What is the difference between planning and building regulations?
Planning sets the framework for what is permitted by way of a building or project. The description of development on a planning decision notice explains, for example, what sorts of use (residential, nuclear power station, shop, office, farm) a piece of land can be used for. The permission will have conditions attached to it which prescribe the manner in which that development can be carried out - they will, for example, require remediation of contaminated land before work can commence, or the submission of more detailed information about the construction and decorative materials to be used on the external appearance of a building.
Building regulations control the technological, practical aspects of how things are constructed and operated.
Of course, not all objections can be addressed as objectors would wish but, a careful explanation as to why that is the case is necessary and helpful.
How can commercial development go legally wrong?
Where do I start? Very often we are asked to advise in cases where insufficient public engagement has been undertaken by a developer - it is really important that consultation is thorough. That is not only respectful to the community in which a project is to be located, but it is immensely helpful to the developer in ensuring that issues which are of concern to businesses, individuals and interest groups in an area are flushed out before they become entrenched and more difficult to overcome. Of course, not all objections can be addressed as objectors would wish but, a careful explanation as to why that is the case is necessary and helpful.
Inadequate resource within local planning authorities – not just regarding the expertise and experience of officers, but the fact that there are too few of them, thinly spread with a vast caseload - is a problem. As is the fact that many authorities, especially in major cases, give us a series of different planning officers, which results in inconsistent advice during the pre-application and pre-determination process.
The professional advice of officers may be disregarded by elected Members, who make the planning decisions at a local level. That happens also in London with the Mayor and with the Secretary of State when he is deciding an appeal. We have a planning system, unlike other countries, where our decision-makers are democratically elected politicians accountable to their electorates. That can really affect the strategy for achieving permission.
For any sizeable planning application, I recommend a pre-submission legal audit that identifies potential issues which might, for example, create judicial review risk if left uncorrected.
What can companies do to avoid any legal matters during planning?
It is really beneficial to involve the specialist lawyers at the outset of planning the strategy for a planning application - especially on major schemes. That way we can plot out the “what ifs” and build in tactical and strategic options from the start. That does not mean we have to be involved in every meeting and cost the client an enormous amount of money - but prevention is much better than cure.
For any sizeable planning application, I recommend a pre-submission legal audit that identifies potential issues which might, for example, create judicial review risk if left uncorrected.
Developers should know their planning lawyer well enough to be able to pick up the phone for advice on an ad hoc basis - it is better to involve us earlier than when something is going wrong at a later date. I have yet to meet the client who wants to be involved in expensive, delay creating litigation when they are looking at site holding costs, having to stand down construction workers where enforcement action is being taken, or appeals. If my team and I are involved early, there is likely to be a persuasive case to be made on a legal basis for what clients wish to do.
Engage, engage, engage - with local people and community groups, with local, regional and national politicians.
In what ways do you think the legal sphere is yet to develop, in order to meet the needs of commercial developers? How are you and your team working towards this?
We are still not, for the most part, sufficiently financially literate or commercial enough - but that is a general comment about lawyers really, not one that is solely applicable to planning lawyers.
All too often I see lawyers who tell their clients what the law is and leave the rest to them - it is really important to explain what the law means as applied to any project or problem and to identify as many options as possible for solving a problem. There are usually more ways to skin the cat than three knives and the kitchen table! Most of my team sit together in a semi-open plan “pod” which encourages constant communication, discussion and collaboration.
We have two fundamental rules. The first is that if one of the team thinks they have made an error or does not know the answer, they ask others for help. We do not necessarily learn by triumphing and no one who is a proper human being is 100% right all the time. The second rule is to use every endeavour not to make the same mistake twice: i.e. to learn!
In those days planning law was not so complex and tended not to be undertaken as a sole specialism, but as part of the work done by real estate solicitors.
Are there any trends you think your clients should be keeping an eye out for in commercial development?
Engage, engage, engage - with local people and community groups, with local, regional and national politicians. Understand the issues from another perspective than your own - design your project so that you have built-in solutions to address potential objections.
Can you share your journey into law?
I was articled (showing my age a bit here...) at Winckworth & Pemberton, as it then was when the firm was based in Westminster. After qualifying, I was a commercial property lawyer. In those days planning law was not so complex and tended not to be undertaken as a sole specialism, but as part of the work done by real estate solicitors.
