Planning Law and Practice

J. Cameron Blackhall

• Publisher: Routledge-Cavendish
• Year: 2017
• ISBN:
  9781135336929
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The law relating to town and country planning has a major impact upon the physical environment and affects private citizens, landowners and developers alike. Thisthird edition is a comprehensive text for students, practitioners and members of the general public on this difficult area of law.

Following the Planning and Compulsory Purchase Act 2004, the third edition of Planning Law and Practice contains a complete revision of plan-making and the control of development as well as incorporating recent case law. Together this provides up-to-date details of the operation of the current English planning system.

The successful format adopted in the first edition of this book, which was awarded the Gold Award for Best Reference Work by the Chartered Institute of Building in 1999, has been retained. Planning legislation is dealt with in the main chapters, while further chapters use relevant case law to amplify the sometimes complex statutory material. In addition, the book outlines other areas of land law such as European legislation, non-planning controls and public investment.

Chapter 1
Development of Planning Law and Practice

1.1 Introduction

Planning is not a new human activity; nor is the planning of human settlements, which began as soon as man imposed himself upon the environment as distinct from living in and off the natural habitats. The larger settlements of the early civilisations demanded both physical and economic planning because a large number of human resources were often required to construct the ‘new’ urban environments. In other areas of the world, the growth of urban areas was incremental, but both developments created major problems. For example, early Rome required the introduction of traffic restrictions to overcome the difficulties of an inadequate road system in a densely populated city, and a decree by Queen Elizabeth I restricted development immediately outside London. The phenomenon of the city as a catalyst for growth is not new, but the Industrial Revolution in Britain proved to be the critical factor in establishing the town as a major unit of production, rather than a place associated with commerce, defence or religion.

1.2 The Industrial Revolution

The description given to the change in methods of production, and the increasing specialisation of both factories and workers in the 19th century, is generally described as the ‘Industrial Revolution’. In practice, it was an industrial ‘evolution’ which was dependent upon the earlier agricultural revolution. The agricultural revolution had resulted in greater levels of production which were needed, at least in the initial stages, to feed the growing industrial population. During the 19th century, the population of the UK increased from approximately 10.5 million to 37 million, and the growth centres of the newly established industries, the location of which was first dictated by the availability of water power, and then coal, led to the concentration of population in particular parts of the country. The urban problems associated with large concentrations of people requiring to be housed in close proximity to the point of production led inevitably to risks to health and, in particular, the periodic outbreaks of cholera and typhoid.

Over 100 years later, the perceived problems associated with high density urban living appear to condition the attitude of a large number of the population who see dispersal to outer, or rural, locations, as their aim. This presents a major current planning problem in terms of the need to regenerate the inner areas of many of our towns, and also the need to conserve resources and ensure, as far as possible, that development is sustainable. Ease of communications, changing methods of production, plus relatively cheap green field sites, have all contributed to the constant pressure for the outward movement of land uses, including industry, commerce and housing.

1.3 Government Intervention in the 19th Century

The 19th century was largely a period of laissez faire in terms of development. The traditional thinking is that the standard of housing provided for workers was inadequate, but this criticism must be tempered by the fact that the conditions existing in rural areas at that time were certainly no better; the problems of inner city living were accentuated by the density of living and working conditions which prevailed.

It is, therefore, understandable that the government’s concern over the health problems in industrialised towns led to the appointment of a Royal Commission on the Health of Towns which published reports in 1844 and 1845. These reports were followed in 1848 by the passing of two Acts of Parliament, the Public Health Act and the Nuisance Removal and Disease Prevention Act. The former set up a General Board of Health with powers to create local boards where the death rate was above 23 persons per 1,000, or where a petition of 10% of the inhabitants of the district requested such a board. The boards were granted powers to ensure that both existing and new houses were provided with water and drainage. The second Act complemented the first by making it an offence to build a new house which would depend upon drainage into an open ditch.

