Six themes emerged from the data, suggesting six barriers that limit the use of the law to promote health in English urban planning decision-making, as perceived by the interviewees. The quotes below belong to 16 different stakeholders, with expertise in property development (2), urban planning (5), finance (4), transport (1), public health (3) and politics (1). Eight interviewees come from the private sector and eight from the public sector, including six at local or regional level and two at the national level.
The interviews show that key actors such as planning officers in LPAs, developers, consultants and real estate investors see the law as dense, complex and difficult to keep up to date with.
“[I]t is remarkably hard to say anything here about us having a proactive planning system. Everything is considered to be a burden on the market – it’s a regulatory burden.” (TC-242, senior policy officer, housing)
“The challenge I guess is that the law is really complicated and really dense and all those sorts of things. So, we do lots of training around law, civil engineering law and contract procedures (…). Understanding law and changes in law is sometimes a challenge and I think a lot of our training around work is around keeping up to date with law (…). So, it's really important, it's quite hard to keep up and keep going with it” (TM-113, consultant, urban planning/transport)
“[T]he rules on viability […] are horrifically technical, very obscure, most people don’t understand them at all, but have a huge determining effect on the pattern of development and what gets built. And then, how they’re interpreted by case law – individual cases will have a massive impact.” (AS-192, consultant, housing and finance)
In addition to the complexity of the legal environments surrounding urban planning, interviewees felt that some regulatory standards are not enough or not adapted to implementing critical goals to move towards healthier urban areas.
In contrast with the heavily regulated environments that urban planning operates in, critical values of health and well-being, less still health inequalities, are not integrated into the legal requirements that LPAs rely on to base their decisions. If such values are mentioned, it is sporadically, and they are ill-defined.
“So, if for the future we are starting to say, ‘well look, sustainable development is so much more and real health outcomes are a key material consideration[a] in determining planning applications’, I would love that, but my sense is at the moment we haven’t got the backing for that, we haven’t got the national guidance or the national legislation and also local plan and policies for that.” (WB-331, local government, development management)
The absence of health in urban planning decision-making processes was felt even when the broader field of public law was considered.[b] Some interviewees mentioned the statutory duty of local authorities to improve the health of people in their jurisdiction,[c] but indicated that it was neither considered in planning decision-making, nor was it used as a basis to challenge decisions on appeal or in judicial review.
“There is a duty on local authorities to promote and protect the health of the population. So taking health impacts into account in the short, medium and longer-term (…) local authorities could be challenged. (…) the statutory duty of the authority is to be assured that the health of the public is protected and promoted. So that could be used as a lever.” (WA-292, local government, public health)
A similar argument was made with the equality duty under the Equality Act 2010.(28)
“[W]e are fundamentally failing our equality duty almost everywhere on the network because we still have barriers to access transport. So, that’s walking, cycling, public transport. I’m astounded that that hasn’t been challenged more. I think that it will be eventually, because the legislation is in place, it’s been in place for long enough that reasonable adjustments should have been made and aren’t, and they continue not to be (…).” (BX-596, urban/transport planner)
4) Inconsistent interpretations by actors with competing interests
The above remarks about the legal and regulatory environments operating within, and in parallel to, urban planning lead to inconsistent interpretations of the law by different actors, each trying to uphold differing interests. Commercial actors, notably developers, are in principle profit-oriented, which means that financial returns guide their decision.
“[I]f you look at Grenfell, which is a very rare example (…) [developers] don’t just try and comply with the regulations. They try and game and avoid and break the regulations. So it doesn’t matter whether you’re talking planning or building regulations. A significant part of the built environment industry is trying to find ways to minimise the impact of those regulations on their profits.” (JM-184, property developer/investor)
Values relating to health promotion, including those within the Biodiversity Net Gain approach to development,[d] are considered a financial risk by the industry.
