Why is the British Planning System so Peculiar – the Origin of ‘Planning Permission’? | Decision Making

I have been reading and contrasting two sweeping reports on English by the TCPA and Create Streets.

The first -Planning 2020  the Raynsford Review of Planning in England – takes a sweeping overview of the system.  Specifically on regulation of building it states:

Organisations such as Create Streets are promoting an active debate about the  removal of national development rights, on the basis that the 1947 planning system was fundamentally flawed. They advocate instead a system of control which has as its root the by-law regulation of the built environment that dominated prior to 1909.
The idea of tight regulation of building types and standards as a way of improving the urban environment reflects a disenchantment with the current outcomes of planning and could relate to a more European-style approach to detailed building codes. We recognise that the beauty of Bloomsbury Square, for example, was created through a combination of basic standards set by the London Building Acts and the vigorous application of leasehold agreements by landlords. The uncomfortable
lesson appears to be that, whether by private or public means, high-quality environments depend on detailed design ‘rules' which are rigorously enforced.he Review team considered these ideas in detail and
recognised the potential utility of more prescriptive building codes. However, there are extensive questions about how such a system would work for the nation as a whole. How would it deal with the scale of the
challenges set out in this Section or with the necessary long-term planning for transport, equality, minerals and energy? How would such a system operate for the regional and national geography that we have to plan for? How would it deal with architectural innovation and, most importantly, the complex job of place- in the round? It would appear that prescriptive standards in the built environment have a powerful role to play, not least in securing people's safety, but it is
hard to see that such an approach offers a complete solution to the management of complex change.

However I dont think now anyone, least of all Create Streets is suggesting that this is a complete solution to be implemented as part of national regulation.  The debate is how far design can and should be regulated through locally driven zoning codes which are part and parcel of the development plan – the continental model.  A model which the review acknowledges we are edging towards in a messy and unsatisfactory manner – as witnessed by the ‘bolt on' manner permission in principle.

Create Streets have just published (together with the Legatum Foundation) a report by its director Nicolas Boys Smith More good homes Making planning more proportionate, predictable and equitable.

The British system is very odd. It is nationalised and discretionary in principle rather than regulated and rules-based. It [grants permission] on a case-by-case basis rather than setting clear rules for what can and cannot be done. Politicians and many planners have been so habituated to the system that they have lost sight of how odd it is. Moreover, many leading lights of the British planning profession hold its flexibility dear.[For example see the recent defense of discretionary planning in the interim report of the TCPA's Raynsford Review]

Though they exaggerate to make a point (that discretion is limited by adopted development plans which are not mentioned in the passage above) they are spot on on the issue of peculiarity.  The British system is very odd and almost unique (apart from Ireland) in not going down the zoning and subdivision route.   Though those planners operating in the strictest zoning regimes look in Envy at British flexibility, particularly on design control and conservation, many in Britain look in Envy at the results and outcomes of Zoning and housebuilding in near continental countries, and some regimes (not just the continent but also cities like Vancouver and Planning in Victoria Australia) seem to have a found a happy medium between the predictability of zoning and more focussed design review within a zoning and subdivision based system.  The wider appreciation of the benefits of a shift towards such a system, particularly in terms of its ability to deliver at scale, pace and quality is the agenda of the moment – witness the Letwin review final report for example.

The Create Cities report contains very useful background on the evolution of British Planning and Building Regulation and comparisons with continental systems.  At what point though did it go wrong?  At what point did Britain decide ‘stuff that European nonsense we need British planning for British People' .

I dont think we ever did.  Part of the Create Streets narrative was that the original sin of British Planning was the sooailist premises of the 1947 Act

The post-war settlement was premised on a socialist vision for Britain that (while very popular with some) was not able to command a political consensus for more than one parliament.

History is a bit more complicated.  Before WW11 there was very little party politics about Town and Country Planning.  The Planning movement included people of progressive ideas in all parties and the first planning legislation was passed by liberal and conservative governments; whilst the first comprehensive legislation, the 1932 Town and Country Planning Act was passed by the National Government. There was a move during the war towards more state driven solutions though this was across all parties (witness the Butler education act) and the Uthwatt and other reports which laid the foundations for the post war British Planning Settlements were commissioned by a coalition cabinet and the Uthwatt report recommendations accepted on all sides of the house in the Land Use White paper of 1944 which civil servants used as a template in drafting the 1947 act.  The Create Streets reports notes how Churchill was skeptical about the importance of post war planning but Eden was very much for it.   The conservatives in opposition in 1947 did not oppose the bill at second reading but sought to amend it.  The wartime coalition government only introduced small scale planning legislation (one appointing the first town planning minister) rather than comprehensive legislation with the compensation and betterment provisions of the Uthwatt report delayed because the first planning minister, Mr William Morrison, though the 1932 sound but amendable and the Uthwatt commission proposals complex and difficult to implement (he was right on both points)

The passage in time, and differences,  between the 1932 Act and the 1947 Act was the critical event in British Planning history.

