Zoning or Discretionary Action: Certainty and
Responsiveness in Implementing Planning Policy
Philip Booth
o
REGULATORY AND DISCRETIONARY PLANNING
In all planning systems that involve public control of public sector development
there is a tension between the desire to maximize certainty and the desire to allow
maximum flexibility. In practice, this tension is resolved in two different ways. On
one hand it has led to systems of planning like those in the U.S., which tie decision
making on individual development proposals to a series of preordained regulations.
On the other hand it has lead to systems in which the eventual decision on
development proposals is left partially unconstrained by prior regulation. Such is
the pattern of British development control in those systems that are based on
British planning.
This distinction has, of course, been highlighted elsewhere. Faludi (1987, 185),
drawing upon both American and European sources, talks about two &dquo;protoplanning theories&dquo; which correspond to the distinction being made here and argues
that &dquo;proto-planning theory B,&dquo; corresponding to the British discretionary system
of control, is to be preferred to the rigid application of zoning regulations that
characterize, in principle at least, the zoning systems of the U.S., much of continental Europe, and Australia. The distinction is also explored in the comparative study
of the control of development in Leiden in the Netherlands and Oxford in England
(Thomas et al. 1983). Both works argue the need for flexibility to &dquo;bridge the
gap-created by uncertainty-between planning and operational decision making&dquo;
ABSTRACT
This paper begins by noting that regulatory
systems are based on the need to establish
rights and create certainty, and discretionary
systems are shaped by the desire to achieve a
flexible response to future development. The
paper then explores how the planning systems
of France, Britain, and Hong Kong—
representing regulatory, discretionary, and
hybrid systems, respectively——cope with
uncertainty. It notes that France has
developed several ways of circumventing
regulations, while Britain has recently placed a
new emphasis on plan making in order to
reduce uncertainty. The Hong Kong
government, as landlord, has had to reconcile
its desire to provide long-term security for its
developers with a need to respond to change.
The paper concludes by suggesting that there
needs to be agreement on what level of
certainty is required and how decision making
may be made accountable.
(Faludi 1987, 179).
What becomes clear is that these two families of planning place a very different
emphasis on flexibility and certainty in the process, and this difference in emphasis
leads to particular problems in making the systems work effectively. My purpose in
this article is not, however, to suggest that the solution to a set of problems
associated with a particular regulatory system might be resolved by reference to
remedies in a discretionary system, or vice versa. As argued elsewhere (Booth 1993),
planning systems are deeply rooted in the culture which gives them life. The
striking feature of commentaries by observers from one country on the planning
system of another is often the degree of bafflement as to what is actually going on
(e.g., Wakeford [1990J writing on the American planning system for a British
readership or the French Conseil d’ttat [1992] commenting on British planning
law). The real interest in making comparisons is to explore the assumptions that
underpin the systems. As Haar (1984, 240) put it,
the primary value of foreign exploration lies not so much in the discovery of readily transferrable concepts, technologies, or techniques that can
Journal of Planning Education and Research 14:103-112.
@ 1995 Association of Collegiate Schools of Planning
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Philip Booth u Semor Lecturer of Town and
Regional Planning at the University ofsheofie»
Sheffield SlO 2TN United Kingdom.
104
be packaged up, carried back to the United
States duty free, and unwrapped to delight policy
makers, but rather in the stimulus of insightful
reflection of culture and experiences.
In presenting cases of regulatory and discretionary
systems of planning, I am, therefore, concerned with
opening up the debate by exploring some of the primary
assumptions of the two systems, by considering their specific
characteristics in particular countries, and by reviewing the
ways in which changes have been made to modify their
perceived inadequacies in practice. I do this by considering
the case of three countries: France, Britain, and Hong Kong.
Before considering these countries, however, I explore the
general characteristics of the two families of planning.
Regulatory Systems of Planning
Regulatory systems identify precise zonings for every part
of an area covered by plans and attach regulations or
ordinances that typically specify land use and statistical
limits on new development. These systems offer a written
definition of all the conditions under which development
may take place and are clearly based on a desire to maximize
certainty. Such certainty is of two kinds. First, there is the
certainty for landowners and developers. The intention is to
give them an incontrovertible brief for the future use of the
land and the potential for development, and thus permit
them to put forward proposals with minimum risk. The
second kind of certainty is for those charged with decision
making. A regulatory system of control gives the least
possible opportunity for decisions to be made according to
whim, chance, or political expediency.
Other characteristics flow from these basic principles.
The first is that zoning systems confer development rights
upon landowners affected by zoning and regulations. The
zoning ordinance will certainly make clear what you cannot
do; but it is an essential characteristic of zoning that there is
an absolute right to carry out the development which the
ordinance does allow. The second is that plans in zoning
systems and the decisions based on those plans may be
contested in courts of law. Zoning plans have a statutory
force-decisions upon them become either legal or illegal.
