance of our towns and villages, but this consequence is no part of the regulatory way of thinking.

The cost of the risk of this time, expense and lost opportunity has wiped out our locally-sensitive small builders

There is a new regulation (Building Regulations Approved Document O, 2023) that says there must be no windows that can be opened below 1.1 metres on upper floors. The reason is that, when it gets as hot as some predict a few decades from now, we may want to open our windows more. As if we don’t already do so when the temperature seasonally rises. But if we open our windows more often in the future then more people might fall out. Balconies need railings 1.1 metres high, so logically, this is how high window sills should be, instead of 80 centimetres as now.

Who can argue against such a requirement that puts safety first?

But what’s the record of the problem? There isn’t any recent one, but 20 years ago only 0.8 per cent of fatal domestic accidents were recorded as from falling out of windows. And there’s no information on the circumstances of how many of these window-fallers were trying to rescue their cats, remove obstructions or attempt suicide. Compared with kettles, cookers or stairs, this is minuscule risk.

And what’s the result? While you can add a fixed window below or put a rail inside, this is expensive and most developers won’t bother. We will end up with a post-2023 house style with odd-shaped windows — completely out of keeping with the proportions that made, for instance,

Georgian towns were so elegant — now, you won’t be able to look out of your own window if you’re sitting down. It’s worse for children. If they want to look out, as surely they will, they might climb on a chair to do so, and thus be more likely to fall out. Such is the law of unintended consequences — the one law that regulation never seems to consider.

We have a sclerotic and understaffed planning system. We have a housing shortage. But we pile on more and more regulations and give single-issue organisations an effective veto. Getting planning for a housing scheme, on land already allocated, can take three years. The cost of the risk of this time, expense and lost opportunity has wiped out our locally-sensitive small builders. As a result, it has left the market in the hands of the mass volume housebuilders who have the resources required to wait years to then construct their regulatory-compliant identikit housing estates.

Architects have to fit their work into the small design space left between ever more restrictive regulations. Without an urgent and comprehensive review of new building regulation in Britain, all our fundamental freedoms over the look and function of our property are being replaced with instructions on how we should live. Indeed, how we must live.