#5273 - Planning Law Theory - Environmental Law

• Hall et al – plan noun (thing) and verb (action). It can be both – plan for a new building is the hard copy of the plan and the guide to realising the intention to build it. Planning the second type (not process of physically creating plan) – it may but needn’t include making the blueprints.

Evolution of Planning Law.

• Hall – perceptions of the evil city were source of social evil, biological decline, and potential political insurrection. The bringing together of hundreds of rich, thousands of middle classes and millions of poor created a new set of social relationships and perspectives. [Thus requiring planning with all in mind, not just poor].

• Pinder – talks of the ‘restorative utopia’ thinking in early 20^th century. Idea that expansion could be done without the disorder associated with industrialism etc. Idea of garden landscapes.

• Cullingworth et al – drawbacks of 1909 Act – central gov had no powers, it was optional for Las, no coordination. There were over 1400 LPAs but only 5% of England subject to operative schemes. When redevelopment post was required it became clear that centralised power was required, this came with 1947 Act.

• Layard – why 2008 reform for large projects? – Business concerned with delays and bureaucracy of planning, 524 days Heathrow application. Pressure groups concerned with access to planning system. Government concerned with complexity, uncertainty, delays and lack off community engagement. Thus such large projects got own process.

Major Conceptual Themes.

• Campbell and Fainstein – Development of Planning Debates – Early were comprehensive v. incremental planning, centralisation v. decentralisation, top down v. bottom up leadership…

The public interest is leitmotiv of planning debates and answer to each debate largely in that purpose of planning. As society develops planners must rethink public interest.

• Layard – Cental v. Local – Localism Act does little to change framework of planning but does create new role for legally constructed neighbourhoods. But still need to find a way to work out difficult questions of local v. neighbourhood such as where to place homeless hostels. This is particularly difficult when both are constructed as the local, as opposed to central, level. [Also central still has ability to call in decisions and create policy documents which must be considered].

• Hewart - Dispute settlement between private and public interests – enquiries to settle polycentric disputes around private and public interests do not carry the protection of the judicial process and as such are insufficient.

• Harlow et al – Dispute Settlement, Franks Committee – classification of inquiries hard but seems to be as not completely administrative (as special procedure used to test an issue) or judicial (as need flexibility unavailable in applying legal rules). Found that the idea was to ensure citizens interests protected by right to be heard and therefore that minister better informed of facts. About balancing of public and private interests.

• Lord Clyde – Alconbury – Dispute Settlement… - The decision of the SoS in a planning case is not a judicial function under the HRA and so need not provide independent body to determined. Planning is a matter of determination and application of policy, whilst having some judicial qualities, and is thus not subject to art 6. Determined strong factor to be the need to account for public interest and national priorities.

• Normative nature of planning law – Planning law at any given time likely to reflect the current vision of good public decision making; likely to be several different normative visions of decision making a once - McAuslan – public interest, public participation and private property all operate in planning law together. The dominance of the other two means participation suffers and has little room to operate....