The government’s concern over conditions which prevailed led to the passing of two further Acts, the Nuisances Removal Act 1855 and the Sanitary Act 1886. Under the Nuisances Removal Act 1885, the justices were empowered to require the provision of sufficient privy facilities, and the means of drainage and ventilation to make a house safe and habitable, or if the house was declared unfit for human habitation, the justices could prohibit its use for that purpose. The Sanitary Act 1886 enabled the local council, or Board of Health, to deal with those houses lacking proper drainage and to compel the owner to connect the property to a public sewer, if it was within 100 feet of the property, or in any other situation, with a cesspool.

The Public Health Act 1875 consolidated other public health Acts and, in addition, local authorities were given the power to make bylaws regulating the minimum size of rooms, the space surrounding houses, and the width of streets. Provision was also made for the making up of unadopted streets and the provision of sewers at the expense of the owners of property fronting such roads. The minimum bylaw standards set by the local authority were, not surprisingly, adopted by developers as the maximum standard they were prepared to accept! This provision of the Public Health Act 1875 still has a dramatic effect upon the character of our industrialised towns with vast areas of identical terraced housing which now form part of the inner city. This is correctly termed ‘bylaw housing’ and should not be confused with ‘back-to-back housing’ which existed before the introduction of the minimum standards. The latter was housing in the form of two-storied developments where, in a single block, there were two party walls separating each unit, one at right angles to the terrace and one parallel to the frontage, thus dividing the block into four separate units, hence the term ‘back-to-back’. The obvious problem was one of lack of cross-ventilation in individual units. Where these dwellings are still in existence, it is likely that they will now be listed buildings as they form part of the social history of the Industrial Revolution.

The Artisans and Labourers’ Act 1868 extended the powers of local government to deal with individual insanitary dwellings which were further extended by the Artisans’ and Labourers’ Dwelling Improvement Acts 1875 and 1890. These Acts granted powers of slum clearance and the building of tenements and cottages for the housing of the working classes. The years 1888 and 1894 also saw reforms to local government with the setting up of county councils and urban and rural district councils. A number of enlightened industrialists were carrying out housing for their workers which showed the standards which could be achieved, for example, Bournville, New Lanark, Port Sunlight and Saltaire. These enlightened approaches to the housing of workers no doubt influenced Ebenezer Howard who, in 1899, published his book Garden Cities of Tomorrow. This book not only inspired the first Garden City at Letchworth, but has a continuing influence on the type of housing to which the vast majority of the population seek to aspire – low density suburban living which has been made possible by vastly improved communications and the increase in car ownership.

Throughout the 19th century, the main focus of government intervention related to public health issues and it was not until the beginning of the 20th century that land use planning was introduced. However, the Victorian attitude that physical illnesses and social problems could be eliminated by simply providing better housing conditions continued to prevail up to the 1960s and beyond.

1.4 The Early 20th Century

The link between the provision of adequate housing conditions and the right of local authorities to impose bylaw standards was further developed by Part I of the Housing, Town Planning etc Act 1909 which dealt with ‘Housing of the Working Classes’, and Part II which related to ‘Town Planning’ and granted powers (s 54) to local authorities to make a town planning scheme:

… as respects any land which is in the course of development or appears likely to be used for building purposes, with the general object of securing proper sanitary conditions, amenity and convenience in connection with the laying out and use of land and of any neighbouring lands.

A town planning scheme afforded an opportunity for greater flexibility than could be achieved by bylaws, and it could determine the number of buildings on a site, and the space around them, and also control their appearance. A scheme also allowed the definition of zones in which only certain types of buildings would be permitted. The use of ‘zoning’ has remained a popular means of planning in many parts of the world, but as discussed below, this was replaced in Britain by land ‘allocation’ which provides a greater degree of flexibility.

