J. Cameron Blackhall, Planning Law and Practice 3^rd Edition

Cavendish Publishing Limited, London, 2005

ISBN 1-85941-748-5

(449 pages including tables of cases, statutes and statutory instruments, appendices and index.)

Reviewed by Colm Brannigan, M.A., LL.M. (ADR)

Copyright © Colm Brannigan 2006. First Published in Web Journal of Current Legal Issues.

Colm holds the designation of Chartered Mediator from the ADR Institute of Canada, and practices mediation and arbitration as the principal of Mediate.ca in the Greater Toronto Area, Ontario, Canada.  He can be reached through his website www.med-arb.ca or by e-mail at [email protected]

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In the preface to this, the third edition of his work, the author, J. Cameron Blackhall, tells us that, “The law relating to town and country planning directly or indirectly affects the life of each of us.” We often do not consider the importance of land- use planning, not just in our own local communities but in its regional and national aspects.  When we do this, its impact becomes obvious.  Over the course of approximately 400 well written pages, Mr. Blackhall explains how this is so, and clearly demonstrates the validity of the above comment.

As an extremely important contribution to the literature on the subject, the first edition of this book was awarded the Gold Medal for Best Reference Work by the Chartered Institute of Building in 1999.  This latest edition is designed to be “a comprehensive text for students, practitioners and members of the general public on this difficult area of law.” Unfortunately, no matter how skilful an author is at melding together complex theory, legislation, statutory instruments or regulations and case law, and although Mr. Blackhall is extremely good at this synthesis, no one text can be all things to all people. Although this is a very sophisticated overview, because its objective is to be an overview, sometimes the more detailed specifics of town and country planning lose out to the general.  Although unavoidable, this effectively limits the use of this text to an introductory/reference level text in practice, as it is generally the specifics which are of extreme importance to those working in the field, whether planners, property owners, legal advisors and local government authorities.

It is important to remember that the “entire planning system operates on the basis of planning the future use of land and controlling the development of land” (P. 71) through legislation and regulation.  There is no common law of planning; rather it is a complex mix of legislation, regulation and theories of “good” planning.  Nor is there one piece of legislation which defines planning law in England, rather there are several significant acts, all of which must be considered in order to have a complete, if slightly fuzzy, overview of the field.

Set out in 30 chapters, which vary in length depending on the matter under review, and almost any of which could be the subject of a text on its own, the book provides an impressive in-depth scan of this extremely complex field.  The chapters, some of which might benefit from shorter descriptive names are: Development of Planning Law and Practice; Central and Local Government; The New Development Plan Structure; Other Plans and Development Agencies; Legal Challenges to the Development Plan; Development; Challenges to the Meaning of Development; The Use Classes Order 1987 as Amended; Challenges to the Use Classes Order; Town and Country Planning (General Permitted Development) Order 1995 and Local Development Orders; Legal Challenges to the Content of The Town and Country Planning (General Permitted Development) Order 1995; Planning Applications; Legal Challenges to the Consideration of Planning Applications; Nature and Scope of Planning Permission; Planning Obligations; Appeals Relating to Planning Applications; Legal Challenges to the Secretary of State’s Decision Making Enforcement; Enforcement Appeals and Legal Challenges; Listed Buildings and Conservation Areas; Legal Challenges to Listed Buildings and Conservation Areas; Trees and Hedgerows; Case Law in Relation to Tree Preservation Orders and Compensation; Advertisements; Rural Areas; Caravans and Caravan Sites; Minerals and Waste Disposal; Compulsory Purchase and Compensation; Public Involvement; and Non-Planning Controls.

If anything, with today’s emphasis on “sustainable development,”⁽¹⁾ planning law and practice is even more important to us than in the past. Recent changes to legislation are clearly reviewed in this work.  The competition over resources and development, when combined with the movement toward public participation in the process, although within clearly defined limits, brings with it the need for citizens to have available sources of information to assist them in placing local planning decisions into context.  The author’s overview of the history of planning law and practice is extremely well done and certainly helps the reader to do this.  He places the theoretical and practical material that follows in an extremely useful and easily understandable framework within which the differences in the planning considerations in urban and rural areas are explained in a clear fashion.  It is certainly a source that should be looked to first for an introduction to almost any aspect of law or practice in this field.

