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.

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):

1. 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

2. 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.