Take a View. Dewar Hogan Solicitors. London.

Take a view!

Did King Henry VIII really stand on his eponymous mound in Richmond Park to watch for the rocket from the Tower of London which told him that Anne Boleyn had been cleared out of the way and he was free to marry Jane Seymour?

Well, probably not. It doesn’t do for royalty to appear too eager, after all, and the evidence suggests that Henry had rather unheroically arranged to spend the day in Wiltshire. But in more modern times the view of St. Paul’s from Richmond Park is treasured by the locals. The picturesque scene was made in 1711 by planting an avenue of trees at the end of which the cathedral is – or was – seen silhouetted against a clear sky.

Nor is it only the locals – planning law has protected twenty-seven London views, of which this is only the most famous. The Mayor of London is empowered, at the moment through the Greater London Authority Act 1999, to make various subordinate legislation protecting views. This legislation restricts the height of new buildings visible in various famous views, whether they block the view or whether they spoil the background to the view.

This is not a new notion – planning law has restricted the height of new buildings in London for well over a hundred years, and in the case of the Richmond Park view at least one high profile development – the Liverpool Street Station development in 1976 – has been required by a public inquiry to lower its height so that it should not detract from the view.

The planning legislation is never an absolute bar – otherwise the Shard, for instance, could never have been permitted. Still, the present statutory guidance policy on the Richmond Park view says that, ‘In determining applications, it is essential that development in the background of the view is subordinate to the Cathedral and that the clear sky background profile of the upper part of the dome remains.’.

That’s pretty clear. How, then, did Manhattan Loft Gardens – a proposed 42 storey structure that will boast a 145-room hotel as well as 250 flats – obtain planning permission in 2011? It’s currently being built behind St Paul’s, and already the structure is blocking the sky behind the cathedral as seen from Richmond Park; in due course clearly it will appear to sprout out of the roof of the cathedral itself.

Evidently the guidance was not followed. This, of course, happened on Boris Johnson’s watch. The new Mayor, Sadiq Khan, is under pressure from campaigners to investigate how this was allowed to happen.

As you would expect the developers, Manhattan Loft Corporation, are playing with a straight bat – “Despite going through the correct planning processes in a public and transparent manner, at no point was the subject of visual impact to St Paul’s ever raised by the ODA or GLA.”, they say. Also, they claim, the map attached to the guidance suggests that it is only intended to protect a 1.86-mile radius around the monument – the structure is built 4.35 miles away. (If true, this naturally makes any property lawyer think of the distinction drummed into every law school student between a building ‘more particularly delineated upon’ the plan, and one which is ‘shown for the purpose of identification only’ on the plan. Still, I digress.)

The London Mayor and the associated authorities now have a dilemma, since although technically the structure has the relevant consents, it seems tolerably clear that somehow there wasn’t sufficient consideration given in the process to the view from Richmond Park.

The law surrounding protected views is interesting; it has great intuitive appeal but faces serious practical problems.

What makes a good view is at least partly a subjective aesthetic decision and faces the same challenges as deciding what makes good art; it is impossible to obtain any real consensus or agree a strict definition.

This creates two key problems. First, there is the difficulty in selecting which views qualify as being worthy of legal protection. The current law focuses on protecting views of St Paul’s Cathedral, the Palace of Westminster and the Tower of London but some might think that the London Eye, the Gherkin or the Shard are all equally worthy.

Secondly, to apply the law in practice, one must make a decision on exactly when a new development will detrimentally interfere with the view. This is very difficult to apply consistently because opinions vary widely.

Still, if we are going to protect views at all, something seems to have gone wrong with Manhattan Loft Gardens. It will be interesting to see what, if anything, the Mayor is minded to do.