The Planning and Compulsory Act 2004 was enacted as a response to criticism of the Compulsory Purchase system in England and Wales. Identify the key issues of statute and analyse the likely reaction to the legislation.
The Planning and Compulsory Act 2004 represents the first new Planning Act in over a decade and took in excess of eighteen months for the negotiation of its passage in the Palace of Westminster as well as special dispensation to enable the Act to be carried from one session of Parliament to the next. The Compulsory Purchase system that was in force in England and Wales that it overhauls is in keeping with reforms under the United Kingdom’s Sustainable Communities programme which was enacted to reverse the tide of empty and abandoned properties throughout the region as a result of the mass migration of the middle and upper middle class to suburban communities (Office of the Deputy Prime Minister, 2005). In essence, the Compulsory Purchase system is what is termed in the United States as the law of eminent domain, compulsory acquisition in Australia, or expropriation in Canada as well as South Africa and represents the government’s authority to appropriate property, privately held, for its utilization in keeping with programs or reasons that represent the good of the general public (European Convention on Human Rights, 1950).
As part of the United Kingdom’s far reaching ‘Sustainable Communities’ programme, which was launched by the Deputy Prime Minister on 5 February 2003, the Planning and Compulsory Act 2004 has been enacted to introduce more efficiency as well as speed and simplicity into local, regional and the U.K. government’s ability to work under as well as with the interlocking communities plans that include these three levels government cooperation and interaction (Office of the Deputy Prime Minister, 2005). The legal term ‘compulsory purchase’ is an adaptation of ‘eminent domain’ which was derived from a legal treatise that was written by Huo Grotius in 1625 (Chen, 2003) and represents the means via which government can acquire real property that is required for the completion of a public project that is seen as beneficial for the public in general and where the owner of said property has been or is unwilling to negotiate the terms for the sale. It is important to understand that the power of ‘compulsory purchase’ under English law is derived from real property. The truth is that private property ownership is not absolute but rather that a governmental authority grants what is termed a ‘fee simple’, which is an allodial title that is reserved for government. Under this, the landowner assumes the right to own property within that government’s borders as a result of the payment of taxation and the powers of compulsory purchase, police power and escheat (thepaperadvantage.com. 2005). The preceding is part of the feudal system whereby the holder of the land, termed ‘estate’, could not sell said land but rather was entitled to grant subordinate ‘fee simple’ estate rights to other parties in a system that was known as subinfueddation. Blackstone (Cousin, 1910) explains that in the instance of land under English law, fee simple conveys that it, land, can be transferred and held, owned, by whomever the original holder so pleases.
The present system of property ownership evolved from this foundation and thus the government’s power to re-acquire land under compulsory purchase, or eminent domain, has thus been and is an established facet of law. The Compulsory Purchase system that existed in England and Wales operated under a structure whereby local authorities, without a linkage to regional or national planning forums, made the planning policies for their areas and as such a broader and more encompassing system for the integration of these plans into a coherent regional and national policy did not exist. The new Planning and Compulsory Act 2004 has been designed to streamline the planning process through a system that is more centralized thus replacing the local development plans and the corresponding delays and red tape which developers and landowners faced (Brand, 1968).
The aforementioned flight of the middle and upper middle class to suburban developments has created a crisis throughout England and Wales whereby older communities now lack the middle and upper income tax base that was sustaining community services. In addition, a real housing shortage has and does exist throughout the country. It is estimated that there are approximately 220,000 to 230,000 new households entering the economy on a yearly basis (English House Condition Survey, 2003) and that there are just 170,000, estimated, new homes being built. The resulting high demand and low supply has created an imbalance in the housing market and driven the cost of home ownership out of the range of young adults thus creating an economic situation whereby older home owners of limited income find that their properties no longer have equity value as a result of the deteriorated neighborhoods caused by suburban flight. This imbalance has created a serious lack of affordable housing, thus resulting in the United Kingdom’s sweeping Sustainable Communities plan (Office of the Deputy Prime Minister, 2005). The developers state that the imbalance has been and is a result of the red tape involved in obtaining planning approvals from local authorities, which is countered by claims from consumer groups such as the Campaign for the Protection of Rural England that state developers and landowners have been hoarding land in an effort to drive up prices. The overall affect of the preceding, regardless of final blame, has been a severe economic condition that has crippled the UK’s housing market, driven down house prices in older neighborhoods and created an abandoned house situation whereby the mortgage costs of older homes exceeds their market value. This is the economic climate that has fostered the development of the Planning and Compulsory Act 2004, and the ramification of it with respect to the Compulsory Purchase system it replaces shall be examined herein from the context of criticisms leveled at the latter.
