Planning, Discretion, and Judicial Intervention: Recent Discussions and Institutional Changes in the UK and Role of Court on Planning

Abstract

In many jurisdictions, the planning authority has considerable discretion at all stages of the interpretation, implementation, and application of urban planning. The courts or judiciaries of many countries take a deferential view of administrative agencies’planning judgments or decisions for reasons such as a lack of expertise in policy judgments on urban planning. However, planning is not free from judicial or statutory review from the perspective of the rule of law, and it is necessary to secure the legitimacy of urban planning and related administrative actions or decisions. Nevertheless, it is not easy to consider the extent to which the courts or judiciary can intervene in urban planning and policy-related issues and what institutional processes can be conceived for that. The relatively recent trends in the UK in the 2010s can be referred to for these issues. First, in terms of the substantial aspect, the UK Supreme Courtin its 2012 Tesco v Dundee ruling ruled that the interpretation of urban planning should be conducted from an objective perspective, considering the appropriate context, and explicitly declared that the interpretation of urban planning or planning policies was also a matter of law. Considering the characteristics of the UK planning law system, which is often represented by discretionary planning permission and the nationalization of development rights, this change in the court’s position has had a considerable impact on the trend of appeals against planning decisions and has prompted subsequent discussions on the scope and legal principles of court intervention in urban planning. Second, in terms of the procedural aspect, the UK introduced the Planning Court under the High Court in 2014, which has shortened the hearing timetable for important planning cases and has specialized planning judges hear them. This attempt is evaluated positively to some extent. Such discussions have not yet been fully introduced outside of the UK, not only in Korea but also in other countries. Hence, this study critically examines these discussions in the UKand derives implications that can be referenced from our perspective and system.