Planning for housing demand in the U.K.: Just a question of space?

Jill Morgan and Mark Stallworthy

Norwich Law School, UEA

Introduction

It has been observed that ‘discussions on housing policy generally either ignore …[the] law or regard it as a passive instrument for policy implementation.’1 Our paper concerns the serious shortage of housing accommodation in the United Kingdom, with particular focus on England and Wales.

There are two ways in which lawyers can engage with such issues. The first, which at the moment is particularly prevalent in the United Kingdom, is from a human rights perspective. Thus, a number of challenges to substantive housing provisions on the basis of the European Convention on Human Rights have been made in the English courts - albeit to rather limited effect2 - since the Human Rights Act 1998 came into force in October 2000. The second, more traditional, approach - which this paper will take – is to consider the capacity of law and policy-making structures and processes to deliver appropriate (and just) outcomes.

The housing shortage: causes and consequences

Although there is, in crude terms, a surplus of housing, in England,3 much of it is situated in areas where there is no work, and many properties stand empty because they are either dilapidated or in serious disrepair. Others await incoming tenants or purchasers, or are second homes. However, despite this housing surplus, there is nevertheless a serious housing shortage which is particularly pronounced in London and the south east of England.

Problems of weak supply have been exacerbated by the effective withdrawal of the municipalities from new housing provision, with social housing new build generally at a non- viable level. Yet housing needs cannot all be met by the market. Not only is home ownership

1 Goodchild, B, ‘Applying theories of social communication to housing law: towards a workable framework’ (2001) 16 Housing Studies 75 -95, 75. 2 A notable exception is Mendoza v Ghaidan [2002] 4 All ER 1162, in which the Court of Appeal held that the succession provisions of the Rent Act 1977 were discriminatory (thereby falling foul of Article 14 of the Convention) and should be read therefore so as to include a same sex partner as someone who had ‘been living with the tenant as his or her wife or husband.’ This had previously been taken to mean only heterosexual partners (Fitzpatrick v Sterling Housing Association (2001) AC 27). 3 According to the 2001 Census, the total number of empty homes (or ‘vacant dwellings’) in all tenures in England stood at 977,000 (3.7% of the total stock). Even in the economically powerful London and south east sub-region, there are estimated to be 70,000 private empty houses: see Kennedy, M, Guardian, 27 November 2003.

not necessarily appropriate for the whole community, but there is also a rising proportion of the population which cannot engage in the market. The government accepts that since the 1980s, the UK ‘has seen a rise in income inequality almost unique among developed countries’.4 Further pressures arise from the severe backlog in social housing provision, such that some commentators argue that government figures for household needs should be increased from the figure in excess of 4 million referred to below to around 5 million.5 Indeed, housing problems are exacerbated by the growing residualisation of social housing. Following the introduction of the right to buy, around 30 per cent of council housing stock was sold off between 1979 and 1997. New building mostly ceased following restrictions from 1980 on housing allocations and freezing of sale receipts (though the latter was lifted in 1997). Remaining council housing provision stands at around 19 per cent of the total stock in England and Wales, and contains severe pockets of social deprivation for those trapped in ‘sink’ estates.6 Social housing needs are increasingly met by registered social landlords, especially housing associations, themselves increasingly reliant upon private funding. For all the improvements in building and estate design, reliance on private capital has also contributed to higher, low-subsidy rent levels. This brings familiar problems, and ‘new entrants to housing association properties are increasingly likely to be dependent on welfare benefits: those in work would find the rent commitment an impossible burden. So ultimately, large areas of residential properties are occupied only by those who are economically inactive: unemployment becomes a norm for that area’.7

The Barker Report has concluded that a lower real trend in house prices is desirable so as to improve macroeconomic stability and deliver greater affordability for individuals.8 In order to bring the real price trend in line with the EU average of 1.1 percent, it is thought that an extra 120,000 private sector houses per annum might be required, as well as between 17,000 and 23,000 additional social houses per annum to improve access to housing for those who cannot afford market rates.9 The approximately 250,000 per annum new build is would serve to address growing needs and to reduce the backlog, enabling around one third (15,000) of new households to be priced back into the market by 2021.

The realignment in housing tenure (which is considered further below), has occurred in the context of important social trends and it has become clear that reliance on market-oriented policies is seriously limited in the face of ‘the pattern of housing needs, general income levels and demographic factors - notably the rate at which new households are being formed’.10 In England, household formation has been estimated at 179,000 per annum, yet in 2002 only 134,000 extra homes were built.11 The number of households in Great Britain has increased significantly over recent decades, partly because households now contain fewer people. The average household size fell from 2.9 in 1971 to 2.4 in 2003 and there has been a particularly large increase in the number of people living alone (29 per cent in 2003, compared with 18

4 UK Government, A Better Quality of Life: a Strategy for Sustainable Development for the UK, Cm 4345 (London: Stationery Office, 1999), para. 7.13. 5 Jones, C & Watkins, C, ‘Planning and the housing system’, in Allmendinger, P & Chapman, M, Planning Beyond 2000 (Chichester: Wiley, 1999), 103. 6 Lee, P, Murie, A & Marsh, A, The Price of Social Exclusion (London: National Federation of Housing Associations, 1995). 7 Kettle, J & Moran, C, ‘Social housing and exclusion’, in Allmendinger and Chapman, note 5 above, 235 8 Barker, K, Delivering Stability: Securing our Future Housing Needs, 2004, Treasury/Office of Deputy Prime Minister (ODPM) (the ‘Barker Report’), 11. 9 ibid. 10 Greve, J, Homelessness in Britain (York: Joseph Rowntree Foundation, 1991), 21. 11 See Barker Report, note 8 above, paras. 1.16-17.

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per cent in 1971). While, over the same period, the population has increased by six per cent, the number of households has increased by 31 per cent.12

These changes in the size and number of households can be attributed to a number of factors. They include increased longevity, together with a desire among older people to continue to live independently rather than with relations or in institutions, a decline in the birth rate, and a move on the part of many younger people to establish separate households either as single people or with other unrelated adults (the decision to marry being made later in life - or not at all).13 The picture is further complicated by the rise in divorce rates and an increased incidence of relationship breakdown among cohabiting couples. There has been a decrease however in the proportion of households containing the traditional family unit and an increase in the proportion of one-parent families. Today, fewer than 40 per cent of households fit the model of the conventional nuclear family and yet it is arguable that housing policy has only just begun to come to terms with the shift in the foundations of British family life which these figures represent.

In sum, Government projections for England for a 20-year period to 2016 suggest expectation of an increase of in excess of 4 million households requiring to be housed. This represents an increase of around 23%.14 The main reason for the increase is a demographic one, not accounted for by population alone. An increase in population of around 7 per cent, or 3.4 million, is expected for the quarter-century 1996-2021, whilst over that same period the growth in the number of households is anticipated from a figure of around 20 million to over 24 million.15

Despite the growing number of new households the supply of new housing has fallen, therefore, with house building for all tenures at its lowest peacetime level for decades.16 There are two primary reasons for this: first, council housing is not being built and building by housing associations is not making up for the deficit; and, secondly, private sector building is producing a supply side shortfall, which it is argued is largely a consequence on development planning controls imposed by the state.

The geographically uneven pattern of economic growth means that a greater proportion of the additional households are to be found in the south than in the north. Between 1996 and 2001 the average annual increase in households in England was almost 200,000 but this comprised a growth of 136,000 households in London, the south east, the east of England and the south west, compared to only 64,000 in all the other six regions together.17 However, more new homes have been built in the north of England than extra households formed. Problems of low demand and even abandonment in the least popular areas have followed. A result has been greater social polarisation with many poorer people trapped on housing estates in the most deprived urban areas. By contrast, in southern England the number of extra homes has

12 National Statistics, Social Trends 34: a portrait of British society (2004), 25-27. 13 Marsh, A, ‘Processes of change in housing and public policy’ in Marsh, A & Mullins, D (eds.) Housing and Public Policy (Buckingham: Open University Press, 1998), 2. 14 Department of the Environment (DoE), Household Growth: Where Shall We Live? (London: HMSO, 1996). 15 Department of Environment, Transport & Regions (DETR), Our Towns and Cities: the Future - Delivering and Urban Renaissance, White Paper, 2000, para. 2.3. 16 See http://www.odpm.gov.uk/stellent/groups/odpm_control/documents/contentservertemplate/odpm_index.hcst?n=1 566&l=3. 17 Stewart, J, Building a Crisis (House Builders Federation, 2002), cited in Holmes, C, Housing, Equality and Choice (London: Institute of Public Policy Research, 2003), 12.

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fallen significantly short of the increase in households. The deficit has been much the largest in London.

Various consequences flow from the housing shortage in the UK. The increase in the ‘equity divide’ has led to greater distance between the ‘haves’ and the ‘have nots’. Between 1970 and 2001, the value of the net equity of personally-owned housing increased from £36 billion to £1,525 billion. After allowing for inflation, the index of the real growth of gross assets in personally-owned housing rose from 62.6 in 1970, to 100 in 1980 and to 329 in 2000.18 The reduction in the number of homes which has been built for rent over the past twenty five years by social landlords has produced longer waiting lists for social housing and more ‘hidden homelessness’. Most significant perhaps, has been the huge growth in the number of homeless households in temporary accommodation, from fewer than 5,000 in 1980, to 46,000 in 1995 and to a record number of more 95,000 in 2003.19 Homelessness figures show a 20 per cent increase between 1997 and 2003. The fall in the number of new lettings available to local authorities (either directly or through nominations to housing associations), lower output from the Housing Corporation programme, loss of council stock through the right to buy, and fewer moves out of the public sector because of increasing house prices,20 have all contributed to the problem of homelessness, which is particularly acute in London and the south east of England.21

Housing tenure

The fortunes of all four main housing tenures in Great Britain - owner-occupation, council renting, housing association renting and private renting - waxed and waned during the twentieth century. At the beginning of the century, 90 per cent of all housing in England was privately rented while 10 per cent was in owner occupation. Today, about 70 per cent of housing is owner occupied and a mere 10 percent is in the private rented sector. The remainder is owned by local authorities (14 per cent) and housing associations (6 per cent).22 It can be seen that, although owner-occupation is the dominant tenure in England, the contribution of renting remains important: of 19.8 million residential properties, 5.7 million are rented. Of a total of 20.6 million households, 6.4 million live in rented accommodation. Something over two-thirds of them (4.3 million) rent either from local housing authorities or housing associations, and just under one third (2.1 million) from private landlords.23

During the past two decades, a radical restructuring has taken place of what has come to be known as social housing. Council housing, criticised for its inefficiency, its erosion of people’s freedom and motivation to compete in the market, and the way in which it allowed social inequality to become exploited for political gain,24 has made way for a greater

18 Burrows, R, Poverty and Home Ownership in Britain (Bristol: Policy Press, 2003), cited in Holmes, note 17 above, 24. 19 ODPM, Housing Statistics 2003, Table 6.7. 20 www.alg.gov.uk/attachments/142/L5-2-02%2014%20Housing%20App.doc. In London, new lettings of council and housing association homes have fallen by 34 per cent over the last seven years. The Housing Corporation is the vehicle by which central government channels public money to fund the development of housing by registered social landlords (RSLs). 21 There are more than 60,000 households in temporary accommodation in London, twice as many as in the rest of England put together (http://www.alg.gov.uk/doc.asp?doc=9184). 22 Office for National Statistics, Expenditure and Food Survey, 2001-02 (London: National Statistics, 2002) 9:1. 23 The Law Commission, Renting Homes. 1: Status and Security, Law Com Consultation Paper No.162 (London: The Stationery Office, 2002), para.1.64. 24 DoE, Housing: The Government’s Proposals, Cm 214 (London: HMSO, 1987), para. 1.11.

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involvement by housing associations in the provision and management of social housing - the attraction of housing associations being ‘their independence from local political control and dependence on direct central government support - a more acceptable form of public landlordism’.25 Renting from housing associations, remains the smallest of the main tenure categories yet it is ‘the fastest growing and most dynamic part of the housing system at the present time’.26 In the decade to 1998 the stock of dwellings owned by housing associations in England doubled, from 519,000 to 1,048,500.27 Much of the growth in this sector can be explained by stock transfer – the process by which local authorities transfer all or part of their stock to housing associations. Over 120 local authorities have transferred all or part of their housing stock to RSLs. The transfers, involving over 580,000 dwellings, have generated over £4.4 billion in capital receipts and raised over £9.2 billion of private finance.28 The present government has embraced stock transfer, recently setting out its plans to ‘expand and modernise’ the transfer programme,29 with the intention that from 2001 around 200,000 tenanted dwellings per annum will leave council ownership.30 Stock transfer has been described as ‘arguably the most important phenomenon in housing in Britain in the present period’,31 and it has been predicted that council housing will have disappeared in England and Wales by 2015.32 One of the most significant aspects of stock transfer, and a reason why it has found favour with successive governments, is that it provides a mechanism for escaping the borrowing restrictions placed on local authorities by the public expenditure regime. Housing associations can use the asset base of the transferred stock as security to borrow from banks and other lending institutions in order to fund the construction of new properties, and to carry out repairs and improvements to existing stock.