The preceding summary of the economic and governmental aspects which prompted the adoption of the Planning and Compulsory Act 2004 have been undertaken to provide the background information necessary by which to understand the underlying developments which led to the enactment and passage of the Act. The Act seeks to eliminate the delay bottlenecks and red tape encountered through a redesign of the structure of the planning system from the local level onto the national level as called for under the Sustainable Communities initiative (Office of the Deputy Prime Minister, 2005). It replaces the planning policies made by local authorities with one that considers the ramifications and effects of varied building and development programs on a national basis. Under the old structure County Councils implement the preparation of planning policies as contained in structure plans, and these are further refined at the District Council level which forms the plans for the are development (planningsanity.com). The Act abolishes the Regional Planning Guidance and Structure Plans and replaces them with Regional Spatial Strategies that thus forms the basis for new plan development (Brand, 1968). The Regional Spatial Strategies under the new system will be prepared via appointed Regional Planning Bodies and will have some assistance from the existing County Councils. As the proceeding has raised concerns over accountability, a process of public consultation with respect to the Regional Spatial Councils shall be provided at examinations (uk-legislation, 2004). The new framework also eliminates local plans which now will fall under the auspices of Local Development Documents that are overseen and prepared by District Councils. Given the massive restructuring involved, the Act has a period of three years in which these transitions will be made.
The preceding broad summary of the overall process contains the following improvements, modifications and changes that the Act introduces:
Broad Scale Act Overview The Act has been designed to create a more flexible as well as responsive system for the planning of building programs in England and Wales, as is summarized as follows (uk-legislation, 2004):
Provides for a streamlined, simpler and more flexible system at the local and regional level;
provides for increased community involvement at the local and regional levels and includes the provision for financial assistance with respect to Planning Aid;
Introduces powers for application forms that thus improve control over the developmental process as well as new provisions changing the length of time it takes for planning permissions. It also permits local planning authorities to bring up development rights in the local development orders;
Introduces speed to the administrative handling of large infrastructure projects through the process of concurrent rather than consecutive hearings;
Removes the immunity that the English Crown had in the planning process;
Proves a system whereby the compulsory purchase plan is fairer, faster and easier to understand and work within on regeneration as well as major infrastructure projects.
Part 1 and 2 of the Act
Under these provisions of the Act a change in the way developmental plan making is conducted in the United Kingdom abolishes the cumbersome Compulsory Purchase system in the following manner(s) (uk-legislation, 2004):
Under the new Act each region will have its own spatial strategy.
In those instances where it is feasible as well as relevant, the existing regional planning guidance agency shall become the new regional spatial strategy unit.
The regional spatial strategy units will be kept under review by the Regional Planning Bodies to monitor their implementation and as an oversight contingency.
The Regional Planning Bodies must prepare a written draft of the revised Regional Spatial Strategy when such is expedient or required.
The important manner of housing numbers and allocations will be arrived at in the foregoing level and where appropriate in sub-regional plans.
The Regional Planning Bodies will take advice from county councils as well as other bodies that have expertise on strategic planning to aid in the planning of revisions of plans and drafts of the Regional Spatial Strategy agencies. The foregoing brings local and specialized expertise into the planning structure and provides monitoring of actions to ensure that the developed plans are in the best interests of all concerned.
And most importantly, the public will be involved in the preparation of Regional Spatial Strategies.
These changes from the Compulsory Purchase system spread out the planning expertise in a manner whereby there are cross checks and balances in the new system as well as expedient processing that is responsible to a higher level thus ensuring compliance. The multi faceted nature of the preceding has been streamlined into a system that processes planning rather than bogs it down and as a result removes the incidence of special interests steam rolling plans through given the public involvement as well as review by the Regional Planning Bodies. The Act does call for some changes in England that are not a part of the Wales plan with regard to the local plan regime below the Regional Spatial Strategy level. The following summarizes these modifications and changes (uk-legislation, 2004):
The Local Planning Authorities will now prepare the Local Development Documents which will now replace all local plans, as well as unitary development and structure plans
The Local Planning Authorities will now prepare as well as be responsible to maintain the local development scheme, and win the absence of a District Council, the County Councils shall prepare as well as maintain the mineral and waste development plans.
The County Councils under this new arrangement will lose structure plans however they do participate in the preparation of the Local development Documents as well as related aspects other than comprising mineral or waste as a result of being part of a joint committee under the Local Planning Authorities.
The Local Development Plans will be in conformity with the Regional Spatial Strategy, or with the RSS for London.
Part 3 of the Act (uk-legislation, 2004)
Under this provision, the definition of the development plan is updated and takes account of the modification and changes that are made to the planning system as a result of the Act. The foregoing includes the requirement whereby it is the duty of plan makers to perform their functions in consort with the overall objective of adding to the attainment and achievement of sustainable development.
