Administrative discretion has long troubled administrative and public lawyers. While some protest that its presence leads to arbitrariness and disturbs predictability, others argue that lack of discretion hinders government action. The debate normally concentrates on how to constrain and limit it. Rules, policies and other forms of ‘soft-law’ are often in the toolbox. The UK Government’s recent White Paper Planning for the Future, which announced a major reform to planning laws and policy in England, offers a perfect illustration of this debate. Although focused on planning, the direction of travel outlined in the document raises wider issues of interest to administrative and public lawyers, concerning the place of discretion in public administration and the function of judicial review, in times when the use of automated decision-making is on the rise (See Carol Harlow and Richard Rawlings).
This post has three main aims. The first is to show how the White Paper seeks to eradicate discretion from the planning system by introducing a rule-based approach to development control. The second aim is to explain how the present reforms offer a perfect example of a case in which rigid rules might not be appropriate, where expert judgement is needed in order to address planning problems. The third and final aim is to anticipate some potential effects that a rule-based system might bring about in regards to judicial review of administrative decisions in this field.
The starting point in the White Paper is the ‘discretionary’ character of the planning system. Planning is ‘too complex’ and ‘planning decisions are discretionary rather than rules-based’. This has resulted in ‘an inefficient, opaque process, and poor outcomes’ (paras 1.1 to 1.3). The root of these claims lies in the flexibility of the current regime, where development proposals are determined by planning authorities in accordance with local plan policies ‘unless other material considerations indicate otherwise’ (see s 70 and s 78 of the Town and Country Planning Act 1990; and s 38(6) of the Planning and Compulsory Purchase Act 2004). Non-binding local policies, and a broad understanding of the term ‘other material considerations’ – which includes any consideration that relates to the use and development of land, though subject to judicial oversight – seem to be the problems.
Predicated on the assumption that the current system is overly discretionary, the White Paper intends to introduce a new regime which would ‘set clear rules rather than general policies’ (para 1.16). The proposed system seeks to standardise the allocation of land uses across England, which would be put into one of three categories defined in local plans (para 2.8). First, ‘growth areas’ suitable for development and where outline planning permission for the principle of development will be automatically conferred by the approval of the local plan. Second, ‘renewal areas’ suitable for development which would be supported by a statutory presumption in favour of development. Third, ‘protected areas’, where development would be restricted (para 2.8 and 2.30 to 2.37).
With the introduction of binding land uses, associated building requirements, and the ensuing reduction or even removal of judgement in the assessment of development proposals, the White Paper promises to bring about clarity and certainty. Everybody will know whether a piece of land can or cannot be built on. To that end, the document promotes an instrumental conception of planning administration, whose function would be limited to the mechanical and thoughtless application of fixed rules. Potentially, the new regime would completely dismiss human intellect at the decision-making stage as it pursues the automation of the planning application process (paras 1.17 and 2.15). The White Paper sets out to achieve a point where all site or area-specific requirements at national, local, and neighbourhood level, ‘are written in a machine-readable format’, and where ‘digital services’ can ‘automatically screen developments’ to determine if these align with the requirements (para 2.15). The proposed changes, it is said, will help ‘automate routine processes, such as knowing whether new applications are within the rules’ (para 1.17) and will ‘increase clarity for those wishing to bring forward development’ (para 2.15). The automation of administrative decision-making itself raises a number of unanswered legal questions (see Carol Harlow and Richard Rawlings), and in the case of planning this is accentuated by the fact that such ‘digitalisation’ denotes a high level of distrust of professional judgement. This view, however, is problematic because it glosses over that the resolution of complex planning problems requires the use of intelligence and reason in planning administration. Equally, it misconceives the function of the planning system and planning law, which is seen in one-dimensional terms as a matter of providing clear and certain rules to expedite development.
Rules, Judgement and Planning Problems
The White Paper’s move towards a rule-based system misses important points. The function of the planning system is more substantial than simply facilitating that land is available for development, and there is more to planning law than security and certainty. The central issue is that planning problems involve disagreement over incommensurable values and interests where expert judgement is needed to address it. This impinges on the adequacy of rigid rules to tackle appropriately planning problems.