There are some concerns, however, about the effectiveness of housing associations in delivering housing. Although since 1997 the Treasury has almost doubled the amount of grant paid to housing associations for new homes, only around 25,000 affordable homes have been built each year. This is 10,000 fewer than in 1997.33 There are concerns too about governance and efficiency, with an increasing number of associations being placed under the supervision of the Housing Corporation. As a result, the Housing Bill (which is currently making its way through Parliament), allows the Housing Corporation to make grants to companies who are not RSLs (that is, private developers) for a number of purposes which include ‘providing, constructing or improving houses to be kept available for letting’ and ‘providing, constructing or improving houses for letting that are to be managed by…RSLs’.34 The objectives of the proposals are to widen the opportunities for the development of new affordable housing and to maximise the value of public subsidy by challenging RSLs to compete.

25 Cole, I & Furbey, R, The Eclipse of Council Housing (London: Routledge, 1994), 210. 26 Malpass, P, Housing Associations and Housing Policy: A Historical Perspective (Basingstoke: MacMillan Press, 2000), 3. 27 Ibid., 291. 28 DETR, News Release 292, 22 June 2001. 29 DETR, Quality & Choice: A Decent Home for All: The Housing Green Paper (London: DETR, 2000), para. 7.16. 30 Ibid., para 7.19. See Murie, A & Nevin, B, ‘New Labour transfers’ in Cowan, D & Marsh, A, Two Steps Forward (Bristol: Policy Press, 2001), for a critique of the government’s ‘uncritical’ acceptance of LSVT. 31 Malpass, P & Mullins, D, ‘Reconceptualising voluntary housing: the implications for local authority stock transfer’ http://www.cf.ac.uk/cplan/conferences/hsa_sept01/malpass&mullins.pdf 32 Walker, R, ‘How to abolish public housing: implications and lessons from public management reform’ (2001) 16 Housing Studies 675-696, 675. 33 Guardian, 11 November 2003. 34 Clause 190.

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The second factor which has contributed to the decline of local authority housing is the Right to Buy, introduced by the Housing Act 1980. This has resulted in the transfer of 1.5 million homes into the private sector,35 and the consequent ‘residualisation’ of council housing as disadvantaged households have become increasingly concentrated in the (less desirable) housing retained in the sector. Recent years have witnessed a sharp increase in the polarisation of society between those who can provide for themselves through the market system and those who have to rely on provision by the state or the voluntary sector. While the majority of employed people have enjoyed a continuing increase in real incomes (bolstered by their consequent ability to invest in owner-occupation), there has been a massive rise in income inequality and a commensurate spread in poverty and welfare dependence. The impact of industrial obsolescence and new technology has produced a large pool of people who are permanently or semi-permanently unemployed. These ‘marginalised poor’ can be found in all tenures but tend to be concentrated in social housing.36 Council housing – and indeed social housing generally - is increasingly populated by the elderly, the unemployed and benefit dependent.

From a legal perspective, the idea used to be that once a person became a council tenant, the household had a home for life. Not only do council tenants enjoy extensive security of tenure but also statutory succession rights which allow the tenancy to devolve upon the original tenant’s death to his or her spouse or to certain family members. Since the Housing Act 1988, housing associations have granted the same types of tenancy as private sector landlords and although the Housing Corporation directs that housing associations should seek legal repossession of a property ‘as a last resort’,37 the past few years have witnessed a marked increase in repossessions by social landlords, often in response to rent arrears.38 Earlier this year an Audit Commission report found that rent arrears for housing associations reached £231 million in 2001/02, an increase of £21 million on the previous year.39

Significant changes have also taken place in the private rented sector. Private renting can be seen as a mode of provision which was appropriate in the nineteenth century when the new urban working class earned low wages and had little opportunity to save. Renting thus enabled them to obtain access to an essential commodity which they could not afford to buy outright. The Rent Acts which were in operation from 1915 until 1988,40 gave private sector tenants long-term security of tenure at a ‘fair rent’, thereby restricting freedom of contract and suspending the exercise by private owners of property rights.41 That security could be extended through the generations as the Rent Acts allowed for two successions to the tenancy on the death of the original tenant: the first to the tenant’s spouse and then, on his or her death, to a ‘member of the tenant’s family’.

35 Sales under the RTB scheme are now around 40,000 a year: http://www.housing.odpm.gov.uk/ factsheet/homeown/index.htm#rtb. 36 Malpass, P and Murie, A, Housing Policy and Practice (Basingstoke: Macmillan, 1999) 14. 37 Housing Corporation, The Way Forward: Our Approach to Regulation, 3.5c. 38 Department for Constitutional Affairs, Judicial Statistics 2000, 2001, 2002, Table 4.5. The statistics do not distinguish between local authority and housing association landlords. Nor do they indicate how many orders for possession result in evictions. It is clear that some landlords use possession proceedings as a means of accelerating the payment of housing benefit. 39 Audit Commission, Housing Association Rent Income (2003), at 1.4, para 11. 40 Since 15 January 1898, new private sector tenancies of less than 21 years have been governed by the Housing Act 1996, as amended. The Rent Act 1977 continues to apply to the ever-diminishing number of tenancies created before that date. 41 See Davis v Johnson [1979] AC 317, 348 (Lord Scarman).

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Over the past fifteen years, rent control in the private rented sector has all but been removed and security of tenure much diminished. Prior to that, not surprisingly, in the face of such extensive, indefinite and potentially unprofitable tenant security, landlords often found it preferable and more profitable to try to circumvent the Rent Acts and thereby retain a greater degree of control of their properties.42 One popular avoidance measure was to grant tenancies which were specifically exempted from protection, e.g. holiday lettings. As a result, landlords who could show that their tenants were ‘holiday-makers’ were given the opportunity ‘to operate in the uncontrolled free market’.43 The result was ‘a remarkable boom in holiday lets in places not noted for the quality of their waters or the mildness of their sea breeze’.44 By the early 1980s, Rent Act evasion and avoidance had become so common-place that there was conjecture as to whether the Acts had any practical relevance at all.45 Nonetheless, in its 1987 White Paper, the Government expressed the view that the decline of the private rented sector was attributable to the twin evils of rent control and security of tenure. Thus, while the Rent Acts concentrated on tenant protection, the Housing Act 1988 (for which the 1987 White Paper paved the way) was intended to regenerate a freer market in housing and to reverse the decline in the private rented sector. This was to be (and has been) achieved by removing rent restrictions (so that lettings are at market rents) and limiting security of tenure (by extending the shorthold tenancy concept which had originated in the Housing Act 1980 and introducing new mandatory grounds for possession) and reducing succession rights. The Housing Act 1988 introduced two types of tenancy: the assured tenancy and the assured shorthold tenancy (AST). The popularity of ASTs with private landlords may be explained by the fact that they afford tenants virtually no security of tenure.46 Possession may be recovered by the landlord giving the tenant not less than two months’ written notice.47 Although (if the tenant does not then vacate voluntarily) a court order is required, the court cannot use its discretions to consider the issue of reasonableness, nor to suspend the making of the order.48

It is possible of course that the legal provision of long-term security in the private rented sector is now inappropriate, given that it no longer caters for general housing needs in the way it did fifty years ago. Many of those living in the sector are under 25 and use it as ‘easy access’ accommodation, moving regularly,49 and thereby ‘[contributing] to a healthy economy by assisting labour mobility’.50 They will invariably be assured shorthold tenants. The private rented sector is often a first stage for young people leaving home, and is commonly regarded as the first rung on a housing ladder up which households progress through a hierarchy of tenures to owner-occupation.51 Yet it also houses a significant, albeit shrinking, group of older householders. About 20 per cent of private sector tenants are aged

42 Nelken, D, The Limits of the Legal Process: A Study of Landlords, Law and Crime (London: Academic Press, 1983), 19. 43 Lyons, T, ‘The meaning of holiday under the Rent Acts’ (1984) 48 The Conveyancer and Property Lawyer 286. 44 Widdison, R, ‘Plugging the loopholes in the Rent Act’ (1982) Roof (October), 29. 45 Doling, J, How much protection do the Rent Acts provide? (1983) Journal of Planning and Environmental Law 713-723. 46 In 2000/2001, ASTs accounted for 56 per cent of all private sector tenancies (1.2 million): ODPM, Survey of English Housing Live Tables, Table S510 (A5.2). 47 Housing Act 1988, section 21(1)(b), (4)(a). 48 ibid., section 9. 49 Note 12 above, table 10.19. 50 DoE, Our Future Homes: Opportunity, Choice, Responsibility, Cmnd 2901 (London: HMSO, 1995), 20. 51 Kemp, P A & Keoghan, M, ‘Movement into and out of the private rental sector in England’ (2001) 16 Housing Studies 21, 22.

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65 or older and 8% have lived in the same house for 40 years or more,52 dating back to the time when private renting was a mainstream housing tenure. Such tenants are still likely to be covered by the Rent Acts and thus subject to a form of rent control and security of tenure. What is particularly significant, however, is the change which has taken place in the social composition of the sector. Particularly in areas where there is lower demand for rental accommodation from working households, it is increasingly the preserve of vulnerable households with complex social or behavioural problems who are in receipt of housing benefit. Around 756,000 occupants in the private rented sector rely on housing benefit to pay all or part of their rent.53 It follows that ‘the dynamics of the sector are intimately affected by changing the structure and generosity of the benefit system’.54

The nature of landlordism is also relevant as regards the way in which the private rented sector functions. In the early part of the twentieth century, when private renting formed the principal source of housing, institutions such as insurance companies were major landlords. Between 1960 and 1980, spurred on by the shift towards owner-occupation and the emergence of other types of investment which could be used as a hedge against inflation, most corporate and institutional investors broke up and disposed of their rental portfolios, selling either to private landlords or into owner occupation. Thus, while a minority of private landlords are property companies (which may also have interests in business and office accommodation and in property dealing and development), private letting is a small-scale industry which is dominated by private individuals. More than half of all landlords in England rent out only seven homes or less. Over a quarter have only one letting, and many became landlords by, for example, inheriting a property, or having difficulty in selling one, or needing to move away temporarily for reasons associated with work. Others have entered the sector as an investment, but have done so only recently through ‘buy to let’ schemes.55

The nature of housing

Housing policy (and, therefore, housing law) depends on how housing itself is viewed. At one extreme it can be regarded as a commodity subject to the laws of the market-place. As such it will be supplied if and when the supplier anticipates the probability of securing a reasonable return and it will be bought by those able and willing to pay the price which will yield that return. Accordingly, it is given no special treatment to differentiate it from any other commodity and no provision is made to give landlords and tenants any rights or obligations over and above those which are contractually agreed.56 However, although housing is indeed a vehicle whereby wealth can be stored and accumulated, it possesses a number of features which distinguish it from other commodities. First, the housing market differs from other markets insofar as houses and households can move between the ownership market (in which the houses themselves are bought and sold) and the rental market (where only the use of house room is bought and sold). Secondly, the multiplicity of interests which can exist in land are unparalleled with regard to other commodities,57 and can give rise

52 See note 50 above. 53 111,000 Rent Act tenants and 645,000 ‘de-regulated’ assured or assured shorthold tenants: Office for National Statistics, February 2001. 54 Marsh, A, Niner, P, Cowan, D, Forrest, R & Kennett, P, Harassment and Unlawful Eviction of Private Rented Sector Tenants and Park Home Residents (London: DETR, 2000), 2.4. 55 DETR, Quality and Choice: A Decent Home for All, note 29 above, 5.9. 56 Donnison, D & Ungerson, C, Housing Policy (Harmondsworth: Penguin, 1982), 1. 57 This is one of the factors which contribute to the multi-dimensional character of land. See Gray, K, Elements of Land Law (London: Butterworths, 2001) 6, 62-63.

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to complicated property relations. Thirdly, although the law regards the ownership of land as extending up to the heavens and down to the depths of the earth,58 land is of course non- renewable and there are no new frontiers to explore. Fourthly, because a house is fixed in one place, a person who buys or rents housing is also buying or renting accessibility to employment opportunities, city centre services, the countryside, and so on.59 Fifthly, houses take a comparatively long time to build, are expensive to produce and, unlike other commodities, they cannot be imported from abroad, even if they can be produced more cheaply in, for example, the Far East.60 Finally, and most importantly, housing serves one of the most basic human needs. Whether taken separately or together, these factors mean that housing warrants special treatment and its provision should not be left simply to the vagaries of the market.

