What Should the Legal Foundations of a New English Planning Act be?

Given that the department has appointed a career civil servant whose last job was as a Director of the Foods Standards Agency im sure the department would be grateful for some help in designing the structures of a new planning act.

The foundations of the Town and Country Planning Act of 1947 were a mess. It basically abolished the binding powers of the 1935 Act leaving discretionary development plans alongside making the temporary interim development management powers (meant only to be in force until the zoning plan was in place) permanent. I tell this story here. At a minimum all that needs to be done is to rebuild that lost leg of planning law and modernise it. Many of the foundational principles of British Planning law, such as the definition of development and of development orders remained and just need tweaking.

Lets step back though. Planning law in almost every country lies at the intersection of land law – setting out property rights, the Police Power, which sets limits on land use and other property rights in the name of the public interest, and administrative law, which specifies the administration of processes and the ability to set policy and programmes. In some countries these can become out of sync, for example regulation of land use is sometimes done exclusively via by laws under police power which allow no consultation or discretion, whilst plan making is dealy with through seperate laws which over time acrew police power type provisions. This can lead in etremis to by laws simply specifying ‘as is conditions’ requiring spot zoning type provisions (sometimes called postage stamp planning) dealing with changes to match a development plan. This just about works in the Dutch system for example because plans and masterplanning are so proactive. It doesn’t in many US jurisdictions because of ‘zoning without planning’ in many cases a complete lack of forward planning with administrative systems for processing variences that make the British System look efficient.

Therefore I think a foundational principle of a reformed British system should be that it ties together the plan making and regulatory function as one legal process.

The 1935 Act did not use the term plan or zone once it used the term scheme. This reflected its origins in the 19th C public health movements where schemes were programmes for doing something. However the wording of the Act was very end state based, it did not refer to phasing and programming. To apply Occums Razer it would simply be better to use the term ‘plan’ and clarify that this includes the end state, regulations to achieve and vary from the end state as well as the process to get there and policies to consider variations. It would be better if this were done in an enabling way, i.e. enabling development plans to give ‘as of right’ outline consents (permission in principle) with the right for some or no reserved matters (technical details in PiP terminology) set in the plan. Then the SoS would have the powers in secondary legislation to determine the scope and nature of as of right powers. Examples include the 16 use class equivalent zoning categories in German law (including modern central urban and mixed use categories). An example also would be National Japenese bulk zoning regs, though these are far too centralised.

The ‘as of right’ power is critical. Giving a developer a permission in principle right, for example, to develop a site zoned for a certain number of houses with a certain access, or redevelop n existing house plot to 4 storeys etc.

Like all zoning systems there would be discretionary design control for certain defined areas and circumstances as well as systems for appeal and variances (spot zoning). National legislation and policy would set the bounds of this.

The legislation must provide a bridge between what happens in a local plan and what happens in a masterplan /development code. This is a total legal blind spot in current legislation. Much of the success of continental systems in achieving quality and sustainability is the firm context there planning laws provide for approving masterplans and bulk zoning (development code) provisions.

A final key piece is the scope of planning. The ‘development and use of land’ has grown over the years to include matters such as inclusionary zoning (affordable housing), impact on energy use and net environmental gain. Looking back on the 1935 Act annex which defined the possible scope of schemes it was surprisingly broad and included water and sewerage networks, as they should today as part of overall infrastructure planning. It also included a simple one sentence provision for setting developer charges. Again that is all that is needed. The nature of charges can be set by secondary legislation.

The 2021 Bill, unlike the 1935 act should require a plan (scheme) to be based on a spatial strategy with an as short as possible set of policies to assess the performance of the scheme and variances from it.

Providing the New Act does not get bogged down in unnecessary compensation clauses there is no reason it cant be a simple piece of legislation of less than 50 or 60 clauses and 100 pages. That should be the aim. There should be no need for 100s of pages on annexes amending prior legislation. It should simply withdraw all previous planning acts and like the 1935 act having an enabling provision voiding all previous laws and legislation conflicting with a plan (scheme) simple limits should be placed on plans (schemes) to avoid conflicts with foundational laws (human rights, equality and protected habitat, climate change act) only.

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