These ideas were noted in Holder, where the Court of Appeal stressed that development proposals require consideration of benefits which have to be weighed against a range of ‘incommensurable potential detriments’, where different members of the local community often hold strong opposing views (at  and ); addressing these issues requires exercise of judgement (at ). Relatedly, in Barwood the Court of Appeal reiterated that planning decision-making relies largely on judgement and thus it ‘is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process, not rigid or formulaic’ (at ). The court’s reasoning evidences that in the face of conflicting views on land development, planning law puts in place an institutional framework within which incommensurable values and interests can be accommodated. Here, disagreement can be harnessed through a reasoned and deliberative process, in which decisions are arrived at through an exercise of expert judgement tailored to particular circumstances.
Hence, by diminishing the scope of judgement, the intended changes might forestall deliberation where this is most required–in the making of concrete decisions, where local impacts and incommensurable values can be properly identified and weighed. A system of fixed rules which stifles intelligence in planning administration might not do this job. To put the matter differently, in privileging a particular set of values–clarity and certainty to accelerate development–the proposed changes might circumvent deliberation over what interests should be fostered in the planning system before decisions are made. This, however, will not eliminate the existence of disagreement; it can actually facilitate the elevation of the courts as the appropriate place to ventilate planning problems.
Rules, Judgement and Judicial Review
Another issue the White Paper leaves largely unaddressed is related to the respective roles of decision-makers and the Courts. The only paragraph touching on this point mentions that ‘judicial review is expensive’ adding that the proposals will ‘remove the scope for ambiguity and therefore challenge’ (para 5.16). These succinct statements evidence two important points. In the first place, these indicate that the announced changes are at least implicitly motivated by the aim of keeping the courts away from planning-decision making. This appears to be aligned with the scope of the potential reforms to judicial review being contemplated by the Government which, it has been argued, might attempt to reduce the courts’ capacity to review certain types of administrative decisions (see Independent Review of Administrative Law and Mark Elliott).
In the second place, the proposals treat the courts as exogenous to the planning system overlooking the fact that the common law plays a significant role in giving further substance to the planning Acts. Over the last decades the courts have crafted planning law principles which are anchored in the rationale of the existing legislative framework, where policy statements and the exercise of judgement have occupied a preponderant place. Planning ‘is a matter of the formation and application of policy’, stated Lord Clyde in Alconbury (at ). Given the policy-laden character of planning the courts have developed these principles in a way that discourages ‘excessive legalism’ in the planning system (see Mansell at 41). A new system which curtails judgement and policy in decision-making might either unravel or at least trigger a revision of planning law principles, some of which might not be applicable in a regime dominated by rigid rules.
The proposals are still in early stages of the consultation process, and thus the particular changes to the planning system are yet to be fully determined. The way in which the White Paper frames the problems affecting the planning system and the measures it proposes in order to tackle them, demonstrate that some key issues are not being considered. Planning decision-making offers an institutional infrastructure where incommensurable values and interests can be accommodated, and disagreement harnessed, through reasoned and expert judgement. The closure of this legal space, and the introduction of a rigid rule-based system, are the perfect ingredients for the transfer of disagreement and conflict to judicial venues. The courts have long shown, at least discursively, aversion to disputes involving judgement and policy-application; conflicts over rule-application, however, can more easily be regarded as a traditional judicial business.
The author is grateful to Liz Fisher and the editors for helpful comments on earlier drafts.
Samuel Ruiz-Tagle is an administrative and planning lawyer, and a Doctoral candidate at the Faculty of Law, University of Oxford.
(Suggested citation: S. Ruiz-Tagle, ‘White Paper Planning for the Future: Understanding the Importance of Judgement in Public Administration’, U.K. Const. L. Blog (9th Sept. 2020) (available at https://ukconstitutionallaw.org/))