Planning Law

Page Under Construction

The text below is taken from a proposal put forward during the ConstitutionUK project run by the LSE in 2015 to crowdsource a new constitution for the UK, and will be substantially rewritten before this website goes live.
The details of planning law are not directly relevant to the constitution but it does impact people’s freedom so I posted the following analysis and proposed reform in the LSE project as background.
Inequitable allocation of land ownership is one factor sustaining the constant flow of wealth from the land-poor to the land-rich, but it is not the only one. Even when people are able to buy enough land to sustain them, current planning laws often effectively prevent them from living close enough to take advantage of it. If people are denied effective access to land, they are denied the means to sustain life, and laws which deny them effective access are therefore incompatible with the right to life.
It might be thought that this is a problem which only affects a relatively small number of people, but I believe it has a profound effect on the overall shape of our society. There are currently a small number of people who actively try to live ‘low-impact’ subsistence-level lives on the land, many of whom are thwarted by the demands of the planning system. There are clearly many others who explore the possibility of doing it but never make the attempt because they see the difficulties that others encounter; and there appear to be many more who openly dream of it but never go beyond dreaming. We have no way of knowing, however, how many people don’t even allow themselves to have that dream because they take it for granted that it would be impossible to achieve.
The fact that people are prevented from choosing a subsistence lifestyle forces people to remain within the mainstream economy, in places where they are obliged to buy food, because they have no opportunity to produce their own, and are also obliged to pay for accomodation. Those obligations ripple through every economic interaction; it creates a class of subservient people who have no option but to accept whatever menial job they can get. In turn, their ambition for something slightly better undermines the negotiating position in the labour market of those who are a little better off … and so on, most of the way up the economic scale.
There wouldn’t need to be a significant flow of people onto small-holdings to change that substantially. The very fact of people being able to live on their own bit of land would alter the dynamics of the whole job market, because it could significantly reduce the labour pool at the bottom of the job market. (In fact, the very fact of having a claim to a fair share of land-market-value would alter it; without the need to pay land-rent, the negotiating position of the poorest would be transformed.)
The last two or three centuries have seen a transformation from an essentially agrarian society to a largely industrial urban one – a transformation which came about through rural people being forced off the land as a result of the Enclosure Acts. (There is evidence that, in some cases, those Acts were openly intended to provide cheap labour for the industries which were starting up at the time.) It might be that most people would indeed prefer the advantages of urban life, but there are many reasons to believe that a genuinely free society would have a very different ratio of rural to urban population from what we have today. Planning law as it operates currently would prevent that natural population distribution from emerging even if the problem of the unfair distribution of land ownership had been resolved. For that reason, I regard it as incompatible with a genuinely free society.
It is doubly pernicious, to my mind, in that this effect seems to be essentially fortuitous. While planning law might have some purpose as a method of social engineering – preventing ‘undesirable’ development – this is essentially secondary. Its primary purpose, as far as I can see, is not to prevent development but to enable it. My reasoning here is as follows:
the state’s responsibility to defend the rights of individuals and the public at large confers on it an absolute power to order new development to be demolished if it infringes those rights;
which means that (in the absence of some mitigating process) any one contemplating any new development faces the risk that it will subsequently be ordered to be demolished, and any investment they have made in it will be lost;
the planning process therefore provides a mechanism whereby potential developers can be granted an indemnity, so that they will be compensated if their development is subsequently ruled out.
I describe this as its primary purpose because the need for it is inherent in the state’s responsibilities, whereas any social engineering function is driven by policy considerations.
A major problem with the planning system as it operates currently is that it demands more of people’s imaginations than is reasonable and allows authorities too narrow a range of responses. People living nearby are expected to be able to anticipate how a development will affect them on the strength of usually very limited knowledge, and have to articulate their fears in ways which they’re not accustomed to, often in an environment they find intimidating. And yet approval is commonly taken as over-riding the rights of neighbours and the public at large, while rejection is commonly taken as implying prohibition – with nothing much in-between.
In practice, I believe, the perception that any redress will be ruled out once planning permission has been confirmed means that people (and councils) are inclined to object pre-emptively to unusual small-scale development – and that can create a significant barrier for people hoping to live essentially self-sufficiently on a small plot of land.
I suggested above that the primary purpose of the planning system is to provide would-be developers with an indemnity, to help them face the risk of their investment. What is important in terms of what I’m advocating here – people’s right to live and work on a small plot of land – is not that they should receive help but that they should not have to get over arbitrary barriers. If a low-impact development, done at the developer’s own risk, proves to be harmful to the interests of people living nearby then it is right that it should be prevented. But to deny it to someone who is willing to bear that risk merely because it might cause problems is pernicious.
At the other end of the scale I suspect that authorities are inclined to take a rosy view of the potential public benefit of larger developments because there is no significant risk to them if those benefits don’t in fact materialise. I believe that the tendency of the planning process to encourage speculation is exaggerated by the combination of this lack of balance and the binary nature of its judgements. The reforms I propose, therefore, are as follows:
That planning authorities should have five possible responses to a planning application (which may be qualified by particular conditions, as currently); endorsement (with full indemnity and active assistance), approval (with full indemnity), acceptance (with limited indemnity), toleration (with no indemnity but no obstruction), and prohibition.
That it should be explicit that the primary purpose of the system is to provide developers with an indemnity, and that any compensation payments resulting from that indemnity should come from the authority granting it.
That where endorsement or approval is granted based on projected public benefits there should be a mandatory review process to evaluate whether or not those benefits have materialised.
I would expect these reforms to remove the obstacles the planning system currently puts in the way of would-be smallholders without compromising the benefits of the existing regime.