For decades, governments of different political persuasions have blamed and subsequently tinkered with the planning system. Planning has been widely regarded as a barrier to reaching the housing numbers necessary to meet demand and those houses that are built are often lacking in high-quality design (Ball 2011; Rydin 2013; Lord/Tewdwr-Jones 2014; Place Alliance 2020). One of the most cited reasons for the failure to deliver more housing is the high degree of uncertainty inherent to the planning system, which is interpreted as planning risk (Gallent/de Magalhaes/Freire Trigo et al. 2019). In contrast to most planning systems that are based on legally binding land use plans, England is the paradigm of a discretionary planning system where the land use plan is only indicative and each planning application is decided on its own merits, with the local development plan playing an important role in decision making but only alongside other ‘material considerations’. The uncertainty over the general principle of development at the outset of the process, alongside other factors that influence the viability of development, contributes to the risks for a developer and is thought to slow down housing production (Cheshire 2018; Airey/Doughty 2020).

Various planning reforms have sought to address this issue by introducing rules-based principles, culminating in a Government White Paper entitled “Planning for the Future” that proposed introducing zoning in all but name (MHCLG 2020). The intention was to give greater clarity about the principle of development upfront to both developers and communities and thus remove some of the risks associated with decision making in the later stages of the planning process. Whilst proposals for wholesale reform of English planning along zonal lines are off the table for now due to strong resistance from the Government’s own backbenchers, they are representative of a common thread of planning reforms since the 1980s. These reforms have focused on a perceived need to reduce risk for private developers via the use of zoning instruments and together warrant further investigation on the shift towards rules-based instruments in English planning.

This discussion touches upon long-running debates in the literature about certainty versus flexibility in different planning systems (Booth 1995; Tewdwr-Jones 1999; Steele/Ruming 2012). These are usually divided into regulatory or zoning systems where development must be in conformance with the plan, and discretionary systems in which the performance of the plan ranks higher than strict adherence to the plan (Faludi 1987; Janin Rivolin 2008). Whereas in regulatory planning systems there is a continuous tension between the desire for more flexibility whilst maintaining legal certainty, in discretionary systems there is a desire for more certainty whilst maintaining flexibility.

This paper suggests that recent reforms to the English planning system are based on a misunderstanding of the relationship between zoning and certainty. Zoning-style reforms for England have erroneously equated the use of zoning as a planning instrument with the provision of certainty to developers, wrongly citing Dutch and German planning in support of this proposition. Comparing the English proposals with the planning systems of three European countries (Germany, Switzerland and the Netherlands) shows that the planning practices of the latter are, in contradiction of the terminology typically applied, far more discretionary than those applied in England, strengthening the public sector in guiding development. Recent and proposed planning reforms in England tend to provide more certainty for developers but undermine the power of local planning authorities and citizens and do very little to improve the standards of place making.

The paper is organised as follows. First, we discuss the key debate on flexibility and certainty within different planning systems. Next, we introduce the English planning system, the proposed reforms in the White Paper and other rules-based planning instruments. We then review how the planning systems of three European countries (Germany, Switzerland and the Netherlands) address the need for certainty, before discussing the potential implications of the English reforms and potential lessons for England.

The dichotomy or tension between certainty and flexibility in land use planning has long been discussed in planning research (Faludi 1987; Booth 1995; Moroni 2007; Steele/Ruming 2012). This dichotomy is often connected to the different types of planning systems: rule-based, regulatory, zoning or conformative planning systems are credited with a high degree of certainty, whereas discretionary or performative planning systems are credited with a high degree of flexibility (Janin Rivolin 2008; Muñoz Gielen/Taşan-Kok 2010; Steele/Ruming 2012). The respective terminologies are used somewhat interchangeably. The key difference in such typologies is whether development rights are granted at the moment that a plan is approved, as is the case in rules-based systems, or following the approval of a proposal, as is the case in discretionary systems (Faludi 1987: 185).

