1

Historical development of planning law

Introduction
The problems of town and country planning in Britain arise mainly from the profound revolution through which the country has passed in the last 200 years. The most important feature of the revolution has been the enormous growth in the population, especially during the nineteenth century. In 1800 the population was about 10.5 million; by 1850 it had increased to nearly 21 million and by 1900 it had nearly doubled again to 37 million. Since then the rate of increase has been considerably less but even so the population has grown to over 60 million. Such an increase could not fail to alter the physical appearance of the country and to bring in its train a whole host of problems. It is doubtful whether the country could have sustained so large a growth in the population but for the industrial revolution which changed Britain from a predominantly agricultural nation to an industrial one. The early industrial revolution was centred on the coalelds and on the wool and cotton towns of the north, and was assisted by the building rst of canals and later of railways. The result was to concentrate the population in certain parts of the country, chiey the north of England, the Midlands and South Wales. The industrial towns grew in size more dramatically even than the general population and people left the countryside to nd work in the new factories. During the rst half of the nineteenth century the number of people in the countryside increased since the growth in population was greater than the migration to the towns; but with the decline in agriculture after 1850 the population of the countryside declined absolutely. Conditions in the new industrial towns were often appalling. Factories and houses sprang up side by side without any attempt at zoning; although it must be remembered that until the coming of the railways, most people had to live within walking distance of their work. Still worse, there was no attempt even to control standards of building construction and sanitation. Although the housing conditions of the skilled artisan and the miners were often better than is now realised, conditions generally were very bad.1 The foul state of the houses encouraged the spread of disease and there were serious outbreaks of cholera and typhoid in the 1830s and 1840s. Local boards of health had been set up after the cholera epidemic of 18311833 but were allowed to lapse. In 1838 the Poor Law Commissioners
1 For a general account of conditions in the towns, see for instance: J L and Barbara Hammond The Town Labourer and The Bleak Age; and J H Clapham, An Economic History of Modern Britain vol I.

Historical development of planning law

published a report showing evidence obtained when they employed a number of doctors to inquire into the causes of death and destitution in London. They then commissioned the energetic public health reformer Edwin Chadwick to carry out a similar investigation over the whole country. The publication of the results of this in 1842 led to the appointment of a Royal Commission on the Health of Towns, which published its rst report in 1844 (to a considerable extent the work of Chadwick) and its second report in 1845. These reports were followed in 1848 by two Acts of Parliament, which although very limited in scope and effect, are signicant as laying the foundations of permanent statutory restrictions on the freedom of landowners to build as they pleased. The Public Health Act 1848, set up a General Board of Health with powers to create local boards on the petition of 10 per cent of the inhabitants of a district and to enforce boards where the death rate was above 23 per 1,000. The boards were given powers to ensure that both new and existing houses were provided with water and drainage: the building of new houses was not to be commenced until the board had been given notice of the position of privies and drains. The Nuisance Removal and Disease Prevention Act 1848 applied throughout the country and made it an offence to build a new house to drain into an open ditch. This Act was replaced in 1855 by the Nuisances Removal Act, which enabled the local authority to complain to the justices where any premises were in such a state as to be a nuisance or injurious to health. The justices order could require the provision of sufcient privy accommodation, means of drainage and ventilation to make the house safe and habitable, and, if the house were unt for habitation, could prohibit its use for that purpose. The Act of 1855 was extended by the Sanitary Act 1866, which inter alia enabled the local council or board of health to deal with houses lacking proper drainage by compelling their connection with a public sewer (if within 100 feet) or with a cesspool or some other place. At the same time, the more enterprising municipalities were obtaining extended powers by petitioning Parliament for local Acts. These local Acts were of special signicance in that they paved the way for the great Public Health Act 1875. This consolidated the earlier public general Acts and gave national application to provisions previously found only in local Acts. Local authorities were given power not only to secure proper standards of drainage and closet accommodation, but also to make byelaws regulating the size of rooms, the space about the houses and the width of the street in front of them; provision was also made for the making up and sewering of unadopted streets at the expense of the frontages. Builders were anxious to get as many houses as possible to the acre, and the byelaw minimum became accordingly the maximum and the minimum at once. The result was the sea of uniform rows of streets and houses which surrounds the centre of many of our industrial towns and whose dreary and unbroken regularity is too well known to require description. Nevertheless, byelaw control was an important step forward. The powers of local government in the eld of public health were supplemented by housing legislation beginning with the Artizans and Labourers Dwelling Act 1868, which gave powers to deal with individual insanitary houses. This was followed in 1875 by powers to undertake slum clearance2 and in 1890
2

Artizans and Labourers Dwelling Improvement Acts 1875 and 1879.