This in turn means that the main form of accountability,
though it is not necessarily the only one, is through the
courts of law. The third characteristic of the system, which
flows from the second, is that third parties are offered
extensive rights to challenge the decision making in that
they are able to attack decisions on the grounds of legality.
The use of zoning and regulations to control development is not a matter of choice exercised at the moment the
planning system is set up. Regulatory systems are products
of particular kinds of political, legal, and administrative
culture. In some cases it is a question of the establishment of
rights enshrined in a written constitution, as in the U.S. and
France. In the U.S., above all else it is the constitutional
freedom of the individual that requires a land use planning
system which makes clear the specific rights of individual
landowners and users. The celebrated case of the Village of
Euclid v. Amber Realty in 1926 is striking to the outsider
precisely because the issue at stake was the constitutionality
of zoning, by then already a widespread practice in the U.S.
(Scott 1969; Rose 1979). The fact that the Euclid case
proved that zoning was constitutional did not, however,
mean that the question of private property rights and of
takings ceased to be an issue in zoning ordinances.
In France the emphasis has rested more upon the
principle, established by the Revolution, of equality before
the law and the unity of the state expressed in the uniformity of its administration. At the same time, the right to
property in its current and potential use is confirmed in the
constitution, however illusory in practice the full exercise of
that right may be (Comby 1989). Zonings in France thus
express not only the rights and duties of the individual but
also of the administration. In both cases the role of an
independent judiciary is of prime importance in ensuring
fairness and in whistle blowing.
The difficulties that such systems of control face come
about in three ways. First there is the problem of the
unforeseen circumstance which negates the very basis on
which the ordinance rests. In the inherently uncertain
business of trying to predict future needs, it is hardly
surprising that sooner or later the apparently watertight
system is tested by considerations that were not present
when the plan was prepared. I shall argue that dealing with
uncertainty of this kind poses a real threat to the underlying
basis of the system itself. Two strategies for coping with this
problem can be discerned. One is to try and make the
ordinances and zoning more detailed to cope with an ever
greater number of possibilities. The other is to build
flexibility and scope for negotiation into the system. Both
strategies, I shall argue, can create difficulties. In the first,
the growing complexity of regulations leads to an obscuring
of the basic rights of those affected by the plan. In the
second, accountability becomes in grave danger of being
lost.
What is striking about all studies of regulatory systems of
planning is how widespread the attempts are to build in
flexibility, either at the source in zoning documents
themselves or through negotiation. Thus the U.S. has
possibilities for flexible zonings (see Rose 1979, 147-177),
which have attracted favorable comments from a British
observer (Wakeford 1990). Babcock (1966) and Babcock
and Siemon (1990) present us with the image of zoning as a
game in which developers, municipalities, and residents seek
to achieve an advantage through the manipulation of the
apparent certainties of the system. The U.S. is by no means
unique in this. Thomas and his colleagues (1983, 133) in
the Oxford-Leiden study found,
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105
The desire to provide the individual citizen with
legal certainty is a laudable one. It is surely of no
benefit to anyone to provide an illusion of
certainty about the future through the detailed
land use plans which are bound to be amended
during the implementation.... Such plans serve
no useful purpose, except to indicate to all
participants in the planning process that the
bargaining period has begun.
(1988, 223), taking a measured view of the effectiveof Dutch planning (though from a British prospective)
and finding it &dquo;complex and cumbersome,&dquo; also noted that
negotiation, albeit within limits, was widespread.
The second difficulty is that not all developers wish to
have absolute certainty, either because economic conditions
force them to try and retain leeway through negotiation or
because they wish to maximize their speculative profit. This
tends to lead to a quite different attitude toward fixed limits
Davies
ness
in
zoning regulations.
The third difficulty has to do with the power of the
decision maker. In principle, dealing with an application to
develop in an area covered by zoning plans is simply an
administrative matter of checking that the development
proposal is in accordance with the regulations. In practice,
decision makers may wish to retain discretion over individual decisions as a way of expressing power. Such a desire
for power is likely to be as much administrative as political,
as I shall demonstrate in relation to France.
Zoning systems may come under strain in dealing with
uncertainty and in coping with the actors’ desire to retain
power over the decision-making process. But there do
appear to be two other difficulties which have to do with the
process of plan and policy making. There is, first of all, the
difficulty of creating a document that makes a deliberate
statement about individual development rights and at the
same time presents a coherent view of a
long-term local
Various
tendencies
are
strategy.
apparent. For example,
for
fear
of
zoning may,
upsetting known land users, tend to
the
status
quo rather than take a strategic view of
represent
future development. Or their precision may encourage
highly restrictive zoning to protect adjacent land values and
retain a degree of social purity. Or again, they may tend to
reflect local ambitions for development which exceed the
realities of future need. None of these problems are unique
to zoning systems, but the nature of the system tends to
make them more conspicuous.
