Who decides and interprets planning policy … planners or lawyers?

Image from Flickr user Sebastian Niedlich, licensed for reuse under a Creative Commons License

Image via Flickr user Sebastian Niedlich, licensed for reuse under a Creative Commons License

By Morwen Johnson

Nathalie Lieven QC, barrister at Landmark Chambers, spoke at the RTPI’s 2015 Planning Convention on the shifting relationship between planners, policymakers and lawyers. Nathalie regularly appears at public inquiries and planning challenges in the High Court, appearing for both developers and local authorities.

Discussing the massive upsurge in litigation in planning, personified in the creation of the Planning Court in 2014, Nathalie suggested there had been a power grab by lawyers over the planning system in the last few years. She highlighted two main reasons: the decision of the Supreme Court in Tesco v Dundee City Council [2012] UKSC 13, and the introduction in England of the National Planning Policy Framework (‘NPPF’).

Recent shift in power

Prior to the Tesco case, interpretation of planning policy was seen as the task of the decision-maker. Cases only went to court if this interpretation was seen as ‘unreasonable’. This approach makes sense if you consider that planning policy tends not to have the level of semantic detail that is expected in law, and is also a recognition that application of policy can be different in different contexts.

The Supreme Court ruling however was that interpretation of policy in the case was a matter for the court and policy should be interpreted objectively. The aim may have been to create intellectual clarity and better decision-making, but the ruling has coincided with the introduction of NPPF, which is in some parts obscurely worded and also contradictory. With many development plans out of date, NPPF has become the critical determining document in planning appeals.

Particularly in residential housing appeals, the system now relies on both the interpretation of words in the NPPF and also previous rulings by High Court judges as to what the words mean. In respect of development planning, plans now get limited scrutiny and the role of the court also becomes more important. In the short-term therefore, power over planning decisions has shifted to the centre, in marked contrast to the Westminster government’s support for localism and devolution.

The role of the court is creating, in Nathalie’s words “a straitjacket for decision-makers, which limits their ability to apply policy flexibly”.

How local authorities can regain the balance of power

She suggested however that it is worth remembering that in the Tesco case, the Supreme Court was careful to say that the issue related to the application of policy to a given set of facts, rather than interpretation of policy generally.

Planning authorities can therefore turn the ruling to their advantage by drafting planning policies in a hard-edged way. As policies need to be applied in a consistent and objective way, the clearer the development plan, the less room for appeal.


Morwen Johnson is Managing Editor of the Scottish Planning and Environmental Law Journal, which is published by Idox.

More information on the journal and how to subscribe can be found here.

A ‘can do’ culture? Planning reforms in Wales

Flag of Wales in the windDevolution in the UK has seen the development and continued divergence of public policy and governance arrangements. The land-use planning system is just one area where devolution has been seen as an opportunity to devise more appropriate arrangements to tackle specific issues.

In a recent article in Scottish Planning & Environmental Law, Professor Greg Lloyd (Emeritus Professor of Urban Planning at the University of Ulster) considered recent moves by the Welsh government to reform and modernise the planning system.

As the political landscape of devolution has matured, the modernisation of planning has taken place within the context of wider reforms. In Scotland, for example, the National Performance Framework and the community empowerment agenda have added new dimensions to local governance and planning. Wales is also engaging in creating a new context to land-use planning and effectively repositioning planning.

A series of reviews (including the Welsh Assembly’s Legislative Statement 2011-2016; the inquiry into the planning system by the Sustainability Committee of the National Assembly in 2010-2011; and the Simpson Review in 2011) laid the foundations for further change.

In summer 2014, the Well-being of Future Generations (Wales) Bill was introduced which will place a duty on public bodies to make decisions that leave a positive legacy for future generations. Professor Lloyd highlights that this “adds an explicit intergenerational articulation of what is considered to be sustainable development practice. The context to planning in Wales is being changed significantly and dramatically”.

This was followed in October 2014, by the introduction of the Planning (Wales) Bill 2014. At the time, the Minister for Natural Resources – responsible for land-use planning – said “I look forward to seeing these reforms, coupled with a “can do” culture across the planning sector, providing a system which can make a positive and lasting impact on our communities.”

The Bill seeks to provide a modern delivery framework for the preparation of development plans and planning decisions, including allowing Welsh Ministers to decide a limited number of planning applications in defined circumstances.

It also aims to strengthen the plan-led approach to decisions on planning applications by providing a legal framework for the preparation of a National Development Framework and Strategic Development Plans.

Improving collaboration and engagement with communities are other key objectives.

Professor Lloyd argues that while the rhetoric of reform and modernisation of the planning system is familiar, there is a real sense of purpose about the drivers of change.

“Could it be that planning in Wales is rediscovering an explicit ambition for planning to serve the public interest – both for the present and the future? There are lots of lessons from elsewhere in the Celtic fringe.”

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This blog draws on the article by Professor Greg Lloyd, “A can do culture? Planning reforms in Wales”, Scottish Planning & Environmental Law 166, December 2014, pp123-124

An annual subscription to SPEL Journal is £145. For further details or a sample copy, please contact Christine Eccleson, SPEL Journal’s Advertising Manager, on 0141 574 1905 or email christine.eccleson@idoxgroup.com.

August issue of SPEL Journal (Scottish Planning & Environmental Law) out now

Law and Legislation shutterstock_90378226The Knowledge Exchange publishes a bi-monthly journal covering all aspects of planning and environmental law in Scotland. SPEL Journal (Scottish Planning & Environmental Law) launched over 30 years ago and is one of the leading information sources on land use planning and environmental legislation across the country.

The latest edition of SPEL includes articles focusing on:

Key court cases examined in the August edition include:

An Ombudsman complaint against Highland Council (SPSO case no 200903131) is also covered.

