Authors:Jeremy Ogilvie-Harris
Last updated:2023-09-25
Achieving social justice through planning law
Marc Bloomfield
Jeremy Ogilvie-Harris explains why social justice organisations should undertake planning work and gives an outline of how to get started.
The planning system is where decisions are made that concern the natural and built environment. From the housing crisis to climate change, planning law plays an important role in ensuring that decisions are made that will achieve, rather than undermine, social justice. The aim of this article is to encourage Law Centres and social justice organisations to undertake planning advice and casework. I make this case in three parts. First, I explain why it is important for social justice organisations to engage with planning law. Next, I explain what planning law entails, giving some examples from Southwark Law Centre’s Planning Voice project (SLCPV) and the Public Interest Law Centre (PILC). Finally, I give tips about developing a planning department in your organisation.
Why should social justice organisations engage with planning law?
Planning decisions have social justice implications for both current and future generations, and involve socio-political judgements that create winners and losers. Decisions may impact the levels of air pollution to which residents will be exposed, the amount of social housing that will be built in a local authority area and the volume of carbon emitted into the atmosphere. Since the mid-1900s, individuals and organisations fighting for environmental justice have consistently shown that marginalised members of the community tend to suffer disproportionately the adverse consequences of such decisions.1For example, Toxic wastes and race at twenty 1987–2007, United Church of Christ, March 2007. Similarly, PILC comments:
[T]he landscapes of our cities and towns have been dramatically changing for many years to extract exuberant profits from land at the cost of working class communities’ access to secure council housing, green space and neighbourhood facilities.
However, if marginalised groups are given a seat at the table, they can influence the decision-making process. Public participation allows decision-making to be more democratic and ensures better, and more equitable, decisions.2See ‘Part III: Participation’, Maria Lee and Carolyn Abbot, eds, in Taking English planning law scholarship seriously, UCL Press, 24 October 2022. Accordingly, planning law is an important area of social justice.
Social justice organisations can contribute their existing expertise to improve participation in the planning process and empower communities to overcome the imbalance between them and developers. Further, many problems that traditional social justice caseworkers encounter require systemic solutions that the planning system can provide. For example, the housing crisis has been largely caused by the failure to fund and develop sufficient social or affordable housing over the past 50 years. PILC comments: ‘Planning law is the natural and necessary ally to traditional Law Centre work – for example, by protecting existing council housing stocks and ensuring that plans include maximum levels of council homes.’ For PILC, ‘it is not a question of whether Law Centres should be undertaking planning and environment work, but when they choose to begin’. There are strong arguments that social justice organisations should branch out into planning law.
What does a planning caseworker do?
The role of a planning caseworker is to empower local communities and campaign groups to participate in the planning process. This involves three tasks: first, monitoring developments and engaging with the local community; second, supporting individuals and organisations so that they can participate in the process; and third, advocating on behalf of the local community and organisations.
Monitoring developments and engaging with the local community
Keeping up to date with what developments are being proposed and how current developments are unfolding requires a combined top-down and bottom-up approach. Key sources of information include a local authority’s planning register, which will contain planning applications made to the authority as well as the agenda and minutes of both the cabinet’s and the planning committee’s meetings. For example, SLCPV has been working with various campaign groups concerning the proposed demolition of council estates. Most recently, after tracking the council’s cabinet decision-making on this issue, we advised Extinction Rebellion about the council’s proposals to demolish and rebuild the Abbeyfield Estate, which raise concerns about loss of social housing and carbon emissions caused by rebuilding the council estate (rather than refurbishing it). This helped Extinction Rebellion as it supplemented its representations to the council in furtherance of its campaigns on climate emissions monitoring and refurbishment of buildings.
The local community is an important source of information regarding local needs and priorities. For example, SLCPV has been working closely with Latin Elephant and local traders/businesses who used to operate out of the Elephant and Castle shopping centre, and have since been relocated to various temporary sites.3See Sarah Goldzweig et al, Migrant and ethnic economies in times of crisis: displacement, Brexit, COVID and cost of living, Latin Elephant, 2023. Consequently, SLCPV has developed a greater understanding of the difficulties inherent in business relocation and of strategies to ensure that s106 agreements (agreements between developers and the local authority containing obligations, referring to Town and Country Planning Act 1990 s106) are watertight and do not act to the detriment of those whom they are meant to benefit. Such knowledge helps us to promote the interests of the local community.