Another difficulty is relating zoning and regulations at
the detailed level to larger scale strategies. Because zoning
systems propose a tight relationship between a zoning plan
and decisions on individual applications for development,
by the same token they weaken the link between individual
development decisions and longer-term, larger-scale
strategies for a conurbation as a whole or for a region. In
theory, of course, most planning systems that have zoning
plans at the lowest level in a hierarchy insist that lower level
plans must conform to the upper level. Yet this link is
inevitably attenuated and the scope for slippage is great.
Discretionary Systems of Planning
Discretionary systems of planning are based on a quite
different set of premises from those that underpin regulatory
systems. First, they offer no guarantee of development rights
because, until the point of decision, they leave at least partly
open the basis on which development decisions are made. In
Britain, for example, there was a deliberate intention, when
the current system of town planning was introduced in the
late 1940s, that development rights should be nationalized
and not granted by right. Statutorily that is expressed in the
phrase that is used to describe the criteria for development
control decision-making, &dquo;the development plan...and any
other material consideration&dquo; (Great Britain 1990, S.70). In
other words, the plan is not the only basis on which
decisions are made and the identification of what is material
is left to the decision maker. Thus, there is no guarantee of a
development being permitted, and the only right a landowner has is to enjoy the land in its present use.
Second, discretionary systems presume a high level of
trust in local decision-making, which becomes essentially
political rather than administrative in character. To be sure,
that trust and the freedom which it confers is hedged about,
at least in Britain, by all manner of constraints, but these do
not wholly obscure the fundamental point about the nature
of decision making in discretionary systems.
Third, in discretionary systems, although plans may be
produced by virtue of powers conferred by statute, they do
not have a statutory force in relation to development control
decision-making. They cannot be challenged in courts of
law nor, by and large, can the decisions which are based
upon them. The main forms of accountability in discretionary systems are, therefore, as much political as administrative, although in Britain, locally elected councils are not
often challenged at the ballot box on the basis of planning
policy. Courts of law have a role to play, but largely from a
distance. There is a clear distinction in principle between
matters of law dealt with by the courts and questions of
policy which are dealt with administratively and politically.
The consequences of this kind of system of practice are
both positive and negative. The negative impact of discretionary systems is fairly obvious. First, the potential for
political or administrative waywardness in making decisions
is high because of the extent to which decision makers are
left to define what is material to any decision. Second, the
system is clearly capable of producing a high degree of
uncertainty. No developer could be absolutely certain of
obtaining a planning permit, and, equally, decision makers
may feel themselves without a clear basis for making a
decision. Third, because the relationship between the plan
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106
development decision is weakened, the purpose of
preparing a plan at all may be hard to see. And even if the
value of preparing a plan is clear, the form it takes may not
be. Fourth, because plans may be lacking or because they
may lack the detail necessary to provide a secure base for all
development control, there is a risk of a parallel system of
policy being developed which may be far less exposed to the
and the
process of consultation and discussion than the formal
system of plans. Finally, discretionary systems offer nothing
like the guarantees for third parties that exist, in principle,
in regulatory systems. There is no absolute right to challenge
development control decisions in Britain unless you are the
developer.
Discretionary systems are able to respond to uncertainty
due to change with a degree of flexibility that is inherently
lacking in zoning systems. There is no question of having to
find a way around a binding regulation in ways that may be
of doubtful legality, because there is explicit recognition that
plans cannot predict every future circumstance. Moreover,
and at least as importantly, explicit recognition of material
considerations outweighing the provisions of plans leads to
the necessity for a proper means of accounting for decisions
once they are made. Secondly, plans at whatever scale they
are prepared can become more truly strategic documents
concerned with questions of short-, medium-, and longterm policy, and need not be hoist on the particularities of
development and conditions for particular sites. Thirdly,
discretionary systems allow large scale strategic policy to
have a direct bearing on individual development control
decisions. This may seem paradoxical given that the links
between plan and decision, so clear in zoning systems, is
essentially nebulous in a discretionary system, but because
the link with one level of plan making is loosened, it allows
all forms of plan and policy statement to become potentially
material considerations. And, finally, development control
may still proceed in the absence of plans.
Discretionary systems for planning are as much embedded in certain kinds of legal and administrative traditions as
are zoning systems. The Anglo-Saxon common and case law
system has had much to do with the framing of the planning acts in Britain, which allow definitions to be sharpened
by judicial decisions on particular cases. Equally important
has been the traditional assumption that there would be
minimum interference with the decision making of democratically elected local councils, even though that assumption is
o
now
under severe stress.