First and foremost, it needs to be clarified that this debate is primarily concerned with legal certainty, notwithstanding the rich literature on uncertainty or risk that planning and law need to address (e.g. Gunder 2008; Rauws/De Roo 2016; Moroni/Buitelaar/Sorel et al. 2020). Legal certainty consists of procedural and material certainty, with the former referring to the rights to engage in planning processes and the latter to the norms that prescribe what development is permitted within which environmental limits (Buitelaar/Sorel 2010; Van den Hoek/Spit/Hartmann 2020; Feiertag/Schoppengerd 2023). Flexibility has been frequently presented as the opposite to certainty, but in practice the relationship between the two is much more complex. In particular very rigid material planning rules may provide false certainty as these are more likely to be changed (Van den Hoek/Spit/Hartmann 2020). Popelier (2008) reminds us that the demand for more legal certainty may come along with more uncertainty as the legal system in itself is dynamic.

The dichotomy between planning systems in relation to development outlined above, while useful as a starting point for comparative planning analysis, is somewhat simplistic, with many nominally plan-led systems across Europe displaying varying degrees of development-led characteristics (Janin Rivolin 2008; Muñoz Gielen/Taşan-Kok 2010; Buitelaar/Galle/Sorel 2011; Berisha/Cotella/Janin Rivolin et al. 2021). The contrasting depictions of conformative (rules-based) planning systems, in which development must conform to the plan, and performative (discretionary) planning systems, where individual developments are said to collectively perform the planning authority’s strategy (Janin Rivolin 2008), have been usefully adapted to describe how development-led practices can operate within plan-led systems (Buitelaar/Galle/Sorel 2011). The category of ‘neo-performative’ planning systems has been added to the conformative/performative dichotomy to describe those systems that make planning decisions on a discretionary basis, with the binding land use plan only changed following an agreement with a developer (Berisha/Cotella/Janin Rivolin et al. 2021). Indeed, land use plans themselves are often far more dynamic than they have been depicted in some of the literature and have substantial built-in flexibility, for instance in terms of the land uses that are allowed within categories (see for example in the case of Germany Hirt 2007). It is also somewhat ironical that the English government emphasises the extent to which the English system is already plan-led (MHCLG 2020), whereas many European countries have adopted a development-led philosophy, without abandoning binding land use plans (Janssen-Jansen/Woltjer 2010; Muñoz Gielen/Taşan-Kok 2010).

If development-led urban change can occur in nominally rules-based and therefore plan-led systems, while politicians in charge of development-led systems seek the apparently greater certainty offered by plan-led systems, is the issue primarily that all systems strive for a balance of certainty and flexibility? Buitelaar/Galle/Sorel (2011) suggest that, where a pragmatic planning culture prevails, the practice of planning may tend towards flexibility and adaptation to change, irrespective of the formal set of planning rules in place. In the Dutch case plans are used to facilitate development rather than to direct it, representing a divergence between the formal legislative determination of how planning should work and the informal practice of how planning does work (Buitelaar/Sorel 2010). The notion that planning systems that use a formally adopted zonal plan to establish precisely what can be developed are by their nature plan-led is based on a reading of law and policy and is in fact subverted by an analysis of planning practice.

The comparison concerning the search for a balance between certainty and flexibility in planning systems points to the additional question of for whom certainty is sought in different cases. Proposals to reform English planning along more plan-led lines are firmly aimed at providing greater certainty to developers and less flexibility to planners. But developers and planners face, and must try to resolve, very different sorts of uncertainties. While developers operate within an unpredictable economic environment and an imperfect land market, planners must coordinate urban change under conditions of severe uncertainty (Moroni/Chiffi 2022), most notably an accelerating climate crisis. It seems that many planning systems are searching for the holy grail of delivering both certainty and flexibility, which Steele/Ruming (2012: 156) argue has resulted in “schizoid planning systems”. It may be that the real challenge of planning reform is to accept that, just as in the practice of planning itself, a balance between sometimes competing agendas must be reckoned with.

