There being no agreement on its meaning, philosophers have labelled social justice a ‘contested’ concept. At a basic level, distributive justice is concerned with fair processes in disseminating goods and services. There are two broad approaches to assessing process outcomes. Current time-slice theorists view the existing social product as a collectively created cake to be allocated according to impartial principles. In A Theory of Justice, John Rawls maintains that rational people, behind a ‘veil of ignorance’ about their future life chances, will agree to join a particular society so arranged that social and economic inequalities are permitted only if they are ‘to the greatest benefit of the least advantaged’ (Rawls, 1971, p 102). Thus, for Rawls, inequalities are just if they lead to an improvement in the position of the ‘least advantaged’ to a situation better than they would have obtained from an equal resource division. Equality is Rawls’ starting point; inequalities require robust justifications. In contrast, entitlement theorists examine the procedures through which a particular social distribution has occurred. Robert Nozick, for example, argues that a social distribution is just if it has been fashioned through fair procedures, that is, by creating an object, barter between free agents or as a gift. If people attain resources by these legitimate means they are entitled to keep them (Nozick, 1974). Nozick, alongside Hayek, was instrumental in the 1970s renaissance of laissez-faire thinking but, unlike Hayek, he argued that justice was historical. If resources have been acquired by past unfair procedures, then current rectification is necessary.

‘Externality’ identification transformed housing into a social problem. Urban growth developed through short distance moves of less than 30 miles by young people in search of better-paid work, supplemented by the migration from Ireland and the Scottish Highlands. The migrants were of child-bearing age and those born in towns and cities soon provided the main population growth impetus. Dwelling supply and sewerage could not keep pace with the billowing population so many people crammed into low quality, insanitary accommodation. However, poor housing conditions are not necessarily problematic. Housing had to be constructed as a social problem, a mission pursued by a new group of ‘public good’ experts who thought it necessary to centralise administration to secure a more wholesome nation. Throughout the 19^th century, ‘health and housing were considered to be one problem and treated accordingly’ (Lawrence, 1985, p 124).

Edwin Chadwick was the most formidable sanitary reform advocate. His Report on the sanitary condition of the labouring population of Great Britain (1842) assembled a variety of statistics and opinions to demonstrate that existing sanitary arrangements generated ‘externalities’ (see Box 2.1 ).

Chadwick was so anxious to ensure his findings produced action he consulted Charles Dickens on how to present his report for maximum impact. He also ignored alternative analyses circulating at the time stressing ‘privation’ – gruelling work, low wages and poor food – as causing poor health in favour of the politically less controversial ‘miasma’ – polluted atmosphere – explanation (Hamlin, 1998). Nevertheless, his report did not produce immediate results and it required pressure group activity from the Health of Towns Association to promote the measures.

The private rented sector housed the large growth and shift in population during the 19th century. Estimates of the proportion of houses owned by private landlords before 1914 are influenced by land tenure complexities and vary from 90% to 77% according to homeownership assessments.

The typical residential market process was for freeholders to lease land for a perpetual annual ground rent (chief rent) or for a specified period at an annual ground rent. Sometimes the freehold was bought outright for cash. When in the right place, land value was high and Lloyd George constantly attacked landowners for making large profits from enhanced land values created by community investment. Builders/developers obtained finance from a variety of sources including short-term loans made by landowners and prospective purchasers plus longer-term mortgage advances from banks. Solicitors – important players in land and property transactions – also supplied a financial source via organising people interested in passive investment in urban growth into ‘building clubs’ (Offer, 1981). Building societies had a long history as ‘terminating’ societies. Working class people agreed to pay into a fund to build houses and, when sufficient funds had been accumulated buy a property, members drew lots to decide the first occupier. Payments continued until all subscribers owned a house when the society terminated. Some societies allowed people not requiring a house to join the society paying interest on the investment. The society then became ‘permanent’. In explaining ‘permanent’ building society expansion, Samy (2016, p 24) adopts Hansmann’s theory (Hansmann, 2000), stating:

The theory is centred on the premise that small-scale investors and mortgage borrowers were vulnerable to opportunist behaviour on the part of holders of permanent capital and managers seeking to extract rent from them.