REGULATORY AND DISCRETIONARY SYSTEMS
PRACTICE
There
IN
then, a number of essential characteristics that
the
distinguish two planning systems from each other and
which have considerable consequences for the process of
decision making and implementation of planning policy.
are,
The
generalizations presented above need to be strengthened
by examples, however, and I have chosen to do so through
studies of three countries. France has been chosen as a
prime example of a regulatory, zoning system. Britain, the
second example, is, above all, the model of a discretionary
system. The third case, Hong Kong, is of a different order.
Even though it is a British colony until 1997, the planning
system that it operates is quite different from that of Britain
and is essentially a zoning system. But inevitably, Hong
Kong administrators have tended to look towards Britain,
Australia, and Canada when reflecting on the nature of
planning instruments in their territory, and have done so
particularly during the review of the planning system which
has just been completed.
case
France
France’s administrative and legal framework derive essentially from the Revolution, which placed great emphasis
upon the need for a unified state and a unified administration with all citizens equal before the law. The introduction
of administrative law that would define the ground rules for
individuals was an essential part of this vision of unity and
equality. Administrative law did not only provide rules for
citizens, it was equally vital in creating rules to guide the
work of the administration and prevent administrative decisions succumbing to the vagaries of political whim. Administrative courts were created to allow anyone to seek redress
of grievance caused by administrative action. Codified law
provided the touchstone against which the legality and the
propriety of administrative action could be judged.
There was, however, much debate at the beginning of the
20th century as to whether zoning was an appropriate
mechanism for France, and if so, what model might best be
adopted. On the one hand, Germany offered a system
which was essentially designed to reconcile the interests of
property developers and industrialists, with municipal
authorities taking a lead role. The U.S. model, on the other
hand, was seen as being essentially a map of building rights
(Gaudin 1985). What emerged from this debate was
something of a fusion of the two. Not only did the French
zoning system establish individuals’ development rights, it
allowed the administration to envisage the &dquo;potential
restoration of order&dquo; (Gaudin 1985, 64). Moreover, the
logic of zoning lent itself to linking an analysis based on
statistics to future regulations.
The present system has developed to recognize the basic
principle of government. There is now a town planning
code (code de l’urbanisme) which spells out in detail the
nature of planning instruments, the procedures to be
adopted, and also much of the content of both forwardplanning policy and development control decision-making
(Bouyssou and Hugot 1992). The system of plans that the
code allows consists of upper level strategic documents
(schimas directeurs) which set out long-term policy at the
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107
or subregion, and detailed land
zoning plans (plans d’occupation des sols [POS]) which
usually cover no more than the area of a single local
authority. These POS identify a use for every part of that
area, zoned according to categories laid down as a code
itself, which are usually subdivided according to local
conditions. Each of these zonings carries a set of regulations
(under 15 headings) again prescribed by the code. The code
level of a whole conurbation
use
even
identifies the notation
to
be used in
a
POS. POS
unequivocal statement of development rights, and every part of the country is subject to the
becomes, in theory,
an
rules.
The development control system consists of the issuing of
a permission to build
(permis de construire) which has to
conform with POS. In principle, the procedure for development control is largely one of administrative scrutiny. The
process is very much the same where there is no POS,
because the code lays down regulations that describe the
entire scope of control for areas without a planning document. Before 1983, processing applications was for the most
part handled by the services of the ministry responsible for
town planning field in each of the departements. Although
the mayors of individual communes (the base unit of local
authority in France) signed the decision notice, they did so
in their capacity as state officials, not elected representatives.
The decentralization of powers to local government after
1983 included giving the decision making on applications
directly to mayors, provided their communes had an
approved plan. In practice, because communes are mainly
both tiny in size and poor in resources, there is still heavy
reliance on the technical support from these very same field
services, even if the responsibility now rests formally with
the commune.
Such a description is far from being the full story, however. Confronted with the realities of decision making in an
uncertain world, the system has developed a variety of ways
of being flexible. It is worth looking at these in turn because
their purpose and effect is rather different in each case.
The first possibility exists in the way the zonings themselves are prepared. The code lays down that there are two
basic categories, of developed land (prefix U) and undeveloped land (prefix N). The undeveloped land category is
further subdivided. Three of these subcategories are for land
on which development is effectively barred or is severely
constrained. The third (prefix NA) is, however, land which
though lacking necessary infrastructure is identified for
future development. Such land is only released when there is
an agreed upon plan for
providing the necessary services and
roads. This places a large degree of discretionary power in
the hands of the decision maker. Since this would now be
the mayor of the commune, he or she may effectively block
new
development on the grounds that servicing is inadequate or may negotiate hard for a large measure of planning gain in the form of services that would benefit the rest
same
of the commune. Moreover, because development is both a
of prestige and of local revenue in the form of
property taxes, mayors may well wish to ensure that much
of their communes are covered by the NA designation to
encourage developers and to increase the mayor’s own
decision-making power. This inevitably transforms development control decision-making into a process of bargaining
which was presumably not the legislative intention behind
the code de l’urbanisme.
