Abstract
Planning-related conflicts have been well documented in academic literature. However, the appeal tribunal, a prominent site where these conflicts are deliberated, remains an underexamined area of study. Where appeal tribunals are addressed, the literature has not focused much attention on appellate bodies or the contents of their decisions. The main purpose of this article is to explore appeal tribunals in the field of land-use planning. This is done through an exploratory survey and reorganization of current literature. The article highlights the international prevalence of appeal tribunals, offers insight about their role, points to existing gaps in knowledge, and explores future research needs.
Keywords
Background: Land-use Conflicts and Appeal Tribunals
An enduring issue in planning has been how to address conflicts involving land-use, development applications, subdivisions, zoning, and ordinance amendments. Planning theory has sought ways of mitigating conflicts with respect to land use, including public participation (Arnstein 1969), advocacy (Davidoff 1965), assisted negotiations (Forester 1989, 82–103), storytelling (Sandercock 2003), consensus building (Innes 1996), and communicative methods (Healey 1997, 233–49, 2006, 7–30). When such techniques fail to resolve conflict, and a planning decision is nevertheless made, the conflicting parties may choose to appeal to a variety of appeal courts and tribunals, which shift the balance from progressive techniques to judicial conflict resolution. Land-use appeals, therefore, materialize at the crossroads of law and planning.
Whereas the role of courts in land-use planning has been discussed extensively (see, e.g., Kayden 1995; Juergensmeyer and Roberts 2003; Wright 2003; Callies 2005; Blaesser 2007; Buchsbaum 2011), the important role played by appeal tribunals in the fields of planning and law has not been sufficiently highlighted. The main purpose of the article, then, is to explore appeal tribunals in the field of land-use planning and to highlight their worldwide significance for adjudicating conflicts. The article surveys the appeal scene in the field of planning, reorganizes the literature, explores future research needs, and calls planners to become involved in rethinking current appeal systems through the application of cross-national and local research.
Appeal tribunals discuss low-tier planning decisions, usually at the local level. Similar to the courts, appellate tribunals administer land-use conflicts, weigh and decide contesting claims about land, property rights, and development proposals and, in some cases, attempt to mediate between contesting parties (Stubbs 1996). Appeal tribunals’ decisions discuss planning-related contestations using a set of statutes, rules, and administrative guidelines and therefore provide a venue for specialized justice.
Although tribunals have been somewhat understudied, there are several exceptions. Notably, Moore (2013), Edgar (2011, 2010), Moore (2009), Willey (2007), Ellis (2006), Clinch (2006), Chipman (2002), Redmond (2003), Willey (2000), Punter and Bell (2000), Sullivan (2000), Stubbs (1996), Legomsky (1990), and Farmer (1974), all of whom engage in research into the operation and decision making of appeal tribunals in land-use planning.
It is this article’s contention that the “nuts and bolts” of planning can be exposed through appeal decisions, which reveal the facts and the legal underpinnings of planning disputes. This can be achieved by studying a variety of jurisdictions around the world. In order to engage in empirical or theoretical research of appeal decisions, planners and researchers must first familiarize themselves with the functions and powers of those institutions.
As a meeting point of law and planning, appeal tribunals become a common venue for lawyers, planners, architects, and educators. These professionals cannot afford to ignore such institutions and must become highly involved in their establishment and in shaping the processes and powers which govern their operation.
Tribunals are the place where deliberations about rights and resources take place. They provide a venue for the inevitable contestation between public authorities, developers, and the lay public. It follows that they provide a unique opportunity to study how land-use and development law works, and how different interests meet or clash in an arena which leaves aside participatory processes and accentuates power struggles among diverse participants.
The first part of the article explains why it is imperative to deepen the research of appeal tribunals in the field of planning. Using a variety of primary and secondary sources, the second part identifies the international phenomenon of appeal tribunals and maps their cross-national prevalence.
The third section extrapolates some cross-national observations emanating from the survey of appeal tribunals, including terminological issues, the link between tribunals and democracies, the prominence of tribunals in the twentieth-century modern state apparatus, the availability of web-based sources which can aid researchers in studying appeal decisions, and the reasons behind the establishment of appeal tribunals in a variety of planning systems.
Overall, the article explores future research needs in what is an area of study that has been somewhat marginalized in research. Building on a multinational perspective, the article reconstructs, reframes, and reorganizes current knowledge about planning appeals. The exploratory analysis clearly demonstrates that the appeal tribunal is an international phenomenon which is likely to persist. Thus, the article calls planners, practitioners, and researchers of the field to become involved in rethinking current appeal systems through the application of local and cross-national research on appeal decisions, policies, and institutions.