In 1968, following Enoch Powell’s ‘rivers of blood’ speech (Powell, 1968), Labour introduced Urban Aid, directed by the Home Office and aimed at steering resources to areas where racial tensions were high. It was accompanied by other initiatives such as Educational Priority Areas, Community Development Projects and Section 11 payments under the 1966 Local Government Act, made available to local authorities with a significant number of immigrants and mainly directed to employing additional teachers.

Local authorities had considerable discretion on how they used the extra resources available under Urban Aid. Most spent the money on coordinating services, self-help schemes, nursery education and youth projects. Urban Aid continued throughout Edward Health’s 1970–74 government and beyond. The 1978 Inner Urban Areas Act switched urban policy emphasis towards economic regeneration with central government resources directed towards creating partnerships between local government, central government and local residents and assisting local industries. The Department of the Environment became responsible for the Urban Programme although Section 11 payments remained with the Home Office.

Conservative commitment to reducing public expenditure from 1979 meant diminishing state resources for urban renewal and, rather than central/local partnerships with local residents, Michael Heseltine, then Secretary of State for the Environment, concentrated on private sector, property-led renewal via Enterprise Zones and Development Corporations primed by tax breaks and grants such as Derelict Land Grant. This property-led approach was revived in the 1990s, with more local government involvement via City Challenge and the Single Regeneration Budget, both accessed by competitive bidding.

Diminishing demand for council housing first received central attention in 1974 when a national survey identified 62,000 council properties in low demand, a consequence, in part, of the decline of Britain’s industrial heartlands, which accelerated in the 1980s and 1990s.

Housing has been described as ‘the wobbly pillar under the welfare state’ (Torgersen, 1987, p 116) because, unlike health and education, politicians have not used the state as the main service provider. Housing is a basic human need and was delivered by private mechanisms long before health and education – supplied by professional expertise – became established as human requirements. Hence, as Harloe (1995, p 3) points out:

... housing, like food production, has provided large-scale and profitable opportunities for capitalism in ways that have not been nearly so evident (or took longer to develop) in the other spheres of provision for human needs ...

Nevertheless, although housing has not had ‘universal’ social service status and entrenched market forms of provision, underpinned by property rights, have been dominant, the state has intervened in the housing market in a number of ways. Thus, housing policy is best understood as government attempts to modify the housing market – perhaps more accurately housing markets given marked area variations in house prices – to achieve social objectives.

Government objectives have varied over time and place with, for example, the coalition government (2010–15) stating it wanted to create ‘A thriving, active but stable housing market that offers choice, flexibility and affordable housing’ (HM Government, 2011a, p vii). The previous Labour government declared its aim as ‘to offer everyone the opportunity of a decent home and so promote social cohesion, well-being and self-dependence’ (DETR, 2000, p 1). The Scottish government stated its vision for 2020 ‘is for a housing system which provides an affordable home for all’ (Scottish Government, 2011, p 1).

In this chapter we explore the basic legal building blocks of statutory land-use planning. In the first instance we outline the scope of planning – the matters planning can and cannot influence. We then consider the core legal underpinnings of the planning process, including how planning conceptualises the land resource and views activities taking place on it, under it, or indeed over it. In particular we examine the meaning of ‘development’. Where relevant, we highlight nation-specific legislation, but we focus on certain shared concepts, and these transcend the individual planning systems of the four UK administrations. We conclude by briefly considering certificates of lawfulness, which provide a point of comparison with the approach adopted when determining a planning application.