Another way that flexibility is built into the system is
through the devise of action area zoning (zones
source
d’aménagement concerti [ZAC]). Where development is not
merely permissible, but actually promoted in a coherent
form-the legislation allows for the declaration of a ZAC to
spell out, in detail, the parameters for such development and
its infrastructure. ZAC contains its own set of regulations
and takes over from POS in the area to which it applies. In
principle, ZAC had to relate to POS, but as French commentators unite in observing, all too frequently, often in a
damaging way, creation of a ZAC becomes a way of departing from the regulations in force (see Jegouzo and Pittard
1980; Jacquot 1987). More recent legislation has limited
abuses, but ZAC still offers much potential for variation
from original planning principles and for negotiations.
Yet another way in which flexibility becomes built into
the system is through the wording of the regulations. The
code de l’urbanisme is a regulatory document, yet many of
the rules it presents are, in fact, offering permissive options
to the decision maker. This is characterized by the use of the
verb peut (may) in place of doit (must). Of the 32 sections of
the code dealing with the control of development, 15 offer
discretionary powers. More sophisticated, however, is the
use of optional zonings in some POS. The POS for the city
of Lyon, for example, offers zoning in mixed residential
areas, which does not define precise limits to development,
except by reference to existing physical patterns and in
relation
decisions in the same area. In the first
permissive sections of the code effectively offer
discretionary power through the technical services of the
ministry that remains responsible for development control
decision-making in communes without a plan. In the
second instance the power is created and retained by the
specialist planning agency involved in preparing the POS.
This serves to reinforce their position within the executive
structure of the city. Local architects also seemed to like the
approach for the freedom it gives them to negotiate over
possible design solutions (Booth 1989).
A fourth way in which flexibility is achieved is through
the possibilities that exist for modifying and revising plans.
Any system has to have procedures to modify plans, and the
French code allows for both major revision and for minor
modification. Revisions are dealt in more or less the same
way as the preparation of the plan itself, and there is a
lengthy procedure for consultations and discussions,
to recent
instance the
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108
together with an independent review for a formal public
inquiry. Modifications, providing they do not affect the
&dquo;general economy of the plan&dquo; (Bouyssou and Hugot 1992)
may be dealt with more swiftly. However necessary both
procedures may be, both are viewed with some alarm in
France because of the frequency with which they are used
(Hocreitere 1991). The argument is essentially that the
validity of the system itself is lost if plans are subject to a
constant round of change.
A recent study by Booth and Stafford (1992) of the
eastern suburbs of Lyon has argued that the frequency of
changes should indeed be a source of concern, but not on
the grounds that certainty is necessarily thereby eroded. In a
dynamic urban area no plan can necessarily foresee in detail
all the possibilities for development that may arise or will be
acceptable, and the scope for maneuvering must be retained.
The
concern was
instead, first,
over
the lack of accountabil-
ity in the process and, second, over the way in which
changes, small in themselves, could cumulatively threaten
strategic policy.
flexibility is achieved is through the
application
regulations in POS or in the code to a
particular development. My work has shown how, far from
being an administrative exercise, the process of determining
a permis de construire may well involve a considerable round
of negotiation and adjustments to the rules in force which
are often barely legal. Again the worry here is that this kind
of trimming brings the system into disrepute. There is a
system of checking to ensure that the decisions taken by
A final way in which
of the
mayors of communes respect the law; the state representative in each of the dipartements (the prefect) is required to
scrutinize all mayoral decisions. But the scrutiny is at best
partial because the volume of work involved is enormous
and covers all areas of communal responsibility. Prefects are
also said to be reluctant to pick a quarrel with a mayor and
will do so only if absolutely necessary (Perinet-Marquet
1986). In one case, a developer negotiated a deal with a
mayor for land for housing which involved four infringements of zoning regulations, but the prefect threatened to
challenge on only one of the four possible grounds (Booth
1989).
The French themselves offer
at
least
two
solutions
to
the
problems identified by this apparent need for flexibility.
One is
to
elaborate further rules
to
allow for
ever more
complex possibilities and to ensure that accountability
through the law is retained. Paradoxically, attempts to
deregulate parts of the development control system in the
interests of removing minor forms of development from the
need for control has made the system more complicated
than it was before. POS have also tended to become
increasingly detailed as plan makers have tried to introduce
finer and finer distinctions between forms of development
in different localities.
The other solution is to argue that the complexity is part
problem and that the code needs to be returned to its
pristine simplicity if accountability is to be retained through
the law (Bouyssou 1987). Such a solution does, however,
raise the question as to whether rules are necessarily the best
way of expressing policy and whether in fact the real issue is
how to safeguard the accountability of decision making
while recognizing that uncertainty is inherent in the nature
of planning.
of the
Britain
Recognizing the problems of uncertainty and the need for
flexibility is one thing with which the British system of development control has no problems. The reference to other
material considerations in the statute offers an open-ended
invitation to decision makers to consider applications in the
light of circumstances at the time of the decision and, by
implication, not to feel entirely bound by previously defined
rules. The drafting of the law has as much to do with the
traditions of administration as with a far-sighted view of the
nature of planning, but it has clearly served well the purpose
of land use planning by local authorities in Britain.