A modified market model has underpinned social policy in Great Britain for most of the last century under both Labour and Conservative governments but it has been particularly marked since 1979. Market competition rather than state action has been promoted as the most effective mechanism by which resources can be most efficiently distributed. Adherents of the market model expect people to be self-reliant or, if necessary, to rely on the market, their families, and the generosity and support of other members of their communities, rather than the state. The message has been that the state should confine itself to protecting private property and wealth (which itself enables people to be self-reliant) and creating conditions which help the market to run smoothly. Direct state support is acknowledged as necessary for the elderly, disabled or very poor, who lack the capacity to compete effectively in a market system but, even then, the feeling is that support should be kept to a minimum. The market philosophy is based on the theory that a degree of inequality stimulates initiative and effort. The overriding aim is to minimise public spending in favour of low rates of taxation which stimulate economic enterprise and initiative. Now, because council housing is seen as a last resort, it is considered inferior to housing provided by the market. A comparison can be made with the National Health Service and state education, both of which are used by the bulk of the population so that, in Marshall’s words, it is ‘the provided service, not the purchased service’ which is ‘the norm of social welfare’.61 As a result, the National Health Service and state schools gain a level of political support which ensures that the services they provide are of a higher quality than would be the case if they were used only by the poor.

Commentators who subscribe to the social democratic model,62 take the view that homelessness, overcrowding, disrepair and so on, stem from the fundamental inability of the market to produce enough satisfactory housing, especially for the poorer sections of society. They argue that ‘in all countries of advanced capitalism...state housing has been introduced after conditions in the private sector have reached the level of human degradation.’63 Because of the inequalities inherent in, and engendered by, market society, state intervention is regarded as necessary to ensure that there is ‘an adequate supply of suitable accommodation at a price which the poorest can afford’.64 The provision of a discrete segment of the housing

58 Ibid, 16. 59 Holmans, A, Housing Policy in Britain (London: Croom Helm, 1987), 5,6. 60 Ivatts, J, ‘Rented housing and market rents: a social policy critique’ (1988) 22 Social Policy and Administration, 197-209, 198. 61 Marshall, T H, Citizenship and Social Class and other Essays (Cambridge: University Press, 1950). 62 See Clapham, D, Kemp, P & Smith, S, Housing and Social Policy (Basingstoke: Macmillan, 1990), 28-31. 63 Karnavou, E, ‘Defending the council housing system or opposing the sales? [1981] Critical Social Policy 50- 53, 52. 64 See note 36 above, 4.

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base is thus regarded as a social service, the state deciding how much to supply and how it is allocated. Moreover, the choice offered by the market is illusory. On the one hand, as seen above, it may work ‘rather more satisfactorily for the better off’ but ‘tends to establish a close link between poverty and poor housing’.65 On the other, the operation of market forces upon a ‘commodity’ which combines basic human need and high capital value can lead to severe distortions. These are especially problematic for those without access to other capital sources sufficient to alleviate the high levels of gearing imposed by the financial markets.

Since 1945, there have been substantial areas of broad inter-party consensus. Between the 1950s and the early 1970s, both Conservative and Labour governments extended owner- occupation and council housing. In the early 1950s, the Conservatives even facilitated the construction of more council dwellings than owner-occupied houses, whilst under Labour in the mid-1960s and late 1970s more private sector houses were started than council properties. Until 1979, both parties agreed that council housing should be a ‘general needs’ tenure. For many years, the two main parties have regarded home ownership as the ‘normal’ housing tenure to which most people should aspire and only recently has attention been paid to regenerating the private rented sector, the current government being happy to continue with the regulatory regime put in place by the Conservatives.

Some routes to participation: ‘exit’ and ‘voice’

A number of legal academics have drawn upon the work of A O Hirschman,66 in an attempt to position, and provide an insight into, some of the reforms which have taken place in relation to social housing over the past twenty five years. Hirschman suggests that two options are available to purchasers of goods and members of organisations when the quality of the product (or service) starts to decline. The first is to exit, that is, to withdraw from the relationship with the current provider or organisation and to buy elsewhere. The second is to give voice, to complain from within. Exit therefore is an economic mechanism; voice, a political one. The two options can be used independently or in combination. In certain circumstances, the possibility of exit can lead to a strengthening of voice. By contrast, the absence of exit may lead to sluggish or autocratic management or rule.

Stewart points out that before the Housing Act 1980, tenants entered local authority housing and were then ‘expected to be silent’. She explains that ‘they were provided with no legal voice mechanisms, no rights to be consulted or to participate.’ Although a ‘very few’ authorities - usually in response to organised tenant action in the early 1970s - had developed systems for consultation, many others ‘were antipathetic or openly hostile’.67 For the first time, the 1980 Act gave public sector tenants ‘the same kind of protection from being evicted from their homes without good and sufficient cause as had been enjoyed by tenants in the private housing sector for many decades under the Rent Acts’.68 As well as conferring security of tenure, the Act introduced a number of rights (collectively known as the Tenants’ Charter), including the Right to Buy.69 It also provided an opportunity for tenants to use their voice by placing an obligation on local authority landlords ‘to maintain such arrangements as they consider appropriate to enable secure tenants who are likely to be substantially affected

65 ibid. 66 Hirschman, A O, Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations and States (Cambridge, Mass: Harvard University Press, 1970). 67 Stewart, A, Rethinking Housing Law (London: Sweet and Maxwell, 1996), 143. 68 Harrison v Hammersmith & Fulham London Borough Council (LBC) [1981] 1 WLR 650, 661 (Brandon LJ). 69 The rights are now contained in Part IV of the Housing Act 1985.

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by a matter of housing management to be informed of proposed changes and developments, and to make their views known to their landlord within a specified time’.70 Stewart states that, while the Right to Buy provided an effective exit route for tenants, the 1980 Act otherwise contained ‘very weak concepts of voice’. The courts did not help to strengthen that voice, holding that a decision taken ‘in principle’ to dispose of an estate to a private developer was not a matter of ‘housing management’ requiring consultation,71 nor was the identity of the prospective developer.72

Stewart was writing however before large-scale voluntary stock transfers took off. Of more practical - and vociferous - effect has been the right given to secure and introductory tenants whose landlord is intending to transfer its housing stock (usually to a registered social landlord) to be consulted prior to the disposal.73 Having served notice on the tenants, informing them of, inter alia, such details of the proposal as the authority considers appropriate, but including the identity of the purchaser, and the likely consequences of the disposal for the tenant (for example, changes in security of tenure and in rent), the authority must then consider the tenants’ representations. The Secretary of State cannot approve a transfer if it appears that a majority of the tenants concerned do not wish the disposal to proceed.74 Although it is not a legal requirement, central guidance states that a ‘properly conducted formal ballot, carried out under the auspices of an independent body, is an effective way in which an authority can demonstrate satisfactorily that a majority of tenants are not opposed to the transfer’.75 However, this means of giving a voice to tenants has sometimes led to unexpected and (from the viewpoint of both local and central government) problematic results. Thus, in April 2002 tenants of Birmingham City Council rejected what would have been England’s largest stock transfer, involving 80,000 homes.76

Although Cowan acknowledges that empowerment - ‘the growing ability by tenants to participate in, and have an effect upon, management decisions affecting them’ - was ‘one of the major benefits of the Thatcher/Major era’,77 he points out that the mechanisms provided by those governments mainly involved giving tenants individual rights which were intended to deny - and indeed dismantle - the ‘collective, monopolistic force’.78 A prime example of this was ‘Tenants’ Choice’, a scheme introduced by the Housing Act 1988 which enabled tenants to transfer their properties to new landlords such as established housing associations, tenants’ co-operatives, and commercial landlords. Although critics feared that it would lead

70 A matter is one of ‘housing management’ if, in the landlord’s opinion, (a) it relates to the management, maintenance, improvement, or demolition of municipal dwellings, or to the provision of services or amenities to such dwellings, and (b) it represents a new programme of maintenance, improvement or demolition, or some change in the landlord’s practice, and (c) it is likely substantially to affect either its secure tenants as a whole or a group of them. A group is defined as a group of secure tenants who form a distinct social group, or who occupy dwelling-houses which constitute a distinct class, whether by reference to the kind of dwelling, or the housing estate or larger area in which they are situated. 71 Short v Tower Hamlets LBC (1986) 18 HLR 171. 72 R v Hammersmith & Fulham LBC, ex p Beddowes [1987] 1 All ER 369. 73 Housing Act 1985, section 106A inserted by Housing and Planning Act 1986, section 6. The duty applies where the proposed transfer is to a landlord which does not fulfil the ‘landlord condition’ of section 80. These provisions replace the normal consultation requirements contained in section 105. 74 Housing Act 1985, Schedule 3A, para.5. 75 ODPM, Housing Transfer Manual 2003 Programme, para 11.24. 76 See The Independent, 6 April 2002, 10; Housing Today, 11 April 2002, 3. 77 Cowan, D, Housing Law and Policy (Basingstoke: Macmillan, 1999), 169. 78 Ibid.

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to the complete dismantling of council housing, only 921 homes (belonging to Westminster City Council) were transferred.79 The other legally sanctioned mechanisms intended to allow tenants to give voice (such as the Right to Manage provided by the Leasehold Reform, Housing and Urban Development Act 199380 ), may have provided further opportunities for tenant participation, and even an improvement in the quality of the housing experience for some tenants, but they have not resulted in a generally improved status of tenants in social housing. Goodchild suggests that further examples of voice rights can be found in grievance procedures (for example, the right to repair for local authority tenants),81 internal review procedures (such as those provided by the homelessness legislation),82 and consumer guarantees provided by more recent local initiatives in the form of estate contracts and estate compacts.83 Again, however, the efficacy of these rights is questionable where either they fail to allow for entry to housing or are not legally enforceable.

Given the characteristics of the private rented sector (including the lack of legal security which its tenants enjoy) and the spatial distribution of the housing within it, exit and voice rights for private tenants are more problematic. Research carried out by Carr and Sefton- Green found that the residents of the local authority estate which was the subject of their study had no desire to participate in its management. Instead, their primary objective was to move (or to transfer). There thus existed a ‘shifting, marginalised body of residents with no connection to the area’. 84 The formal articulation of voice is facilitated where there is at least an identifiable group with whom and between whom there exist (or can be forged) channels of communication. Tenants of local authority housing will live in relatively close proximity (for example, on estates) and will share the same landlord. There may not be the same mass provision for housing association tenants but they are still likely to live in housing clusters and, although the sizes of housing associations vary considerably, the average will have three or four thousand properties. Each of these tenures offers tenants the greatest chance of long- term security; the opportunity to put down roots and achieve a sense of community and belonging in the area. By contrast, there are several factors which combine to stifle the voice of tenants in the private rented sector: the small-scale character of private landlordism, the dispersed nature of its housing, the ‘insecurity’ which is provided by the legal framework within which it is regulated, and the benefit dependency of so many of its occupants. It is worth remembering that the voice rights of private tenants were probably most clearly heard at the outbreak of the First World War (at a time when the bulk of the population lived in privately rented housing which was often overcrowded and overpriced) and rent strikes by disaffected tenants led to the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915, the first of the Rent Acts.

79 See Guardian (Society), 10 April 2002. 80 This gives tenant groups the right to take on a range of housing management and maintenance responsibilities. There are now more than 200 tenant management organisations covering an estimated 84,000 homes. Although they cover less than 3% of the total council stock in England, recent research carried out for the ODPM found that they compared favourably with the top 25% of local authorities in England in terms of repairs, relets, rent collection and tenant satisfaction: Tenants Managing: An Evaluation of Tenant Management Organisations in England (ODPM, 2002). 81 Housing Act 1985, section 96. The scheme has been described as ‘a dead letter’ because of ‘tenants’ lack of confidence and competence when challenging their landlords’ (Madge, N, ‘Disrepair cases’ (1998) 148 NLJ 238. 82 Housing Act 1996, section 202. 83 See note 7 above, 82. 84 Carr, H & Sefton-Green, D, ‘Citizenship and local authority tenants’, Paper presented at the annual conference of the Socio-Legal Studies Association, Queens University, Belfast, 2000, cited in Cowan note 77 above.

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Wider perspectives of state engagement in housing provision

To summarise, the reconfiguring of housing tenure in England has occurred against a backdrop in which tenants have been transformed into ‘consumers of public commodities’.85 Yet, as Stewart points out, this attempt ‘to entrench market approaches to the landlord and tenant relationship’ has involved tenants ‘who have less and less relationship with the market system and who rely very heavily on state benefits to pay for the “commodity”’.86 While there are lessons to be learned here from the viewpoint of tenant participation, the ‘consumer’ approach - and its limitations particularly in rented housing - has implications for the ability (and willingness) to participate in a closely related area in our context: the planning process.

State involvement in housing provision occurs not only though the direct provision or encouragement of social housing, but also through the regulation of land allocation itself for the purposes of development. In order to respond effectively, therefore, to the problems that follow from high – and unmet - housing demand, solutions need to be explored in the land allocation and development process as well as the sphere of landholding and tenure. Controls over land allocation and development will have numerous impacts upon the level of housing provision, both direct and indirect. This is especially so under the planning regime in England, given that it retains the trappings of state allocative constraint whilst operating as a support player for provision that is fundamentally market driven. In this context, the housing shortage referred to earlier in the paper follows a considerable period of underinvestment. In the 1950s, 300,000 houses were being built per annum. At the current rate of production of an extra 134,000 households per annum, the Barker Report estimated that it would take 1200 years for the current housing stock to be replaced. Her solution is that there must be a significant increase in the housing supply.87

This aim has significant implications for the planning regime that controls the processes of land allocation, but also, as well as for the environment, for government, landowners and citizens generally. The paper continues by exploring the ‘commodity’ theme further by considering the market ethos of development in England and the consequences for the efficacy of the planning regime. Major issues which arise relate to the capacity of the system to achieve sustainable solutions and - pursuing the theme of ‘voice’ from earlier in the paper - questions surrounding entry into (rather than enforced ‘exit’ from) decision making processes. It is argued that it is essential to broaden the range of participatory decision making and to embrace outsiders within the procedural possibilities. In doing so it is intended to pursue as a main theme relationships between planning regulation, the operation of the market, and the meeting of housing needs across the community. As a preliminary, however, a short outline is offered of the development planning system in England, drawing out the close interstices between the regime and housing policies. This is followed by a discussion of environmental influences, especially in light of the modern sustainability agenda, and how housing fits within this.

