The Current English Planning System - Assignment Example

Part I 1) The current English planning system has a number of flaws and inefficiencies. It is overly complex, with national, regional, county, and local plans that overlap and sometimes contradict one another. Rules are sometimes unclear, both regarding what types of development require planning permission and regarding procedural matters such as how appeals of planning decisions may be pursued. The process of getting a project approved is usually slow, unpredictable, and seemingly arbitrary; and the process of generating plans is so cumbersome and expensive that many localities have either failed to create their first development plan, or have failed to keep their plan up to date. While the system is designed to be inclusive and involve communities in consultation, the planning process is often so long and cumbersome that many organizations and businesses lack the stamina and resources to see the process through. Planners sometimes make decisions without input from interested parties, and individuals and organizations lacking relevant professional expertise (or the money to employ such expertise) may find themselves unable to present their case effectively. Advice about procedures and information regarding the status of planning applications are hard to obtain; local planning departments are overstretched and “e-business” applications that might reduce some of the staffing burden are poorly developed. Finally, enforcement of planning regulations is insufficient: those who deliberately bypass the planning system are not effectively prevented from doing so. Change is thus required in order to create a planning system that is user-friendly and efficient, that inspires public confidence, and that operates effectively to focus development to promote societal goals rather than simply to act as a brake on all development. 2) The current English planning system is “plan-led”, meaning that proposed developments that do not contradict operative plans are generally approved. The exceptions to this general rule typically occur when relevant national policies or local circumstances have changed, and the plans in force have not been appropriately amended—a circumstance that frequently occurs, given the cumbersome process of formulating and changing plans. Development plans are intended to articulate the intended uses of the land to which they apply, and to provide an objective basis for approval or rejection of proposed development projects; in turn, development plans are supposed to reflect local needs as well as regional and national policy guidelines. The proposed reforms are intended to maintain the general concept of “plan-led” development, while reducing or eliminating the inefficiencies and other flaws in the current system. In order to accomplish this, the new system should include a simpler hierarchy of planning levels, with a clear system of relationships between the various planning levels; it should provide simpler, shorter, and more focused local plans which can be more easily understood, changed, and updated; it should enhance the involvement of local communities in the planning process; and it should improve the level of integration between the local development plan and other local strategies and plans, such as Community Strategies. The current county-level structure plans would be eliminated. 3) Under the proposed reforms, the current multi-tier system of county-level “structure plans”, local plans, and unitary-authority plans would be replaced by a new single-level planning document, to be known as a Local Development Framework. These Frameworks would articulate policies in keeping with the local authority’s long-term vision and strategy, and set out clear objectives and timetables for development and improvement of the local physical environment. They would include a statement of strategy for achieving these objectives, as well as a Statement of Community Involvement setting out arrangements for the local community to monitor and influence the planning process. Clear criteria would be laid out to support predictable decision-making in support of the goals and strategies articulated, and action plans (supplemented by maps) would be created for specific areas designated for change in use or status, such as town extensions or neighborhood renewal. The action plans to be included in Local Development Frameworks would be drafted at various levels—from comprehensive area master plans covering major areas of renewal or development, through neighborhood and village plans articulating standards for both preservation and in-character development, design statements outlining esthetic and performance criteria to be applied to areas or types of development, down to site development briefs mandating the details of how a particular site is to be developed. These new Local Development Frameworks are intended to be easier and faster to prepare and amend than the current form of local plan. They should also provide clearer advance indication as to what forms of project will and will not be approved, and provide better mechanisms for local individuals and organizations to become involved in the planning process. 4) It is difficult to predict precisely what results the proposed reforms will achieve. Reducing the complexity of the planning system would seem to be a requirement for any reform to be successful; the current system, with its multiple tiers of authority and sometimes contradictory overlapping planning documents, obviously needs to be simplified and streamlined. Further, the general goal of formulating plans that are clear, focused, less expensive to create, and easier to keep updated is a sensible one. If the proposed reforms succeed in creating clear lines of authority and clear, up-to-date plans that conform to well thought-out policies, they will definitely be considered a success. It is less than certain, however, that the reform proposal will really result in a consistent improvement in the planning process at the local level. Most of the proposed improvements are declarative in nature—they say a great deal about what local authorities should do in creating the new Local Development Frameworks, but they do not go into a great deal of detail about how local authorities can actually rectify the problems they have in coming up with clear and timely development plans. One suspects that the authorities that will succeed in implementing these reforms will be those that are doing relatively well with the current system, and that those authorities that have failed to create current and effective development plans under the current system will continue to fail under the new system. 