External views of the British discretionary system are
revealing. Faludi (1987) argues that in relation to his
&dquo;proto-planning theories&dquo; it is the one on which the
discretionary British system is based that is to be preferred,
because it overcomes the impossibility of trying to predict
everything concerning future land use. Haar (1984, 204),
too, in a memorable phrase refers to the &dquo;permitting system
[as] one of the glories&dquo; at the heart of British planning. But
he observes that it is also the source of &dquo;great discontent.&dquo;
McBride (1979), writing for a British readership, is considerably more critical. For him, the British system is fraught
with the vagaries of political whim and burdened by delay.
A zoning system, in his view, could offer relief from both.
Looked
at from within, the British system reveals that the
is
problem not just tension between a desire for flexibility
and a need for certainty. Two particular problems have
emerged since the 1970s that suggest a rather more complex
set of interactions. The first problem is that because
development control is possible in the absence of planning
documents (since all the decision maker needs to do is to
decide on the material considerations), some authorities
have been reluctant to become involved in plan making and
thereby commit themselves to policy. Though county
councils-the upper tier of local authorities-have been
obliged to prepare strategic policy documents (structure
plans), between 1968 and 1991 the lower tier authoritiesdistrict councils-were empowered to make detailed local
plans, but not required to do so. The result was that by
1988 only 20% of the area of England and Wales outside
London was covered by local plans (Department of the
Environment [DOE] 1988). Some authorities no doubt felt
that, in the complete absence of plans, they could operate in
a way that better suited them.
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109
The absence of detailed plans in many parts of the country is not just a ploy on the part of local authorities to maintain discretionary power. Another problem is at least as
much one of central government attitude in the past 14
years. The Conservatives came to power in 1979 determined
to free private enterprise from the fetters of bureaucracy to
allow the market to function at maximum efficiency. Planning was seen as one of those fetters which had to be removed. Insofar as it had a coherent view of the planning
system at all in the early 1980s, the government took the
view that development control was about enabling development to proceed. To this end, the government issued a series of circulars which emphasized the discretionary power
to permit development if it would contribute to economic
growth and create jobs. The circulars stressed that this discretion existed even when policy in approved plans might
suggest that the development ought to be refused. The message was clear: preparing plans was an unnecessary activity
which did not contribute usefully to economic development. Housing land and industrial development were particularly the target of this approach (DOE 1984, 1985).
Nevertheless, by the late 1980s, this approach had
become severely discredited for three reasons. The first was
that the second half of the decade witnessed major conflict
over new housing development in the southeast of the
country. Encouraged by the tone of central government
policy, developers began to test local planning policies by
submitting proposals for areas in which development would
hitherto have been unacceptable. Most noteworthy was the
formation of Consortium Developments, a group of
developers who promoted a series of new settlements in
rural parts of the outer London metropolitan area. Their
belief was that new settlements in the form of villages with a
complete range of services would be in line with central
government’s thinking and would be attractive to the
planning profession, which in Britain has favored new
settlements over suburban extension.
In practice, the two proposals which Consortium
Developments developed in some detail were the source of
considerable conflict. One, to the east of London in the
green belt just beyond the edge of the continuous built-up
area was rejected outright. The other, to the south west of
London, was in an area of open country which had not been
identified as a location for meeting the area’s housing needs
and was the source of protracted debate. Both cases resulted
in vociferous opposition from local residents and from the
local authorities whose planning policy was being flouted by
the proposal. What was so embarrassing for the government
was that this opposition did not come from the traditional
left-wing opponents of Conservative policy, but from its
own supporters. The
government began to see that committed policy presented in planning documents might very well
be a way of reducing conflict and preventing NIMBYism.
The second reason for the government to change its
mind was the attitude of the housebuilding industry.
Traditionally, the industry has complained noisily about the
planning system and the delays created by the need to seek
planning permission (see Baron 1980). But it is also clear
that the housebuilding industry, as a way of minimizing
risk, looks to the planning system to create some degree of
order in the land market. Particularly interesting was the
way in which housebuilders supported the need for structure
plans, which the government had at one point characterized
as particularly unhelpful in the promotion of
development
(Humber 1990). The housebuilding industry’s support for
the planning system reflects Haar’s (1989) contention that
the main reason for zoning ordinances gaining ground in
the U.S. was because of the support of the development
industry.