The decision to scrap the 1932 act and start again was undoubtedly driven by the need for zeitgeist by an incoming government but also may have been fueled by spite against legislation introduced by the Ramsey MacDonald government.  If you set aside the issue of land nationalisation there was little in the 1947 Act changes from the 1932 Act that were specifically ‘socialist', rather then drive was towards a more discretionary and less rule bound zoning system.  So I suspect political spite and an overreaction to some of the rigidities of the 32 Act were the drivers of the regulatory framework rather than ‘socialist' ideology.

The 1932 act was probably the most radical and least understood today piece of British Planning Legislation.  It was very well written but had many holes and had the disadvantage of being introduced in the Great Depression when few local authorities had the powers to plan positively and comprehensively.  It was the first Town and Country Planing Act extending not just to urban extensions but to the countryside (though covered by the first agricultural exemption) and inwards to existing urban areas.  The planning authority was  the London County Council (in London apart from the City) and the district outside it , of which in 1932 there were 1,414.

The means if regulation was the ‘Town Planning Scheme' preparation of which was discretionary. Section 1 

A scheme may be made under this Act with respect to any land, whether there are or are not buildings thereon, with the general object of controlling the development of the land comprised in the area to which the scheme applies, of securing proper sanitary conditions, amenity and convenience, and of preserving existing buildings or other objects of architectural, historic or artistic interest and places of natural interest or beauty, and generally of protecting existing amenities whether in urban or rural portions of the area.

Section 12 dealt with the powers of such schemes to regulate

Provisions in schemes with respect to buildings and building operations

(1)The provisions to be inserted in a scheme with respect to buildings and building operations may include provisions—

(a)prescribing the space about buildings;

(b)limiting the number of buildings;

(c)regulating, or enabling the responsible authority to regulate, the size, height, design and external appearance of buildings;

(d)imposing restrictions upon the manner in which buildings may be used, including, in the case of dwelling-houses, the letting thereof in separate tenements; and

(e)prohibiting building operations, or regulating such operations in respect of matters other than those specified in this subsection:

Provided that, where a scheme contains a provision enabling the responsible authority to regulate the design or external appearance of buildings, the scheme must also provide that any person aggrieved by any decision of the responsible authority under the provision aforesaid may appeal against the decision either to a court of summary jurisdiction or to a tribunal to be constituted for the purpose under the scheme, as may be thereby provided, and the grounds on which such an appeal may be brought shall include the ground that compliance with the decision would involve an increase in the cost of the building which would be unreasonable having regard to the character of the locality and of the neighbouring buildings.

(2)The provisions to be inserted as aforesaid may—

(a)differ as respects different parts of the area to which the scheme applies; and

(b)be made applicable, either with or without modifications, to existing buildings as well as to buildings which are not existing buildings; and

(c)be imposed as permanent provisions, or as provisions operating only pending the coming into operation of an order under the provisions hereafter in this Act contained with respect to general development orders.

If that clause had survived we would have had a system very much like that of the Netherlands, Denmark or Germany.   It was very much drafted in terms of best practice in town planning internationally of the time.  It even had a clause allowing developers to put forward their own zoning schemes based on masterplans for approval by the local authority and ministers (known as supplementary orders), clearly taken from innovations in zoning practice in America in the 1920s, as well as a clause allowing for development of Garden Cities (as well as Garden Suburbs and Garden Villages).    The scope of town planning schemes didn't only include land use and buildings but roads, water supply drainage, lighting and sewage.  Britain was a pioneer here and such schemes were introduced not just in England but through the empire around the world, some (such as in parts of Israel) still in force today.  The issue is then why didn't we?  Why in 147 did we resile from zoning?

I think the answer lies in the introduction of ‘interim' measures in the 1932 act designed as a bridging mechanism to control development before plans came into force. These interim measures became the norm.