Supporting the local community and organisations so that they can participate in the planning process
Planning law is particularly complex as it involves a web of law and policy that defines the relevant procedure and substantive law. Carolyn Abbot, an environmental law academic, notes in her chapter of Taking English planning law scholarship seriously, ‘Planning inquiries and legal expertise: a fair crack of the whip?’: ‘Perhaps the most obvious contribution that legal experts make is in their detailed knowledge of the legal and policy framework within which decisions are taken’ (page 143). Caseworkers can help the local community and organisations to understand the relevant procedures (how to object) and the legal points that can be made in support of their representations (how to frame their arguments in a legally recognisable way).
SLCPV has been working with various local residents and organisations to support them on proposed developments such as at Borough Triangle, the Aylesham Centre and the Abbeyfield Estate. We advise on both the process and the substantive law and policy. Recently, we advised residents on how to frame their representations to the planning committee concerning the development of a hotel at 21 St George’s Road, which would have an impact on the Elliott’s Row Conservation Area. We provided a summary of the relevant law, and the material policies and supplementary planning guidance. The residents were able to persuade three of the eight members of the planning committee to reject the planning application, with one abstention. Unfortunately, the application was approved, albeit with further obligations being placed on the developer.
Advocacy on behalf of the local community and organisations
A planning caseworker may advocate for local residents and organisations. The advantage of carrying out advocacy under the name of an organisation, like SLCPV, is its reputation. Over the past five years, SLCPV has engaged with the local community and demonstrated to Southwark Council that it will hold planning officers and the planning committee to account. This reputation means that, when advocacy is carried out by the planning caseworker, the council – and developers – listen. For example, recently, SLCPV and the 35% Campaign objected to the proposed proportion of 17.5 per cent social rent accommodation in the Borough Triangle application. We argued that the Southwark Plan 2022 required 25 per cent social rent accommodation and that compliance with the policy was required to address the housing crisis. As a result, the council committed to undertaking greater scrutiny of the developer’s viability assessment (an assessment of how much social housing it can provide while continuing to make its desired profit) and indicated that it is likely it will require 25 per cent to be provided.
SLCPV also advocates to local councillors and planning officers on a variety of planning issues. We have been liaising with Southwark Council to ensure that developers honour their commitments to build social housing under s106 agreements. For a recently built residential development, due to a minor drafting error in the s106 agreement, the developer has argued that it is not under an obligation to provide social rent accommodation. We have advocated that the reasonable interpretation of the agreement does create an obligation to build social housing. Such advocacy can ensure not only that equitable decisions are made by the council, but also that they are implemented and enforced.
How to develop a planning department in your organisation
Some planning work complements existing areas of practice. For example, in Zaman v Waltham Forest LBC [2023] EWCA Civ 322, the appellant challenged a council’s compliance with its policy on procurement of homeless accommodation. This case went beyond the ordinary cut and thrust of suitability. Similarly, at Hackney Community Law Centre, I supported my colleague, Kevin Long, to bring a judicial review claim against a registered provider of social housing charging intermediate rent. These cases can often be funded by legal aid, complement an existing housing practice, and can provide systemic solutions to the affordable housing crisis.
There are, arguably, other planning cases that can be funded by legal aid. The remedy for challenging the grant of planning permission is a judicial review (but note this has an abridged limitation period of six weeks). As part of its Gentrification Project, PILC has been at the forefront of pursuing the Legal Aid Agency to grant certificates for planning law cases under its public law legal aid contract, including on the Aylesbury Estate in Southwark and the Carpenters Estate in Newham. This is a novel area and being explored by both SLCPV and PILC.
To broaden the planning work undertaken, your organisation can contact local organisations, including community, campaign and action groups, and tenants’ and residents’ associations, and keep an eye out for members of the local community raising planning issues. This will allow the flow of information both ways so that your organisation is able to meet the planning needs of the local community.
If seeking to set up a planning department, it will be important early on to secure funding for a part-time or full-time caseworker. Many organisations are willing to give small amounts of funding, which can pay for a part-time caseworker at the beginning to demonstrate to larger funders that there is a need, and that you have the expertise, to carry out planning work. This experience can then be used to apply for grants from organisations such as the Big Lottery Fund.
Both PILC and SLCPV are willing to be contacted by any organisations interested in planning. You can follow them on Twitter for updates and developments: @publiclawcentre and @PlanningVoice respectively.
The author wishes to thank PILC and his colleagues at Southwark Law Centre for reviewing this article and providing examples and feedback. He is also indebted to his professors at UCL who influenced his perspective on planning law. You can follow the author on Twitter at: @JOgilvieHarris.
1     For example, Toxic wastes and race at twenty 1987–2007, United Church of Christ, March 2007. »
2     See ‘Part III: Participation’, Maria Lee and Carolyn Abbot, eds, in Taking English planning law scholarship seriously, UCL Press, 24 October 2022.  »