The Four Faces of the ‘Presumption’ #NPPF

The reason this blog was called Decisions, Decisions, Decisions was because it was supposed to be about geeky stuff to do with decision theory and its relationship with arguments in planning theory.

No such look the NPPF came along and took over.

But it helps to look at the key argument over the NPPF, over the ‘presumption’ from this perspective as it helps to tidy up certain confusion. I dont think we will be able to move on a ‘clarify’ the NPPF until this confusion is dispelled.

There are four logically distinct ways people have used the term in the debate.

A predisposition of the decision maker to a result, an expectation of a decision outcome by a user of the system, a statement of the burden of proof in evidential terms and as a decision tree of heuristics. Let me explain

1. A predisposition of the decision maker to an outcome

When people say that the planning system should be more ‘positive’ this is what they mean.  Now that outcome could be yes to everything as the term ‘default answer is yes’ phrase implies or only to certain kinds of development in certain places.

At the heart of this is the argument about whether planning should just be a neutral ringmaster waiting for things to come or should be actively seek to built the right things in the right places.  I should state that im firmly in the latter camp.  My hero are those like Patrick Geddes and Raymond Unwin who got good planning done even before modern planning legal systems existing.  But a presumption for the right things in the right places also logically implies a presumption against the wrong things in the wrong places.

Part of the confusion lies in the fear that a predisposition implies planning should become predisposed to cheerleading bad development rather than assessing it.

Lets say you have a case of the right thing in the wrong place?  Or the wrong thing in the right place?  This illustrates that planning is not just about assessing the sustainability of the development but ensuring that the use of land is the most sustainable it can be.

Give an illustration.

Lets say a site is zoned for a sustainable urban extension.

Along comes an application for a riding school on the same site.

Ok lets test if the development per-se is sustainable – yes – ok do you approve it? As a decision maker you are predisposed to positive outcomes, if an application comes along which is sustainable ill approve it?  But the application may also be preventing a more sustainable option for the same site.  If your predisposition is to positive outcomes where an application is sustainable and it is the most sustainable option likely to come forward for the site this might lead you to a completely different answer.

What this illustrates is that a positive disposition is never enough to make a decision – what you also need are clear decisions rules – what in decision theory are called heuristics.

Simplerly a decision rule by itself tells you little about what the likely outcome is going to be.  If the decision maker makes every opportunity to pick holes and find holes the outcome will be no whatever the decision rule.  Predisposition is about the culture of planning.

2. An expectation of decision outcome by a user of the system

Today I got up as an innocent many and hopefully will go to bed as one. This may sound strange but this labelling is important in English Common law.  You are presumed innocent until proven guilty.  This sense of the word, to avoid labelling and prevent abuse of the powers of the state is rather more difficult to apply to regulatory decisions.  Is my planning application ‘presumed’ to be approved before I have supplied any evidence or even submitted it?

What you presume will rather depend on what you political position is on private property.  If you hold a more Jeffersonian position you might feel you have every right to do what you want with it unless it harms the personal safety of others.  If you hold a more Hayeckian view you might feel that others have no right to do what they want with their property if it harms, without  just compensation, the value of your property. Others of course hold a more ‘commonweal’ approach to this issue.

Such an expectation will tell you nothing about the eventual mediation and decision outcome amongst these competing views, even amongst those with exactly the same political philosophy about property rights.  My thesis is that concepts of property rights have by themselves no bearing on decision outcomes  – unless you have an extreme ‘do what you like where you like’ view, one that only applies where you have no planning laws or the decision is made not to apply them.  Lay those arguments aside and move on.  The real issue is the public policy decision rule for resolving property rights disputes.

So this concept of a ‘label’ taken from criminal law helps us very little with issues of resolution of competing civil expectations.

3. A statement of the onus of proof in evidential terms

Whose job is it to show that a scheme is sustainable?  Can an applicant submit a scheme with no evidence and then could a decision maker then only refuse it if they have paid for evidence sufficient to knock it down?

There has been endless confusion over this issue.    Can you refuse an application for example for not providing a tree survey?   The DCLGs position on this has changed I believe over the course of the consultation, which is at least a sign of constructive engagement.  For example the mythbusters document refers to applicants having to show that a scheme is sustainable.

The onus of proof is different from the burden.  For example the fact that I have to supply evidence by itself doesnt not tell you if the burden is ‘on the balance of probability or beyond reasonable doubt.

4.  A decision tree of heuristics

This is really the nub of it the policy on how the decision maker makes planning decisions.  The NPPF as currently drafted is as clear as mud on this point.

The decision maker will in every case apply a series of heuristics to the decision.

Decision rule 1 in most public policy decisions is typically – do I have enough evidence to decide if all of the subsequent decisions rules have been met – if no go back to the applicant, if yes proceed to decision rule 2 – and so on.

Under out current planning law decision rule 2 would be – does the scheme comply with the development plan considered as a whole.  If yes …etc.

Then the decision trees branches concerning ‘other material considerations’  – weighing benefits and harm – it is unclear but this component of the presumption would appear not to have changed the decision tree but to have changed the burden of proof of this heuristic, no longer would you be able to refuse harmful development, the barrier is raised to ‘significantly outweigh.’  One can see days at public inquiries spent with arguments about just how ‘significant’ and ‘clear; harm is rather than looking at the evidence of the harms and benefits which is what the inspector will want to look at.

 

Though I would rather the word ‘presumption’ was banished from planning law to end such confusions I am relaxed about its use if these separate components are teased out and made clear.  This is what we have tried to do in the alternative draft.  Try to make sense of the ‘presumption’.

 

 

 

 

 

 

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