Nationalising Development Rights: The Feudal Origins of the British Planning System

Abstract

The planning system that was formalised in Britain in the 1947 Town and Country Planning Act is distinctive for the way in which it explicitly nationalised the rights to future development and distinguished between physical development and land-use change. Contingent causes for these characteristics can be found in the experience of planning in the first half of the 20th century which in turn was developed from sanitary legislation of the 19th century. There are, however, more fundamental reasons for the way in which the British planning system was constituted. In this paper I argue that the nationalisation of development rights and the separation of land use from building have their conceptual roots in medieval property law. As a colonial state in the period after the Norman Conquest, England saw the imposition of feudal law in its purest form. In such a system, owners of land were denied absolute rights to property of the kind available under Roman law and its derivatives. Legal theorists developed the doctrine of the estate which gave concrete existence to the limited rights of all those with an interest in a given parcel of land (those with tenure). Present and future rights to use could be distinguished. This conceptualising of property interest was to have profound consequences not only for property relations but also for the emerging planning system in the 20th century. It created a system which gave the state unprecedented control over changes to land, but which also had some significant disadvantages.