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  • Author or Editor: Sophie Berry x
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Decision-making and practice in the UK

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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