PLANNING AND DEVELOPMENT UNDER THE TOWN AND COUNTRY PLANNING ACT, 1947
| Published date | 01 October 1948 |
| Date | 01 October 1948 |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00099.x |
PLANNING AND DIWELOPMENT UNDER
TI-112
TOWN
AND COIJN'l'llY PLANNING
ACT,
1947
'
. .
.
in the Middle Ages, the land lam, because it was the most
important branch of English law, was the most highly developcd
and the most technical part of the common law;
.
.
.
and
.
.
.
its
condition was typical both
of
the merits and defects of the common
luw
of
that period
.
.
.
its rules and doctrines wcre
too
narrow, and
obviously large developments of, and additions
to,
its rules and
doctrines wcre nccded to bring them into conformity with the new
political social nnd economic ideas and wants of the modern English
state.
The
adaptation of this highly developcd and technical body
of law to the changed world which was opcning in the sixteenth
century was a difficult task.
.
.
.
If
the common lawyers
had
been
unable
or
unwilling to rise to the occasion, some
of
the ninny courts
which administered bodies
of
law, which were competing with the
common law, would have supplied the want
of
an up-to-date land
Inw, and would thus have gone far
to
deprive the common law
of its control over the development of the modern law. Fortu-
nately for the common law the political strength of the common
lawycrs, and their technical
skill,
nvertcd this danger. They rose
to the occasion; retained their control
of
the land law; and,
on
the foundation of the mediaval land law, erected, with the help
of
the Legislature, the elaborate superstructure of the Modern law.'
'
Even after the reforms
of
the nineteenth century, it has remained
the most technical and complicated branch
of
English law, and the
least suited to the needs
of
the twentieth century.' Sir William
Holdsworth wrote these passages in
1025
in his conclusions
on
the
land law,
i.e.,
before this country,
or
rather the whole world, had
suffcrcd the torments of the second world war, and what was true
in
1025
hnd become doubly true some twenty years
or
so
later. The
serious problems created
or
intensified by that war demanded, for
their satisfactory solution, great and fundamental changes in
English land law. The post-war 'political, social and economic
ideas and wants of the modern English state
'
made it imperative
to
alter the English concept of landowning.
To
adapt Holdsworth's
phrase, with the growth of the extent and pretensions
of
the State,
and with the growth of collectivist society, other ideas of land
ownership arise.J These ideas are strongly opposed
'to
the
1
Iloldeworth, Ifislory
oj
English
Law,
Vol.
VII,
p.
398.
2
Ibid.,
p.
399.
3
Iioldswprtli,
Ifislory
oj
English
Lam,
Vol.
XI,
p.
72.
SCC
DISO
Mnitlnnd's
'
Essay
on
the
Law
of
Red
I'roporty
',
Thc
worde
'collcctiviet
hnvo
been
sobatitntcd
for
'
fciidnl
conditions
'
in
I~oldsworth'e
phrasp.
Collcrted
Popcrs,
i,
162-901.
nocicty
Tiinc
will
show
whether
the
two
cxprcesiooe
menu
tho
anme
thing.
SO1
402
TRE
MODERN
LAW
REVIEW
VOL.
11
individualistic point
of
view from which the law has long regarded
those who have rights in the land
',*
and the reasonableness of such
views can be tested by applying facts.
As
the Scott Reports
pointed out, of all European countries England heads the list with
766
persons
per
square mile, with Germany and Italy at less than
half that density, and France approximately a quarter
of
it, the
United States
of
America having only forty-three persons per square
mile.
Not only that, but over one-third of the population in England
lives in only
six
cities, and over one-half of the population in only
fourteen of the chief urban centres. Further, between
1925
and
1087
the annual loss of agricultural land was approximately
800,000
acres, and it is believed that this annual
loss
is increasing, whilst
there
is
no doubt that the population is increasing. And we have
only
50,000
square miles
to
cater for our requirements, an area
only pne-sixtieth of that of the United States of America
(8,000,000
square
miles).
It
is clear from these facts that there must be keen
competition for every inch of land in England.
If
justice is
to
be
done
to
the population, considered as
a
whole, there must be
machinery for adjusting competing claims, and in the case of
codcting claims, national,
and
not individual, interests must
prevail.
This is the basis
of
the Town and Country Planning Act,
1847.
One gets a clear picture from the Explanatory Memor-
andum' published at the same time as the Town and Country
Planning
Bill,
1947.
There it is stated that the object
of
town
and country planning is
to
secure that all the land in the country
is
put
to
the use which
is
best from the point
of
view 'of the
community, and that planning opcrates
to
achieve this by con-
trolling changes in the use of land, by securing that development
of the right kind takes places, and by eliminating wrong uses.
It
goes on
to
state that an adequate planning system must, therefore,
provide for three things
:-
(i) the making of plans,
i.e.,
settling the policy
on
which land
is to be allocated among the various uses;
(ii) thc administration
of
planning control
(or
control of
development), to secure that when an owner wishes to
change the use of his land the new use is in accordance
with the plan
;
and
(iii)
positive action
to
promote the execution of the plan.'
We shall see later that the
1047
Act does provide for these three
things.
But
there is one matter
to
which reference should be made
at this stage, and it is this.
All
three things are matters of policy,
involving administrative action. There
is
nothing judicial about
them, and
the
ordinary courts are not concerned with them. The
courts,
it
is respectfully submitted, have adopted the right attitude
in matters 'arising in this sphere
of
public law. See, for example,
6
Ibid.,
p.
73.
s
Report
of
tho
Committee
on
Land
Utilieation
in
Rural
Areae,
No.
6978
of
1042.
Cmd.
7006
(1947).
1
Ibid.,
pare.
3.
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