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04/06/2019

Legal landscape: ‘Plantechnicon’ - law for a digital age

Man in suit with tablet pc

Current planning legislation is insufficient to address the changes being wrought by digital technology, says James Corbet Burcher. We need to frame fresh legislation for the digital age.

A Tuesday morning in 2030. The inspector opens a planning inquiry. After opening statements and third-party comments (automatically transcribed), the two parties’ landscape experts begin 30-minute visual presentations, referring to development projections on a large screen.

Thirty minutes of cross-examination follows and, time-unlimited, inspector questions. All viewpoints are geolocated for the augmented reality-assisted site visit. In the afternoon, housing land supply presentations are scheduled. Housing requirements and completion data have long since been automated and centralised. However, predictive analysis will be deployed to demonstrate the practical and socio-economic consequences of under-delivery across the local authority area in successive years one to five.

The following day’s evidence, climate change resilience and drone pathway witnesses will appear, followed by general planning witnesses. Closing submissions will proceed with hyperlinked references back to the continuous audio transcript and written evidence.

Members of the public can follow every document and every spoken word on their tablet screens. They wonder how it was ever done before.

As planning professionals’ Twitter and LinkedIn timelines fill with references to new initiatives in ‘PlanTech’ and ‘PlaceTech’, the question arises as to whether a legal framework rooted in legislation from the 1990s (Town and Country Planning Act 1990) and the mid-2000s (Planning and Compulsory Purchase Act 2004) can provide a sufficient regulatory framework to assist (and not constrain) technological innovation in plan-making and decision-taking.

Early legal research has focused on questions such as data privacy, but there are significant issues as to how to reconcile automation with discretion, speed of decision-making with transparency and technical sophistication with public comprehension.

"There are significant legal issues as to how to reconcile automation with discretion”

This is not a single revolution, but a spider’s web-like expansion across many sectors, in which the detail is woven in each day. A rough working typology might identify developments in at least five separate (but interconnected directions):

  • Digitising development plans
  • Automating development control processes
  • Improving public access to the application register
  • Big data collection and performance monitoring
  • Scheme visualisation (VR/AR) and mapping

All of these sit alongside developments bespoke to public hearings; planning appeals, plan examinations and potentially High Court litigation.

It will fall to legislation to set the principles that can create optimum conditions for plantech’s development, while avoiding the stifling of innovation and dynamism of the sector, and to frame a set of working principles to guide:

(1) transparency

(2) access

(3) accuracy

(4) independence/discretion

(5) the right to review

There are already early signs of bespoke legislation, in the data standards under the Brownfield Land Register Regulations 2017 and section 7 of the Neighbourhood Planning Act 2018. However, this is a fragmentary start.

Central government, in consultation with the sector, needs to consider and consult upon how to shape the core principles that should govern the use of such technology. In particular, this should cover the use of automation.

These guiding principles and statutory requirements will enable courts to address the new wave of disputes where courts have to decide how to address allegations that consultation submissions were ignored, automation eroded the exercise of discretion and initial data errors invalidated the ultimate decision.

The system will change as much in the next 10 years as in the last 30. Plantech will change our collective working practices irreversibly, but there is abundant opportunity to shape its development. James Corbet Burcher is a specialist planning barrister with No5 Barristers’ Chambers

James Corbet Burcher is a specialist planning barrister with No5 Barristers’ Chambers

Photo | iStock

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