Dilemmas of Sustainable Urban Development

A View from Practice

Jonathan Metzger, Jenny Lindblad, Jonathan Metzger, Jenny Lindblad

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781000080438
• Topic: Architecture
• Subtopic: Urban Planning & Landscaping

Dilemmas of Sustainable Urban Development offers valuable insights into a difficult line of work whose practice inevitably requires a confrontation with fundamental conflicts between divergent goals, and therefore also demands difficult choices and compromises. With contributions from leading academics and expert practitioners, this book provides readers with diverse international case studies which highlight and examine the concrete challenges of practicing sustainable urban development.

The examples in this book touch upon all aspects of sustainable urban development work, from City Hall to the local park. All of the cases unfold in their own specific contexts under particular circumstances—but from each one of them there are general lessons that can be used to inform practice. This book is essential reading for anyone who is active as a student, researcher, or practitioner in the field of urban development.

Chapter 1

Law

Sustainable Development in English Planning Law: Golden Thread or Black Swan

Sue Chadwick

Swan Lake is a ballet associated primarily with exquisite music, inspired choreography and the talents of dancers such as Margot Fonteyn and Anna Pavlova. But while the ballet may be associated with beauty and grace, the core narrative is one of deceit. The young Prince Siegfried falls in love with Odette, the white swan queen and at their next meeting he binds himself to her—or at least to the woman he believes her to be. Too late, he realizes that this woman is the sorcerer’s daughter in disguise and tragedy ensues.

Sustainable development is a concept with a multiplicity of meanings but no formal or legal definition. It is most frequently defined through an overt or implicit reference to the ‘Brundtland’ definition used in the report ‘Our Common Future’ in 1987: “Humanity has the ability to make development sustainable to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs” (World Commission on Environment and Development, 1987). In terms of planning policy, it is the ultimate white swan, a way to meet the planning needs of now and hereafter without compromising either.

The National Planning Policy Framework (the ‘Framework’), adopted as the central national planning policy for England in March 2012, claimed that sustainable development would be a ‘golden thread’ around which planning decisions would be woven. Placing sustainable development as a primary consideration when planning for or approving new developments apparently secured a beneficial policy objective as a central consideration in all planning decisions.

This chapter is an unblinkered exploration of the use of the term sustainable development in the Framework and the updated 2019 version of the same document. It asks whether planning and development practitioners have been enchanted by these traditionally benevolent associations of sustainable development into accepting the term at its face value, while leaving its empirical functionality unquestioned. The chapter asserts that the term as defined in and constrained by the Framework is instead used to help to promote a pro-growth agenda in the teeth of local policies designed to prevent precisely those developments. In this context, the language of the Framework has been just as deceptive—and arguably just as destructive—as the magic spells woven in Swan Lake.

This chapter begins with an explanation of the interaction between law and policy in English planning law and the origins of the concept of sustainable development in international and national policy. It briefly summarizes the political context of the Framework and the way in which that document defines and constrains the use of the term sustainable development with a new ‘tilted balance’ in its favor in the context of planning decisions. It considers how the Framework-specific concept of sustainable development has been considered in case law, and focuses on one case in particular: the ‘Hopkins Homes’ decision considered by the Supreme Court in 2017, and what it did—and did not—achieve in terms of how sustainable development should be interpreted. The chapter ends by reviewing the updated Framework that was adopted in 2019 and modified the following year and considers, based on recent case law, whether the new Framework promises any hope for a more genuine application of the concept of sustainable development in the future.

The English Legal System

The United Kingdom does not have a codified constitution but is ruled through the intersecting scope of authority of three institutions: Parliament (comprising the Queen, the House of Commons, and the House of Lords); an executive government; and an independent judiciary. The Queen is the head of state of the UK but, by constitutional convention, she does not become publicly involved in the party politics of government, so her powers are exercised through that government. Parliament’s functions include making laws and scrutinizing executive actions of ministers through a variety of mechanisms including select committees, parliamentary questions, oral and written statements, and debates. Executive government powers are exercised by ministers and are derived from legislation passed by Parliament. Ministers are subject to an overarching duty to act in accordance with the law and to account to Parliament for their actions. They are supported by impartial civil servants and often depend on those civil servants for decision making, although ministers ultimately take responsibility. The judiciary is independent of both the executive and Parliament. Judges interpret and apply the law and can rule on whether ministerial action is carried out lawfully, through a process known as judicial review. Statutory powers are interpreted and refined through the case law created when the use of those powers is challenged through judicial review, and this body of case law is generally referred to as common law.