85 See note 67 above, 174. 86 ibid. 87 See Barker Report, note 8 above, para. 1.44.

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The development of strategic approaches to planning

The involvement of the state in land allocation grew out of early attempts to determine directions of housing policy. Thus English ‘town and country planning’ for the most part came about in response to the consequences of nineteenth century industrialisation and urbanisation, focused in the fields of housing, sanitation and public health.88 Employer inspired model towns such as Saltire, Port Sunlight and Bourneville, were inaugurated in 1853, 1887 and 1878 respectively. At the turn of the 20th century, idealist movements emerged under the impetus of visionaries such as Ebenezer Howard,89 leading to the earliest Garden Cities, precursors to (around thirty) mid-century New Towns.90 Aside from the idealist movement, general planning emerged in the aftermath of the Great War, from the outset as an incident of housing reform, with some element of municipal housing provision, state subsidy and tighter standards.91 An indirect consequence of the introduction of housing standards and the painfully slow growth of more general spatial policy was that new estates were diverted onto the periphery of towns, onto what came to be known as the suburbs. The outward expansion of both public and private building was buttressed by improvements in energy supply and transportation. Thus the creation of the suburbs from the 1930s through 1950s produced a high degree of the sort of ‘mixed housing’ provision that visionary planners dare to dream about today. Paradoxically given the close connections between housing and constrained land allocation, planning law’s statutory bifurcation from housing (after the Town Planning Act 1925) now appears to have been partially misplaced. As planning law grew housing became just another competitor for the land resource.

Briefly to make the link between that era and the present, in response to the spread of unchecked development there were limited attempts through the 1930s to control development.92 Municipalities were empowered (ie permissively) to introduce planning schemes covering any land, including built-up areas and areas likely to be developed. Control however was fairly minimal, and a Government committee noted that at the outbreak of the Second World War zones had been classified that were sufficient to house around eight times the total population.93 By 1939 the picture was of a restricted planning regime manifestly incapable of addressing an era of rapid development. The war led to a significant establishment reordering of social priorities and a 1944 white paper presaged a sea change: ‘Provision for the right use of land, in accordance with a considered policy, is an essential requirement of the government’s programme of postwar reconstruction’.94

The underlying premise of the modern statutory regime finally introduced in the Town and Country Planning Act 1947 could be described as the nationalisation of private development rights, through the operation of development control. Mandatory planning duties were placed for the first time on municipalities, and in principle all land, excluding agricultural

88 Ashworth, W, The Genesis of Modern British Town Planning (London: Routledge and Kegan Paul, 1954), 181. 89 Howard, E, Garden Cities of Tomorrow (originally, A Peaceful Path to Reform, 1898) (London: S Sonnenschein, 1902); Geddes, P, Cities in Evolution (London: Williams and Norgate, 1915). 90 For instance, by 1919, Letchworth and Welwyn Garden City, in Hertfordshire to the north of the London conurbation. 91 Housing and Town Planning Act 1919; Acquisition of Land (Assessment of Compensation) Act 1919. 92 Town and Country Planning Act (TCPA) 1932; Restriction of Ribbon Development Act 1935. 93 Uthwatt Committee Report, Compensation and Betterment, Cmnd 6386 (London: HMSO, 1942); see Grant, M, Urban Planning Law (London: Sweet and Maxwell, 1982), 21. 94 See Cullingworth, J B, and Nadin, V, Town and Country Planning in the UK, 12th ed. (London: Routledge, 1997), 8.

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development, was brought under regulatory control requiring prior planning permission.95 Development planning was henceforth based on the universal preparation of development plans. The system is plan-led, and development plans remain today of pivotal importance in the scheme of development control. It is explicitly provided that where, ‘in making any determination under the planning Acts, regard is to be had to the development plan, determination shall be made in accordance with the development plan, unless material considerations indicate otherwise’.96 This amounts to a rebuttable presumption in favour of development that corresponds with the plan, and development plans are therefore a powerful indicator as to what a planning authority will find acceptable upon an application for permission to develop.

Whilst there remains no national development plan, central government influence is extremely powerful. Policy guidance, mainly through Planning Policy Guidance Notes (PPGs) has set out central government policy and provided the framework for planning decisions. Under policy guidance, the scope of development plans is restricted to land use issues, expressed to include housing, green belts, conservation, the economy, transport, minerals issues, waste treatment and disposal, land reclamation, tourism, leisure and recreation, energy generation.97 Their production has up to now been the responsibility of local (county and district) planning authorities.98 Local plans must accord with the broader policies of the relevant structure plan, but will prevail as to detail.99 They specifically relate to land use in the sense that they identify sites as being suitable for particular purposes. Policies and land allocations are contained in a detailed written statement, supported for identification purposes by a proposals map. The system remains in many of its essential features similar today, although – in light of the domestic ‘sustainability’ agenda (rhetorically multi-faceted, and including such ideas as sustainable development and now sustainable communities) recently passed legislation will place a higher priority upon planning at regional level.100 Under the 2004 legislation, strategic planning will be the responsibility of Regional Planning Bodies (RPBs), which must prepare Regional Spatial Strategies (RSS), to be elaborated upon by local planning authorities under a series of compliant Local Planning Framework Documents.101

Strategically, planning at a regional level in England is a new phenomenon, and reflects perceived residual pressures following devolution to Scotland and Wales as well as emerging sustainability themes. The forerunners to RPBs were eight Regional Development Agencies created as recently as 1998,102 which were explicitly required to address regeneration issues when producing Regional Strategies by the end of 1999.103 The increasing importance of regional planning in strategic thinking was emphasised in the report of the Urban Task Force, set up to advise especially upon issues of urban regeneration.104 As will be seen below, in

95 TCPA 1947, section 57(1). 96 TCPA 1990, section 54A. 97 DETR, PPG 12, Development Plans, 1999. 98 The system after 1968 had been founded on a dual plan scheme: strategic, county level ‘Structure Plans’ and more detailed, district level ‘Local Plans’ (or Unitary Development Plans). 99 TCPA 1990, sections 46, 48. 100 The Planning and Compulsory Purchase Act (PCPA) received Royal Assent on 13 May 2004. 101 PCPA 2004, Part I; there is also a Consultation Paper on the first of the PPG replacements: Planning Policy Statement (PPS) 1: Creating a Sustainable Community (London: ODPM, 2004). 102 Regional Development Agencies Act 1998. 103 For instance, Regional Planning Guidance (RPG) 6, East of England, 2000 (see www.eeda.org.uk). 104 Rogers R, Urban Task Force Report, Towards an Urban Renaissance (London: HMSO, 1999), recommendations 42-48.

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environmental terms its importance lies in extending beyond the locality (although foundations are at an early stage, especially in institutional and accountability terms), offering opportunities in principle for wider co-ordination and co-operation. The broad remit of the regional approach is to consider strategic questions, with the objective of securing an integrated spatial framework for planning, economic development, housing and transport policies, and steering development towards more effective uses of land that are accessible by sustainable forms of transport.105 There are potential strategic benefits in development planning being carried out at a regional level, although it will be argued below that the reform has all the hallmarks of a ‘top down’ planning which will provide constrained opportunities for community involvement at that level.

Housing offers a key illustration of strategic impact, as government targets are to be transformed by RSS into an overall level of provision for each region. It should be noted however that ‘guidance’ is something of a misnomer in English planning law. For instance, the determination of housing sufficiency must take account of ‘government household projections, the needs of the regional economy, the capacity of urban areas to accommodate more housing, the environmental implications, and the capacity of the existing or planned infrastructure’.106 Planning authorities, moreover, in preparing their plans, are required to ‘have regard to this guidance and should avoid, wherever possible, re-opening consideration of the level of housing provision for their areas’.107

Planning and sustainability

Reference has already been made to today’s pervasive sustainability agenda. Given that land is a finite resource and that sustainability purports to have a high profile within the modern planning regime the boundaries between planning and environmental protection frequently elide. Indeed England is the third most densely populated country in the world: its built upon area represented 10.6 per cent in 1991 and this is expected to rise to at least 11.9 per cent by 2016. Recognition today of the environmental implications of land use decisions (regionally, nationally and globally) has the potential to bring about a change in planning priorities. This is more than political fashion, and reflects the notion that planning ‘is implicitly environmental in the sense that its raison d’etre is to regulate our immediate surroundings, allowing for a rational allocation of land uses among competing demands. It can also influence “hard” issues like air quality, water pollution and the siting of hazardous installations which attract a narrower sense of the term’.108 At its most idealistic, the planning process should be a proactive policy tool, with a variety of ideological and conservational roles, and it can claim an inclusiveness that is not apparent in other areas of policy, as a means of expression of policy integration. And yet in reality a culture persists wherein planning must work absent a broader integrative emphasis, rather reflecting an insistence on the sanctity of market forces and a central policy dominance that is orientated towards growth. And yet it falls endemically to planners to shoulder responsibility for deficiencies in securing appropriate housing and transport infrastructures and in responding to urban and rural deprivation.

105 DETR, PPG 11, Regional Planning, 2000. 106 Ibid., para. 5. 107 DETR, PPG3, Housing, 2000, para. 7. 108 Miller, C, Environmental Rights: Critical Perspectives (London: Routledge, 1998), 47.

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Land use planning cannot be isolated from a vast range of public policy questions. Increasingly, notions of sustainability are being assimilated into more integrated planning perspectives.109 The first of a new breed of guidance is entitled ‘Creating Sustainable Communities’ and commences from the first by asserting that sustainable development lies at the core of planning.110 Indeed the promotion of sustainable development is mandated by the European Community’s Strategic Environmental Assessment Directive.111 An optimistic conceptualising of planning’s remit can be seen in its description as extending to ‘the redistribution of resources to disadvantaged inner city groups; the longevity of the built stock; the conservation of wildlife; or the encouragement of urban development. A composite goal – such as sustainable development – may guide the planning process. The common strand is the focus on the use of the built and natural environment, and on strategies which can alter that use’.112 At its most proactive, such redistributional impacts can be directed at countering negative externalities of economic activity and encouraging positive externalities through the diversion of resources into preferred land uses and facilities.113 Though modern rhetoric has it that planning is an enabler at a crucial interface of market activity and public regulatory control, its central premise is to address resulting imbalances affecting natural and built environments as well as issues of resource utilisation. There is no space here to offer a lengthy discussion of sustainable development. It should be noted however that the territory is seriously contested, and that broadly two main groupings are discernible, with roots respectively in ecological and liberal economic theory. The discourse is concerned with perceptions of growth: the risks respectively posed by economic stagnation and environmental degradation. A ‘deep’ ecology approach places emphasis upon the broader context of the ecological foundations underlying the idea of sustainability and questions the compatibility with economic growth.114 This informs the sceptical views as to both experts and technological solutions at work in Beck’s idea of a risk society. In contrast, a ‘shallow’ ecological approach informs a more mainstream environmentalism or ecological modernism.115 This can be described as marking a managerial approach which lacks a vision of ‘fundamental changes in present values or patterns of production or consumption’, whereas the former requires ‘radical changes in our relationship with the non-human natural world, and in our mode of social and political life’.116

Lawyers’ contributions to this debate are admittedly problematic. Not only is our preferred discourse in terms of rights and remedies, an awkward fit into the sustainability debate, but also even in a regulatory world the basic assumptions of the common law have altered hardly at all. The onset of legal regulation has not succeeded in challenging fundamentally the dominant perceptions underlying liberal, market notions of property rights. That is not to say that private property notions are not constrained by law, as under environmental protection and planning controls. Yet the dominance of private property ideology has been retained at the core of our scheme of values as translated through law and regulation. Instead, as McAuslan has argued, those who make policy and administer regulatory arrangements have

109 PCPA 2004, section 39 places a general duty upon regional and local planning authorities to exercise functions ‘with the objective of contributing to the achievement of sustainable development’ 110 PPS 1: see note 101 above. 111 Directive 2001/42/EC on the Assessment of the Effects of Certain Plans and Programmes on the Environment, OJ L197/30 (21 July 2001): a formal strategic assessment regime, to apply to plans and their modifications prepared after 21 July 2004 (and subsequently to any unadopted by 21 July 2006). 112 Rydin, Y, Urban and Environmental Planning in the UK (Basingstoke: Macmillan, 1998), 1-2. 113 Ibid., 352-4. 114 Leopold, A, A Sand County Almanac, 1949 (New York: OUP, 1966 ed.), 194. 115 Naess, A, ‘The shallow and the deep, long-range ecology movement: a summary’, 16 Inquiry 95 (1973). 116 Dobson, A, Green Political Thought, 3rd ed. (London: Routledge, 2000), 2.