5) According to “The Future of Building Control”, the current building control system is basically functional, but could use improvement in dealing with present and future challenges. The current system lacks a “vision of the future”; it appears to function without conveying a clear enough idea of the goals and philosophies behind its functioning. It is unclear how building control fits into the overall regulatory framework, and building regulations are overly complex and even sometimes conflicting. The consultation process is flawed; stakeholders do not feel that they have an effective voice in the building-standards process. Regulations are changed frequently and without enough notice for builders and owners to adapt smoothly. Compliance with building regulations is low, in part due to their complexity and fluidity, and in part due to lackluster enforcement and the high cost of constant monitoring. The current building control system lacks an infrastructure to monitor its own performance, and thus create a framework for better decision-making. Finally, the building control profession is not attracting enough new recruits; this will lead to staffing shortages as the current personnel base ages and hits retirement age. Individually, none of these problems would be especially worrisome. The combination of all these problems, however, implies that the building control system, absent reform, is likely to decline in effectiveness and efficiency in coming years. An effective program of reform is needed if we want to fix the building control system before it becomes truly “broken”. 6) The package consists of six “options”: A) Regulators and stakeholders should collaborate to create a vision of the future of building control—basically, a high-level statement of the system’s purposes, objectives, and guiding philosophy. This vision will influence the more detailed and practical options. B) The building control system needs to be modernized so that it can provide an improved level of inspection and enforcement even with lower staffing levels. This will require a shift to more “risk-based” inspection and an expanded range of options punishing and preventing non-compliance. C) The system should be streamlined and modernized to reduce costs without compromising standards. “Competent Persons” schemes can enable qualified contractors to certify their own compliance with standards (subject to outside review); and adopting an “e-business” approach could significantly reduce the time spent filling out and transporting paperwork. D) The guidance and recommendations offered to contractors should be made more “user-friendly”. “Pattern books” and improved Web resources could make compliance much easier, particularly for small contractors. E) A more orderly system for updating building standards would provide a better match between the pace of standards updates and the pace of building projects and planning. A fixed cycle of standards review and amendment (four years is proposed as a possibility for the cycle length) would enable the standards to be kept up to date without imposing unnecessary cost and confusion. The consultative process used in developing building control standards should be made more consistent and effective. F) The fees charged by localities for building control are supposed to support training and development of the building control system, as well as current expenses. The actual use of these fees should be reviewed to make sure that this is really happening; also, steps need to be taken to strengthen the building control profession, recruit more new building control professionals, and monitor the effectiveness of the building control system. Of these “options” for reform, the first five should be effective and reasonably easy to put into practice; in many cases they build on work that has already been done. The final “option” is a bit more nebulous: it identifies genuine problems that need to be addressed, but it does not present a completely clear program for solving these problems. Part II HY Associate, Ltd ordered the construction of a scaffold seating bank from RAR Builders, on the understanding that it was to be completed by 5 July at the latest. The price initially offered by RAR for the work was £20,000, with a price variation clause based on the cost and availability of labour. RAR commenced work immediately after receiving the order from HY, and completed the work during the week of 27 June. HY, however, had already decided to cancel the event in question, and had sent RAR a letter to that effect on 23 June; RAR received this letter on 29 June, when work on the seating bank was nearly or entirely complete. RAR has now sent HY an invoice for £24,000 for their work; HY has refused to pay, and at least one of the partners in RAR has threatened to sue for his share. In order successfully to defend against Richard’s lawsuit (in which he may be joined by one or both of his partners), HY Associate will need to show that it had never entered into a contract with RAR. This would mean that HY’s letter in response to the offer received from RAR did not constitute an acceptance of RAR’s offer, but instead amounted to a counter-offer which RAR never in turn accepted. Given the behavior of both parties in this matter, HY Associate will have some difficulty in proving that no contract was created; but it is very likely that HY can limit the damage somewhat by showing that the contract in force was based on its order, which did not include a price variation clause, rather than on the initial offer from RAR. A contract is created when two parties express their intention to create a legal relationship, and agree on the terms of that relationship. Unless there is a “meeting of minds” in which both sides agree regarding their mutual commitments, no contract has been