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Options For Change

1.0 THE PURPOSE OF PLANNING

Proposal: To state the purpose of town and country planning in the legislation.

Source of proposal: Land Use Planning Under a Scottish Parliament, 1999, para.10; Royal Commission on Environmental Pollution, 23 ^rd Report, Environmental Planning, ch.8; Planning and Compulsory Purchase Bill, Clause 38.

Current position: There is no indication on the face of the legislation of the purpose of the Town and Country Planning (Scotland) Act 1997.

The proposal in more detail: While acknowledging that the flexibility of the present planning system is one of its strengths - it can readily adapt to changing policy priorities - the Royal Commission felt that the system was too flexible and that it would be better understood if a clear expression of purpose was injected into the Act.

The Commission proposed as the objective: "to facilitate the achievement of legitimate economic and social goals whilst ensuring that the quality of the environment is safeguarded and, wherever appropriate, enhanced". This approach, it was suggested, would provide clearer guidance by expressing the nature of the relationship between the interests.

Implementation: Implementation would be through primary legislation. A statement of purpose like this would be unlikely to be enforceable through the courts in the absence of a major default. But the purpose would be 'gravitational' in that it should provide a context for policy formulation and decision-making. It would benefit from unpacking through guidance in a national planning policy statement.

Discussion:

• there has been a discernible trend in recent years towards stating the objectives of regulation, particularly in an environmental context. This can be seen most clearly at European level where lengthy statements of objective are included in Directives and Regulations. An example from domestic law is the Natural Heritage (Scotland) Act 1991. Section 1(1) requires SNH to have regard to the desirability of securing that anything done in relation to the natural heritage is undertaken in a manner which is sustainable. The term 'sustainability' is not defined in the legislation and to give effect to this objective SNH has had to develop its own guidelines on what this means in practice.

Stating the purpose of planning in the legislation could confer status on the system. However, the problem with stating the purpose of planning is that there is no unanimity about the purpose. Some see it as essentially about processes; some see it as about products; some see it as combining both. In 1986 the Nuffield report on Town and Country Planning saw planning as being concerned more with processes than products. The purposes of planning, said Nuffield, are:

• to monitor and control the impact on the environment of present and future uses of land;
• to anticipate and prevent the perpetration of nuisances; its purpose in more mechanistic terms;
• to provide a coherent and consistent framework for the operation of the land market in property and development land;
• to reconcile conflicting demands for land as they arise from the development plans of private and public agencies;
• to assist in the promotion of whatever developments public and private are considered desirable by the relevant public authority;
• to provide the information necessary for the effective discharge of these functions.

SPP 1, on the other hand, sees planning as concerned with both processes and products. The primary objectives are stated as:

• to set the land use framework for promoting sustainable economic development;
• to encourage and support regeneration;
• to maintain and enhance the quality of the natural and built environment.

Recent years have seen a growing consensus that the goal of planning should be to achieve sustainable development. The consultation paper Land Use Planning Under a Scottish Parliament (1999), for example, states that there is "no reference to sustainable development in planning legislation and it may be helpful if it was now given recognition in the statutory planning framework" (para.10). However, once an attempt is made to unpack the term, it is clear that, even if everyone starts with the Bruntland definition ("development that meets the needs of the present without compromising the ability of future generations to meet their own needs" (1987)), the consensus hides quite widely diverging views about what this actually means in practice. One manifestation of this divergence has been the debate over Clause 38 of the Planning and Compulsory Purchase Bill (England and Wales). Clause 38 states that, in exercising the development planning function, "the person or body must exercise the function with a view to contributing to the achievement of sustainable development". Ministers have resisted all attempts to insert a definition of 'sustainable development' into the Bill, notwithstanding criticism that the statement was little more than 'motherhood and apple pie'. Instead, Clause 38 goes on to state that regard must be had to guidance to be issued by the Secretary of State.

The problem with the approach in the English Bill is that a general statement of purpose such as 'to promote sustainable development' simply restates a set of potentially conflicting interests (economic, social and environmental) and does not provide guidance to those engaging with the system. The Royal Commission thought this approach was unhelpful and this view was shared by those I interviewed. The difficulty about providing guidance could be addressed through the production of non-statutory guidance.