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pursued a highly centrist public interest ideology that tends to the status quo. This serves to bolster ‘the existing state of property relations in society, the existing capitalist system with its emphasis on private property and a functioning market for that property’.117 The technocratic consequences have placed obstacles in the way of any more radical, participative approaches. The common law, described as ‘a partisan participator in the struggle for control over power and resources and not a neutral referee policing the struggle’, 118 has likewise accommodated this ethos. The public interest is filtered by centrist administrative priorities, and questions of land use which are central to the notion of sustainability are characterised by that process. The UK Government’s sustainability agenda has four sets out four objectives: ‘social progress which recognises the needs of everyone’; ‘effective protection of the environment’; ‘prudent use of natural resources’; and ‘maintenance of high and stable levels of economic growth and employment’.119 Though not discussed in this paper, it is strongly arguable that the win-win approach underlying government strategies tends to support entrenched, growth-related priorities. Indeed, the implementation of more radical sustainability approaches also demands a sea change in the social and economic aspirations of individuals (including those the common law strives hardest to protect), premising ‘massive economic reform, tantamount to a virtual revolution in prevailing attitudes and lifestyles’.120

An environmental and social justice perspective of housing

The above has implications for the value of recourse to processes of participation, and is further considered later in the paper. But at this stage, following on from the redistribution questions referred to above, it is necessary to emphasise the existence of a vital nexus between land use and notions of ‘environmental justice’. In planning terms, concerns for environmental justice have focused upon the costs and benefits of development in terms of inequalities, as in ‘the impact of adverse developments on poorer communities’.121 This is paradigmatically discussed in the context of say the siting of toxic landfills or industrial installations. But environmental justice must address more than siting and proximity issues concerning polluting processes. Thus it has been described as being ‘at its most basic level, about land. It is about public and private land ownership, land use, access to land, and land management and policy, including the substantive and enforcement decisions affecting land and environmental media’.122 Thus, in so far as arguments underlying the environmental justice movement are rooted in the addressing of inequalities, then any consideration of fair distribution of benefits and burdens must take account of the most fundamental of calls upon land use: housing.

This analogy with environmental justice lends emphasis to description of consequence in terms of insider-outsider dislocation, referred to elsewhere in the discussion of voice. A central argument put forward by those concerned for environmental justice is that

117 McAuslan, P, The Ideologies of Planning Law (Oxford: Pergamon Press, 1980), 268. 118 Ibid., 270. 119 UK Government, A Better Quality of Life: a Strategy for Sustainable Development for the UK, note 4 above; now also, Department for Environment Food and Rural Affairs (DEFRA), Achieving a Better quality of Life: review of Progress Towards Sustainable Development (February 2004), chapter 2. 120 Baird Callicott, J, ‘Animal liberation: a triangular affair’, in Sober, E, Environmental Ethics (Oxford: OUP, 1995), 58. 121 Macnaghten, P & Pinfield, G, ‘Planning for sustainable development: prospects for social change’, in Allmendinger & Chapman, note 5 above, 22. 122 Swanston, S F, ‘Environmental justice and environmental quality benefits: the oldest, most pernicious struggle and hope for urban communities’, 23 Vermont Law Review 546 (1999), 546.

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environmental regulation redistributes risks disproportionately against lower income communities.123 The effect can also be approached in terms of externalities. A century ago, welfare economists first drew attention to the impact of pricing upon social systems.124 Thus environmental policies have been described as leading to ‘arbitrary socially determined distribution patterns’, which are ultimately paid for by the poor.125 In our planning context - in effect the regulated restriction on land supply and the consequent effect upon housing prices - distributional inequality is at its most stark. Planning controls result in a form of blight affecting property through constrained development opportunity, felt most insidiously in the covert impact felt by outsiders unable to access the system at all.126

Housing, the market, and the role of planning

Planning in this field is confronted inescapably by underlying influences in the pattern of land use, especially ‘housing-led urban dispersal and high levels of owner occupation’.127 The housing market has undergone a considerable boom over much of the past 20 years, with prices rising on average by 2.4 per cent per annum (as compared, as seen in the introduction, with European rates of increase of 1.1 per cent per annum). In the past 5 years, freehold housing prices have approximately doubled. So important is the housing market, and the ease in which those investing in property can commodify such real property holdings (through such means as unconstrained equity release and speculative phenomena such as buy-to-let), that it dominates the macro-economy.128 It largely accounts for the relative buoyancy of the economy in the difficult international market conditions that have prevailed over this recent period, by propping up levels of consumer activity. One consequence is that interest rate increases are dictated by continuing boom conditions in the housing market. Though politicians (and lenders) like to claim that they are at historic lows (currently at a 4.5% base rate) inflation recently stood - before the jolt caused by oil prices - at just 1.8%. As will be seen below there is a widely shared view that price rises are for the most part a consequence of increasing demand not being met by supply side responses on account of restrictive planning policies and decisions. Barker concluded that housing supply has been ‘almost totally unresponsive’ to price increases.129

The constraining influences explored above upon land allocations under the planning system therefore operate overwhelmingly in the context of market provision. That provision has its obvious advantages but inevitably there are imbalances caused by the conjunction of profit motive and regulatory constraint. Moreover, developers have an interest in high land values, and scarcity produces windfall profits. Planning policies and decisions generate important movements in land values, and in value differentials between different landholdings. Significant movements in value can derive from the mere holding of land, as opposed to its development. Indeed, in the right conditions non-release of land otherwise earmarked for development can have the effect of pushing values further upwards. Development value has

123 Lazarus, R J, ‘Fairness in environmental law’, 27 Environmental Law 705 (1997), 715, describing environmental law as ‘driven by distributional issues’. 124 For a modern critique of the inappropriateness in terms of efficiency of a bargaining process in the context of environmental harm, see Ogus, A I & Richardson, G M, ‘Economics and the environment: a study of private nuisance’ (1977) 36 CLJ 284, 314-7. 125 Henderson, H, ‘Redefining economic growth’, in Noel Smith, J (ed.) Environmental Quality and Social Justice in Urban America (Washington DC: Conservation Foundation, 1974), 136. 126 At least, absent measures to redress or bypass such consequences. 127 Jones & Watkins, note 5 above, 101. 128 Seager, A, ‘House crash would derail economy, warns IMF’, Guardian, 22 April 2004. 129 See note 8 above, para. 1.8.

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been described as ‘neither deserved nor earned’ and hence ‘largely inequitable’.130 The Uthwatt Committee concluded in 1942 that the value of development rights should be vested in the state (and indeed that increases in site value should be taxed annually), as representing value added by public investment or the application of public regulation.131 In some respects the 1947 Act went further, a radical component of development control being the compulsory purchase of all development rights, under which owners would only retain existing use rights and values. All market transfers were to take effect also at existing use value. The measure was doomed from the start, as the Conservative opposition pledged repeal, the expectation of which could therefore be ‘planned’ for by landowners and developers. As a result, with abolition in 1953, the 1947 legislation lost one of its essential foundations, and emasculated the planning role.132

Financial benefits derived from development value therefore remain a private matter, which is where most of the land resource resides. It has been said that this loss of a nationalised development value was ‘more than a matter of land taxation or even equity. The so-called “financial provisions” of the 1947 Act underpinned the whole system, and made positive planning a real possibility’.133 The resulting domination of the development regime by market forces, has three particular consequences. First, the very existence of planning constraint creates the conditions for windfall profit. It results in ‘a planned scarcity of development land … local plans become speculators’ guides and the increase in values becomes, in effect, a highly regressive form of indirect taxation on homeowners and others who eventually use the land after it has been developed.134 Secondly, the system is hindered in fulfilling a role as land allocator in anticipating and responding to identified need, save in exceptional circumstances where public regeneration vehicles are created for specific purposes. Thirdly, planners are enmeshed in a negotiative process that parallels compliance approaches in other regulatory fields. The implications for the utility of planning have been significant. Whilst development planning is in principle anticipatory, development control as a process tends to be reactive to (largely, private sector) development proposals. A major incident of this negotiative relationship has been the (broadly, willing) entry by larger developers into ‘planning agreements’ delivering further local benefit.135 Ironically, this idea of planning gain has gone some way to alleviating the lack of a public stake in development land values. However, the overall consequences of the above, according to Grant, have been ‘to reduce the role of planning into a largely regulatory function and to reassert private sector initiative as the primary means for plan implementation’.136

Thus the meeting of housing needs is largely beholden to the market. At one level, this makes for a close relationship between developer and development control, which process, for all the support of strategic and local planning, operates as a largely reactive support system. The relationships between planning and the market are complex. Aside from social sector failures, planning constraints can be significant factors in burgeoning housing deficiencies. In carrying

130 Grant, note 93 above, 18. 131 Uthwatt Committee Report, note 93 above, para. 260. 132 Later efforts, such as a Development Land Tax ameliorated by a community land scheme under the Community Land Act 1975, foundered for similar reasons (lack of political consensus and under-funding); repeal was an early priority of the 1979 incoming Thatcher administration: see Local Government Planning and Land Act 1980. 133 Cullingworth & Nadin, note 94 above, 10. 134 Newby, H, Green and Pleasant Land? Social Change in Rural England (London: Hutchinson, 1979), 232-3. 135 Under TCPA 1990, section 106; to be repealed by PCPA 2004, section 46. 136 Grant, note 93 above, 33.

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out its role, modifying the market to general policy outcomes, the planning system affects the quantity of land available. Opportunities for benefiting from increased development values provide incentives to alter behaviour. It can be argued that planners can use price to influence allocations of land and types of development.137 Illustrations of this can perhaps be seen in the phenomena of planning gain and affordable housing provision. But a restrictive approach to releasing land for development has not only reduced development opportunity but has also contributed to rising property prices.138

Against this background of scarcity and need, the most obvious concern for planning must be the imperative of securing sufficient, efficient and habitable settlements. Inevitably, justifications for planning constraints fall under the greatest scrutiny in areas of highest demand and greatest pressure on the land resource. The inexorable rise in development pressures on the South East of England is an endemic problem, and continues a process which commenced well before the Second World War. Employment demand there is expected to increase by as much as 6% in the decade to 2006.139 Likewise, planning restrictions aimed at urban containment have contributed to rural pressures, where affordable housing opportunities are exacerbated by inward population movements. Moreover, displacement consequences, referred to below, impact here: as property owners in the south east, sitting on high capital values, enter the market in other regions. This has the effect of pricing local inhabitants further out of the market. Government policy explicitly links increased need for housing provision to economic growth: ‘Economic growth should not be frustrated by a lack of homes for those wishing to take up new employment opportunities: but to promote sustainable development, the need for economic growth has to be reconciled with social and environmental considerations, particularly those of conserving and enhancing the quality of our environment in both town and country’.140

Other pressures result, as for instance the need for a fundamental rethink of commitments to the ‘Green Belt’. The policy of Green Belts dates from the 1950s, as a response to the problem of urban sprawl. The essential rationale lies in the objective of checking urban encroachment by development into open countryside, by designating buffer zones. Policy guidance links this further to seeking ‘more sustainable patterns of urban development’.141 They are established through development plans, and cover around 12 per cent of England.142 Development is heavily constrained, notably through a general presumption against inappropriate development: ‘development should not be approved, except in very special circumstances’.143 A restrictive approach to fulfilment of this test is pursued by inspectors and the Secretary of State, as well as by planning authorities.144 Housing provision is largely subject to the same strictures, with only limited exceptions: ‘very limited development of affordable housing within or adjoining existing villages or other small settlements may be acceptable and consistent with the function of the Green Belt’.145 Thus low cost housing

137 Monk, S, Whitehead, C, Jarvis, H & Russell, W, ‘The use of residential land and house prices as a planning tool’, 1999, RICS Cambridge conference, The Cutting Edge, 14. 138 Bramley, G & Watkins, C, Steering the Market: New Housebuilding and the Changing Planning System, 1996, Bristol: Policy Press. 139 DoE, Household Growth: Where Shall We Live?, note 14 above. 140 DETR, PPG 3, Housing, 2000, para. 3. 141 DoE, PPG 2, Green Belts, 1995, para. 1.4. 142 Ibid., para. 1.3. 143 Ibid., para. 3.1. 144 Elson, M J & Ford, A, ‘Green belts and very special circumstances’ [1994] Journal of Planning and Environmental Law 594. 145 DETR, PPG 3, Housing, 2000, Annex B, para. 5; also, Annex 3.

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development, which would not normally be considered for development under such policies, may be permitted, having regard to all material considerations, including Green Belt objectives and evidence of local need.