“It’s being seen as a risk I think generally. That obligation is seen as onerous by the industry probably, however, I think the industry has sort of got used to the biodiversity (…). It’s been on the agenda for long enough. I think the good thing is though, again if it’s thought about early enough, then actually you can create really pleasant places if they have the sorts of spaces within them that will deliver that agenda. I like the long-term bit because I think that ensures that those things don’t just become denuded over time (…).” (Property developer, RSL, GN-190)
“[I]f they [developers] know about [the Biodiversity Net Gain] at the time of making an offer or considering buying the site, they can factor that in to the price and the bid, and therefore it will be embraced and welcomed rather than resisted for viability reasons.” (Planning consultant, RB-179)
When it comes to the planning inspectorate – the body reviewing appeals against a refusal to grant planning permissions – health considerations seem to be interpreted inconsistently. Two interviewees from local councils explained how the lack of certainty on how health or the public health duty would be considered at the planning inspectorate discouraged LPAs from refusing planning permissions on health grounds.
“[There is] a question in the minds of planning officers as to whether a planning inspector would uphold a rejection of a complaint on health grounds. So they might well feel that they could understand the objection, they might even sympathise with the objection, but they didn’t feel they could necessarily advise the committee to endorse the objection when they were not sure if the planning inspector would uphold that. They felt the planning inspectors would go down more conventional approaches rather than take account of the health issue. That declined as a problem when health became included in the national planning policy framework but it didn’t go away because there was still a feeling that planning inspectors hadn’t necessarily fully clocked the significance of health and even though it was in the NPPF they didn’t necessarily see it as the same overriding issue (…).” (XE-990, former director of public health)
“I think that the challenge is that (…) sometimes (…) planning inspectors will say that kind of action [legal challenges on the basis of the public health duty] is best done through non-planning systems rather than the planning system and therefore (…) you get planning inspectors saying different things and (…) interpret law in different ways.” (DB-243, urban/transport planner)
5) Lack of strong health evidence-based local planning policies
Interviewees reported the critical importance of planning policies based on (local) evidence of urban health benefits.
“I think from a planner’s perspective, obviously it’s the cost of appeals that is the concern (…). [I]f we don’t have robust policies in place informed by robust evidence then you’re more likely to get an appeal happening.” (UT-507, sustainability senior officer)
“What matters is whether or not someone points out, something pertinent in relation to our policy [when submitting a planning application]. That’s all that matters because actually there is always hanging over us, that the applicant has a right to take this on to the inspector. We can’t make decisions that wouldn’t stand up when it goes to the inspector. That is a matter of policy and the application before us.” (BL-533, elected official, urban planning)
6) Inertia of the law
Unclear or outdated policies, as well as the absence of health promotion in urban planning policies, are difficult to change because local governance systems do not allow for flexibility.
“Just the acceptance of a recommendation by an organisation, whether it be a health body or a council, it’s very hard for that to break through into professional practice, especially when there are codes of policy which would have to be changed (…). For example, planners would say to me well you may have got this resolution from the council but the fact is the development policies still say this and the process of changing them would consist of drafting a change, advertising a change, hearing objections, there could be an appeal from a planning inspector, so the decision of the council can't change any of that unless we go through that process. So I think planning is particularly trapped by the fact that it operates in a legalistic framework in which many of these things which we see as part of the public health process are not part of that formal legal process.” (XE-990, former director of public health)
[a] ‘A material consideration is a matter that should be taken into account in deciding a planning application or on an appeal against a planning decision.’ Planning Portal. Available at: https://www.planningportal.co.uk/services/help/faq/planning/about-the-planning-system/what-are-material-considerations
[b] Public law is the body of law that governs public institutions and relations between public bodies and individuals.
[c] The statutory duty comes from the National Health Service Act 2006 c.41, Sections 13G and 14T, as inserted by the Health and Social Care Act 2012 c.7.
[d] Sections 98-101 of the Environment Act (2021) contain provisions for the Biodiversity Net Gain in planning. ‘Biodiversity Net Gain is an approach to development, such as a new building or construction, that leaves biodiversity in a better state than before. Where a development has an impact on biodiversity, developers will need to provide an increase in appropriate natural habitat and ecological features over and above that being affected.’ Greater Manchester Combined Authority. Available at: https://www.greatermanchester-ca.gov.uk/what-we-do/environment/natural-environment/biodiversity-net-gain/