The 32 act introduced the concept of a ‘General Development Order', but not as now as a national instrument but as a local instrument permitting operations subject to conditions in line with a scheme.  This was very much on the model on the continent, in the States and around the world of a local city ordnance being the basis for zoning under the police powers allowed by constitutional arrangements for that City.  In Britain however cities and towns only ever had rights as permitted by the crown under charter and all other powers were ‘untra vires' therefore British Towns and Cities were uniquely vulnerable to state takeover, abolition, nationalisation or privatisation, as it found when the water networks, hospitals etc. they had built were taken away whether by ‘socialist' or ‘neoliberal' administrations.

What about though when a scheme had not been prepared yet.  Herin came the trojan horse through which the British botched planning system came into being – the ‘interim planning order'. Section  16

(1)Where the provisions of a scheme prohibit or restrict building operations on any land pending the coming into operation of a general development order, a person, who, before such an order comes into operation with respect to that land, desires to commence thereon any building operations which would contravene any such temporary prohibition or restriction may, in accordance with such directions, if any, as may be contained in the scheme, apply to the responsible authority for their consent to the carrying out of the operations specified in the application.

(2)The responsible authority shall, in deciding any such application, have regard to any injury likely to be caused to the applicant by the refusal of the application, as well as to any public advantage likely to result from the maintenance of the prohibition or restriction, pending the coming into operation of a general development order, and may, if they are satisfied that the proposed operations will not contravene any permanent provisions of the scheme, grant the application unconditionally, or subject to such conditions as they think proper to impose :

Provided that, where the authority have power under this subsection to grant an application, they shall not refuse that application unless they are satisfied that other land suitable for such building operations as are specified in the application is available on reasonable terms and either—

(a)that the operations would involve danger or injury to health by reason of the lack of roads, sewers, water supply or any public services and that the provision of the necessary services would be premature, or likely to involve excessive expenditure of public money; or

(b)that the operations would be likely seriously to injure the amenity of the locality.

(3)Any person aggrieved by the refusal of any such application as aforesaid, or by any conditions imposed by the responsible authority, may within twenty-eight days from the date on which he received notice of the decision of the authority or such longer period as the Minister may allow, appeal to the Minister, and the Minister may dismiss or allow the appeal, either unconditionally, or subject to such conditions as he thinks proper to impose. The decision of the Minister on an appeal under this subsection shall be final and shall have effect as if it were a decision of the authority.

This is recognisably a system of planning permission and appeal, even with a nascent ‘presumption in favour' in the ‘shall not refuse unless' part (with the interesting provision that they needed to specify ‘other land suitable' if only such a discipline applied today.).  Note however the procedure and ‘shall not refuse unless' provision only applied in those cases where a planning authority had not yet introduced its ‘development code'  that is the general development order giving effect to the planning scheme.

The 32 Act system had great successes and great weaknesses.  It allowed for joint committees and even delegation upwards to County Councils to prepare schemes.  It was discretionary and hence by no means universal and many rural authorities didn't introduce them, some hadn't even introduced plans well into the 1990s.  This led to the need for sticking plaster legislation on ribbon development in 1935.  Also crucially the ability to plan positively through the local authority squiring and subdividing land, as had happened from the earliest stages of the Prussian system for example, was weakened by the provisions of the 1919 compensation act (we complain about the 1961 land compensation act but all it did was reintroduce the familiar provisions of the 1919 act still carried over in legislation today, of land being purchased on open market value.)    However the 1932 Act did include an element of betterment, which the Uthwatt Commission traced back through English Statute dating back to 1427.  Section 21 of the 32 Act

Where by the coming into operation of betterment any provision contained in a scheme, or by the execution by a responsible authority of any work under a scheme, any property is increased in value, the responsible authority,[may] make a claim in that behalf, may, subject to the provisions of this Act, recover from the person whose property is so increased in value an amount not exceeding seventy-five per cent. of the amount of that increase:

However if land was zoned in a development scheme the thorny issue then arose about how much it was worth before the scheme, given that before the scheme no permission was needed, but before the roads, sewers etc. of the scheme were built no large scale development might be practical.  Arguments about valuation of betterment led to the effectiveness of this clause.  A great pity as 25% of uplift is certainly far greater than the Letwin suggestion of 0%+10x existing lane use value.

Mills and Reeve

Under the 1932 Act 75% of betterment could be recovered by local authorities and in Parliamentary debates, the principle had been accepted, even by opponents. However, for various reasons, including the difficulty of identifying just the betterment element, it had not worked well and little betterment had been recovered.

