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This comprehensive yet concise textbook is the first to provide a focused, subject specific guide to planning practice and law. Giving students essential background and contextual information to planning’s statutory basis, the information is supported by practical and applied discussion to help students understand planning in the real world. The book is written in an accessible style, enabling students with little or no planning law knowledge to engage in the subject and develop the necessary level of understanding required for both professionally accredited and non-accredited courses in built environment subjects. The book will be of value to students on a range of built environment courses, particularly urban planning, architecture, environmental management and property-related programmes, as well as law and practice-orientated modules.
This chapter introduces some key terminology and aims to help you to understand and contextualise some of the basics of planning law. We identify certain key drivers that over time have influenced the reformulation of planning law in the UK. The chapter will both help you to understand the day-to-day legal arrangements shaping development management decision-making and the importance of legislation and case law, and provide you with a robust grounding in the wider context of planning law and some of the nuances of regulation and what regulatory regimes seek to achieve. You will then be able to engage in on-going debates about the relevance of environmental regulatory arrangements to meet present-day challenges and will appreciate the prevailing pressures and economic drivers for the reform of planning law and the related modernisation of the planning system.
Chapter One offered an overview of the dynamics of the land-use planning system and explained why we have planning laws. In this chapter we go into more detail about the social context in which planning law is conceived, designed, made and implemented. The chapter identifies some of the main ideological and theoretical stances that help to explain planning as a particular type of state regulation and the reasons why planning laws are continually evolving. We also outline some important terminology related to planning law. (Some people criticise planning for using ‘planning jargon’, but we would argue that in practice there are certain key legal terms and concepts that are set out in the planning legislation and through case law.
We have noted so far that planning is one regulatory tool, among others, used to manage urban, rural and, more recently, marine developments, while other statutory controls enable related professions to address issues of environmental health or building standards, traffic or navigational safety. Our primary focus in this book is the legal controls over development as defined in legislation and through case law. Certain forms of development, such as waste, minerals and marine planning are controlled by specific legislation. Here we turn our attention to other development management aspects of the built heritage and examine controls over listed buildings, conservation areas, ancient monuments and advertisements. Looking at the wider environment, we also consider development controls over trees and hedges.
Specific planning controls exist for buildings of special architectural or historic interest. Listed Building Consent (LBC) prevents the unrestricted demolition, alteration or extension of a listed building without consent from the LPA (Moore, 2010). By their very nature, buildings and structures that are listed are considered very valuable and sensitive. They may be of national or local significance. If they are demolished, they are lost forever. In earlier discussion of what does and does not constitute development we noted that internal alterations and some types of demolition do not require the formal submission of a planning application. In the case of listed buildings, however, such actions could be harmful. With this in mind, LBC allows for the comprehensive management of a fuller range of controls. Stated very simply, any alteration beyond ‘like-for-like replacement’ or ‘care and repair’ requires LBC.
Thus far we have presented a very positive account of the benefits offered by the planning system. However, there are, occasions where individuals, developers or local communities may be disappointed or frustrated by a decision outcome or the imposition of a planning condition. Perhaps the system for issuing a decision has been slower than the time frame specified in the planning legislation. What remedy exists, if any? Or it may be the case (though very infrequently) that the formal administrative processes for taking a planning decision have not been followed correctly or appropriately. What can be done? Or, perhaps you have a complaint about the way your engagement with the planning process has been handled. Are there any means for redress? This chapter considers the different ways in which the actions and decisions of those operating the planning system can be reviewed. The processes of review, challenge and improvement under the different arrangements operating in the four administrations of the UK vary. However, the basic principles are very similar. In this chapter we highlight some important differences.
Firstly, we consider the different appeals systems. A scalar set of arrangements exists for examining and reviewing decisions, based on the principle with which we have now become familiar: that of proportionality. Some applications are relatively minor, while others may involve major infrastructure. Some decisions may be fairly clear cut, while others may be highly contentious, with considerable third-party interest. Different appeal formats apply. However, whatever type of appeal route is taken, the fundamental point is that an appeal revisits the legal and factual basis of a decision.
This chapter considers two positive and constructive ways in which planning helps to ensure that developments come forward to create ‘great places’ (Beveridge et al, 2016):
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the use of planning conditions attached to a planning permission or consent issued by the LPA, or through development orders in relation to permitted development rights
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2. planning gain.
We examine the legal principles underpinning the use of conditions arising from case law, such as the powers to impose conditions and discuss the six legal tests needed to ensure the validity of conditions and the approaches available for removing them. We then consider the different models of planning gain available, distinguishing these tools from planning conditions and considering their effects. Simply stated, planning gain relates to monies received in association with an approved development proposal to offset any development implications. The funds are held by the LPA to enable it both to mitigate against impact(s) and to support the appropriate realisation of change on the development site and in the wider area. Both measures are core to development management and serve to improve development proposals so that they become more acceptable.
In Chapter Six we characterised the development management approach as different from development control. Specifically, we suggested that planning performs a role in delivering sustainable development that involves much more than the processing of a planning application and issuing of a decision. Planning must be understood as the on-going management of change to improve societal and environmental outcomes. It has a critical role to play in the shared activity of making great places.
This is not a law book about planning but a planning book that considers planning law and its application. We hope to provide you, through a ‘straight’ and factual presentation, with an essential knowledge and understanding of planning law and decision-making, and to do so in a readable and accessible way with reference to the main concepts, philosophies, systems, structures and arrangements within which planning law exists and decision-making takes place. This chapter frames the book and provides some of the context for its wider content.