A significant difference in the approach to land use planning between England and elsewhere, is that overall planning and development control in England is maintained through the concept of land allocation which does not preclude development that incorporates complementary land uses rather than the more restrictive “zoning” approach.  In the zoning process, any use not contained in the zoning ordnance can only be established by appeal, which is the usual case in North America. There is use of specific “zones,” such as “Enterprise Zones,” “Simplified Planning Zones” and “Business Planning Zones” in England, but it is on a far more limited geographic basis, and with a degree of flexibility than is found elsewhere in the western world.

As the author stated early in the book, “Planning is not a new human activity; nor is the planning of human settlements, which began as soon as man imposed himself upon the environment as distinct from living in and off the natural habitats.” (p. 1) Land use planning is a political process, and can only be effective when rights and policy are balanced. Local planning authorities have significant powers. The important and powerful role of the Secretary of State in the political and legal processes involved in this area is well explained by the author.

Any system, which attempts to balance important, complex, and often competing interests must, by its nature, lead to conflict.  Conflict is of itself neither good nor bad. It is how this conflict is handled, which will determine the legitimacy and acceptance of the system itself. By setting out several chapters on the areas in which planning decisions have been challenged, the author provides detailed explanations of the complexities involved when planning and law collide in the courts.  An experienced university lecturer and planner, he is well able to explain both theory and practice and provide extremely specific information on the growing body of case law which has developed in response to legislation and policy regarding land use in a straightforward non-legal way. 

In England, unlike in many other jurisdictions, there is no specialized planning court or administrative tribunal⁽²⁾ which deals with planning decisions appeals.  The Secretary of State, in addition to being a decision-maker in planning and land use matters, also acts in a quasi-judicial appellate role from decisions of the local planning authorities. Despite the problem of concentrated power in conflicting roles, and the appearance of conflict of interest, this appears to work well.  Planning law is a branch of administrative law, which, for the most part, is focused on procedural and substantive fairness. It is extremely important to note, “the courts are not concerned with the merits on planning grounds but solely with the question of legality, which may be substantive or procedural.” (p. 48). Furthermore courts cannot grant planning permission to the successful litigant and may only refer the matter back to the proper authority for reconsideration. This limitation of the court’s jurisdiction, which is relatively unusual, is a clear and unequivocal recognition of the political realities of planning law and practice, and a clear demonstration of the power vested in local authorities and the central government in the land use process.

Compulsory purchase, or expropriation of land is an extremely important and controversial aspect of municipal development control and planning. In a rights-based,⁽³⁾ or perhaps rights obsessed, world, “the confiscation of an individual’s right of land ownership is a denial of a basic right, but there are occasions when, in the interests of the general public, a reluctant owner must be forced to release his interest in land, in which case the owner must be compensated” (p. 367). This has led to much litigation over valuation as clearly the market value of property is directly linked to its permitted uses.

The final chapter on the often overlooked interaction of property law, which includes both legislation and common law, and town and country planning law is clear, and makes it obvious that the law relating to planning is not the only form of control on land use.

As a dispute resolution practitioner, I am a little disappointed in the lack of attention given to ADR processes, especially mediation.  There is only a one-paragraph reference to mediation in this comprehensive work.  While mediation is certainly not the “mainstream” in planning matters, it certainly is a process which has wide potential application in municipal and land use matters. There have been several reasonably successful pilot projects in England.⁽⁴⁾  Additionally, the Court of Appeal in Halsey v. Milton Keynes General NHS Trust and Steel v. Joy and Another [2004] EWCA (Civ) 576⁽⁵⁾ placed a significant burden on local authorities to consider the application of such cost effective processes to municipal dispute resolution.  There is no reason why this should not apply to planning disputes and in other municipal settings.⁽⁶⁾

Well written, with detailed references to legislation and case law, this is a book, which provides an up-to-date practical reference source to an extremely important area of governmental regulation. There is some minor repetition, particularly of case law in different sections of the book, but overall this is not something, which detracts from its overall readability.  There is, and will continue to be ongoing competition and confusion between various political and commercial objectives on the one hand, and “good” planning policies on the other.  It takes a text of such magnitude to explain the basics of such an important process, which speaks volumes about the complexities of modern society. This work generally succeeds in meeting its stated objectives and is relatively easy to read and understand.  It is testimony to the knowledge and skills of Mr. Blackhall that he has been able to make it so.