The English planning system is the odd one out in a European context and characterised by its discretionary nature in which the development plan and the policies in it are only indicative and development proposals are determined on their own merits (Davies 1998). The current system dates back to the 1947 Town and Country Planning Act, which established the system of development control that has remained fundamentally unchanged since (Davies 1998; Booth 2003; Allmendinger 2016). Every local planning authority must have an up-to-date Local Plan which sets out generic and place-based policies alongside an indicative map. However, planning permission is given on a case-by-case basis with other ‘material considerations’, or matters that must be considered in development control, being taken into account, thus land use planning and development control are two separate processes (Tewdwr-Jones 1999). A planning decision of the Local Planning Authority can be appealed, with a relatively high chance of success: about a third of planning decisions are overturned by the Planning Inspectorate (MHCLG 2020: 12). Although the core of the planning system has remained essentially unchanged since 1947, several commentators have observed a marketisation of the system starting with the Thatcher governments of the 1980s but pursued under subsequent governments of different political persuasions, as property-led regeneration and special purpose zoning tools have been introduced at the fringes of the system (cf. Lord/Tewdwr-Jones 2014; Parker/Street/Wargent 2018; Ferm/Raco 2020; Bradley 2022).

Before World War II, the approach to planning in England was not dissimilar to that taken elsewhere in Europe. What Booth (2007: 137) refers to as the “immature system” in operation across the UK between 1909 and 1947 was based on zonal planning, as it had earlier developed in Germany. The system nevertheless contained scope for discretion where no planning scheme (the term then used for zoning plans) was in place, which was frequently the case as few local authorities adopted plans during this period (Crow 1996; Booth 2003). From the 1947 Act onwards zonal planning was side-lined, however, as the current discretionary system was put in place. The context for this change of path was in part the faults common to many zonal planning systems, in that plans were unable to incentivise development, coordination of different plans was difficult, and few plans were prepared due to heavy administrative costs, as well as its being a reaction to the growth of suburban sprawl. It has also been contended that discretionary planning was in fact only a continuation of the existing use of case-by-case decision making in the absence of a zonal plan, on the basis that almost all new development would be undertaken by the newly established New Towns Corporations (Hall/Tewdwr-Jones 2011).

The changing economic and political context, wherein public sector development was curtailed following its immediate post-war heyday, soon elevated the role of the private sector in residential development and, correspondingly, of the planning system. By the 1980s the New Town Corporations had been wound up, the rate of housebuilding by local authorities was in decline, and England was heavily dependent upon the private housebuilding industry – and therefore the planning system – for its rate of housing supply and for the design and layout of its new housing. While other planning systems had grappled with such an arrangement since their inception and had cause to design legal tools to maintain public control over the layout and design of new housing, in the English planning system it had been assumed that a high-quality urban environment with a sufficient supply of new housing would be provided by the public sector. Consequently, such legal tools and planning practices that might support housing supply and urban design outcomes are lacking.

Against a background in which the private sector is depended on to deliver the great majority of new housing and where housing supply has been regarded as insufficient to meet demand, the efficiency of the planning system to allocate land for housing has been questioned by governments of different political persuasions. In the 2000s, the Labour Government commissioned the Barker reviews of housing supply and land use planning in response to criticisms of planning as constraining housebuilding (Barker 2008) and were accused of bypassing ‘nimby’ local authorities by using regional planning authorities to set housing targets (Goodchild 2010). Following its election in 2010, the Conservative-Liberal Democrat coalition government pursued a dual agenda of localism and liberalisation. The 2011 Localism Act removed the regional planning tier, devolving responsibility for calculating housing need to local authorities, while the new 2012 National Planning Policy Framework (CLG 2012) sought to distil policy down to a single short document in an effort to drastically liberalise planning legislation. Most recently, a government White Paper declared the planning system unfit for the twenty-first century and recommended to do away with detailed land use regulations, such as use classes, and introduce a simplified zonal land use planning system (MHCLG 2020).

At the same time, there are also concerns about the quality of the built environment that the planning system seems to produce. A Housing Design Audit found that most new housing design is of average quality at best (Place Alliance 2020). Also on a smaller scale, there are significant concerns about the design quality of conversions of former retail units to residential use, which are threatening to blight the high street and the wellbeing of residents (Clifford/Madeddu 2022). The problem was recognised by the Government, which established the Building Better, Building Beautiful Commission to “tackle the challenge of poor-quality design and build of homes and places” (BBBBC 2020: 140).