Parliament, government ministers, and the courts all play a part in planning law. Parliament makes the legislation that regulates the planning system, (with the most relevant for the purpose of this chapter being the Town and Country Planning Act 1990). In terms of executive government, the relevant department is the Ministry of Housing Communities and Local Government currently headed by Secretary of State Robert Jenrick (‘the minister’). The principal function of this ministry is to maintain and update central government planning policy through the Framework, National Planning Policy Guidance and Written Ministerial Statements. The minister also has the power to determine individual planning applications, although these planning decisions are generally administered and determined by the Planning Inspectorate, a branch of the civil service in which inspectors will use their independent judgment to consider applications, but always in the name of the minister.

The minister thus has two roles: formulating and adopting policy government policy which represents national rather than local concerns, and acting as the arbiter of how it is applied, which may also be politically motivated. As the 2001 ‘Alconbury’ case recognized: “No one expects the inspector to be independent or impartial in applying the Secretary of State’s policy.”¹ Two cases have questioned the validity of the power of the minister both to set policy and to determine how it is applied:

• The Alconbury ruling of 2001 concerned the legitimacy of the planning appeals system as an independent and impartial tribunal for the purpose of Article 6 of the European Convention. The House of Lords ruled that there was no violation of the principle because of the independent system of judicial review and so a government minister could be both a policy maker and a decision taker.
• These principles were confirmed in the 2016 ‘West Berkshire’ decision challenging the legitimacy of a Written Ministerial Statement on affordable housing.² This decision confirmed that the minister was entitled to express his policy in unqualified terms, and as both policy maker and decision taker was entitled to prefer his policy to that of a local authority.

The local planning authority may make the initial judgment, but so long as the minister does not frustrate or prevent the operation of the statutory principles underpinning that decision he or she is free to apply an entirely different emphasis.

Planning Decisions

The decision-making process associated with considering and determining applications for planning permission is regulated through the use of two intersecting legal requirements, referred to in this chapter as the ‘legal text’:

• Section 70(2) of the Town and Country Planning Act 1990 requires the decision maker to “have regard to the provisions of the development plan, so far as material.”
• Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires decisions to be made “in accordance with the plan unless material considerations indicate otherwise.”

Decisions to approve or refuse development are one of the most visible—and contested—regulatory functions with both positive and negative outcomes for all parties involved. For developers and landowners, they are the means by which development potential can be exploited but can also constitute a significant barrier between land ownership and land value. For local communities, they can represent unwanted diminution of amenity as well as job creation, economic regeneration, and the provision of affordable housing. Individual local authorities decide most planning applications, either through a planning committee made up from a selection of the council’s members or by individual planning officers. However, when planning applications are refused, the applicant can appeal and the appeal is determined by an independent inspector. In addition, some planning applications are themselves determined by the minister.

Because of their value and significance, planning decisions are regularly contested by way of judicial review by anyone with sufficient ‘interest’ in the application. That review is available to the applicant, the local authority, or individuals or groups who are particularly affected by the decision. A claim for judicial review involving planning matters begins in the Planning Court, which is part of the Administrative Court within the Queen’s Bench Division of the High Court. An appeal from a High Court decision is heard by the civil division of the Court of Appeal, while the Supreme Court is the final court of appeal for all civil cases in the UK.

The Planning Balance

Planning applications are required to be determined by the legal test set out above but this incorporates two non-legal considerations: the development plan and material considerations. This creates a wide discretionary space within which both must be taken into account and weighed against each other. The determination of planning decisions is essentially an exercise of judgment, not law, carried out by members of the public, planning officers, or government officials rather than lawyers, and requires due weight to be given to local planning policies and a wide range of other considerations. This process of weighing plan policies against other considerations is generally referred to as the ‘planning balance.’