Two persistent criticisms are made of Green Belts. First, it is asserted that designation has created intensive pressure upon urban areas. This has resulted in deterioration and artificial windfalls through urban land price inflation.146 Secondly, designation is ineffective in containing development pressures, but encourages displaced urban sprawl, and places countryside elsewhere under more intense development pressures. This is an illustration of a problematic displacement phenomenon. The comparison of planning with the squeezing of a balloon has been coined for this process: ‘effective at changing the shape at the point squeezed, but only by causing bulges elsewhere, and with little effect on the overall size of the balloon’.147 The effect is exacerbated by the local nature of planning control.

A Green Belt principle appears compatible with ideas commonly associated with the general notion of sustainability. The guidance sets out an explicit sustainability objective as follows: ‘When drawing Green Belt boundaries in development plans, local planning authorities should take account of the need to promote sustainable patterns of development. They should consider the consequences for sustainable development (for example in terms of the effects on car travel) of channelling development towards urban areas inside the inner Green Belt boundary, towards towns and villages inset within the Green Belt, or towards locations beyond the outer Green Belt boundary’.148 However, there may also be conflict with sustainable development objectives, which it has been pointed out requires ‘the reversal of many trends – that is, making the balloon smaller overall and not just a different shape. We still want to protect the most outstanding sites – but without development then eroding the qualities of the less ‘special’ areas; we want less traffic and energy use overall, not just a smaller increase or in different places; we want our countryside protected, but without our towns crammed, or people prevented from living in the households of their choice. In all these areas, planning is caught between rising expectations (both consumerist and policy) and diminishing room to manoeuvre’.149 This is a graphic illustration of the finite nature of the land resource for which we have so many demands. Its diversion to new development activities requires a high degree of strategic planning not hitherto provided.

An example in resource terms is the encouragement of increased use of brownfield sites. This should in principle reduce development pressure on non-urban areas, but it is necessary to arm planners with powers that accord priority and means of delivery.150 Central government has made it clear that priority must be given to brownfield sites at the development control stage, and that major greenfield developments are not to be given planning permission without the Secretary of State first being given an opportunity to consider whether housing policy guidance has been complied with.151 Maximising the re-use of previously developed land extends to empty properties and the conversion of non-residential buildings for

146 Elson, M J, Walker, S & Macdonald, R, The Effectiveness of Green Belts (London: HMSO, 1993). 147 Land Use Consultants, The Use of the Land Use Planning System to Achieve non-Land Use Planning Objectives (Background Paper for the Royal Commission on Environmental Pollution, 1999), para. 5.21 148 DoE, PPG 2, Green Belts, 1995, para. 2.10. 149 Land Use Consultants, note 147 above. 150 See DETR, Planning to Deliver - the Managed Release of Housing Sites: Towards Better Practice (2000). Note however that land release is endemically problematic for a reactive planning regime. 151 DETR, Greenfield Housing Direction, October 2000.

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housing.152 For the purposes of identifying specific sites for allocation in plans, authorities are required to operate sequentially.153 This involves starting with the re-use of previously- developed land and buildings within urban areas identified by (mandatory) the urban housing capacity studies, then urban extensions, and finally new development around nodes in good public transport corridors.154 A presumption of resort first to re-use is however subject to a variety of logistical hurdles. These include environmental constraints such as contamination risks and remediation costs, and physical problems of infrastructure such as access, instability or flood risk. Human obstacles also impact, as it may be difficult to put together viable parcels of land due to patterns of title, just as potential consumers may find siting in places of decline unappealing. Such factors can lead developers to ‘cherry pick’ by pressing for permission to build on not previously developed (greenfield) sites.155 Thos investing in development show a pronounced preference for largescale residential development on single sites, and these are likely to be on land not previously developed.156

In an effort to encourage the reuse of brownfield sites, a National Land Use Database has been compiled.157 Its objective is to give an indication of land availability, and offer support for regeneration strategies.158 There are in excess of 65,000 hectares of brownfield land (either vacant or derelict or otherwise available for development) and it appears that approximately one third of such sites are currently categorised as suitable for housing (perhaps offering space for 1million homes at densities of 50 units per hectare). Yet, as seen above, urban sites are generally unattractive to developers, given considerable logistical problems, as well as the nature of consumer demand. The Urban Task Force radically proposed statutory duties on public bodies and utilities with significant urban landholdings to release redundant land and buildings to Regional Development Agencies and local authorities in order to secure locally determined regeneration objectives. For the rest, vacant land would be taxed, in order to deter owners seeking to hold onto land unnecessarily.159 However, the Government has been unwilling so to mandate private sector release, just as there have only been limited attempts (not discussed here) to use tax regimes to encourage brownfield, and discourage greenfield, development.160 The government has a policy of achieving 60 per cent of housing from brownfield sites by 2008.161 Yet whilst between 1997 and 2002 greenfield development has reduced (70,000 to 50,000 dwellings per annum), brownfield housing development has remained static at 80,000 dwellings.162 There are similarly concerns at ‘an emerging shortage of readily developable previously developed land … (and) a persistent backlog of “hardcore” sites … with little prospect of re-use and which blights its surrounding

152 DETR, PPG3, Housing, 2000, paras. 21-2. 153 Ibid., para. 2.1. 154 Ibid., paras. 30-2. 155 See Biebach, K, ‘Housing development on brownfield sites’ (2002) 4 Environmental Law Review 225, 226-7. 156 Cockram, A, ‘Pru helps turn on the housing tap’ Estates Gazette, 8 May 2004. 157 See www.nlud.org.uk/. 158 For instance, through Pilot Urban Regeneration Companies, along public-private sector partnership lines, and joint venture Local Strategic Partnerships, investing in selected areas where the private sector might be unwilling to tread: DETR, Our Towns and Cities: the Future - Delivering and Urban Renaissance, note 15 above, 62-63. 159 Rogers, note 104 above, Recommendations 61-64. 160 Biebach, note 155 above, 236-8 offers a brief review of the possibilities. Note that the Barker Report, note 8, chapter 4, reviews the options and produces a radical proposal for the levying of developer charges at the time of permission based upon local land values. 161 DETR, PPG3, Housing, para. 4.17. 162 English Partnerships (regeneration agency) research cited in a Report produced for DEFRA by Entec UK Ltd et al., Study into the Environmental Impacts of Increasing the Supply of Housing in the UK (April 2004), para. 2.4.2.

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areas and communities’.163 This suggests a need for the development of more focused public regeneration strategies. Barker has concluded not only that the rate of brownfield development is failing to increase sufficiently to meet need but that the sequential policy results in increasingly restrictive planning approaches to non applications concerning previously developed land.164

High urban population densities appear crucial to the process of efficient land recycling. New approaches will increasingly lay emphasis upon the efficiency with which land is developed, including improved building design and the need for high densities. Whilst older suburban densities were at around 35-40 dwellings per hectare, this has fallen commonly to more profitable (given market demand) densities of 25.165 Guidance seeks to encourage housing development at between 30 and 50 dwellings per hectare, and still greater densities around places with good public transport accessibility.166 Hall, citing many of the more attractive city suburbs in inner London, argues that it should be possible to provide for densities of 100 per hectare.167 Whilst no presumption applies against excessively low densities for urban development, the fact of development plan provision for affordable housing should encourage higher densities.168 Nevertheless this does not ensure that developments securing satisfactory levels of affordable housing take place. Not only are smaller sites necessarily excluded, but notwithstanding the power to refuse permission in the event of unacceptable provision guidance makes it clear that the process is a matter of negotiation, demanding flexibility.169

Given levels of likely housing need, even looking to increased efficiency of land use and urban capacity, considerable development will need to extend beyond urban areas. In considering urban extension, village expansion or new settlement, guidance requires that planning authorities ‘utilise the most sustainable option’.170 Villages are in principle better protected from extension than urban areas. These are required to be by way of infill or otherwise subject to extremely limited criteria.171 Ward warns that increasing urban density levels may carry the risk of repeating past failures.172 Perhaps foremost amongst these have been post-war high rise housing policies that have recently been reversed.173 Thus in the decades following 1945, design-led urban regeneration destroyed inner cities causing caused ‘enormous disruption, physical and social’.174

The British may not have taken to high density developments as well as European societies, but unless land release levels, together with design methods and infrastructure improvements, can address this then there may be few realistic alternatives to building large scale developments along the lines of new towns, clustered in sub-regions around existing urban

163 Ibid., para. 2.4.3. 164 Barker Report, note 8 above, para. 2.56. 165 DETR, Our Towns and Cities: the Future - Delivering and Urban Renaissance, note 15 above, para. 4.15. 166 DETR, PPG3, Housing, 2000, paras. 11, 25, 58. 167 Hall, P, ‘Sustainable cities and town cramming’, in Layard, A, Davoudi, S & Batty, S, Planning for a Sustainable Future (London: Spon Press, 2001), 113. 168 Rogers, note 104, Recommendation 3. 169 DETR, PPG3, Housing, 2000, paras. 14-17; also, ODPM, Consultation Paper, Influencing the Size, Type and Affordability of Housing (2003), paras. 5-14. 170 Ibid., para. 65. 171 Ibid., para. 69. 172 Ward, C, ‘High density life’, 2000, Prospect (July), 38. 173 See O’Hagan, A, Our Fathers (London: Faber and Faber, 1999), for a fictionalised account of the pressures and consequences. 174 Ward, note 172 above, 40.

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centres. Indeed in all but name Ward’s preferred solution is currently emerging as the most pragmatic option for a government clearly anxious at the growing housebuilding crisis. Ward had recommended that new households should go into new and expanded settlements along viable public transport corridors in the places where people want to live (or have to live, for their jobs).175 This is now to happen, with the concentration upon the South East, in towns such as Milton Keynes and Ashford, or towards Cambridge/Peterborough (along the M11 corridor) as well as the regeneration of ‘the Thames gateway’ extending east of London to the coast.176 Many of these new growth zones cluster around postwar New Towns like Corby, Harlow and Basildon, as well as Milton Keynes.

Whilst the statutory new towns corporations appear unlikely to return, such major new or extended settlements are the preferred response to the shortfall in previous targets. General guidance remains as follows: ‘the cost of developing a new community from scratch, including the full range of new services and infrastructure, means that they will only infrequently be a viable option due to their scale and the time required to develop them. New settlements will not be acceptable if they will simply function as a dormitory of an existing larger settlement’.177 Thus the next favoured alternative after urban development is to seek urban extensions. These are stated to be ‘likely to prove the next most sustainable option especially where it is possible to utilise existing physical and social infrastructure, there is good access to public transport (or where new public transport provision can be planned into the development), and there is good access to jobs, schools, shopping and leisure facilities’.178 However successful RSS proves to be, it remains hard to believe that new settlement policies could come otherwise than from the centre, given the implications for location of jobs, and the pressures on transport and other public services. Local government in areas of particular stress such as Hertfordshire is sceptical of the insistence upon matching development to growth in the south east.179

This must result in depletion of the Green Belt. Indeed, Breheny and Hall argue the need for new settlements must involve what they term an outward extension of Green Belts.180 Barke favours what she terms redesignation of the Green Belt, citing attempts in Cambridge to justify urban extensions in this way.181 Politically, this is extremely contentious, and central government remains formally ambivalent. It appears to recognise the problem of the leap- frog effect discussed above, but to accept that a review of Green Belt boundaries may be ‘the most sustainable of the available options. An extension of an urban area into the Green Belt may, for example, be preferable to new development taking place on a greenfield in a less sustainable location. Nonetheless, the Government regards this as an exceptional policy that should not compromise the objectives for which Green Belts were designated’.182 Meanwhile, known ‘land banking’ of 1800 hectares around Milton Keynes for example is held as to 90 per cent by four developers. There are even instances of highly speculative land banking in

175 Ibid., 41. 176 ODPM, Sustainable Communities: Building for the Future (2003). 177 DETR, PPG3, Housing, 2000, paras. 72-3. 178 Ibid., para. 67. 179 Brown, P, ‘500,000 new houses for M11 region’, Guardian, 6 February 2004 180 Breheny, M & Hall, P, ‘National questions, regional answers’, in Breheny and Hall, The People – Where Will They Go? 1996, London: Town and Country Planning Association 181 Barker Report, note 8 above, para. 2.42. 182 DETR, PPG3, Housing, 2000, para. 68.

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seemingly fixed areas of green Belt.183 If there is to be a serious general review of the Green Belt strategy around the London area then the question of development value taxation will have to be addressed.

With these alternatives in view, the likely conflict and slow, incremental pace of incursion into the Green Belt (as well as steep costs) suggest that a fundamental review of procedures facilitating either such urban extensions or new urban settlements (assuming appropriate locations can be found) is now essential to meet the scale of the problem. Environmentalists across disciplines broadly agree that sustainable development requires that ingrained political obstacles, both institutional and within ourselves, be challenged and overcome. Participatory solutions are most in vogue amongst public lawyers. Yet community participation in land use decisions can be largely driven by NIMBY resistance on the part of entrenched interests. Babcock & Feurer warn against ‘the caprice and parochial interests of multitudes of local governments, each defining the public welfare in its own image, or in the image of a clutch of neighboring property owners’.184 The implications of such a review are now considered.