The third
has to do with the Conservative
attitude
toward local government. The trouble
government’s
with urging local authorities to exercise discretion in favor of
economic growth and job creation is that it emphasized the
freedom that local authorities had to make decisions which
could equally well impede as promote development. Plans
thus came to also be seen as a way to bind local authorities
to an approved course of action from which it would be
harder to depart.
The result of this pressure was a major change to British
planning legislation in the form of the Planning and
Compensation Act 1991 which reaffirmed the status of
structure plans and introduced a requirement that all district
councils prepare a local plan to cover their whole area. To
this was added the requirement that, in considering
applications for planning permission, development plans
were to be the first consideration, unless material consideration indicated otherwise. The precise effect of this modification of the law is still not clear: in the Anglo-Saxon legal
tradition, only after there are judgements by the courts will
the generality of the section receive definition. Some points
have, however, emerged. The first is that the intention of
the change has been to move government policy from a
presumption in favor of development to a presumption in
favor of development in accordance with the plan (DOE
1992). The second is that the planning profession has been
given a psychological boost in the recognition that the new
acts give to its activities. And finally, it does not mean that
the British planning system is becoming a regulatory system.
Other material considerations are still factors in development control decision-making, development rights are still
nationalized, and discretionary power still rests with the
local planning authority.
reason
Hong Kong
Hong Kong’s planning system is borne of the very
particular conditions that exist in the territory. Even though
it has been a crown colony, the planning system that has
been developed (and dates in its present form essentially
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110
from 1939) is very different from Britain’s. The significant
feature of Hong Kong’s system is that the government is, in
a direct sense, landlord of almost all the territory and over
the past 150 years has been in the business of granting leases
for development as a major source of revenue. Hong Kong’s
direct financial involvement in development continues
today, and places the authorities in a very different role from
local governments in either France or Britain, where
separation of a public sector (i.e., undertaking control in the
public interest) from the private sector, which is subject to
control, is a fundamental principle of their planning
systems. Thus, control by central government in Hong
Kong is very much as between landlord and tenant and has
traditionally taken the form of a lease. Early plans for the
territory were designed principally to allow orderly issuing
of leases (Bristow 1984). Compliance with the leases mainly
has been exercised through control of construction.
But, onto the basic structure of control through leasehold
agreement has been grafted a system which has sought to
introduce environmental concerns that go beyond what can
be encompassed by the relationship between landlordgovernment and lessee. This change was reflected in the
introduction of the Outlined Zoning Plan (OZP), which
remains a major instrument of control within the existing
built-up areas and where development is being promoted
on, for example, reclaimed land. Originally, these plans
simply identified uses to which land could be put and the
form physical development should take, then leasehold
agreements with individual lessees would be drawn up to
reflect the provision of OZP. In 1974 the law was amended
to allow OZP to incorporate as-of-right development in one
column, and a second column of uses that might be
permitted subject to obtaining expressed approval. Thus, for
the first time the concept of a planning application drawn
from British practice made its appearance in Hong Kong
and was applied also in the rural areas of the territory in
zones entitled Development Permission Areas (DPA). On
the other hand the enforcement of control has remained
sporadic. A procedure borrowed directly from British
practice was introduced in 1991 to prevent unauthorized
developments in DPA. Otherwise, monitoring control was
not in the hands of the government sector that dealt with
planning and was only possible if physical development took
place. Unauthorized change of use might well go undetected
(Hong Kong 1991).
The hybrid nature of the system is apparent and is, in
part, responsible for the difficulties that the territory faces in
controlling development. The problem goes beyond the
superficial characteristics of the system, however. There is
clearly a difficult tension between a desire to allow development to proceed under the best possible circumstancesand thus promoting maximum certainty in OZP-and the
need to provide reasonable flexibility for the government to
change its mind and for developers to produce acceptable
schemes for which no zoning exists. In particular, there is a
fear of repeating the mistakes of the early leasehold agreements which allowed development to proceed without
constraint and which have subsequently made it very
difficult to ensure that planning objectives are met in some
of the older parts of Hong Kong.
There is another kind of tension between government’s
role as landlord with a direct financial stake in development
and its desire to act in the best interests of public good. This
is clearly a question of administrative structure and in Hong
Kong is partly resolved by the existence of a town planning
board whose members are primarily not officials and are
therefore removed from the executive branch itself. In the
recent consultative document on the reform of the Hong
Kong planning ordinance, a proposal was made to set up
two separate bodies, a planning board to be responsible for
plan making and determining planning application and, to
ensure proper accountability, a separate appeals board to
take on the appeal function of the old town planning board.
The model used is loosely based on the British appeal system, which is an administrative not a judicial process. A
clear separation of central from local government that provides a rationale for the British appeal system is, of course,
entirely absent. In the longer term, the only way forward
which would be equitable and ensure the accountability of
the planning system in Hong Kong will be to separate
present use of land from considerations of development
potential. Then the issuing of leases and the granting of
planning permission would be identifiably separate activities
with demonstratively different means of accountability.