One of the legacy firms of Winckworth & Pemberton was Knapp Fishers, which had acted for Courage the brewery company since 1796 when John Courage established his brewery in Southwark, coincidentally only a stone’s throw from where the modern firm is headquartered today, by Southwark Cathedral, Borough Market and London Bridge. When I was in articles, and as a young property lawyer, I worked closely with a senior partner of the firm who was assisting Courage with modernisation and disposal of its brewery sites. That’s where my interest in planning was really triggered. We were helping to obtain planning permission for the old brewery site in Reading for residential use, as the modern brewery had been built on the M4. We also worked on modernisation and rationalisation of the real ale brewery in Bristol - years later when I was at Bevan Brittan our Bristol office was on the opposite bank of the river, and I enjoyed seeing the site being further redeveloped for housing.
I was lucky enough to be sponsored by the Firm to undertake a Master’s in Environmental Law, which included Planning, at King’s College London (of which I was already a graduate). I did that over two years, whilst working full time.
Planning is very political.
When I was four years’ qualified, I knew that I wanted to specialise in planning and environmental law, but W&P did not have enough of that kind of work at that time to make a full caseload. I also thought I needed some exposure to different industry sectors and some additional specialist mentoring. I joined Freshfields and had a completely different learning experience, immersed in corporate environmental law and major projects such as the Channel Tunnel Rail Link, a super quarry off the coast of the Isle of Harris, and power station development.
I then went to Masons (as it then was), which had lots of scope for a planning and environmental specialist because it was one of the world’s leading construction firms and acted on all kinds of interesting projects. I headed up the Planning and Environmental team from London and enjoyed eight very happy years there - I met most of the people who work with me in the WS team today. Colette McCormack was a trainee then in our Manchester office. Lindsay Garratt was a summer student, then a trainee. Both are now Partners. My amazing PA Kuljit has been with me since those days too - my legal life would have been immeasurably harder without her. The senior members of the team including our fourth partner, Tim Fogarty, our senior associate Jo Hannah, and Nicky who is Tim and Lindsay’s PA, were also with us then. The client relationships we formed at Masons have been the backbone of the practice ever since.
We moved the whole team to Bevan Brittan in 2004, where we stayed for five years. I was Head of Regeneration and then Head of Housing. I was also Head of the London office. We were recruited because, at that time, BB had a strategy of aiming to diversify from being a Bristol headquartered firm, with a strong reputation and practice in public sector law, to a national firm with a 50:50 split between private and public sector work.
Colette, Lindsay, Kuljit and I came home to what is now Winckworth Sherwood in 2011. Jo, Nicky and Tim re-joined us. We also have four newer members of the team - our associates Matt Steinbrecher and Alex Woolcott, and Elly Barr-Richardson who is newly qualified. Both Alex and Elly were trainees with the Firm. Julie who is based in Manchester is Colette and Jo’s secretary (and has serious credit control skills). One of the things I loved from our first days back is the fact that so many of the people I knew when I left 19 years before were still important members of the partnership and of the firm - we have a very loyal culture.
The best planning lawyers are consummate team players, not cerebral naval gazers living in an ivory tower.
When did you realise the law was the career for you?
I was about 13 when I watched a TV series called LA Law. I know a number of other lawyers of my vintage who were inspired by that. My eldest son’s similar fix was Suits!
I also recognised then that my interests in words, politics, and helping people would suit a life in the law. I then spent summers working for local and smaller law firms, which helped crystallise that ambition. I had huge practical support from my superb English teacher Vivien Bradford, at the Green School for Girls - a state grammar school in West London.
I was mightily relieved when I was studying as an undergraduate at KCL and then when I rocked up to W&P, that I was actually good at, and extremely interested in, the law. I’m not sure what else I would have done - maybe journalism? Regardless, I have never regretted my choice of career, not even when doing all-nighters three days on the bounce at Freshfields or when we are working on an appeal at public inquiry.
What top three qualities make a leading planning lawyer?
Planning is very political. It affects all of us as citizens whether we live in the town or the country, or if we are young or old. It is important that planning lawyers recognise that they are doing something which affects real people and their everyday lives, as well as impacting physical environments and infrastructure which may be wholly necessary but might provoke opposition from the communities in which they are located.
Planning law requires an ability to see the big picture and also to focus on small details. We are dealing not only with a vast amount of statute law, but also secondary legislation, case law and national, strategic and local policy. In London alone, there are 33 individual sets of policies from each Borough, as well as the Mayor of London’s policies.
The best planning lawyers are consummate team players, not cerebral naval gazers living in an ivory tower. It is a given that you have to be clever, but in planning, you will be dealing with a huge range of personalities and expertise within your client organisations and their professional teams, including highway consultants, ecologists, communication specialists, financial viability experts, retain experts, air quality consultants, microclimate specialists. You need to play as part of the team and be able to manage it.