Our starting point is the concept of ‘development’. The term ‘development’ may be considered the essential building block of the British planning system. Development has a legal definition, which has been interpreted through the Courts. At a very basic level, if something is held to constitute ‘development’, some form of control through the planning system exists. If something is not development, then the planning system has no influence. The concept of development is therefore fundamental because it effectively determines the scope and reach of the planning system. As we have noted, planning cannot and indeed need not or should not control all change in the built and natural environment. Through the interpretations of a single word the limitations of planning controls are defined. Thus, according to Moore and Purdue (2014), the term ‘development’ lies at the heart of the legal powers the state has to manage the built and natural environment.

This chapter is concerned with process. Specifically, we explore how the planning system deals with those matters that constitute development. Where the ability exists to exercise control, it is intended that the planning system should operate in a manner that is proportionate and fair, seeking to balance private and public interests and having regard to social justice. The chapter will consider how planning attempts to operate proportionately and will explore how the different systems work when ‘express planning permission’, that is, formal approval, from the LPA is required.

Before we explore the nature of planning decision-making in the devolved UK, brief mention should be made of the manner in which development proposals and associated planning applications are intended to be approached. A fundamental principle underpinning planning in the UK is that it should be positive and constructive. Planning not only acts to serve the public interest by restricting, limiting and preventing; it must also be proactive, facilitative and enabling. Planning has a key role in supporting economic, environmental and social progression; it is at the heart of our ability to pursue sustainable development and to promote quality of life and creative place-making.

The branch of planning activity associated with processing planning applications can be seen as a restrictive one. True, planning (rightly) says ‘no’ to certain developments that will have significant adverse impacts, but some people may actively wish to see that development happen. Planning may also be seen to be reactive and rather narrow, in the sense that it tends to be seen as responding to the submission of development proposals, rather than proactively leading and delivering development and actively engaging communities in shaping the places where they live.

In this chapter we identify some of the roots of the modern planning system in the UK, taking in the ancient world, the medieval period, the influence of royal proclamations, the role of Parliament and the rise in importance of local government. In tracing the scope of planning controls from an initial concern with health and safety to a system incorporating aesthetics and wider social goods, we look beyond the first legislation with ‘planning’ in its title. By considering earlier forms of control over the built environment, one can better understand the different rationales for planning controls, appreciate key concepts and ideas and recognise the main arguments for and against contemporary state intervention. The idea of the ‘state’ intervening in the private rights of individuals is not necessarily accepted, and some people argue that the state should not ‘interfere’ with market forces or private rights. By considering how the UK planning system evolved over time, it is easier to understand the case for planning and appreciate the justification for its existence.

There is a tendency to start the history of planning in the UK in the middle of the 19th century, with the development of public health legislation. In terms of the modern planning system, such a starting point is quite correct. As noted by Peter Hall:

twentieth-century city planning, as an intellectual and professional movement, essentially represents a reaction to the nineteenth-century city. (Hall, 1996, p 7)

However, the story of ‘planning’ and of planning law can be identified much earlier, particularly if we look to the origins and evolution of state intervention in and control of the built environment, rather than just to the emergence of the modern planning system.

An important principle of the planning enforcement system in the UK is that it is not focused on punishing those who have fallen foul of planning legislation. Rather, enforcement seeks to achieve appropriate development in the right location, with appropriate control. Negotiation comes first. This is not to say that there is no penalty for those who do not comply with enforcement action taken against them. A system of criminal convictions and fines exist for those found guilty of offences under the relevant Acts. This distinction is important. It is not an offence to carry out a breach of planning control. It is an offence when enforcement action is not complied with. Nonetheless, as we saw in the previous chapter, unauthorised works that affect the character of a listed building are an immediate offence.

The UK’s enforcement system has been honed by High Court appeals that have established certain legal principles that shape the way enforcement is conducted. Local appeal decisions may also influence the manner and extent to which the LPA may choose to enforce against a particular type of breach of planning control. Enforcement is a very particular and potentially costly type of planning activity and alternative approaches are available to tackle unauthorised development. These other routes may be pursued in preference to enforcement, which some see as adversarial. Given the strict manner in which the relevant legislation must be complied with on a day-to-day basis, planning enforcement assumes a more legalistic character than the planning activities we have looked at thus far.