Academic journal article The Town Planning Review

From Property Rights to Public Control: The Quest for Public Interest in the Control of Urban Development

Academic journal article The Town Planning Review

From Property Rights to Public Control: The Quest for Public Interest in the Control of Urban Development

Article excerpt

The control of urban development within the modern British planning system is legitimated by reference to public interest. This legitimation implies a clear understanding of private property rights and the boundary between public and private domains. Such a distinction is of fairly recent origin, however. This paper argues that the maturing of the planning system in this country depended on the development of freehold property rights. It traces the evolution of thinking and practice in relation to private property from the Middle Ages onwards and sets them alongside the attempts to control urban form and land use. It concludes that, though the modern system does indeed depend on the distinction between public and private interest, the distinction is by no means as simple as the system's creators proposed.

At some stage during the Middle Ages, and perhaps as early as the late twelfth century, regulations were drawn up whose intention was to control the form of building in London. Looked at from the perspective of the early twenty-Rrst century, these regulations with their concern for party walls, gutters and privies look directly comparable to the kind of regulation which has become a staple form of urban control in much more recent times and are replicated in many parts of the world. They did not, it is true, exactly form a town planning code, and are closer in spirit to the constructional norms that in Britain were Rrst introduced by the Public Health Acts. Nevertheless, closer inspection suggests that superRcial similarities are deceivingDthe medieval regulations are based on very different philosophical and conceptual underpinnings from their modern counterparts. For the most part, control does not appear to have been carried out in the public interest, as we would understand it, but was largely focused on the resolution of disputes between neighbours. The boundaries between public authority and private ownership which are essential to our understanding of town planning seem to be largely absent. The argument of this paper is that modern town planning carried out by public bodies for the common good is intimately linked to the development of ideas about private property.

Given the potential scope of the argument that this paper attempts to present, the history that it traces and the examples that it uses are inevitably selective. Much of the evidence it draws upon is from London. As Britain's largest city and the seat of political and economic power from the early Middle Ages onwards, it has also always been a major focus of urban development. The scale and sophistication of that development and of the means by which it was regulated exceeded anything that took place elsewhere in the country, at least until the twentieth century. The London case is not necessarily indicative of what happened elsewhere in England, and far less inWales or Scotland. Even so, London is not entirely a case apart. Attitudes to property discussed here were not exclusively metropolitan, nor was leasehold tenure limited to London as the Sheffeld example demonstrates. Furthermore, if it is beyond the scope of this paper to investigate property relations and forms of control in, say, the development of other industrial towns or of smaller settlements in England before the industrial revolution, there is enough evidence to make a case, however partial it may be.

With those caveats, the paper begins with a brief discussion of feudal tenure in England and its contrast with Roman law conceptions of property, before exploring medieval regulation of urban development. This leads to a discussion of evolving property relations in early modern England, and the development of leasehold tenure and building agreements as a means of promoting and regulating urban development. The paper then looks at the way in which control by public authorities developed and at the evolution of legal instruments and case law. This in turn leads to a discussion of statutory town planning in the twentieth century. …

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