The central purpose of the planning system is to identify and plan land use for a local community and a national infrastructure and to provide a fair develop- ment control system for planning applications and arbitration in case of dis- pute. It is considered in the UK and many other countries, that both the land use allocation and the development control system should be decided demo- cratically or at least with significant consultation.
The democratic planning system is run by the local authorities balanced between appointed planning professionals advising and elected councillors who make the final decision. Planners are guided by central government policy statements who also deal with the planning appeals system. Planning is one of the local authority services that generates the most vocal feedback, as decisions made to allow certain types of development affect house and business values and individual development control decisions are directly connected to the quality of life of those neighbouring new developments, be they infrastructure or buildings.
The planner is in a unique position of public trust and should exercise a commensurate high level of understanding and impartiality in the public inter- est. Their advice role means they have unique access to and influence on the elected councillors through their authorship of the reports and have a further responsibility to present a balanced argument and contextual interpretation which must remain clearly objective in each application. The outcomes have a big impact on the community.
The American Planning Association1 states that ‘ethical principles derive
both from the general values of society and from the planner’s special responsi- bility to serve the public interest’. They further point out that societal values often compete with each other. Socially they need to ‘strive to expand choice and opportunity for all people’ with a special responsibility to plan needs for disadvantaged persons and groups. This challenges the value free, facilitator/ mediator approach often propounded, with a social concern agenda (Brown
et al. 2002).2
In land use, planners will deal with supporters and objectors and will need skills in stakeholder management. In addition, they need to present material
transparently for public consumption. They will also need to deal with the interrelatedness of community and social matters and prioritise applications.
The challenge is to maintain public respect even though there may be aggres- sive campaigns against their policy-making. To avoid being accused of conflict of interest, they will need to keep the highest standards of integrity and respect in the face of opposition.
Questions
Fundamental questions about the efficacy and legitimacy of the planning pro- cess arise. These relate to the effectiveness of land use planning to produce a fairer allocation and to judge the real issues of importance to development control. Who should make the decision in order to ensure basic human rights for members of the community? Thomas and Healey (1991)3 claim that ethics,
legitimacy and validation of the skills and knowledge of the planning system and those who operate it, are insufficiently debated. What skills and ethical standards are considered valid in determining acceptable development and ensuring fair decisions? Who has the right to make these decisions? The present system of most market-based economies is based on local democracy to avoid party political loyalties, but would development be better controlled by central government to ensure parity between regions and remove subjectivity? Should it be a simpler, more transparent, organic process justified in terms of whether the proposal generates economic wealth, whether it represents minimum loss of private amenity for the region, or in terms of whether the proposal is a sustain- able solution? Are there sufficient checks and balances in place to avoid bribery and corruption to the decision-making process?
Development planning in the UK
Land use planning and development control is established widely round the globe, but has certain local characteristics. Initially a regional structure plan is produced, identifying major policies and major infrastructural development which must be taken into account in local plans. Prior to planning application decisions in the UK, all authorities – counties, cities and unitary authorities – are required to set out a core strategy for a development framework, based on consultative processes and indicating the planned long-term development of the areas under their planning control. With a county authority a structure plan is produced which is further developed at a secondary local plan level. The plans for the unitary and city authorities are at one level called the Unitary or City Development Framework. The plans provide a strategic overview and provide constraints for development decisions by identifying the ‘site specific allocation’ for various development types. They have to go out to consultation before the plan is adopted. A plan cannot be adopted until objectors’ concerns have been addressed or a public local enquiry has resolved ongoing issues.
More recently local community involvement has been restricted to truly local matters with action plans where development is higher impact. Other ‘low impact’ zones have been given special status such as business development zones and regional development agencies for the particular purposes of fast tracking development for regeneration and economic improvement of rundown areas. Special grants are available and in the case of regional development agencies separate development control powers are given for regional infrastructure. Pre- defined planning criteria are used to speed up planning permission and deal with broad areas of development. Limited permitted development for domestic property, such as domestic wind turbines, is to be allowed at the time of writing without an application, to speed up bottlenecks.
In order to give some equality of basis for both plans and the decisions based upon them, Planning Policy Statements (PPS, replacing planning policy guid- ance) are produced by central government which are enshrined in the plan to ensure minimum standards. In more recent times factors such as sustainability and transport planning have become more closely related to development plan- ning and local transport plans and sustainability strategies have also been built in. Transport for London (TfL) is responsible for a combined plan for the whole of London. Regional Development Authorities (RDAs) at the time of writing are also responsible for longer (20-year) plans covering a region. Greater London has a strategic approach to the whole area and there is centralised strategy with local development control by boroughs.
