How is the Public Interest Defined When Building New Houses?

SUMMARY

• The task of town planning is to balance public with private interests, and national with local interests.
• However, the concept of public interest is ill-defined, contested, unevidenced and, too often, unchallenged.
• Current Labour policy in the ‘Change’ manifesto potentially restricts or overrides public input. The public interest is described as growth – predominantly in economic terms.
• However, efficiency, equity, certainty, the recognition of differences, accessibility, affordability, quality, decency, acceptability, environmental sustainability and meeting need should all be considered too.

On 8 July 2024, the Chancellor of the Exchequer addressed the government's avowed fetish for growth: ‘[W]e must acknowledge that trade-offs always exist: any development may have environmental consequences, place pressure on services, and rouse voices of local opposition. But we will not succumb to a status quo which responds to the existence of trade-offs by always saying no and relegates the national interest below other priorities’. There is so much to unpick in this statement—is the response to tradeoffs always to say no?—but the focus in this article is on the use of the concept of ‘public interest’ (often used interchangeably, somewhat erroneously, with ‘national interest’) to justify the overriding of local, and sometimes national, opinion that is epitomised in this quote.

In many ways, the task of planning is to balance public with private interests, and national with local interests. However, the concept of public interest is ill-defined, contested, unevidenced and, too often, unchallenged.

Currently, in the move to ‘build, baby, build’, as the new Secretary of State for Housing puts it, the phrase is the justification for potentially restricting or overriding public input.

In this article, I will focus on ‘public interest’ while recognising that, in the battle of these interests, neither is defined sufficiently to enable the concept to be used unthinkingly in national policy and decision making.

Acting in the interests of all sections of the community

The rationale of spatial planning and of land use allocation acting in the interests of all sections of the community was embedded in the 1947 Town and Country Planning Act, itself preceded by the1944 White Paper on The Control of Land Use. The latter reflected the belief that a wider public interest can be reconciled with individual rights.

Allowing one person to do what another must be prevented from doing

Thus, the rationale of acting in the public interest has been a cornerstone of the justification for state intervention in the development process for as long as statutory planning has existed.

The system of requiring anyone wanting to undertake development to seek permission from the local state to do so allows one person to do what another must be prevented from doing, to paraphrase economist and philosopher Friedrich Hayek.

We sometimes forget how radical the legislation to control development in the UK is. The 1947 Town and Country Planning Act nationalised the right to develop land—thus denying a landowner the basic right of doing what they desired with their own land unless the state allowed them to.

The right to influence outcomes

Decisions should be transparent and democratic. It is vital to engage with and listen to communities. The emphasis until now has been on influencing, not just on expressing, views. However, the current government seems to be moving towards a position in which people can make representations, but the stated need for housing will ultimately override these views.

The 2024 Labour Party Manifesto, Change, states: ‘[We will] ensure local communities continue to shape housebuilding in their area, but where necessary Labour will not be afraid to make full use of intervention powers to build the houses we need.’

This year, the Planning and Infrastructure Bill has sought to make professionals, rather than elected politicians, responsible for taking even more of the development decisions than they do already, with planning committees focusing solely on the larger and more contentious applications. Predictably, this has engaged the wrath of some.

It is a strange sort of public policy to state that public interest can override public views when public views must be a key basis for national interest. Clearly, we must define what the public interest is.

What this means in practice

There have been a number of studies of planning practice and its rationales. For example, a study in 1983 ‘found that planners had no unanimous definition of the public interest—61.4% spoke about a concern with benefits to the whole community not a narrow constituency; 40.9% expressed concern with long-term effects of planning decisions on the community; 22.7% used prevailing laws and policies as a guide to understanding and using the concept of the public interest in planning’.

Equally, a later (2015) article found: ‘Half of all planners have difficulty in providing a definition of the common good in planning. For the vast majority who consider the common good to be considered actively in practice, more than half of them cannot define it at all.’

This raises an interesting point. If the public interest is not defined, this legitimises the current government choosing a path that goes much nearer to its own framing of public interests than to community or individual involvement.

Research for the Royal Town Planning Institute in 2019 found: ‘Across most of the focus groups … there was a view that, at times, the public interest had become a partisan Trojan horse used by all (housebuilders, communities, councillors, other stakeholders) to justify their private concerns, and that it could reflect their individualised private benefit, with them having little genuine regard for wider societal need.’

The need for a definition of ‘public interest’

There are many public interests—just as there are many private interests. The overlaying complexities of this and the need for any judgment or decision to weigh these up were described pithily in a recent Scottish case involving offshore oil and gas. The ruling by Lord Ericht stated: ‘The public interest in authorities acting lawfully and the private interest of members of the public in climate change outweigh the private interest of the developers.’

It is not the task of this article to try to come to an immutable definition of public interest—even if that were possible. Interestingly, however, Patrick McAuslan identifies five essential national interests related to land policy: ‘efficiency’ (land being a scarce resource); ‘equity’ (a concept that McAuslan states may be contested); ‘certainty’; ‘safeguarding the state and the national patrimony’; and ‘the recognition of differences’. This starts to set a framework within which public interest in planning for housing may be more clearly defined. In terms of housing, we would bring in concepts including accessibility (in both senses), affordability, quality, equity, decency, acceptability, environmental sustainability and meeting need.

In contrast, the current government's rhetoric of what constitutes the public interest is purely growth. Here, this simplistically coalesces around the commitment to build 1.5 million homes in the term of this parliament. There is no nuance; no reference to the framework above. It is based solely on newbuild numbers.

It is always worth remembering that Aneurin Bevan, then the Cabinet minister responsible for housing, in 1947, stated: ‘We shall be judged for a year or two by the number of houses we build. We shall be judged in ten years’ time by the type of houses we build.’