Sustainable planning, housing and participatory structures

It is an underlying premise of what follows that making the difficult strategic decisions necessary for addressing the housing crisis must involve communities buying into sustainable solutions. As citizens we both compete and co-operate in civil society through processes overseen by the state. Sagoff offers a coherent description of liberalism by reference to the contention that ‘political and social institutions should be structured to allow free and equal individuals the widest opportunities, consistent with the like opportunity of others, to plan their own lives, and to live the lives they plan’.185 The linkage between liberalism and the economic order are dominant features of our culture, and liberal democracy rests upon not only the relationship of welfare and liberty, but also the commitment to economic growth and the idea of the minimal state.186 Democratic notions have been likewise conditioned. In consequence, they are in the main a ‘social consequence of our corporate and consumerist culture,’ in which a liberal individualism remains the dominant feature, with ‘possessive and individualist assumptions appropriate to an age of rising market society’.187 Critiques of this view of the liberal order are based primarily upon less individualised notions and adherence to an alternative ethical imperative.188 A more powerful expression sees the liberal democratic consensus as misconceived in its insistence upon ‘indefinite respect for the cultural plurality of needs … and conceptions of the “good life”’ whilst simultaneously encouraging consumption patterns which are destructive of cultural diversity’.189

183 Brown, P, ‘Developer make millions staking out greenbelt’, Guardian, 24 January 2003: involving a scheme where agricultural land was purchased at around £2500 per acre (above market rates) and sold to ‘developers’ in single acre parcels at £35,000. 184 Babcock, R F & Feurer, D A, ‘Land as a commodity “affected with a public interest”’, 52 Washington Law Review 289 (1977), 312. 185 Sagoff, M, The Economy of the Earth: Philosophy, Law and Economics (Cambridge: CUP, 1988), 151. 186 Dobelstein, A, Politics, Economics and Public Welfare (Eaglewood Cliffs, NJ: Prentice-Hall, 1980), 109. 187 Westra, L, Living in Integrity: a Global Ethic to Restore a Fragmented Earth (Lanham, Maryland: Rowman & Littlefield Publishers, 1998), 76. 188 Partridge, E, Responsibilities to Future Generations: Environmental Ethics (New York: Prometheus Books, 1981), 14-15. 189 Soper, K, ‘Human needs and natural relations: the dilemmas of ecology’, in Hayward, T & O’Neill, J, Justice, Property and the Environment (Aldershot: Ashgate, 1997), 47.

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Steering the liberal state, the craft of politics lies in its role as mediating process, that whether through engagement or neglect impacts upon social structures and behaviours, for good or ill in terms of sustainability. The expression of sustainability as a norm offers a way of applying a more democratic calculus and divesting technocratic views of their established primacy. Political arrangements offer ‘an arena to consider options, to transform perceptions of individual and collective interest, and to manage conflict’.190 Within the UK, as a matter of constitutional law, reliance upon political (as opposed to normative) restraint can make it difficult other than to accede to ‘random ephemeral local interest’.191 By this rationale, the UK’s system fails Mayo’s objective test of ‘social performance’ by reference to the existence of controls beyond current policy content or purposes of government.192 The political establishment, in the endeavour to gain or to retain political power, has thus far been unable meaningfully to address the sustainability crisis. Thus both policy makers and citizens have tended to recoil from responsible decisions in the face of such factors as altered habits and expectations demanded in producer practices and consumer lifestyles. There is an inherent limitation in the absence of incentive at the top, amongst the political elite. Dobson has suggested that a ‘significant and influential proportion of society … has a material interest in prolonging the environmental crisis because there is money to be made from managing it. It is Utopian to consider these people to be part of the engine for profound change’.193 Such perceptions run deep and embrace all of us benefiting from higher standards of living under the prevailing liberal consensus. In consequence a strong strain of environmentalist thought assumes that ecological values and democracy are incompatible.

Economic (rather than environmental) cross-border perspectives dominate political decision- making mightily as globalisation dictates limitations upon regulatory controls such as land use planning. As for the regulated, markets offer surrogate regulation of a different kind: as various interests, such as the securities markets, finance houses, and even potential corporate predators, dictate obsessions with profitability (the bottom line) and a general predisposition to short-termism. Likewise, politicians in liberal democracies are themselves geared to the short-termism imposed by ballot box. A major problem confronting possibilities for achieving sustainability is that ‘the current pattern of economic gain and political power is institutionally ensnared in non-sustainable development. Arguably, it is the non-sustainability that retains this institutional order, so one can hardly expect it to write its own epitaph in the interests of a contradictory and ambiguous goal’.194 Unsustainable patterns of development, and misplaced housing priorities, are features of pervasive short-termism. In order to counter such cultural resistance, it is necessary to bring about a revolution in government processes, and in their acceptance, by producers and consumers alike. Invoking citizen commitment is crucial. Not only is there a distrust of the state’s attitude towards sustainability, but there is a deeper problem of citizen disengagement,195 exacerbated by individualist consumption and production that ‘can sap the democratic vigour of a society even while maintaining democratic institutions’.196

190 Lafferty, W M, and Meadowcroft, J, Democracy and the Environment: Problems and Prospects (Cheltenham: Edward Elgar, 1996), 3. 191 Murdoch, I, Metaphysics as a Guide to Morals (Harmondsworth: Penguin, 1993), 359. 192 Mayo, H B, An Introduction to Democratic Theory (New York: OUP, 1960), 213. 193 Dobson, note 116 above, 146. 194 O’Riordan, T, Environmental Science for Environmental Management, 2nd ed. (Harlow: Prentice Hall, 2000), 30. 195 Macnaghten, P and Urry, J, Contested Natures (London: Sage, 1998), 231. 196 Barry, J, Rethinking Green Politics (London: Sage, 1999), 212.

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Yet markets, so close to liberal conceptions of democracy, have delivered economic development and prosperity (for the north of the planet in any event). Resistance to development near existing habitations generally measures can be detected within the population at large. This can be seen in middle class values, including the paradoxical aspirational mix of maximising personal space and NIMBYism directed at outsiders. But there are also forms of resistance that operate in deprived urban areas. There, issues typically resolve themselves into imperatives such as security, employment, and access to transport and other services.197 The task of re-evaluating our political as opposed to our market selves is a major obstacle to the democratic generation of change. Sagoff’s expresses out contrariness in the distinction between our needs as citizens and our wants as consumers. As Naess put it, ‘environmental measures which are popular are those which are not perceived as a threat to the consumption and behavioural patterns of each individual’.198 Achterberg concludes that our exposure to market society ‘moulds our identity in a manner which cannot easily be neutralised merely be taking part in conventional representative democratic politics’.199

Arguments for increased levels of sustainable housing provision should not conflict with environmentalist calls for a shift away from wealth perceptions as absolute values and towards a fuller recognition of social need. The task entails a rejection of utilitarian approaches to resources, in which, for the majority, instrumental value outweighs intrinsic value.200 This places great pressure on political structures, rooted in property, markets and choice. But given the gravity of the problems faced, answers justify further constraints. 201 At present a pernicious application of environmental injustice applies, in which the ‘haves’ (protected by high values and low supply) are able to subdue democratic procedures in their own interests. This is part of the classic ‘insider-outsider’ problem identified by Barker.202 The inadequacy of rights-based solutions is the subject of another paper entirely. For solutions the best on offer is to explore the potential for institutional change through citizen engagement in planning for substantive outcomes.

Procedural reforms are a necessary precondition to achieving deliverable change, where ‘cultural contradictions can be publicly raised, coped with and possibly resolved’.203 Macnaghten and Pinfield argue for qualitative planning, evincing a greater understanding of people’s needs, or their quality of life. This implies a more direct relationship with the public, operating on two levels: ‘not simply adopting new processes of listening to what people want or need in their day-to-day lives, but also the formation of partnerships between planners and health professionals, community groups, community development professionals and social scientists’.204 This appears close to what Rydin refers to as ‘collaborative planning’. This

197 Burningham, K & Thrush, D, ‘Experiencing environmental inequality: the everyday concerns of disadvantaged groups’ (2003) 18 Housing Studies 517. 198 Naess, P, ‘Can urban development be made environmentally sound?’ (1993) 36 Journal of Environmental Planning and Management 301, 329. 199 Achterberg, W, ‘Sustainability and associative democracy’, in Lafferty & Meadowcroft, note 190 above, 164. 200 Hargrove, E C, The Foundations of Environmental Ethics (Englewood Cliffs: Prentice-Hall, 1989), 209. 201 Though he is traditinally cited as the father of autonomy of ownership, Locke’s notion of civil government recognised mutual constraint, for society’s common good: Locke, J, Second Treatise of Government, Book II: the True Original Extent and End of Civil Government (1690), ed. Macpherson, C B (Indianapolis: Hackett, 1980), at ch. ix, ‘Of the ends of political society and government, paras. 129-31. 202 Barker Report, note 8 above, para. 1.14. 203 Barry, J, Rethinking Green Politics (London: Sage, 1999), 209. 204 Macnaghten & Pinfield, note 121 above, 21-2.

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operated through ‘specific institutions to support communities and … formal policy safeguards within the policy process on: access to information and decision-making arenas; recognition of status within the policy process; and rights of redress, safeguards which allow action against professionals within the policy process’.205 The idea of associative democracy emphasises the plurality of involvement of forms of ‘association’ and looks to co-ordinating mechanisms, negotiation and decentralisation. Achterberg points to the Dutch experience of central government entering into covenants with target groups, such as industry and public interest bodies, as part of inclusive ‘sustainability planning’ strategies. Crucially, those traditionally excluded from the processes of production and consumption, such as those in social housing and the benefit-dependent, must be accommodated within this process. Should such groups remain likely (and justifiably so) to view material values as their dominant concerns, then wider cooperation would only be possible by measures to secure more equal division of income.206

Such proposals face numerous obstacles. It is difficult to see how such changes would be sufficient to counteract the (global) market approaches which currently dominate, or avoid sectional interests in dictating progress. To an extent this mirrors attempts at greater equity in sustainable development discourse on the international stage, as in the idea of differentiated responsibility of developed and developing countries. However, at national level, wealth redistribution is something which the majority of the electorate and of the politicians appears to view with unhealthy suspicion. The task is to persuade that answers do not inevitably threaten absolute level of wealth but rather its distribution, so linking democracy with ‘economic security rather than affluence’.207 If so, the political order might be able to progress towards reformed principles of redistribution, for ‘social solidarity need not be threatened by this so long as the costs are shared equitably throughout the whole society’.208 Thus Barker has emphasised the need to take account of affordability in a more structured way, presumably as a key element in releasing extra land in order to tackle what she terms housing ‘market disequilibrium’.209

Thus securing a meaningful transformation depends upon encouraging more genuine, informed, participatory mechanisms. McAuslan famously identified that the purposes of planning law could be made to pursue one of three ideologies.210 The first, an ideology of private property, accords priority to the protection of the private interest, so that property interests prevail over public control. Secondly, an ideology of public interest allows property rights to be overridden, on the basis of administrative decisions, reached in accordance with technical advice. A more radical third ideology is based upon the idea of participation, according the citizen opportunities to influence and to challenge official policy, thereby factoring in wider considerations which lie beyond those determined as a matter of administrative discretion.211 Asserting a need for explicit processes, Gedicks states that it is necessary to shift the ‘focus of the debate … from how this project will be developed, to who

205 Rydin, note 112 above, 361 206 Achterberg, note 199 above, 163-71. 207 Barry, note 203 above, 196-7. 208 Ibid., 213-4. 209 Barker Report, note 8 above, paras. 2.11-12, 2.31-37. 210 McAuslan, note 117 above, 2-6. 211 Political discourse in the United States has produced three broadly similar models of administrative discretion: based upon expertise, pluralism, and civic republicanism: see Gauna, E, ‘The environmental justice misfit: public participation and the pardigm paradox’, 17 Stanford Environmental Law Journal 3 (1998), 17.

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will be involved in the decision-making process’.212 Towards this end, participation offers valid forms of collective responsibility. Land use planning judgments are political questions that cannot be left solely to administrative, technical or economic parties, not least because ‘in stable and legitimate spatial planning strategies which are sustained on implementation, the making of difficult, risky decisions needs to be widely shared among the diverse interests of a community’.213 Giddens argues for a deliberative conception of democracy, which requires that decisions be made ‘on the basis of a more or less continuous reflection on the conditions of one’s action’.214 The objective must be to achieve political closure on policy decisions, built upon citizen deliberation, consent and further participation.215

A final advantage of participation lies in the broader idea of stakeholding, according pluralistic involvement in the decision-making process, as a means of addressing problems posed by obstructionism from powerful vested interests. Rydin refers to a collective action problem, caused by the dominance of sectional interests involved in the process, so that other interests ‘only achieve a place on the policy agenda if they do not challenge these interests fundamentally’.216 A comparable factor is the strain that can arise around community opposition to the siting of unpopular development. NIMBYism connects with wider problems of environmental justice, as already seen, especially where disproportionate burdens are perceived. It becomes essential to develop inclusive approaches whereby not only those categorised as NIMBY interests but also those more broadly excluded can be brought within participative processes. This is not a question of meeting all expressions of local self-interest, but of bringing issues of sustainability into the process in an open and structured way.217 Participatory solutions depend upon trust, as for instance in the waste management context ‘when individual communities no longer feel dumped upon for arbitrary reasons but instead are part of a larger, multifaceted approach … that involves multiple communities and broad sharing of burdens’.218 It is upon the generation of such levels of trust that serious steps towards the fulfilment of housing development needs in England depends. Solutions to all such development issues demand ‘openness, communication and empowerment’,219 including assurances of equitable treatment and continuing responsiveness.