PPS documents deal with issues such as housing provision, sustainability, out of town supermarkets, archaeological arrangements and developments on ground which may be flooded. Other agencies such as the Environment Agency, Highway Agency and English Heritage may make recommendations on these issues in more detail, but do not have the power of veto.
Development control
The key personnel in the development control process (Figure 7.1) are the development control officers (DCOs) who devise and moderate the develop- ment plan documents and evaluate and recommend an outcome. The elected councillors who sit on the district-based planning committees actually make the final decision.
A recommendation is made by the DCO after inspecting the local and any regional plans that have set out land use policies and seeing if there is compli- ance and that the central PPG policies are served adequately. This is further viewed by looking at any constraints or covenants that affect building develop- ment in the location and taking a view on how the building will fit into its surroundings – height, massing, access, colour, etc. This can be helped by look- ing at precedents for similar development in the area and considering overall cumulative affects such as road congestion. In practice, there may be very little guidance as to previous development and strong points made by the developer
for a design that contrasts to the existing are difficult to assess. Buildings also exist in the context of what they provide and in the way in which they sit in the urban or rural space.
A case may be made for variation from the local plan if additional benefit is found, e.g. employment, for a larger than normal footprint on the plot to accommodate the size of company into the plots available. Officers may advise on how to make the building compliant or to advise where recommendations might be made to overrule a constraint or not. Planning authorities will also need to see overall intentions for the operation of the building such as travel plans and measures to make the building sustainable. The latter issues come as a result of negotiation between the DCO and the developer, but the DCO, although knowledgeable, can only make suggestions in good faith and cannot guarantee any decision by the LPA. Again there is a good sense that professional and ethical guidelines would be useful so that each party is clear and properly and equally advised. If a decision is made to refuse the application because of non-compliance or relevant objections, then each party will have recourse to appeal. The appeal is dealt with by the planning inspectorate who will appoint a suitable neutral inspector who will make a report which is binding unless a further amended application is made.
Where the planning regime is complex as above, there are particular chal- lenges to the consultative and democratic process where many would be referred to different parts of the system because it is unclear at what level they
should lodge their complaints. Other major issues exist such as the level of housing provision nationally and the release of sufficient development and the reuse of ‘brownfield’ land at an appropriate rate to ensure recycling of obsolete past developments.
Ethics of development control decisions
Ethically, apart from ensuring an appropriate public voice, there is a need to ensure equality of opportunity where it is possible to ‘play’ the system by the more experienced or streetwise developer at the expense of those who are less in the know. A balance is needed in an iterative system where a spiral of consult- ation is allowed, ensuring progress to the policy and decision-making rather than bring it back to square one with a rejection. There needs to be a cut-off point for each level of decision and ‘checks and balances’ for a minority who want to impose their views by using blocking procedures. It is also important to allow for visionary action, ensuring that development does not land up as a stifling and bland common denominator of compromise. An example of this would be the delivery of prescriptive standardisation of provision in the central business areas of towns and cities which seems to have happened in many of the urban shopping districts.
Market demand needs to be balanced by interventionist polices to ensure sufficient affordable housing, accessible shopping for those on public transport and long-term provision for climate change and flooding. In addition, land use should not be blind to the economic factors that drive development and learn to provide incentives for desired development in otherwise uneconomic sites. There are a lot of responsibilities in co-ordinating an overall desirable com- munity that has not advantaged some at the expense of others. Is this level of control possible or indeed desirable in the long term? Will freer market forces find a balance in the end? The development control framework is an attempt at some agreed level of control. Hopefully some level of flexibility can be built in to bend to the market force which is able to sponsor such development without losing sight of the plan.
DCOs and elected councillors have complementary roles which reflect the analytical and social aspects of the decision. Clearly they need to work together in understanding the issues, but need to be separate in the sense that councillors should not have a role in the forming of the application and maintain their distance so that they do not have a conflict of interest. Both have a role for the best good of the community and arriving at just and equitable solutions. Physical and social information presented to the councillors should be tech- nically competent and should provide a fair picture which is reasoned, complete and unbiased. There is a key ethical issue here in transparency and honesty and in developing trust.