The development of regulatory planning

by powers to build tenements and cottages for the housing of the working classes.3 This activity in the elds of public health and housing was followed by a sweeping reform of local government. Outside the boroughs, local government was entrusted to a patchwork of authorities often of an ad hoc character such as the local boards of health. These were replaced by the establishment of country councils in 1888, and urban and rural district councils in 1894. Thus, by the end of the century, there existed an effective system of local government with substantial powers in the elds of public health and housing. It soon became apparent, however, that something more was necessary. The possibility of more satisfactory conditions of living and working was being demonstrated by the building of such places as Bournville and Port Sunlight by enlightened industrialists. About the same time, Ebenezer Howard wrote the famous book Garden Cities of Tomorrow, which may be taken as the starting point of the new towns movement, as well as the immediate inspiration for the rst garden city of Letchworth started in 1903.

The development of regulatory planning

The Acts of 1909 to 1943
The rst Planning Act was passed in 1909.4 It authorised the preparation by local councils of planning schemes for any land which is in course of development or appears likely to be used for building purposes, ie suburban land. Such schemes were to be prepared with the object of ensuring that in future land in the vicinity of towns shall be developed in such a way as to secure proper sanitary conditions, amenity and convenience in connection with the laying out of the land itself and any neighbouring land. Thus to the search for good sanitary conditions, which had characterised the nineteenth century reforms, there were added the claims of amenity and convenience. The planning scheme was far more ambitious and exible than the byelaw. Not only could it regulate the number of buildings on a site and the space about them, but it could provide both for the control of their appearance and the way in which they might be used. The scheme might also dene zones in which only certain specic types of building use would be permitted, and it could list types of development which could not be undertaken without specic application to the local authority. The preparation and approval of a scheme was necessarily a lengthy process, and an Act of 19195 introduced the concept of interim development control: that is during the period from the passing by the council of a resolution to prepare a scheme until the scheme became effective. Under interim control, a developer was not obliged to apply for permission but if his development conicted with the
3 5

Housing of the Working Classes Act 1890. Housing, Town Planning, &c Act 1919.

Housing, Town Planning, &c Act 1909.

Historical development of planning law

scheme as ultimately approved he could not obtain compensation. On the other hand, if he obtained interim development consent, he was safeguarded. The next major step forward was the Act of 19326 which enabled local authorities to prepare planning schemes for any land in England and Wales and not merely for suburban land as hitherto. The Act of 1932 was purely permissive, but it was supplemented in 1935 by the Restriction of Ribbon Development Act which made new building within 220 feet of classied roads, or roads made the subject of a resolution under the Act, subject to control. And in 1943 (when 73 per cent of the land in England and 36 per cent of the land in Wales had become subject to interim control under the Act of 1932) it was provided that all land in England and Wales should be deemed to be subject to interim control whether or not the local authority had passed a resolution to prepare a scheme.7

New problems
The Acts of 1909 to 1943 had all been based on the concept of the planning scheme. Such schemes were undoubtedly useful in ensuring that new development conformed to certain standards of amenity and convenience and in controlling changes in the use of existing buildings. But new problems were coming into prominence and it soon became apparent that the planning scheme was unsuitable for dealing with these. The population continued to grow substantially although less dramatically than in the nineteenth century. The advent of road transport and a cheap supply of electric power was changing the face of the country. These inuences resulted in a new growth in the size of towns and cities and of many places beyond their boundaries. Industry was no longer tied to the coalelds and railways, and between the two wars a major relocation of the nations industrial power took place. Some of the older industrial areas went through a period of prolonged and at times severe depression which led to the appointment of Commissioners for Special Areas. The Commissioners, whilst emphasising that economic considerations must in the main determine the location of industry, drew attention to the dangers involved in the continued haphazard growth of the Metropolis and considered that much of the growth was not based on strictly economic factors.8 The result was the appointment of the Royal Commission on the Distribution of the Industrial Population (the Barlow Commission). The Barlow Report,9 after lengthy examination of the advantages and disadvantages of the swollen state of the cities, came to the denite conclusion that:10
the disadvantages in many, if not in most of the great industrial concentrations, alike on the strategical, the social, and the economic side, do constitute serious handicaps and even in some respects dangers to the nations life and development, and we are of opinion that denite action should be taken by the Government towards remedying them.