A prevalent critique of the English planning system associated with its apparent failure to deliver the quantities of new housing demanded by the UK government is that it offers insufficient legal certainty to landowners and developers, embodied in what UK residential developers know as ‘planning risk’ or the risk of being unable to obtain permission to develop (Gallent/de Magalhaes/Freire Trigo et al. 2019). It is from this position that zonal-oriented reforms are proposed, switching from the present development-led state towards a plan-led state (Breach 2019; Airey/Doughty 2020; MHCLG 2020). The philosophical impetus that underlies this suggestion is the critique of central planning found in Friedrich von Hayek’s writings and which proposes the use of predictable rules in place of discretionary decision making (see for example Lai 1999). It is questionable, however, whether rules-based planning systems elsewhere in Europe, cited in the White Paper as offering greater certainty than the discretionary English system (MHCLG 2020), do so in practice.

Much of the critique of the planning system is directly associated with the proliferation of influential think tanks over the last decades (Haughton/Allmendinger 2016), which, if anything, has only increased under the current Conservative government (Foye 2022). Centre-right and libertarian think tanks have been hugely influential in shaping the debate about planning and their influence has increased. The Policy Exchange and Centre for Cities have been particularly influential (Foye 2022). Whilst ideologically distinct, they both lay the blame for the housing crisis with the planning system for not delivering enough, and government policy such as the focus on beauty can be directly linked to reports from either think tank (Foye 2022).

The Government’s own analysis in the White Paper acknowledged that England’s planning system is an international exception and that the case-by-case decision on development proposals significantly increases planning risk due to its unpredictable nature (MHCLG 2020). It argues that planning systems which “give greater certainty that development is permitted in principle upfront” would work better (MHCLG 2020: 26). The key question is whether the proposal for a zonal system as well as earlier rules-based reforms are likely to emulate existing rules-based planning systems or are just another step through which the planning system has become “systemically more permissive” (Lord/Tewdwr-Jones 2014: 347). In the following, the proposals of the White Paper and the earlier rules-based planning instruments will be outlined.

The drive to increase certainty in the English planning system and the frequent reference to zoning systems elsewhere justifies a comparison with a number of European land use planning systems and how their planning systems provide certainty. Germany, the Netherlands and Switzerland have been chosen because the neo-performative nature of their planning systems makes them comparable with the performative nature of the English planning system (Berisha/Cotella/Janin Rivolin et al. 2021). The review is based on a previous study looking at housing land allocation, assembly and delivery (Satsangi/Hoolachan/O’Brien et al. 2020).

Development rights are provided through dedicated land use plans that are usually drafted specifically with an investor lined up. The Bebauungsplan (binding land use plan) in Germany, the bestemmingsplan (destination plan) in the Netherlands and the Sondernutzungsplan (special land use plan) in Switzerland are all prepared for clearly delineated sites of varying size and the costs are usually borne by the developer. Although historically, binding land use plans in Germany were drafted without implementation being secured, this practice has become increasingly rare due to the high costs for the public purse. The Netherlands have introduced legislation that allows them to recoup the public costs of the land use plan, though the preferred solution is a public private contract (Tennekes 2018). Recent attempts in the Netherlands to establish a more flexible approach to planning by incorporating uncertainty over the exact shape of the development have failed and municipalities have reverted to a project-based approach to land use planning that is directly responsive to the intended development (Dembski 2020). Land use plans in the Netherlands have been described as more akin to a contract following a long process of negotiation (Tennekes 2018), but the same can be said for Germany and Switzerland, which are equally classified as neo-performative planning systems (Berisha/Cotella/Janin Rivolin et al. 2021).

For most developments, and certainly major ones, the local planners are at least theoretically in full control, market conditions permitting. The local planning authority has substantial autonomy to decide on the rules for the use of land, notwithstanding substantive legal norms outlining the general aims of planning and regional planning provisions. In none of the countries can the local planning authority be forced to draft a land use plan that meets the needs of the developer. Therefore, planning authorities and developers usually work collaboratively on a land use plan that meets the needs of the local authority and the developer (Satsangi/Hoolachan/O’Brien et al. 2020).