The Commission considered that, if a statement of objective was to be helpful, it should attempt to define the relationship between the interests. The Commission's approach, with its unequivocal statement that the environment is to be safeguarded and, where possible enhanced, comes close to what is sometimes referred to as 'strong sustainability'. This acknowledges that the environment, or at least certain natural resources, are sacrosanct and cannot be traded for social and economic interests and that the challenge is to find a way in which social and economic interests can be accommodated within the overall context of a safeguarded environment. An example of this approach is to be found in s.9(6) of the National Parks (Scotland) Act 2000 which provides that, in the event of conflict between national park aims, conserving and enhancing the natural and cultural heritage of the area is to be given greater weight. The objective in this case is product orientated: so far as the effect on the environment is concerned, the end result that must be achieved is clear. A rather different definition of the relationship was suggested at the meeting I held with developers. They wished to see the presumption in favour of development restored; this would give priority to economic interests. The problem with defining the relationship in this way is that it risks putting planning into a straight jacket. Experience indicates that the relationship changes over time. As one commentator aptly observed: 'the purpose of planning is that which Ministers decide at the time".

An alternative approach would be to opt for a statement which talks about the need to seek an appropriate balance between economic, social and environmental considerations depending on the circumstances. This implies that, in some circumstances, the environment can be traded for economic or social benefits. The objective in this case is process orientated; it is about undertaking a balancing exercise.

The approach adopted in the Planning and Compulsory Purchase Bill ducks this choice and leaves the meaning of sustainable development to be unpacked in subsequent guidance. Experience with guidance to date suggests that this is likely to result in a 'weak' approach to the definition of sustainable development; in other words, the purpose of planning will be to apply the balancing exercise.

In the light of this brief discussion, the options seem to be:

• to rest on a general statement of purpose such as 'to promote sustainable development' and to require planning authorities to have regard to guidance issued from time to time by the Scottish Ministers about what this means in practice. That would allow Ministers to review the appropriate balance between the components of sustainable development in the light of changing circumstances.
• to follow the RCEP approach or the Bruntland approach and state the essential nature of the relationship between the components of sustainable development in the legislation - and still require planning authorities to have regard to guidance on its application in practice issued from time to time by Ministers. This would mean reaching a conclusion up front on the nature of the relationship between economic, social and environmental factors.
• to keep the promotion of sustainable development as the over-arching aim; but to go on and state by reference to a list (such as in Nuffield or SPP 1) the key objectives of the system. This might be coupled with a general statement that one of the functions of planning is to mediate from time to time, in the light of particular circumstances, between conflicting objectives in achieving sustainable development and that regard should be had in such cases to guidance issued by the Scottish Ministers in the SPP series. Alternatively, the legislation could set out a 'Sandford' style over-riding objective in the event of conflict.
• to avoid any reference to sustainable development as being too general to be helpful and to opt instead for a list of key objectives such as in SPP 1, but coupled with the sort of general statement about mediation and guidance referred to above.
• to be more specific than SPP 1 and set up a statutory list of duties for planning authorities to discharge. To be effective, this would have to be linked to some sort of performance measurement, otherwise there would be a risk that, like the duty to publish proposals for the preservation and enhancement of designated conservation areas (s.63(1) of the Listed Buildings Act 1997), the list would be largely ignored. The advantage of such an approach should be that resources would follow the duties (see also para.3.2 below).
• to avoid any mention of purpose in the legislation. This is based on the view that the purpose of planning has changed over time (steering the city, releasing the spirit of enterprise, etc) and it is easier to change planning authority attitudes through guidance. Legislation could constrain this flexibility.

The Planning and Compulsory Purchase Bill locates the statement of purpose in Part 3 and applies it only to the exercise of functions in relation to local development documents. In other words, it will apply to development planning but not to development control. The logic of this is unclear, although in view of the influence of development planning on development control there should be a 'trickle down' effect. If there is to be a statement of purpose, the RTPI(S) would like to see it applying to the whole of the planning process.

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