The use and development of land is a critical concern for everyone in society. To this end, statutory land-use planning was introduced to ensure that land and property development served the greater public good, or public interest. History reveals that, without planning, land may be used inappropriately – as with ribbon development, or buildings in areas of landscape quality or areas prone to flooding – positive planning, however, can potentially serve the wider purpose of societal well-being.
At different times and in different places the physical effects of planning (or even its perceived absence) have been both controversial and emotive. In the popular press the planning system often tends to be cast as the villain of the piece, variously authorising the bulldozer to eradicate treasured buildings or flatten valued landscapes, failing to allocate sufficient land to provide local affordable housing for first-time buyers or permitting a controversial design. In allocating land for homes and places of work, in identifying where energy, information, communication and transport infrastructures should go, planning affects each of us on a daily basis.
This chapter explores in greater detail the legislative context in place at the time of writing (July 2016) and outlines how planning is organised across the devolved UK. We consider the various systems and structures of government and plans in place for designing and implementing planning regulations, again noting that planning is a dynamic field and liable to change. In addition to the legislation, we highlight the importance of understanding the various institutional arrangements to support development planning and the roles played by national policy and territorial planning and by local policy in guiding, shaping and managing change. We also consider the emerging framework for marine planning, which is related to and draws on terrestrial experience.
As in the previous chapter, across the UK a plan-led system is in place, meaning that plans and policy ‘lead’ (or direct) decision-making within a discretionary decision-taking context. The purpose of a plan is ultimately to enable something to happen in a particular way, or in such a manner as to derive a particular benefit. As such, plans variously protect, conserve, manage, enable, deliver and support land and property development. The specific arrangements for development planning differ in practice in England, Wales, Scotland and Northern Ireland, reflecting the different local government arrangements in operation and different approaches to planning and the distribution of power and decision-making. We now consider the planning law frameworks of the four administrations. The discussion is organised in relation to primary and secondary legislation, regional-wide (territorial) planning policy and guidance, and operational aspects.
This book has sought to stimulate your interest in planning law by setting out why and how it works in practice. The Town and Country Planning Act 1947, a major milestone in the development of a dedicated town planning regime, was a core element of the post-war state apparatus and the welfare state. Seventy years on, and against a backdrop of neoliberal ideology, the 1947 legislation remains a cornerstone of British planning. The anniversary year of 2017 provides a timely occasion for reflection. Moreover, as Sir Desmond Heap, a leading authority on planning law, noted in 1978, “Town Planning law never stops!” (Heap, 1978, p 24). So, whither planning law?
We have seen in the preceding chapters that planning law provides the legal framework and operational context for how the state, market and civil society interrelate. Importantly, the various rules of planning set out who must do what, and with what authority, and who can do what. Planning law provides the rules of the game. A range of public servants and political (elected) actors then implement the planning system on a range of national, regional, local and neighbourhood scales. Judicial actors play a central role in interpreting planning law through the Courts. Here, the common law system and precedence are of paramount importance to the functioning of the UK’s discretionary planning tradition.
Planning is a normative activity. We began by reflecting on the fact that land is a precious resource, and that we all hold a stake in thinking about and debating the best use of land.
Thus far we have primarily been concerned with the evolution of statutory planning controls over land and buildings. We have focused on urban development and the built form and related aspects of environmental protection, emphasising the need for proportionate state controls over private interests, based on need (necessity) and improved outcomes. The planning system is intended to serve the wider public interest, including future generations, and development management has a constructive role to play in the design and making of successful places in the immediate and longer term.
This chapter considers the nature of the planning controls exercised over three very particular areas: minerals, waste and the marine environment. Here, bespoke systems have evolved with separate guidance, policy and, in some cases, legislation. Given the specialist nature of these activities, the specific planning law frameworks that exist and the different issues raised, we discuss each of these three areas separately. While this may be seen as adopting a sector-specific approach to addressing particular activities in society, we wish also to show that these activities have become intrinsic to an established way of life and are fundamentally interrelated with how we plan and manage land (and marine) resources.
Society’s use of raw materials and marine and coastal environments is an established feature of how we manage and organise our economy in social, cultural and political terms. The UK’s particular geology has afforded many opportunities to mine and extract a range of materials, involving both surface and underground activities that can have harsh consequences for the natural environment and landscape quality.
Infrastructure delivery planning can be considered by sector, funding, location or delivery method. While these are all important components of infrastructure delivery planning, the approach that is advocated here as being most effective is a focus on place. Without this, infrastructure delivery planning can be producer-driven and disconnected from society’s needs. Consideration of infrastructure delivery planning can also be undertaken at varying spatial scales appropriate for different types of infrastructure. Areas have their own requirements for infrastructure and this investment impacts on places influencing the quality of life for residents and business.
A major challenge for infrastructure delivery planning is the integration of producer and user interests to create added value. This can be achieved through a spatial vision incorporating standards of access, quality of service and efficiency in delivery. Different providers of infrastructure are not required to work together, even as part of regulatory and consent regimes. Spatial planning’s role is to bring together the strategy, policy, programmes and projects in ways that are beneficial for the areas and its population. This does not suggest that spatial planning has specific delivery roles or powers over all infrastructure delivery decisions. However, spatial planning has a role in understanding the combined effects of existing and planned infrastructure that can be of significant benefit to investors and localities. Much of what spatial planning can achieve will be through its role in advocacy, agenda setting and framing investment decisions.
Spatial planning is concerned with both the development of plans and programmes and their delivery.