More importantly, local planning authorities have become much more proactive in the application of land policy instruments, some of which have been strengthened through planning reforms, in response to population pressures in cities (Satsangi/Hoolachan/O’Brien et al. 2020). The Swiss planning system has recently undergone a substantial reform, restricting the amount of building land reserves in existing land use plans under conditions of population growth, forcing local authorities to be much more proactive in applying the existing land policy instruments to assemble land for development (Satsangi/Hoolachan/O’Brien et al. 2020). Similarly in Germany, there has been a big drive towards a more proactive land policy over the past decade and the recent reform building on the recommendations of the Building Land Commission gives more teeth to some of the already existing instruments (Hengstermann/Hartmann 2021). The Netherlands is well known for an active land policy and the strong role of the public sector (Van der Krabben/Jacobs 2013). More proactive strategies of land policy by local planning authorities by no means hamper development. On the contrary, developers benefit from local planning authorities being committed to and involved in land assembly whilst also requiring affordable housing and aiming for place making (Shahab/Hartmann/Jonkman 2021).

This paper intended to reflect on recent changes in English planning towards a more rules-based planning system to create greater certainty in light of the (failed) attempt to establish a zoning system in all but name with the publication of the Planning White Paper in 2020. One of the key critiques of the planning system is the political nature of decision making at the very end of the process, when a developer has already made substantive upfront investments in the planning process without knowing if the development will be approved. Since the 1990s and certainly over the past decade or so, England has seen a number of planning instruments and policies being introduced that were intended to simplify the planning process and create greater certainty over the principle of development, e.g. outline planning permission and Permission in Principle or even granting direct development rights through Local Development Orders and the expansion of permitted development.

The impressive number of changes at increasing frequency to the English planning system has not delivered the desired outcomes yet. Planning reform over the past decade has been primarily driven by housing numbers, having reduced some parts of the planning system to an accountancy process (Bradley 2022). The changes to the English planning system have been justified against a very selective interpretation of certainty, which mainly increased certainty for specific types of development to the detriment of design quality. Their scope and application are at best partial. Instruments that could be applied to frame larger development sites creating more certainty such as Simplified Planning Zones and Local Development Orders are rarely used by Local Planning Authorities. Other instruments are clearly focused on addressing certainty for developers without, however, fixing the alleged supply issues of the English housing market (Foye 2022). Whilst the quality of new developments is increasingly recognised as a problem, as evidenced in the Planning White Paper (MHCLG 2020) and the Building Better, Building Beautiful Commission (BBBBC 2020), new instruments have focused mainly on cutting red tape whilst not adequately funding the planning service. Local planning authorities have never enjoyed the autonomy of decision making of their European counterparts as the discretionary system invites developers to appeal the refusal of planning permission or any conditions attached to it. Planning is therefore highly adversarial, a situation which has only been exacerbated through the requirement of local planning authorities to evidence that they have a five-year housing land supply and the presumption in favour of sustainable development if the numbers do not stack up. This has left Local Planning Authorities with little capacity to act.

It is here that a comparison with European rules-based planning systems is insightful. Evidence from European planning systems has shown a deficit of certainty and many planning systems previously deemed conformative have become neo-performative in response to a desire for greater flexibility (Berisha/Cotella/Janin Rivolin et al. 2021). The narrative that these planning systems grant development rights at the outset of the planning process has become far less common than it was several decades ago. The land use plan, which ultimately grants development rights, is usually prepared in close collaboration with, if not directly by, the developer. The costs of plan making and the risks of non-implementation are simply too high for local planning authorities to draft plans without commitment from developers. Here, too, developers face the political uncertainty of the land use plan not being approved by the municipal council or, in the case of Switzerland, rejected in a popular vote. However, developers will usually work together with the local planning authority to reduce the political risk. There is a high degree of autonomy in local decision making, as long as the relatively broad aims of national and regional planning enshrined in plans and legislation are considered.

The most interesting finding of our comparison of recent planning reforms in England and the experience in three European countries is the different responses to the shared problem of housing affordability. Whereas the English planning reforms aim to increase housing supply by providing more building land and reducing risk for developers and have therefore become more rules-based or conformative, the European planning systems reviewed have adopted neo-performative strategies not dissimilar to the discretionary nature of the English planning system. They tend to focus on the mobilisation and delivery of existing building land reserves by developing new strategies of land policy and strengthening existing land policy instruments. The case of England shows that rules-based instruments are not a panacea and, if poorly designed, have serious drawbacks or have limited utility in delivering housing with high-quality design. Whatever reform comes next for English planning, it is important to learn from the experience of European planning systems in their struggle to combine housebuilding with place making.