The development plan is the document or documents prepared by a local planning authority individually or in cooperation with one or more local planning authorities. Development plans relate to the development and use of land in the area; they allocate sites for particular uses and set out a range of policy objectives formulated and adopted at the local level and reflecting local sociopolitical concerns. Documents such as strategic or development management policies will generally be within the definition of a development plan, and in London the London Plan will always be part of the development plan. Neighborhood plans are also, as a matter of law, part of the development plan. The legal test situates the development plan as the primary consideration, and the requirement to ‘have regard’ to the development plan operates as a presumption in favor of its policies. This was recognized by the landmark 1997 ‘City of Edinburgh’ case, in which it is stated that “the development plan is no longer simply one of the material considerations … there is now a presumption that the development plan is to govern the decision on an application for planning permission.”³

The other factor to be taken into account is material considerations. There is no statutory definition of this, but the ‘Stringer’ case established the common law principle that “any consideration which relates to the use and development of land is capable of being a planning consideration.”⁴ This means that the scope of material considerations is not only wide, but will fluctuate depending on the particular proposal considered. Some considerations are material as a matter of law, such as emerging neighborhood plans, or require specific tests to be applied; for instance, European Directives relating to the environment require specific information to be supplied and that the effects on the environment must be taken into account at the earliest possible stage. When a development involves or affects a listed building or conservation area then the local authority must have special regard to that status.

The Framework is itself a material planning consideration and in addition it lists a number of policy designations that must be given particular weight when they are relevant to part or all of the development in question. They are listed in the footnote to paragraph 11 and include Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets; and areas at risk of flooding or coastal change. There is also a range of matters that are accepted, through practice and case law, to be material to most if not all planning decisions. National policy is one of them—the Framework, the online national planning policy guidance, and Written Ministerial Statements. Emerging local and neighborhood plans, previous planning appeal decisions, representations from the local community, public benefits offered as part of a particular application, health and safety concerns—particularly those related to diet and obesity—the planning history of the site, and policies contained in documents other than the development plan fall within this group.

While all of these matters are capable of being material to a planning application, the weight accorded to them will depend on a number of factors including relevance to the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Illustrations
• List of Contributors
• Acknowledgements
• Introduction: A Practice-Centered Approach to Dilemmas of Sustainable Urban Development
• 1. Law. Sustainable Development in English Planning Law: Golden Thread or Black Swan
• 2. Politics. Who Stands Up for Ecology? The Politics of Sustainable Land Use in Stockholm
• 3. Concretization. Sustainability in City Management and Urban Planning in Gothenburg: From Vague Vision to Social Inclusion Activities
• 4. Strategy. What Is More Important than Getting Things Done? Learning from Sustainable Sydney 2030
• 5. Best Practices. Contradictions of the ‘Green City’ in Germany
• 6. Mobility. Promises of Intermodality for Sustainable Mobility in Bordeaux
• 7. Complexities. Construction Sites of Sustainable Low Carbon Transition in Paris: Snapshots of Internal Organization, Energy Plans and Technical Infrastructure
• 8. Values. Valuing Sustainability in Bordeaux: Should the Grass Be Cut?
• 9. Programming. Programming Urban Transitions in Practice
• 10. Evidence. Evidence-Based Urban Development: Beyond the Urban Anecdotes?
• 11. Smart. Climate-Smart Cities?: A Corporate Takeover of Urban Environmental Governance in Malmö?
• 12. Ownership. Delivering Sustainable Development: Landownership and Accountability in Cambridge
• 13. Tools. Realizing the Vision of a Socially Inclusive RiverCity
• 14. Commons. Producing Collaborative Sustainable Urban Development: Experiences of Water Management in Bangalore, India
• 15. Expectations. Hope and Despair: Professionals’ Struggle to Navigate Multiple Planning Ideas in a Public–Private Collaboration in Gothenburg
• 16. Concluding Commentary. Will Sustainability Be Replaced by Resilience, and If So, Why?
• Index