SPEL was launched in 1980 as ‘Scottish Planning Law & Practice’, to be a journal of record of Scottish planning. When it became apparent that the emerging field of environmental law was strongly linked to land use planning, the name of our journal changed to reflect this.

Written by a wide range of subject experts, SPEL Journal includes accessible commentary on topical subjects and current issues; details of new legislation and significant court cases; expert comment on key planning appeal decisions, government circulars and guidance; as well as notes about ombudsman cases and book reviews.

SPEL Journal is read by decision makers in Scottish planning authorities, planning law practices, planning consultancies, architects, surveyors, civil engineers, environmental managers and developers across Scotland. It is also valued by many practitioners outside of Scotland who need to keep abreast of developments.

An annual subscription to SPEL Journal is £145. For further details or a sample copy, please contact Christine Eccleson, SPEL Journal’s Advertising Manager, on 0141 574 1905 or email christine.eccleson@idoxgroup.com.

Planning as vision: reflecting on NPF3

Scottish parliament, Edinburghby Greg Lloyd, School of the Built Environment, University of Ulster

In late June 2014 ‘Ambition, Opportunity, Place’, Scotland’s third National Planning Framework (‘NPF3’) was published by the Scottish Government – affirming a distinctive feature of Scotland’s approach to modern land-use planning.

The idea of a national planning framework (‘NPF’) to set the context for development planning and the spatial development of Scotland as a whole, which was devised in the processes of modernisation which resulted in the Planning etc (Scotland) Act 2006, has been highly acclaimed. (1)

The NPF concept was given statutory authority and is seen as the means by which Scotland’s development priorities could be articulated together with a catalogue of supporting national developments. A second NPF followed – refining the strategy and setting out progress. (2) NPF3 was laid in the Scottish Parliament on 23 June 2014. This iteration affirms the Scottish Government’s support for 14 ‘national developments’ (including major regeneration schemes at Dundee Waterfront and Ravenscraig, carbon capture and storage schemes in Peterhead and Grangemouth and support for improvements at Scotland’s main airports) of strategic importance. (3)

The focus of NPF3 is organised around the higher level political ambitions of creating Scotland as a successful, sustainable place, a low carbon place, a natural, resilient place, and as a connected place. Each is considered in terms of a vision with detailed spatial priorities for change. Its target is on supporting sustainable economic growth and the transition to a low carbon economy. It is well illustrated with sharp, clear articulations of spatial priorities across Scotland. An Action Programme sets out the conditions for implementation. The NPF3 points to where there are perceived opportunities for growth and regeneration, investment in the low carbon economy, environmental enhancement and improved connections across the country. It paints a canvas for the city regions, rural areas and coastal towns and a separate initiative asserts the wild land strategy.

Reflecting contemporary thinking in economic and infrastructure debates, the NPF3 states that Scotland’s seven city regions will continue to be a focus for investment. Attention is paid to the importance of the quality of city centres particularly with respect to sustainability, resilience of the built environment and the wider public realm. Alongside the city regions there are Enterprise Areas and national development priorities at Ravenscraig and the Dundee Waterfront. Key actions are asserted together with a timeline for implementation and monitoring – this captures the diverse nature of contemporary planning.

What is important about the NPF3?

First, it represents a maturing of a strategic approach to planning in Scotland, provides a material context for the associated cascade of development plans, informing the Scottish Government’s Land Use Strategy and providing a visible assertion of the importance of positive planning. This stands in marked contrast to evolving approaches elsewhere – especially England and Northern Ireland. In the Republic of Ireland, for example, its vaunted National Spatial Strategy is being recast along the lines of a National Planning Framework.

Second, the NPF is now situated in a very deliberate hierarchy of planning layers – being the deliberate spatial articulation of the Economic Strategy, being aligned with the 2014 Single Planning Policy Statement (‘Scottish Planning Policy’), and providing the context for community planning, strategic development plans, and local development plans. The economic strategy is a sound starting point – seeking to share the benefits of growth by encouraging economic activity and investment across all of Scotland’s communities, while protecting natural and cultural assets. Such an explicit link between economic thinking and land-use planning stands in marked contrast to the positions in the other devolved states. NPF3 is part of a clear map of national institutional and organisational responsibilities– itself an assertion of acknowledging the need for consistency and continuity at a time of ongoing economic uncertainty.

Finally it is clear that new thinking is required for the future – in order to address the nature of the current economic malaise, the distorted economic geography created, the insidious impact of austerity on communities and individuals, and the tendency to equate nostalgia with resolve. (4) It is also time to assert the role of government in taking the lead in managing and orchestrating large-scale change and thinking which for too long has been overlooked, misunderstood and denied. (5) The NPF3 would suggest a new confidence in planning practice and for this reason alone is to be warmly welcomed. The next challenge is backing it with the appropriate resource – now it is up to political leadership and bravery.


This article originally appeared in our journal Scottish Planning and Environmental Law, No 164 (August 2014).

Professor Greg Lloyd will be a keynote speaker at this year’s Scottish Planning and Environmental Law Conference on 26 September 2014. The full programme and booking information are now available.

 

References

(1) Lloyd G & Peel D, National Planning Lessons for the Future? (2007) Scottish Planning & Environmental Law, No 120, pp 32-33.

(2) Lloyd G & Peel D, The National Planning Framework 2: consultation and action (2008) Scottish Planning & Environmental Law, No 125, p5.

(3) See also (2013) Scottish Planning & Environmental Law, No 157, p 51

(4) Richard Florida (2011) The Great Reset. London, Harper.

(5) Mariana Mazzucato (2013) The Entrepreneurial State: Debunking Public vs. Private Sector Myths. London, Anthem Press.