Although the 32 act was permissive rather than compulsory by 1933 according to the then lord chancellor

 out of 37,000,000 acres in England and Wales some 27,000,000 acres have been subject to a resolution of the appropriate local authority with, the consequences that follow from that. The balance of 10,000,000 acres have not.

In 1943 ‘interim development' control was extended to not only cover those areas that have preapred a scheme but all local authorities who were now deemed to have resolved to prepare a scheme.  The Town and Country Planning (Interim Development) Act 1943 had created planning permission as we know it.

Hence despite the shortage of planners and a rate of 300,000 houses built a year determination to plan was carrying on apace.

The wartime reports such as Uthwatt allowed for an evaluation of the operation of the 1932 act.  Restriction of development in areas of great beauty but great undesirability for development, such as on the coast or the South Downs, created liabilities for compensation under the 1932 act.  Uthwatt termed this

“unquestionably the greatest obstacle to really effective planning”….

Action for ensuring that the best use is made of the nation's land resources is practically impossible under the existing planning legislation on account of the liability placed on the local planning authority for compensating all the land owners concerned for deprivation of land value. (para 22)

However his proposal, 75% of the increase in all land value, whether caused by zoning, development or improvement or not was unworkable.  Why expend capital on buying land and developing it and receive a 75% marginal rate when you would have been taxed at half of that spending capital outside development.  The proposal was condemned as unworkable by the Liberal party planning spokesperson in the commons debate on the 47 Act., mentioning with some bitterness the defeat by the House of Lords of the land tax proposals of 1910.  So it proved such a high rate led to landowners holding onto land hoping for restoration of the old system, and planning authorities forced further and further out to acquire land where the landowners werent forcing CPO.

Lewis Silkin in his speech on the second reading of the 47 Act summed up some of the problems of the 32 Act system.

The Town and Country Planning Act, 1932—which re-enacted earlier similar provisions—provides for the payment of betterment by an owner whose land is increased in value in these circumstances. Unfortunately, the provisions regarding betterment are so circumscribed, and so difficult of application, that only in three cases has a local authority ever been successful in securing betterment, except as a set-off against a claim for compensation….in general this amount is not payable until the property is sold or developed, if sold or developed within 14 years, and not at all after 14 years. So that all an owner has to do is to hold on to his property for 14 years, and he is saved from any betterment charge. …

This problem of securing for the community the benefit from increases in land values created by the community is accentuated by the fact that when land has to be acquired for public purposes the price is increased against the local authority or the acquiring authority by the very improvements carried out at public expense….

Once the greatest single deterrent to effective planning is removed, an opportunity is afforded us of looking at the planning structure afresh. The Town and Country Planning Act of 1932 provides the planning machinery which is in operation today, and I have examined this machinery to see what are its defects, and what alterations are necessary in the new circumstances to make it effective for the carrying out of our new conception of positive planning. The Uthwatt Report summarises the most important of these general defects. The first is that the planning powers in the 1932 Act are permissive only, and there were at the time of the Report large areas of countryside, and certain important towns, in respect of which the local planning authority had not even taken the first step of passing a resolution to prepare a planning scheme. It is true that since the Report was published the Town and Country Planning (Interim Development) Act of 1943 has been passed in pursuance of which this first step of passing a resolution is deemed to have been taken, and so permission has now to be obtained of the Local Planning Authority for development. But relatively few local authorities have actually prepared even tentative plans to enable them to judge applications for development, and there is no effective means of requiring them to do so….

The second general defect is that planning schemes under the 1932 Act are necessarily local and not national in their outlook. Planning authorities have naturally regarded themselves as having a duty only to their own ratepayers, and in their planning operations have an eye on their own finances and the trade of their district, regardless of the interests of people outside their area. Authorities regard it as their main object to attract industry and population, and thus rateable value, to their area, irrespective of wider planning considerations. This inevitably leads to planning in isolated compartments. There are today 1,441 authorities with separate planning powers in England and Wales, and it is obvious that the preparation of plans by so many authorities—even if they all did prepare plans— is not likely to produce anything in the way of comprehensive or co-ordinated planning. An attempt was made to remedy this in the 1932 Act by providing for the creation of joint planning committees. A number of planning authorities which have a community of interest are empowered to combine voluntarily for the purpose of making a plan, or are required to combine by my Ministry in default of agreement, after a public inquiry has been held. The carrying out of the plan and the giving of decisions on applications to develop, generally remain with the district councils. This system has, on the whole, not been found to be conducive to good planning. I do not for a moment wish to decry the good and effective work which has been carried out by many of them, but the disadvantages of joint planning committees must be obvious. They offer opportunities for log-rolling and bargaining by the representatives of the different planning authorities, and the resulting plan is often no better than, or different from, the combined plans of the separate authorities. Let me here quote from a report which I recently received: Members of joint planning committees are apt to concern themselves only with matters directly of interest to the district they represent, and do not look at problems on a regional basis….