created. One means by which a contract can be created is via “offer and acceptance”, in which one side sets out the terms for a proposed legal relationship and the second party agrees to those terms. If the second party, instead of simply agreeing to the first party’s offer, proposes significant amendments to the terms and conditions of the proposal, this response constitutes a “counter-offer”, which in turn needs to be accepted by the first party in order for a binding contract to be created. If an offer is followed by a counter-offer and the first party fails to respond to the counter-offer, no “meeting of the minds” has taken place and no contract has been created. The response to an offer or counter-offer may be in various forms, and an offer may specify what form of response will be appropriate. However, the applicable principle in common law is that acceptance must be made by a means that is “as least as effective” as the means specified; this means that if the intention to accept is clearly and unambiguously communicated, a contract is created even if the acceptance was not communicated exactly as prescribed in the offer. HY’s letter to RAR ordering construction of a scaffold seating bank contained its own set of terms and conditions, which differed materially from those in RAR’s offer—at a minimum, in not containing a price variation clause. (The fact that RAR ultimately invoiced HY at a price 20% higher than the price quoted in their initial offer provides an excellent indication of how significant the price variation clause—or its absence—was.) HY’s letter also included a statement that the order was not valid unless acceptance was confirmed by mail; this clearly shows that this letter was intended to be understood as a counter-offer rather than as an acceptance of RAR’s initial offer, since acceptances do not themselves need to be accepted. According to the majority opinion in Butler Machine Tool Co. Ltd. v. Ex-Cell-O Corporation [1979] 1 All E.R. 965, 1 W.L.R. 401, the final offer in an exchange of printed-form correspondence is the one that is to be treated as forming the contract. RAR failed to respond to HY’s counter-offer by post as required by HY’s letter; and this failure to accept in the prescribed manner constitutes the best support for HY’s claim that a contract between HY and RAR was never created. However, RAR did immediately commence on-site work on the seating scaffold. Richard is likely to argue that regardless of RAR’s failure to respond to HY’s letter by mail, beginning work on site constituted an implied and adequate acceptance of HY’s counter-offer; and the fact that HY did not take any immediate action to stop the work on the basis that agreement had not been reached will be taken as a clear indication that HY did believe that a contract had been made, even if it was less than completely clear what the exact terms of that contract were. Accordingly, it is unlikely that HY can persuade a court of the nonexistence of a contract between HY and RAR; the best strategy would be to attempt to do so anyway, while also attempting to have the case decided on the best possible terms for HY if the court does determine that HY and RAR did have a contract in force. Assuming that the terms of HY’s order were similar to those in RAR’s offer except for the price variation clause, clearly HY would prefer to have the matter resolved on the basis of their order. Lacking knowledge of any cancellation clauses in either RAR’s offer or HY’s counter-offer, we have no known contractual basis for determining what level of payment should apply in this situation. In any case, HY Associate clearly erred in notifying RAR of the cancellation only by post, when on-site work had apparently already begun. Given that HY had made it clear that the work needed to be completed by one week before the 12 July event, and given that RAR would obviously incur considerable expenses as soon as work began (and, realistically, would take a loss even if the job were cancelled before on-site work commenced, since RAR would have to contract for labour, materials, and so on), HY should have done everything possible to notify RAR immediately of the cancellation. As it stands, by the time RAR became aware of the cancellation, work on the seating scaffold would have been complete or nearly so; Richard will argue that ending work at this stage of the project would not have saved RAR any very significant amount of money. As the postal-acceptance rule (in which acceptances of offers are deemed made at the time of posting, rather than at the time of receipt) does not apply to cancellations, the effective date of HY’s cancellation letter was 29 June—too late to do very much good. (Stevenson Jaques & Co v McLean (1880) 5 QBD 346 and Byrne v. Van Tienhoven (1880), 5 CPD 344 established that the withdrawal of an offer is effective only when actually received.) Since RAR accepted HY’s counter-offer only implicitly, there was a “window” between their receipt of HY’s letter and the commencement of work during which HY could have cancelled their counter-offer at no charge, regardless of any contractual language to the contrary—simply because no contract was in effect. 23 June may have been within this “window”; but 29 June clearly was not. Assuming that no contractual language exists specifying cancellation conditions, the best that HY can do will be to attempt to determine what portion of the work RAR had yet to complete at the time of their receipt of the HY’s cancellation letter, and have payment pro-rated based on that basis (and based on a total price of £20,000). Given the fact that HY and RAR appear to have formed a legal relationship based upon RAR’s implicit acceptance of HY’s counter-offer, and that HY’s cancellation of this counter-offer was not received until after RAR’s work was nearly or entirely complete, HY’s best strategy is to attempt to settle with Richard and his partners on the basis that the (effectively) agreed price for the work was £20,000, and that this amount should be reduced based upon any applicable language in HY’s counter-offer’s terms and conditions concerning cancellation, or based upon any savings that RAR could have made by terminating work immediately upon receipt of HY’s cancellation letter. Read More