The Role of Appeal Tribunals in the Field of Land-use Planning and the Importance of Studying them
Appeal tribunals, at the epicenter of many planning systems, increasingly provide a platform for quick and efficient conflict resolution (Legomsky 1990; Middleton 1976). They have become a professional venue for deliberation on technical and professional matters. They are also the place where citizens can seek redress from local planning authorities. Rather than being branches of local government (such as Zoning Appeal Boards in the United States), the tribunals to which this article refers to are bodies appointed with the intention of creating distance from local politicians in order to provide an independent venue for review of local development decisions.
In his seminal book, Tribunals and Government, Farmer (1974, 7) notes that, “The use of a tribunal in the planning field arguably shows a greater regard for the individual’s position against the all-embracing power of government bureaucracy.” Concurrently, appeal tribunals in the field of planning are where urban and regional policies are affirmed and constantly interpreted by a higher-tier institution that oversees localities.
Certain appeal tribunals operate as appellate bodies of first instance. Whether presided over by a panel or a single officer, the First Instance Appeal Tribunal (or FIAT) is the first appellate body to review decisions made by lower-tier planning authorities. FIATs are the first instance where planners, permit seekers, developers, objectors, and other interested parties settle their disputes. As such, FIATs are, in fact, judicial entities which adjudicate the built environment and, in parallel, act as institutions with planning responsibilities.
Why Study Appeal Tribunals in the Field of Planning?
The first gap in existing literature relates to fewer attempts by scholars to study planning appeals, appeal processes, the composition of appeal tribunals, and the content of their appeal decisions as means for studying planning conflicts.
Although appeal institutions are foundational elements in several planning systems, Farmer (1974, xi) observed forty years ago that tribunals were “without doubt a much neglected area of the legal system and public administration.” This gap is still evident today, as more recently Willey (2007, 1676) noted that “there is currently a significant lacuna in planning knowledge with respect to understanding planning-appeals processes.”
Why are appellate agencies and appeal decisions so cardinal to planning? Cullingworth and Nadin (2006, 169), while relating to appeals in England, argue that “[T]he appeal procedure is a microcosm of the whole planning system. It is where the system and its policies are challenged and where the most contentious and difficult issues are addressed.” As first-instance appellate bodies, appeal tribunals are where conflicts are exposed in force for the first time by an independent and often nonpolitical body. Appeal tribunals are an invaluable source for learning about planning systems, their associated policies, their application in “real-life” debates (Punter and Bell 2000, 277). Empirical analysis of appeal decisions reveals not only the facts behind the case but also the rules and their grounding by planning tribunals.
Appeal tribunals in the field of planning may operate under the auspices of central government. They may be part of a central government ministry or an independent state agency. However, though linked to central government supervision over planning, tribunals are deeply rooted in the localities for which they hear appeals. The tribunals are a branch of government, which combines the local with the central, its administrative powers with its adjudication capabilities. This mixed nature adds to their importance as an intermediate body that bridges law and planning, localities and their citizenry. By reason of their expertise, tribunals become the place where land-use conflicts can be studied.
Why Study Appeal Tribunals Using an International and Comparative Prism?
The second gap in the literature relates to comparative and cross-national studies into planning appeals. The international prism leaves behind a trail of puzzling questions, such as, Are planning tribunals a common phenomenon? Are they unique to certain countries and legal systems? Can their attributes and decisions be studied comparatively? Are their decisions the focus of current research, especially comparative research?
These questions and more can be answered using an international analysis of a variety of planning systems. Unfortunately, “sustained comparative analysis of tribunal operations is still embryonic” (Creyke 2008, 5), and general research into the growing phenomenon of tribunals has been ongoing only since the early 1990s (ibid).
Despite the complexities of history, geography, and socioeconomic factors, comparison can prove a useful tool for cross-national and cross-local transfer of knowledge. Comparative research can provide a sense of scale to current problems faced by planners (Lowenthal 1992, 249) and can also set the stage for understanding current policies in each country (e.g. Booth 1996; Alterman 2001; Janssen-Jansen, Spaans, and Veen 2008).
Identification of Appeal Tribunals
This section introduces the widespread phenomenon of appeal tribunals in the field of planning while focusing on current literature. The ensuing analysis is an exploratory description rather than prescription. Professionals in the field may draw normative conclusions and insights, yet the core purpose here is to facilitate debate using the literature, rather than to set out future pathways for improvements of current appeal systems. What works “better” or “worse” is a relative matter which should be deliberated by practitioners including legislators, planners, and jurists.
I carried out a survey of a variety of planning tribunals, using government websites, government reports, third-party reports, practice notes, administrative rules, state legislation, annual summaries prepared by tribunals, training manuals, textbooks, and scholarly papers. Additional information was gathered through personal communication.
In order to track down appeal institutions, the survey sought tribunals which decide planning-related issues and sit as first-instance appellate bodies. The criteria are shown in Table 1.
Criteria Employed for Tribunals’ Survey.
