Academic journal article The Town Planning Review

Discretion and Expediency in the Enforcement of Planning Controls

Academic journal article The Town Planning Review

Discretion and Expediency in the Enforcement of Planning Controls

Article excerpt

The enforcement of planning controls in the British planning system is an activity that exhibits a high degree of discretion in decision-making. Local planning authorities are empowered to enforce against breaches of planning control where they consider it 'expedient' to do so. The paper addresses the concepts of discretion and expediency in relation to planning enforcement. It traces the evolution of discretionary enforcement in British planning legislation and relates this to the formally stated purposes of enforcement action, as well as the various considerations of local planning authorities in determining whether it is expedient to take enforcement action. The paper concludes that there is a significant degree of ambiguity in the purposes of enforcement action in Britain, each with their own characteristic basis for discretionary decision-making.

The planning systems in England and Wales have been the subject of continuing review since 2001. Significant change has been effected as a consequence of these reforms, most notably in relation to the form and preparation of development plans prepared by local planning authorities and in arrangements for dealing with nationally significant infrastructure. Significant attention has also focused on delivering effective and efficient services in the determination of planning applications. The enforcement of planning controls has not escaped this programme of review. However, whereas other aspects of planning reforms have made significant progress since 2001, the review of planning enforcement appears to have had little impetus behind it:

The 2001 review did not come up with many new ideas and generally the [Government consultation] paper went through what are the well-known options and in most cases rejected them ... Indeed it gave the impression that the Department [of Communities and Local Government] was rather uncertain as to what should be done and was looking for a clear steer from the professionals involved in enforcement. (Purdue, 2008, 438-39)

The 'well-known options' in the Government's review of planning enforcement included whether the decision to take enforcement action should remain at the discretion of the local planning authority. The focus of this paper is on the discretionary character of planning enforcement, given that local planning authorities are able to enforce against unauthorised development where it appears to them to be expedient to do so. The context for the paper is the British planning system - a system widely recognised as enabling significant discretion to decision-makers in their day-to-day activities. The concepts of discretion and expediency are the central concerns of the article. The paper firstly defines the concept of discretion as it has been discussed within the planning literature and the social sciences. A brief historical account is provided of the evolution of British planning legislation and enforcement provisions. This explains the emergence of planning enforcement as an activity that is (a) characterised by considerable decision-maker discretion and (b) also framed by the concept of 'expediency'. The review highlights a historical departure from earlier conceptions of enforcement as a means of implementing and ensuring conformity with a detailed plan to present-day enforcement guided principally by the more flexible and loosely defined concept of expediency. This presents decision-makers with wide-ranging discretion on whether or not to enforce against breaches of planning control. Consequently, an attempt is made to clarify the purpose and objectives of enforcement action and relate these to the concepts of discretion and expediency.

Defining 'discretion' and its place in understanding planning

The concept of discretion has wide application within the sphere of legal and regulatory practices as well as the wider social sciences (Pepinsky, 1978, 28). A definition of discretion, focusing specifically on the exercise of discretion in the course of decisionmaking, is that:

a public officer has discretion whenever the effective limits of his power leave him free to make a choice among possible courses of action or inaction . …

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