The Housing, Town Planning etc Act 1909 (s 54(2)) required any local authority wishing to make a town planning scheme first to gain the approval of the Local Government Board. The scheme could not take effect until it had been approved by the Board, or in some cases until it had been laid before Parliament (s 54(4)). As the preparation of a scheme was discretionary, it is not surprising that, given the complications of gaining approval, it was not a widely used piece of legislation. Ten years later, the Housing, Town Planning etc Act 1919 sought to overcome the problems associated with the bureaucratic provisions for approval. The need first to gain approval of the Local Government Board, and the necessity to lay the proposals before Parliament were removed in most cases by s 44. Schemes were to come into force immediately after approval by the Board.

Having at least partially removed the obstacles for the approval of town planning schemes, it was also made obligatory for authorities with a population of 20,000 or more to prepare schemes, and the Local Government Board could require an authority to prepare a scheme if it was satisfied that the particular circumstances warranted a scheme (s 47). Provision was also made for two or more authorities to prepare a joint scheme and to appoint a committee for that purpose (s 42).

The 1919 Act also introduced the concept of interim development control whereby a developer was not obliged to apply for permission, but if the development did not comply with a scheme as ultimately approved, he would forego his right to compensation (s 45).

Part II of the Housing etc Act 1923 amended the 1919 Act in providing that local authorities were empowered to withdraw or modify provisions contained in a scheme which had given rise to an award of compensation.

In 1925, the first piece of legislation was passed which related solely to town planning: the Town Planning Act 1925, which was largely a consolidating Act.

The Town and Country Planning Act (TCPA) 1932 was a particularly significant piece of legislation for a number of reasons:

• (a) it introduced in its title for the first time the concept of planning in non-urban areas;
• (b) it provided local authorities with the opportunity to prepare planning schemes for any land in England and Wales and not purely suburban land as in previous legislation; and
• (c) it provided an opportunity to prepare schemes for developed areas in addition to green field sites.

Whilst the provisions of the Act were purely permissive, and approval was required from the Minster of Health, the approved scheme was binding on the local authority and those wishing to carry out development.

It was becoming apparent in the 1930s that the older industrial areas were experiencing a period of prolonged and, in some areas, severe economic depression. The gravity of the situation had been highlighted by the General Strike in 1926. The economic imbalance between the London metropolis, which continued to grow in a haphazard manner, and the rest of the country, led to the appointment of Commissioners for Special Areas to investigate the problems, and they reported that much of the growth was not based upon strictly economic factors. Their reports led to the Royal Commission on the Distribution of the Industrial Population (the Barlow Commission). The Barlow Report (Cmd 6153), published in 1940, found that the concentrations of industrial populations in the cities created dangers to the nation’s life and development, and that action should be taken by the government towards remedying the situation. The report also drew attention to the serious loss of agricultural land and this was the subject of a setting up of a further committee on Land Utilisation in Rural Areas under the chairmanship of Scott LJ. The Scott Report (1942, Cmd 6378) urged that more attention should be given to the siting of development to preserve agricultural land, and both reports were critical of the operation of the 1932 Act which they argued was not capable of checking the outward spread of towns and the consequent tendency to increase central density and traffic congestion. Although planning legislation was radically altered by the later 1947 Act, these problems remain a constant problem for planners over 50 years later.

1.5 The Second World War

During the period of the Second World War (1939–45), little physical development was carried out unless it was directly connected with the paramount needs of equipping and defending the country. It was not until 1943 that the government turned its legislative attention to planning following the publication of the Barlow and Scott Reports. The Minister of Town and Country Planning Act 1943, appointed for the first time a minister who was:

… charged with the responsibility of securing consistency and continuity in the framing and execution of national policy with respect to the use and development of land throughout England and Wales [s 1].

A second Act in 1943, The Town and Country (Interim Development) Act, provided that all land in England and Wales be deemed subject to interim development control, provided by the 1932 Act, irrespective of whether or not the local authority had passed a resolution to prepare a planning scheme.