Using the above criteria, twenty-three appeal tribunals in a variety of jurisdictions were identified.
Table 2 provides a tapestry of these assorted tribunals and presents them in comparative form. The first and second columns identify the country of origin and the tribunal’s name. The third column identifies related scholarly papers and government reports about the tribunal, the fourth lists websites where decisions made by the tribunal can be found, the fifth provides the “birth certificate” of the tribunal, namely the date it was first contrived in its current form, the sixth lists the regulation which empowers the tribunal to adjudicate planning disputes, and the seventh column includes commentary regarding former columns.
Identification of Tribunals.
The analysis in this section does not attempt to detail all relevant factors influencing the operation of appeal tribunals; rather, it is exploratory and focuses on macro-level issues with the aim of guiding future research. The survey also aims to inquire about the international scope of appeal tribunals in the field of planning rather than to investigate their composition, exact powers, and the related processes underlying their activity.
Comparative Reflections and Agenda for Future Research
A closer look at the survey’s findings provides a few insights and also brings to the fore some underlying questions to be answered by future research.
Terminological Issues
Appeal tribunals vary in name: some are called “boards” (Malta, Hong Kong, and South Africa), some are referred to as “tribunals” (e.g. tribunals in France and the Australian Capital Territory), “commissions” (such as tribunals in North Ireland) and “courts” (as is the case in New South Wales and New Zealand). The variation in terminology suggests that specialized conflict resolution in the field of planning is conducted by a variety of professional adjudicators. Variation may also imply a much more legalistic procedure of inquiry adopted in countries inclusive of “courts.” Current literature, however, does not provide a lucid cross-national account of the functions of these institutions. Terminological variation can provide a good starting point for addressing this task.
Tribunals and Democracies
The identified tribunals come from democratic countries in four continents. One tribunal is located in continental Europe (France), another in the East Asia (Hong Kong), another in the Atlantic Ocean (Bermuda), and another in the Middle East (Israel). It is possible to attribute the appointment of tribunals’ members to democratic processes, whereby members of the tribunals are appointed by democratically elected ministers, governors, cabinets, or parliamentary committees. Allegedly, their operation under the guise of democratic political order implies that appeal tribunals operate under transparent, equitable, and nonpartisan guidelines. However, this conclusion stands on thin ice and further research is needed to corroborate it. Indeed, there are examples where tribunals are found to be antidemocratic (Chipman 2002, 202), lacking transparency, making participation costly (Moore 2013, 172), or limiting the right of appeal (Ellis 2006). Moreover, existing research points out that the mere operation of an appeals tribunal may undermine democracy. This is because review by tribunals allows local politicians to avoid tough decisions knowing that contentious disputes “will ultimately be the responsibility of someone other than themselves” (Chipman 2002, 208).
Tribunals as a Product of Anglo-American Systems
The survey is a testament to the close tie between most tribunals and countries with Anglo-American legal systems. The prevalence of tribunals in Anglo-American jurisdictions may be attributed to a host of polycentric issues. It may also be the result of the language limitations of the survey. The alleged link between appeal tribunals and Anglo-American tradition may suggest that the casuistic disposition of Anglo-American legal systems provides firm grounding for specialized case-by-case planning decisions. This assertion, however, is not supported by somewhat contradictory evidence that shows appeal tribunals are also alive and well in continental legal systems (e.g. the French Tribunal Administratif ). Thus, professional appeal tribunals in the planning field cut across different legal systems. It is plausible that the subject matter of planning itself holds special attributes such as dynamism, technical complexity, and a mixture of law and fact which can help explain why across legal systems specialized tribunals are employed to resolve planning-related conflicts. The matter, however, calls for further study which investigates and ties together the nature of planning disputes and the machinery of appeal tribunals.
Tribunals as an International Twentieth-century Phenomenon
Creyke (2008, 5) argues that tribunals allow policy makers to create an effective administrative agency where stakeholders are heard by experts. This model of dispute resolution has been fast growing and emulated across countries, although somewhat in isolation. The survey of the literature adds weight to Creyke’s observation. Table 2 illustrates that tribunals have been employed throughout the twentieth and twenty-first centuries. The fact that the Canadian Ontario Municipal Board (OMB), established in the 1930s, is the oldest existing tribunal, denotes a long-lasting phenomenon of configuring the appeal system in the direction of specialized institutions. The recurrent usage of appeal tribunals suggests that there is a connection between planning-related conflicts and their adjudication by professional tribunals.
Statutory Agencies and their Powers to Decide Planning Disputes
Another conclusion emanating from existing literature is that tribunals in the field of planning are statutory institutions. The survey of literature points to a set of enabling statutes that define the powers of appeal tribunals. The powers vested in them vary from place to place and may depend on contextual matters, such as the level of trust legislators assign to localities.