The Report also commented on the serious loss of agricultural land which they said:11

6 7 8 9

Town and Country Planning Act 1932. Town and Country Planning (Interim Development) Act 1943. Third Report of the Commissioners for Special Areas 1936 (Cmd 5303). 10 11 Cmd 6153. Cmd 6153, para 413. Cmd 6153, paras 36 and 37.

Problems of redevelopment

since 1900 has been so rapid that it is stated to have covered with bricks and mortar an area equal in size to the counties of Buckingham and Bedford combined. Alike in urban extensions and in expropriation of land by Government Departments for military, Royal Air Force, or other national requirements, regard must be had to the agricultural needs of the country. Nor is it merely the agricultural needs of the country that should be borne in mind. Providence has endowed Great Britain not only with wide tracts of fertile soil, but with mineral wealth in the form of tin, lead, iron-ore, and, above all, coal; with abundant supplies of water, hard and soft, corresponding to the various needs of industry; with rivers and harbours apt for transport and for both foreign and internal trade; and last, but by no means least, with amenities and recreational opportunities, with hills and dales, with forests, moors and headlands precious possessions for fostering and enriching the nations well-being and vitality.

Publication of the Barlow Report was followed by the appointment of a Committee on Land Utilisation in Rural Areas under the chairmanship of the late Lord Justice Scott. Both the Barlow Report and the Scott Report12 urged that more effective action should be taken to control the siting of development and both pointed to the weaknesses of the Act of 1932. as the Barlow Report put it:13
While present statutory town planning tends towards producing a more pleasant, healthier and more convenient local environment, it is not adapted to check the spread of great towns or agglomerations, nor, so long as their growth continues, to arrest the tendency to increasing central density and trafc congestion. . . . Present town planning does not concern itself with the larger question of the general and national grouping of the population.

To remedy the situation both reports recommended the establishment of a central planning authority, the immediate extension of planning control to all parts of the country, and the formulation of a national plan for the location of industry and population. The immediate results were the passing in 1943 of two Acts concerned with planning. The rst provided for the appointment for the rst time of a Minister charged with the duty of securing consistency and continuity in the framing and execution of a national policy with respect to the use and development of land throughout England and Wales.14 The other Act15 extended, as already explained, interim control under the Act of 1932 to the whole country: legislation more suited to the control of land use generally, as distinct from local amenity and environment, did not come until the passing of the Town and Country Planning Act (TCPA) 1947.

Problems of redevelopment
The Act of 1944
In the meantime another problem had come into prominence: the redevelopment of older built-up areas. Existing planning legislation was concerned only with the preparation of schemes for regulating the activities of developers. These developers
12 14 15 13 Cmd 6378. Cmd 6153, para 219. Minister of Town and Country Planning Act 1943, s 1. Town and Country Planning (Interim Development) Act 1943.

Historical development of planning law

would normally be private individuals and companies, though there was a certain amount of development by local and other public authorities which was equally subject to the regulatory control of the planning scheme. Although the scheme would indicate what was desirable, it could not compel development to take place. The limits of the approach became obvious during the Second World War when a good deal of thought was given to the physical reconstruction of older cities and towns. Although the immediate stimulus to this new thinking came from the opportunities created by the bombing, people were soon thinking of bolder schemes of reconstruction. For this purpose something more than regulatory planning was wanted, namely, publicly organised schemes of redevelopment. Although town improvement schemes had been authorised in part by local Acts, local authorities had no general powers to carry out redevelopment schemes until 1944. The Town and Country Planning Act of that year16 gave local authorities power to designate for general reconstruction areas which had been heavily bombed, or had been badly laid out and whose development was now obsolete. These were known as declaratory areas and the local authority could compulsorily purchase any land in a declaratory area and carry out their development either themselves or by disposing of their land to private developers for approved schemes.
16

Town and Country Planning Act 1944.