0
CONCLUSIONS
by drawing a distinction between
and
discretionary systems of planning. Whether a
regulatory
had
one
or the other was largely not a matter of
country
choice, but a function of the administrative and political
culture of the country in question. Indeed, what sort of
planning system we have will depend on how we understand
the role of government, who we entrust to make decisions,
what forms of accountability we supply, and the role we
assign to law. I have attempted to demonstrate these points
in the brief comparison of France, Britain, and Hong Kong.
It follows that one form of planning is not necessarily better
than another, even if from time to time we may wish to
compare particular countries’ results in attempting to
control land use and development. Nevertheless, regulatory
and discretionary systems do have certain inherent strengths
and weaknesses that each country must address to achieve a
satisfactory mechanism for planning. And underlying all
systems of planning are a number of fundamental issues to
In this paper I started
which I now return.
The question of certainty is the first such issue. The
problem for systems which place a high premium on
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111
certainty is the question of what happens when the certainty
is breached by a given decision or by the decision to amend
a plan. This is particularly the problem for France. Growing
need for flexibility and growing administrative and political
discretion have eroded the traditional system of accountability by testing the legality of decisions. A return to the role of
law in all its purity is clearly not the answer because it would
constrain decision making in an impossible fashion. The
only real way forward is to recognize that change in policy is
inevitable and to ensure that the way regulations are framed
indicates the parameters within which change is acceptable.
That has been achieved, in part, in Hong Kong’s OZP, with
its two categories of development: the always acceptable and
the possibly acceptable according to circumstance.
There is, however, the question of certainty for whom. If
absolute certainty appears to be important within French
political economy, however unachievable it may be in
practice, neither developers nor immediate decision-makers
appear necessarily to desire absolute limits. There is at least
the suggestion that developers, whether in France or Britain,
like to negotiate from the base of precise limits to achieve
optimum development (See Healey 1983; Booth 1989;
Glasson and Booth 1992). Local authorities may like to
negotiate to achieve planning gain and to retain a measure
of power in the process. Flexibility within a general framework may be significant.
For the public, lack of certainty may be equally problematic. The two new settlement proposals in South-Eastern
England were vociferously opposed because they would have
blown apart all the reasonable expectations based on
longstanding policy. Indeed, if the British system has no
difficulty with the concept of flexibility there are undoubted
dangers in the system, not so much for developers as for the
public at large. There may be an excellent system for developers to hold local authorities to account through an appeal
through central government, but there is no obvious means
for third parties to seek a review of local authorities’ intention to oppose development. The presence of a plan is therefore critical as a statement of intent which can be used by
everyone affected as a yardstick for future decision-making.
Recognizing that absolute certainty is a chimera and that
not all actors of the system may necessarily want absolute
certainty, brings us to the second issue: the accountability
for decisions made. This is as much a problem in France
and Britain as it is in Hong Kong. Britain has a robust
system of administrative accountability through the appeals
to the Secretary of State, but the existence of a development
plan is now seen as an important part of the process by
ensuring that policy is transparent, commanding a measure
of public support, and representing a commitment on the
part of the local authority. This is particularly important
given the absence in Britain of legal rights of redress for
third parties. In France, the issue is to find a way of ensuring
that legality is not the sole criteria of decision making in an
environment in which the range of options for decision
makers is growing steadily. Some commentators have argued
that to widen the role for the form of public inquiry used in
the preparation of plans to include contentious development
proposals and to raise the status of inspectors conducting
these inquiries would be a major step forward. It may also
be that administrative
courts that deal with appeals may
develop an expertise in distinguishing the effect on
policy as well as determining the legality of decisions.
There seem to be some general lessons to be drawn from
this discussion. One is that, regardless of the system of
planning, there has to be agreement as to the level of
certainty that is desirable and attainable. Presenting a guide
for development control decisions that tries to spell out
every last detail is clearly doomed to failure. If, on the other
hand, there are to be options and the possibility for discretionary decision-making, then the rules of the game have to
come to
be clear in advance and, moreover, the decision both
transparent and accountable. This begins to suggest that we
need to turn our attention to the administrative mechanisms
for delivering decisions, as well as the planning instruments.
None of this should be taken as implying that the two
families of planning are moving closer. Nor does it mean
that transference of instruments from one kind of planning
to another is the way of resolving inherent difficulties. What
is important is the way in which the systems cope with the
core problems of certainty and uncertainty, the inevitable
desire to exercise discretionary power, and the need within
western democracies to account for decisions. It is from
these strategies for coping that we learn the most from
comparative studies.
Author’s Note: This article is a modified version ofa paper given at the 34th
Annual Meeting of the Association of Collegiate Schools ofplanning held in
Columbus, Ohio, 30th October through IstNovember 1992.
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