The DCO responsibility for scrutiny and recommendation to councillors for application decisions is an important and influential one and may also be
guided in certain parts by other ‘expert’ advice such as conservation officers and other specialist consultants and organisations. They interpret their obligation as ‘value neutral’ in terms of local plan compliance, but may also see themselves as an advocate of a just distribution of the social impact of individual applica- tions. In practice, there are dominant applications and lobbies which provide benefits or point out harm which may be long term or short term. Short-term expediency may erode long-term community good, but short term is very dif- ficult to resist if it is in technical compliance with land use planning. The DCO juggles PPG, client pressure and local plans in making their recommendation.
Commercial benefit, party political voting power and community social good may often be in tension and councillors may wish to override land use planning for a duty to understand local public opinion short-term political expediency. Other factors include the power of lobbying pressure groups, the possibility of corruption and the personal values and precedents that exist in the department.
Planning gain
In addition, authorities have power to require a Section 106 agreement to put something back into the community directly in return for the impact of the building or indirectly due to perceived extraordinary profits received because of market demand – a sort of ‘development tax’. These measures are often contro- versial as there is a concern that there is a double charge on the buyer with council/business rates which should supply these services and a premium price for the property to cover costs of the agreement. Others believe that a develop- ment needs to pay for the development’s initial impact and that the council tax/ business rate is for the maintenance cost of services.
Who decides tangible impact value? The size of the ‘development tax’ is an ethical issue and there is an argument that it should be imposed proportionately to impact. Also it should be applied equally to competing developers with a rationale for its use by the Council. Rationally monies should be used for the benefit of the development, but this is not compulsory. Developers may be asked to provide the amenity themselves, such as children’s play areas and traffic lights, or a contribution for the service is paid to the council and used as it sees fit. The latter is particularly applicable to an ongoing social service such as pre-school provision. Where a clean-up service is being provided, such as decontamination of the site, then this may be chargeable to previous owners under the Environment Act 1992.
If a benefit to the community specifically arising out of the development is tangible, such as employment in a rundown area, then grants might be avail- able to make development viable, but this is generally outside the planning process and ethically should be kept so. However, the same planning depart- ment might have a close liaison with the economic development department in order to co-ordinate this aspect. Planners themselves need to be aware of the
terms of these grants and have a role to advise potential developers equally. Some planning departments see this as a conflict of interest. This is determined by the different management approaches to the planning role below. Again there is room for bribery and corruption for whatever officer is responsible for the advice where big money is at risk to the developer. A separation of role between marketing and granting planning advice may or may not help.
In the UK, there is a requirement for each authority (under the Freedom of Information Act) to provide basic public information about the development and if asked, to discuss the development in detail with third parties but some confidentiality will be important to the applicant where specific business plans are discussed in the application. Advertisement of the application is initiated by planning notices posted adjacent to site and in the local paper. The process prior to the planning application allows negotiations with local development control officers which provides essential information to the applicants and encourages applications compliant with the latest requirements. However, it is rather less public and therefore open to some abuse in terms of the equality of the advice and access to DCOs. Many feel that influential parties may be given privileges over and above others in terms of access to information and the interpretation of the land use and form of development which would influence the DCO recommendation to the Council. Councillors and DCOs take account of the number and seriousness of community objections. Objectors have to refer to local framework issues to protect their interests. Applicants can appeal against the council decision.
Delays to applications
There are additional funds for an authority able to deal with planning applica- tions within a government time scale. This was imposed by the government to deal with valid complaints about unfair delays in the time taken for councils to make decisions. This has had the effect of councils refusing permission for applications on the basis of minor technical flaws so that average decision times can be met and incentive monies claimed. To the applicant, this can appear unfair and prejudiced as they can be put into a position of serious delay and extra expense disproportionate to the shortfall in the application. Applica- nts have a responsibility to discuss their applications before submission with DCOs to ensure technical compliance, but their design and business preferences should also be genuinely unaffected by any personal preferences of the DCO. It is obvious that there can be a subjective side to planning and some applicants may receive more help to get their applications through first time.
One of the key issues to overcome this is the setting out of substantial reasons for planning refusal and appeal against non-substantive refusal, which could have been presented as condition or reserve matters. Appeals are clearly expensive and time-consuming. It is also wasteful for all concerned to go through the application process twice. It is also hard for the DCO, where they
clearly have their recommendation overruled, to set out ‘substantive reasons’ for the refusal – which they are required to do. A case study is set out in