Planning law and practice have become hugely complex and it would be very difficult today to keep up to speed with all the evolving legislative, policy and case law without being focused on this area of law.
What motivates you most about your role?
I like people. My team members are family, and we have been together for a long time. That is enormously beneficial in terms of being able to communicate effectively and work in a consistent way to deliver a really top-level service for the clients. Colette and I once won a pitch for a company whose directors are siblings, because they liked the way we finish each others’ sentences; they told us: “You are just like us”.
I was also enormously fortunate to have exceptional mentors when I was a young lawyer. First, Robert Larard at Winckworth and then Paul Watchman at Freshfields. I have endeavoured to repay the debt I owe them in teaching me - not just about the law but also how to be a commercial, proactive and useful lawyer. Clients are not interested in lawyers who think their legal issues are “fascinating”; they want practical solutions to problems, lateral thinking and a financially effective outcome.
I am especially proud of being able, whilst at Bevan Brittan, to bring several young women into the profession who might otherwise not have had access to it, for various reasons, by sponsoring their legal education on a day release or night school basis and giving them practical training when they were our paralegals.
And to have four former trainees (two of whom are partners, and two of whom have the hallmarks of future partnership material) within the team is great - it shows we are doing something right. I was personally articled to our Head of Private Client, Hugh MacDougald - he is fond of saying that the people I have brought on are his “grandchildren trainees”.
Most of all, I enjoy working with clients. I was privileged to work with the Berkeley Group from 1996 onwards and many of my major clients today were people with whom I worked on major projects there. Those long terms relationships are very satisfying - as with the internal team, there are many benefits to having a long term knowledge of the personalities involved and their own objectives and motivating forces.
How have you seen planning law develop over your 30 years of practice?
At the beginning, as I said earlier, planning was not really a specialism in private practice; it tended to be an adjunct to the work of commercial real estate lawyers. I think that gave my generation a huge commercial advantage because we tend to see planning as something which adds or detracts from the value of a real estate asset - we see it in the same context as clients do.
However, planning law and practice have become hugely complex and it would be very difficult today to keep up to speed with all the evolving legislative, policy and case law without being focused on this area of law. The planning world has grown - we even have a specialist Planning Court where the High Court judges are serving or former planning barristers.
Also, individuals and communities are now more inclined, and empowered by law, to be involved in the development, or not, of the places where they live and work. That is proper and right - especially as our planning system works within our local, regional and national democratic decision-making process.
Most challenges in the profession, as in life, can be overcome with lateral thought, resilience, determination and charm - being kind to people and having kind people around you helps too.
What challenges have you met along the way?
Residential development in the private sector used to be very much a man’s world - and when I was younger I was usually the only woman in the room with a lot of senior men who had many more years’ experience and knowledge of the planning process, the industry and its development, than I did. Personality, humour and being on top of the detail and the law were absolutely essential to my success.
This is absolutely not the case now - not only are there lots of senior female executives, but also more women are leading consultants and advisers. One of my clients was recently the only bloke in the room - his entire professional team was female - and, as that was on the day I took my 17-year-old goddaughter with me to the meeting as part of her work experience, it was very gratifying.
When I had my first child nearly 20 years ago, I did not have the team around me as I do now. I had one junior assistant (and my PA Kuljit, of course!) and was thus faced with taking maternity leave - which could have had an adverse effect on the client base and the practice I had built up - or working with very little time off. I did the latter, but I am adamant that that was a particular choice in particular circumstances and not at all what should happen to others who choose differently.
Of course, all transactional lawyers in the corporate and real estate spheres had a horrible time during the financial crash. It was the first time I was glad that I was older - having worked through the early ‘90s recession I was not fazed by the downturn as many colleagues were who had not been in practice other than in boom times.
How did you overcome them?
Most challenges in the profession, as in life, can be overcome with lateral thought, resilience, determination and charm - being kind to people and having kind people around you helps too.
Resource and teamwork are important - and I learned fast that the best way to deal with that is to recruit, train and work with people you like and trust.
Karen Cooksey
Partner
I’m a Partner in Winckworth Sherwood, where I head up the Planning and Development Risk team - known affectionately as PANDR (partly because of the three female partners’ love of eyeliner!). I have over 25 years’ experience in planning law, as well as a strong reputation in relation to the delivery of major projects. I have been listed as one of the leading planning lawyers in the country, particularly in relation to London projects and residential/mixed-use schemes.