The TCPA 1944 made provision to deal with the extensive war-damaged areas (blitzed areas), in the towns and cities of the UK. With the end of the war in sight, the need to make provision for the redevelopment of these areas was becoming more urgent. The Act provided power for local authorities compulsorily to acquire these areas, as well as areas of poor layout and obsolete development, and, in addition, land which would be required to accommodate the relocation of uses (overspill areas). It also empowered local authorities themselves to carry out the redevelopment of these areas.

The publishing of the Abercrombie ‘Greater London Plan’ (HMSO) in 1945 had an immediate and lasting effect upon planning policies which were to be adopted when hostilities ceased. The main policies related to decentralisation of population and industry from overcrowded cities, the establishing of a series of ‘self-contained’ new towns designed to accommodate those to be moved out of the cities, and also a green belt to prevent the further outward sprawl of major towns. Of these three basic policies, that which related to green belts remains a major element in current planning; the continuing pressure for decentralisation is now frequently resisted because of the need to regenerate cities and also to encourage sustainable development.

1.6 The Immediate Post-War Period

The years immediately following the cessation of the Second World War heralded a period when not only was there a desperate need to rebuild the fabric of the country ravaged by six years of war, but also a national desire to build for the citizens ‘a greater and better Britain’. This was to be achieved by a State-run economy which saw widespread nationalisation of public utilities, the coal, iron and steel industries, the railway system and also the setting up of the National Health Service and a new education system. Physical planning was also at the forefront of government thinking, and following the recommendations of the Barlow and Scott Reports, the New Towns Act 1946 provided a planned opportunity to carry out the dispersal of population and industry. The Act granted the minister the power to designate land for new towns, and also to set up State-appointed New Town Development Corporations to carry out the development subject to the approval of the minister.

This policy of new town development, which was based upon the success of the Garden Cities of Letchworth and Welwyn, and the philosophies of Ebenezer Howard, led to the creation of what were intended to be ‘self-contained’ new settlements built at relatively low residential densities. They also provided town planners with an ideal opportunity to progress principles of a balanced neighbourhood community (balanced in the sense of social groupings and also local facilities such as shops and schools), segregation of land uses, pedestrian and vehicular segregation both in town centres, for example, Stevenage, and in housing areas in accordance with the ‘Radburn Principle’ of segregation which involves vehicular access at the rear of houses, and an integrated system of landscaped footpaths giving pedestrian access to the front. This particular form of housing layout did not prove popular but nevertheless the overall influence of new towns on subsequent development elsewhere cannot be underestimated. Most public and private development since shows the influence of the early new towns, and the much maligned social engineering which was attempted by the creation of balanced neighbourhoods may yet reappear with the current efforts to ensure that large-scale residential development contain an element of low-cost housing.

The designation of new towns was also ‘backed up’ by ‘Town Expansion Schemes’ throughout the South East of England, whereby agreements were drawn up between market towns, which acted as the ‘importing authorities’, and London boroughs which were the ‘exporting authorities’ of sections of their population (largely young, mobile families).

The creation of extensive green belts was undertaken as envisaged in the Abercrombie Plan, by using planning powers in the TCPA 1947, to ensure that existing towns and cities, in particular London, did not continue to create fresh suburban sprawl which, if unchecked, was likely to result in the coalescence of existing settlements. This form of green belt differed both in extent and function from that envisaged in the Green Belt (London and Homes Counties) Act 1938 which allowed urban authorities to acquire land in adjoining rural areas to provide green spaces for recreational use by the urban population. The concept of a green belt, that is land surrounding a built-up area, is a British phenomenon which should be contrasted with the alternative ‘Copenhagen finger plan’ approach in Denmark where open land is retained which forms ‘fingers’ of space which penetrate into the city. Circular 42/55, Green Belts, issued by the then Minister of Housing and Local Government, made it clear that government policy was to encourage lpas to consider the provision of green belts which were to be several miles wide as a means of ‘checking the unrestricted sprawl of the built-up areas, and of safeguarding the surrounding countryside against further encroachment’ (para 1). Green belts are now a firmly established principle in town planning in England and Wales (there are none in Scotland), and are generally rega...