Part 4 of the Act
This segment of the Act provides for a series of developmental control measures, one of which permits the Local Planning Authorities to introduce permitted development rights on a local level through local development orders. Development orders as well as regulations will be made by the Secretary of State through detailing the procedures entailed in making applications with respect to permission and consents. In addition, the Secretary of State will have the power to determine fees and charges along with the setting of timetables for what are termed ‘call-ins’ as well as ‘recovered appeals’. Part 4 also contains new provisions entailing the simplification of planning zones (uk-legislation, 2004).
Part 5 of the Act
This segment of the Act permits the Secretary of State as well as planning inspectors to make corrections concerning errors found in decision letters as well as in decision documents (uk-legislation, 2004).
Part 6 of the Act
Part 6 makes reforms to the Welsh development system plan (uk-legislation, 2004).
Part 7 of the Act
This part of the Act ends the Crown Immunity with respect to the planning system and contains a special provision concerning specific planning applications made by as well as on behalf of the Crown (uk-legislation, 2004).
Part 8 of the Act
The reform of the existing regime is contained in this part of the Act whereby it details the new plan to make it easier for Local Planning Authorities, the National Park authorities and joint planning boards to submit a case for Cop’s in terms of an economic, environmental or social benefit to the area in question. This segment of the Act also broadens the categories regarding individuals with an interest in the land who can bring forward objections. And finally, this part of the Act covers compensation and ownership issues (uk-legislation, 2004).
Part 9 of the Act
The last segment of the Act contains general issues.
Given the sweeping nature of the Act, it is impossible to gauge the potential reaction to what still is in some aspects a work in progress. The preceding statement is made as a result of the amendment of some measures which occurred during the process of approving the original Act. These changes included retaining of the planning permissions as the development industry was not pleased with losing that aspect of control as well as the dropping of the Statements of Development Principles. The modifications also included strengthening the segments regarding sustainable development as a result of the view that saw the Act leaning too strongly in favor of landowners and developers. In addition, other changes included the amendment of provision concerning major infrastructure provisions whereby it is required to submit an economic impact report. The other major change was to allow for the inclusion of temporary stop notices and the provision to provide for appeals with respect to second notices (uk-legislation, 2004).
The new legislation provides for more influence on the part of County Councils as a result of modifications contained in Part 4 as well as the regional public participation segment. The broader inclusion of the public in the process is likely to be received positively this segment, however since the Act was designed with developers and landowners in mind the question of whether the new system will effectively see to the broad mandates of the Deputy Prime Minister’s Sustainable Communities plan must be first put to the test of time. There is no question that a streamlined as well as modernized system was needed as well as required to overhaul the process that had been in place. The overall housing shortage situation has become a national priority and the Deputy Prime Minister’s Sustainable Communities plan is a long term legislation aimed at correcting the procedural as well as economic conditions which have led to the high prices housing segment and deterioration of inner cities.
There will undoubtedly be other modifications and changes to the Act as practical use uncovers minor shortcomings whereby certain aspects were unforeseen or accounted for. There already has been what can be termed reaction to the new legislation as evidenced by the preceding and the fact that the system is now more flexible as well as responsive helps to minimize potential dissatisfaction of any provisions as they can be amended when warranted. The inclusion of the foregoing minimizes the potential for any long term negative reaction as each segment with a stake in the process has a means to see modifications or potential modifications are heard.
Brand, Clive, M. 1968. Encyclopaedia of Compulsory Purchase and Compensation. Sweet & Maxwell. ISBN: 0421007508
Chen, Wei. 2003. On the Law of War and Peace (De Jure Belli ac Pacis, Translation of the Latin works of Hugo Grotius. http://www.geocities.com/Athens/Thebes/8098/
Cousion, John. 1910. A Short Biographical Dictionary of English Literature. J.M. Dent & Sons, London, The United Kingdom
English House Condition Survey. 2003. English House Condition Survey: Review of Survey Design. National Center for Social Research. London, The United Kingdom
European Convention on Human Rights. 1950. Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11. http://conventions.coe.int/treaty/en/Treaties/Html/005.htm
Office of the Deputy Prime Minister. 2005. The Communities Plan. http://www.odpm.gov.uk/index.asp?id=1139868
Office of the Deputy Prime Minister. 2005. Sustainable Communities. http://www.odpm.gov.uk/index.asp?id=1139865
Plannngsanity.com. 2003. Compulsory Purchase Forum. http://www.planningsanity.co.uk/forums/cp/compurch.htm
Thepaperadvantage.com.2005 Allodial Title. http://www.paperadvantage.org/allodial.html
Uklegislation.com. 2004. Planning and Compulsory Purchase Act 2004. http://www.uk-legislation.hmso.gov.uk/acts/acts2004/20040005.htm