Revisiting the ideologies of planning law

Author:Julie Adshead
Position:University of Salford, Salford, UK
1 Introduction

Two of the key challenges facing the UK in the late 1970s were energy scarcity and unemployment ( McAuslan, 1980 ). The challenges faced today are not dissimilar. Climate change is an overarching imperative and a pivotal driver for the development of alternative sources of energy, energy efficiency and the reduction of carbon emissions. The current financial crisis has inevitably been accompanied by a surge in the rate of unemployment and efforts to move towards recovery are underpinned by the facilitation of development. On the face of it, we are in a similar place. However, much has changed in the past three decades in the planning law arena. There have been key external developments (both international and national) such as the adoption of the Aarhus Convention1 and the Human Rights Act2. Significantly, for the purposes of this examination, the public participation ideology, nascent in the late 1970s, has become increasingly embedded in legislation as well as finding recognition in the courts. Much has changed in the legal framework of planning in England and Wales and there have been numerous changes in policy with accompanying legislative instruments. This article revisits the three legal ideologies proposed by Professor Patrick McAuslan over 30 years ago in an attempt to establish where the balance lies between them in one aspect of modern day planning law. The development of the public participation ideology is charted and an analysis of the law governing key areas of development control is undertaken in order to draw conclusions as to how the competing ideologies interact today and which of the ideologies (if any) is dominant.

2 The ideologies of planning law

In his seminal 1980 publication “The ideologies of planning law”, Professor McAuslan advanced the theses that land use planning law lacked objectivity and neutrality and that the law itself was a major contributory factor behind the disarray of planning. He further argued that this lack of objectivity and neutrality existed because the law is based upon three competing ideologies ( McAuslan, 1980, p. 2 ). McAuslan (1980, p. 2) proposed these to be; first the traditional common law view that the role of the law is to protect private property; second that the law exists to serve the public interest; and third that the law serves the cause of public participation. He then proceeded to examine the law in three areas of the planning system of the time, exploring the role of each of the ideologies in; public participation and debate, public development and initiatives and public regulation of private development and activities.

2. 1 The traditional common law approach

The first of McAuslan's ideologies will be familiar to all legal scholars. It is an approach to the law which flows from the close relationship between private property ownership and the law. Historically the two have always been closely intertwined and the idea that the role of law exists to uphold the constitution and property can be traced back to Locke (1953) in the seventeenth century. Until relatively recent times, politics and law-making have remained the exclusive preserve of property owners. The judiciary and lawyers themselves are more often than not owners of property and steeped in a legal tradition that long predates the advent of legislation and judicial intervention to protect the public good.

When faced with legislation enacted to improve the living conditions of the urban working classes and giving government powers to control the use of property, it is not surprising that land owners turned to the courts to protect their interests, nor that the courts were sympathetic to their cause ( McAuslan, 1980, p. 3 ). It is in the principles developed by the courts in the late nineteenth and early twentieth centuries to protect landowners that the common law or private property ideology can be recognised3.

2. 2 The public interest ideology

Alongside the traditional common law approach another ideology has gained influence during the last century. The public interest ideology can itself be traced back in time to the writings of Bentham (1907) in the late eighteenth century. This view of the law sees its role as one of providing legitimacy for action taken in the public interest ( McAuslan, 1980, p. 4 ). Whereas the private property perspective can be recognised in the arguments of lawyers and decisions of the courts, the public interest ideology is evident in the actions and decisions of the public administrator. In order to serve the public interest the law gives wide powers to administrators, which often give rise to conflict with the traditional rights of private property ownership.

In more recent times, the courts, themselves, have come to recognise the legitimacy of administrative action in the public interest. With the advent of the twentieth century, lawyers and judges began to become familiar with the role of morality in law espoused by Bentham and this acceptance of the public interest ideology can be recognised in the case law of the higher courts in the early 1900s4. Planning law is characterised by legislation that is motivated by the public interest ideology but yet often attempts to recognise the interests of private land owners. Planning disputes in the courts have seen a vacillation between the traditional common law approach and the recognition of the legitimacy of the actions of public officials in the interest of the public who act in good faith and are ultimately accountable to parliament ( McAuslan, 1980, p. 4 and p. 5 ).

2. 3 Public participation

The third ideology identified by McAuslan rests in the proposition that, inherent in the law, should be mechanisms for the public to be consulted and involved in decision making processes. Although, as he notes ( McAuslan, 1980, p. 5 ), this ideology also has philosophical roots in the writing of Mill (1975) , it has only become a recognisable force with its own constituency relatively recently. At the time of writing in 1978, McAuslan (1980, p. 5) saw this ideology as of equal importance to the two outlined above, but as the least developed in terms of both policy and law. As will be illustrated below, this third ideology has grown in substance in these respects in the past 30 years or so.

The basic premise of the principle of public participation in the context of planning law is that the public should have rights of participation in decisions on land use planning, not because of any property interests but in the interests of democracy and justice ( McAuslan, 1980, p. 5 ). This notion naturally brings the ideology of public participation into conflict with the private property/common law approach. It also does not sit comfortably with the public interest ideology. Public administrators acting in the public interest in accordance with the law can tend to do so in a paternalistic way without necessarily allowing meaningful public participation in their decision making.

3 The balance in planning law of the 1970s

Of the three areas of planning law surveyed by McAuslan, public participation was considered both at local and central levels. At a local level he concluded that the dominant ideology of the time was public interest. Any deviance towards public involvement, he argued, was motivated by the ideology of private property and public participation did not then have a significant position ( McAuslan, 1980, p. 38 ). Similarly in looking at public participation at a central level, he concluded that the mechanisms in place at the time were not motivated by the ideology of public participation, but dominated by the ideology of public interest. Any innovations in public debate he suggested were “designed to control and not advance public participation – to steer it into acceptable channels” ( McAuslan, 1980, p. 73 ). At a central level also, he argued that any headway made in public participation was through the service of the private property ideology. His overarching conclusion at the time of writing was that law, which might appear to be designed to increase public participation, was, in fact, grounded in the ideology of public interest. Where public participation provisions did appear these, he argued, were catering to the interests of private property rather than the public at large ( McAuslan, 1980, p. 73 ).

In reaching a judgement as to where the balance between the competing ideologies lay in the area of public development, McAuslan looked at compulsory purchase and compensation, clearance area policy and practice and community land. These are areas of planning law firmly underpinned by the fundamental ideology of society and as such, on the face of it, are most closely aligned to the public interest ideology. In the sphere of compulsory purchase and compensation, the principle statute of the time was the Compulsory Purchase Act, 1965, which, on examination, largely replicated the Land Clauses Consolidation Act, 1845. As such, the statutory provisions were, in fact, rooted in the interests of private property and, in particular, ensuring that private landowners were sufficiently compensated. This was also reflected in the decisions of the courts after the 1965 Act came into force5. Although both public and private interest ideologies are recognisable in the Act, McAuslan (1980, p. 116) notes that the procedural and administrative provisions of the Act...

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