The question of ‘carrying the people’ remains the most intractable. It is nevertheless essential. The problem may perhaps be rooted in selfishness, but it is difficult to conceive of rational ways forward unless we are able to afford transparent opportunities for a reconsideration of our values and preferences. Solutions should focus upon so directing legal and political structures that they foster participation, and for this publicly accessible information and public education concerning external costs of alleviating or ignoring consumption patterns, as in the housing sector. Here, attention must be given to intragenerational equity, protecting those groups most vulnerable to change, with positive policy strategies to alleviate the consequences. Solutions require open processes, not only in

212 Gedicks, A, The New Resource Wars (Boston, Mass: South End Press, 1993), 204. 213 Healey, P and Shaw, T, ‘Changing meanings of “environment” in the British planning system’ (1994) 19 Transcripts of the Institute of British Geographers 425, 436. 214 Giddens, A, Beyond Left and Right: the Future of Radical Politics (Cambridge: Polity Press, 1994), 113. 215 Barry, note 203 above, 206. 216 Rydin, note 112 above, 356. 217 O’Hare, M, Bacon, L, Sanderson, D, Facility Siting and Public Opposition (New York: van Nostrand Reinhold, 1983), 149. 218 Rabe, B G, Beyond Nimby: Hazardous Waste Siting in Canada and the United States (Washington DC: Brookings Institution, 1994), 57. 219 Edelstein, M R, Contaminated Communities: the Social and Psychological Impacts of Residential Toxic Exposure (Boulder: Westview Press, 1988), 188.

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enabling wider access to justice, but in the arena of political debate. Secretive approaches have been gradually broken down, as for instance information has become more available, consequent upon the requirements of EC legislation.220 Here a crucial development will be the integration of the requirements of the Aarhus Convention into the domestic laws of Member States of the European Community.221 This likewise offers the possibility of increased opportunities for access to justice in order to supplement procedural rights. The availability of relevant remedies is crucial in this process, for it is not enough for legislation to set out ‘objectives and matters to be taken into account. It needs to define specific circumstances, in which specific remedies will be activated, in the form of obligations imposed upon defined enforcing authorities, or other specific remedies, by way of coercion or compensation, public or private’.222 Wider access has been developing in the UK, especially for the purposes of challenge by way of judicial review. Domestic rules have become less restrictive and the notion of sufficient interest has moved away from inflexible proprietory interest requirements, opening up opportunities especially for established interest groups.223 There is now a judicial recognition that satisfying the test of sufficient interest includes such factors as vindication of the rule of law, importance of the issue raised, absence of any other responsible challenger, and nature of the breach of duty under challenge.224

The whole thrust of the Convention is to enable greater participation by citizens and groups in environmental decision-making. In our context, what is known as ‘Strategic environmental assessment’, the public must be accorded rights to participate in the preparation of plans and programmes relating to the environment, with the necessary information, within a transparent and fair framework.225 This is supported by an explicit requirement that ‘adequate and effective remedies’ are provided which should be ‘fair, equitable, timely and not prohibitively expensive’.226 To this end, it seeks to impose rights of access to environmental information to be supported by access to speedy and inexpensive legal review procedures, whether to require reconsideration by a public authority or by external review of the decision by an independent and impartial body.227 There is also a rather more obscure right to judicial challenge to the substantive as well as procedural legality of any decision that is subject to the Convention.228 Although access to justice remains subject to national standing criteria, recognised NGOs will be deemed to have sufficient interest to pursue challenges. The European Commission has recognised the need for citizen participation in decision-making, implementation and enforcement processes, and is currently introducing legislation imposing the requirements under Aarhus.229

220 See Directive 2003/4/EC on Public Access to Environmental Information , OJ L41/26 (14 February 2003), repealing Directive 90/313/EEC. 221 The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (DOC. ECE-CEP-43), agreed at Aarhus, Denmark in June 1998. 222 Carnwath, R, ‘Environmental litigation – a way through the maze?’ (1999) 11 Journal of Environmental Law 3, 9. 223 R v HM Inspectorate of Pollution, ex parte Greenpeace (No.2) [1994] 4 All ER 328. 224 R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement [1995] 1 WLR 386; R v Somerset CC, ex parte Dixon [1997] Journal of Planning and Environmental Law 1030. 225 See note 221 above, Article 7. 226 Ibid., Article 9. 227 Ibid., Article 4. 228 Ibid., Article 6. 229 A Community Public Participation Directive is now in force and must be transposed into the laws of Member States by July 2005: see Directive 2003/35/EC providing for Public Participation in respect of the Drawing up of Certain Plans and Programmes relating to the Environment; also, Directive 2001/42/EC on the Assessment of

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It remains to be seen how far ‘substantive’ challenge might develop. English judicial approaches assert a traditionally rigorous maintaining of a formal distinction between policy and adjudication, and planning is notable for its broad levels of administrative discretion. Thus Lord Hoffmann has stated that ‘no English court would countenance having the merits of a planning decision judicially examined … The result may be some lack of transparency, but that is a price which the English planning system, based upon central and local political responsibility, has been willing to pay for its relative freedom from judicial interference’.230 Nevertheless a radical official report (which to date has found no favour with the Government) proposed an Environmental Court as a standing tribunal, hearing appeals in planning and environmental matters. Its chair suggested that it might offer a reformed new approach so as to counter ‘the dominant role of central government, and the historical preference in Britain for systems of political accountability over law-based systems of public administration. The balance of power in administrative decision-making lies with politicians and their officials, and not with courts. … the High Court is steadfast in its refusal to review the merits of the case. It is a trade-off, in which political accountability triumphs over legal transparency’.231 Such a body could offer a specialist, structured focus for necessary wider debates. Thus in planning its role might be to review arguments and evidence presented in order to submit ‘conclusions about levels of advantage and risk upon which informed judgement could then be made, either by Government or Parliament. It is in the evaluative process that it is important for the Government to ensure impartiality, openness and fairness, and these are qualities which members of the Environmental Court should possess’.232

The transparency encouraged under Aarhus may lead to greater involvement of the community in these processes in any event. Yet there is an endemic problem in that whilst participation has traditionally been more achievable at a community level, strategic thinking must be a responsibility of Government. The Government’s preferred solutions, as seen above, lie in the emergence of a stronger regional planning base, alongside nascent ideas of regional accountability and local community consultation.233 Although ministerial rhetoric emphasises participation,234 the structure new legislation suggests a ‘top down’ regime, in which Regional Planning Bodies appear to have considerable discretion in such matters as determining the involvement of persons ‘who appear … to have an interest in the exercise of those functions’.235 Moreover, the minister will have a discretion to arrange for RSS revisions to be examined in public.236 In contrast, at the more local level (where the broad strategic brush strokes must be filled) more participation will be countenanced, with provision for independent examination and representations concerning local development documents and duties to prepare ‘statements of community involvement’. 237

Institutional change is therefore essential to the achievement of the process of transformation, through finding the means to ‘unravel people’s social commitments from their environmental

the Effects of Certain Plans and Programmes on the Environment, note 111 above. A further draft Directive is proposed, concerning Access to Justice in Environmental Matters, COM(2003) 624. 230 Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 PLR 72, 96. 231 Grant, M, Environmental Court Project: Final Report (DETR, 2000), para. 12.10.12. 232 Ibid., para. 13.14.5. 233 DETR, note 15 above, para. 3.15-16, 3.20; and now, PCPA 2004, Part I. 234 ODPM, Community Involvement in Planning: the Government’s Objectives (February 2004). 235 PCPA 2004, section 6. 236 Ibid., section 7(3)(4). 237 Ibid., sections 17-20.

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effects, and yet gain assent for structural changes beneficial to the environment but also undermining of our lifestyles’.238 There is in this an imperative to offer a voice to those outside this process. Calling in 1980 for new legislation, institutions and procedures towards new decision-making processes, more open government and more searching debate, McAuslan recognised a need for ‘decisions being about positive discrimination in the allocation of resources in favour of deprived persons and groups in the community, and an institutional framework which allows those groups power, subject to appropriate safteguards, to determine their own future’.239 There is now a range of variously tried mechanisms to involve the wider public.240 Participative arrangements now being practised include: consultation, at local and national levels; deliberative polling; standing consultative panels; focus groups; citizens’ juries; consensus conferences; stakeholder dialogues; and even internet dialogue. But reformed planning procedures, in order to secure full citizen engagement, must go further. In order to represent those with no or inadequate ‘voice’ the idea of transposition of the idea of guardian ad litem (which has also proved flexible enough to migrate from family law to such areas as world trade law) should be explored.

After all, as Macpherson argued, two pre-requisites for participatory democracy are a change from consumer consciousness and a reduction in social and economic inequality.241 We should not be under any illusion that the political process is a sufficient guarantor of such outsiders. Policies closely related to the market process, as in our context, tend towards exclusion and polarisation, and threaten what might be termed social sustainability.242 The same process might also assist in tackling NIMBYism sensitively but directly. Glendon, in expressing her concerns at rights-based solutions, said of group assertion of rights upon a local basis, that ‘preoccupations with one’s immediate community can foster intolerance or indifference to the general welfare, as witness the proliferation of NIMBY … movements when new locations for prisons, group homes for the mentally retarded, and other public works are proposed. … What we need therefore is not a new portfolio of “group rights”, but a fuller concept of human personhood and a more ecological way of thinking about social policy’.243

Conclusions

If we are to progress in England towards civilised levels of affordable housing in a sustainable environment, it is essential to engage with the public in inclusive ways. This challenges a status quo in which markets operate as the main mediating mechanism between individual and state. Such inclusive, collective responsibility must therefore extend to stakeholders on all levels: ‘ordinary landowners and other citizens must be drawn into the processes by which land- use decisions are made. Broad-based participation can diminish fears of exclusion. … And the more knowledgeable people are, the more likely they are to see land-use restrictions as legitimate responses to real problems, rather than as the corruption or

238 Redclift, M, ‘Sustainable development in the twenty-first century: the beginning of history?’ in Baker, S, Kousis, M, Richardson, D & Young, S, The Politics of Sustainable Development: Theory, Policy and Practice within the European Union (London: Routledge, 1997), 261. 239 McAuslan, note 117 above, 272. 240 House of Lords, Select Committee on Science and Technology, Science and Society, 1999-2000, 3rd Report, 2000, paras. 5.3-5.37. 241 Macpherson, C B, The Life and Times of Liberal Democracy, 1977 (Oxford: OUP, 1977), cited by McAuslan, note 117 above, 273. 242 Gallent, N, ‘Housing, homes and social sustainability’, in Layard, Davoudi & Batty, note 167 above. 243 Glendon, M A, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991), 137.

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dismantling of private rights’.244 Within the UK, this requires substantial reform of ‘existing institutional terms of reference and procedures to open them up to more substantial influence and effective inputs from diverse groups’.245 Thus the citizen ‘must be treated as a resource for solving complex problems, rather than shunned as an obstacle to expedient solutions. The public must be valued as a key actor in a social process’.246 Such processes will further discourage the exercise of disproportionate influence by special interest groups over administrators and regulators.247

For such an inclusive rationale to emerge, therefore, it is essential that the electorate be able to engage in these processes with politicians who aspire to the long-term good. The picture therefore is mixed. There is now a tardy realisation on the part of Government that there is a major crisis in housing provision.248 Solutions are targeted at the release of more land through the planning process. The market, it is hoped, will respond adequately (although there are also signs that social housing provision will also be increased). Two main question marks remain. First, there is thus far insufficient indication that adequate participatory frameworks have been put in place in order to encourage broad acceptance of necessary, difficult decisions, including as to the involvement of outsiders in the process. This has been addressed in this paper. But secondly, there must be scepticism at the insistence of central Government upon developing the overloaded south east of England. This is justified by Government on grounds of demand. And yet it is also the case that the crisis has been allowed to deteriorate while negligent politicians have dozed on their watch. Moreover - for the south east and nationally - there are significant broader social, economic and environmental implications of such a policy. It is for now hard to see that the Government’s self-lauded approach of ‘plan, monitor and manage’ is very far from the traditional, derided ‘predict and provide’.

244 Freyfogle, E T, ‘Owning the land: four contemporary narratives’, 13 Journal of Land Use and Environmental Law 279 (1998), 307. 245 House of Lords, note 240 above, para. 5.46. 246 Piller, C, The Fail-Safe Society (New York: Basic, 1991), 205. 247 Frazier, T W, ‘Protecting ecological integrity within the balancing function of property law’, 28 Environmental Law 53 (1998), 74. 248 Editorial, Guardian, 16 June 2004.

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