The third general defect to which the Uthwatt Report refers, is that powers of planning authorities under the 1932 Act are largely regulatory in character, and do not, except to a limited degree, enable 959them to undertake or secure positive development. As the Report puts it: The planning scheme secures that if development takes place it shall take place only in certain ways. It does not secure that in any particular part of the area of the scheme, it shall in fact take place. …

A further defect of the existing planning machinery is that the making of a planning scheme is a long, cumbersome and elaborate process, and that planning is regarded as static, rigid—a scheme once made can only be amended by revoking it and making an entirely fresh scheme. It normally takes some four to five years at the least, and involves a number of public local inquiries, before a scheme comes into operation, and to amend it involves a similar process. What is wanted, says the Uthwatt Report, is something which is simple, more expeditious, and more positive in character. All these three defects are, I hope, remedied in the Bill before the House

It is useful to analyse his thinking here, interim development control was already in force so the issue of there being areas free from planning was no long relevant.  The issue was rather there being not enough planning schemes finished.  However the issue here was shortage of resources and shortage of planners, something the 1947 act did nothing to resolve.  Similarly there was a case for shifting planning from districts to counties, but the issues of log rolling and bargaining exist in any arrangement.  The 1947 act still left many underbounded county boroughs needing to expand into district council areas.  Silkin also rejected advice to give planning powers to many of the larger non county boroughs.   The 32 Act allowed planning authorities to cooperate with neighbours and expand outside their areas.  Abercrombies' plan for Greater London in 1944 was a good example – technically illeagal unless (as never happened) their was a joint committee with the receiving authorities.  Still illeagal under the 47 act which abolished joint committees, and only got around by the ‘hack' of the New Towns Act allowing New Towns to be directly designated without any statute for regional planning.

The criticism about lack of positive planning in the 32 Act was genuine, and the 47 Act included clauses to rectify this.  It did not require the scrapping of the 1932 act.

It was the last criticism that was the killer.  They scrapped a system which took ‘four or five years' to prepare plans, then replaced it with one which took a decade or more to prepare town and county maps, then in 1968 with one which took 20 years or more to prepare structure plans, then with one in 2004 which didn't even allocate land automatically and which still doesn't have complete coverage 15 years later.  Silkin filed to distinguish between the problems which were inherent to plan making and those which were specific to the 32 Act zoning system.  If schemes could not be amended he should have introduced a clause to allow amendments, then they could have initially prepared a broad land use plan (which Uthwatt wanted) and them focussed in on areas of change needing more detailed plans with design controls (much like the German B Plans system).  Now all that was left was the ‘interim' development orders approach of planning permission, now made permanent and universal.

Many commentators on the 47 Act have drawn attention to the almost complete absence of concern about aesthetic and design considerations in discussions in parliament.  I think the explanation is the assumption was the private sector development was now superseded by the public sector who would now drive reconstruction.  the assumption was don't worry about design controls in plans as everything would be designed by municipal architects departments.  Though as these would be district level for housing rather than County (except on London) there was an immediate disjuncture between planning and design.

It is right to praise the heroic ambitions of the post-war settlements and its faith in the positive good in Planning.  It is wrong however to consider the 47 act as ‘progress' in all matters other than CPO and compensation the 47 act took a giant step backwards.  Silkin made wrong calls on the land question, wrong calls on zoning, wrong calls on design control and failed to introduce statutory regional planning, replacing Garden Cities with New Towns where the state not the community captured all land value increases. Planners have ofte been taught (badly) that 1947 was a heroic year for planning.  In reality progress in Britain was ruptured from mainstream practice in the rest of the world and as soon as the years of heavy spending and state intervention on post war reconstruction was over the emaciated form and narrow powers of British Planning were then exposed and caused a generations long decline which we have yet to recover.

We live with the consequences today, by possibly being short of over 5 million homes comparing the annual rate of development under the 32 Act to that under the 47 act and its successors.

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