Reconstitution, Adaptation, and Reinvention of Tribunals
A closer look at the literature demonstrates that a few contemporary tribunals have replaced former appellate bodies. These institutions were reconstituted, and in some cases their responsibilities were consolidated, following structural changes in the state’s administrative organization, its government, or its planning system.
In New Zealand, the Environment Court, which acts as a specialized planning body, replaced the Town and Country Appeal Boards which had been established in 1953. This was done as part of a greater reform in 1991, which merged statutory planning and environmental controls into one law—the Resource Management Act (Goelz 2009, 174). Similarly, in Western Australia, the State Administrative Tribunal (SAT) was established in 2005 following the amalgamation of civil law functions of nearly fifty industry and public-sector boards and tribunals (Western Australia State Administrative Tribunal 2013).
Further exemplifying this phenomenon, a bill was passed in the House of Lords in the UK. The 2013 Growth and Infrastructure Bill proposes to empower inspectors to decide planning applications in cases where failed localities are involved (Department for Communities and Local Government 2012). The Bill proposes to reinstitutionalize inspectors as an avenue of recourse for developers to bring their planning applications while bypassing the local planning authority. While the Bill is being justified as a measure to cope with poorly performing localities, it raises plenty of questions with respect to its top-down approach. Moreover, from an institutional point of view, it remains questionable whether inspectors, as an appeal agency, should be “upgraded” to an all-powerful planning entity which bypasses local negotiations and decisions.
These examples highlight the strenuous efforts by state governments to constantly and continuously adapt their administrative appeal system, all the more so in the field of planning. The result is often the constitution of powerful institutions which hold strong powers of review and whose activities become a shield against unfounded local decisions. It is also a testament to the dynamic attributes of the planning field and the will of governments to explore new ways of adjudication and conflict resolution.
Web-based Sources
In most countries, tribunal decisions and orders are available online for free. The fourth column in Table 2 lists a variety of online sources that can be used to access appeal decisions. It follows that in these jurisdictions the lay public as well as researchers and practitioners may familiarize themselves with the decisions of planning tribunals. In some countries, decisions can also be accessed using professional websites that charge a fee (e.g., this is the case in New Zealand). In several countries, the database makes it hard to search for decisions using a specific word-based search (such as in England and Wales) and in two jurisdictions decisions cannot be traced freely on the web (South Africa and Bermuda). The findings shed light on many issues addressed by planning theory such as the right to be informed about planning decisions, and its “sister” right to influence and affect future planning decisions. In this respect, the availability of appeal decisions is impressive, especially given that in some jurisdictions thousands of appeals are decided each year (such is the case in England or in the Republic of Ireland).
The Overall Focus of Current Research
The aforementioned gaps in existing research present challenges, and also provide opportunities. A closer look at the literature shows that, indeed, research into planning tribunals and their appeal decisions has not been extensive, yet notably there is a growing cadre of interesting works that were mostly carried out in the past decade (Table 3). Arguably, it is a new field of research attempting to establish itself.
Comparative and Noncomparative Studies on Appeal Tribunals.
Evidently, current research focuses on the apparatus, powers, processes, history, and composition of appeal tribunals in the field of planning. In this regard, the survey shows that most available sources investigate planning tribunals in isolation. Out of these, only few scholars tap the vast source of knowledge available to planners in the form of appeal decisions by analyzing the content and meaning of appeals and their impact on planning and the citizenry (Moore 2009; Ellis 2006; Bingham 2001; Punter and Bell 1997, 2000).
Research that adopts a comparative cross-national prism is also rare, and there is little cross-pollination between existing studies. Thus, a question persists, why is this so? A plausible reason could be the immense diversity and complexity of these agencies. Tribunals in the planning field may be highly different from one another that it led Farmer (1974, 3) to argue that “the very diversity and number of tribunals has tended to obscure the functions which they exercise and the purposes for which they are created.” In addition “… it seems that there is an infinite variety of tribunals …” (Farmer 1974, 184). Hence, their diverse responsibilities, underlying procedures, and forms of adjudication create challenges for researchers. For example, the literature tags some tribunals as “merit” tribunals (Edgar 2011), whereas some are considered to be “non-merit” agencies (Sullivan 2000). This means that while some tribunals review the merits of a planning appeal (e.g., tribunals in Victoria, Scottish Reporters, or the Appeal Boards in Alberta), others restrict review to questions of law (e.g., the Land Use Board of Appeals [LUBA] in Oregon).
Nonetheless, in spite of the number and diversity of planning tribunals which allegedly complicates future analysis, the large set of tribunals is comparable. The availability of online appeal decisions allows researchers to explore planning conflicts and policies in each country, and the range of primary data in the form of statutes or regulations facilitates an in-depth analysis of the powers and responsibilities of existing tribunals.
What Are the Factors Influencing the Introduction of Appeal Tribunals?
The large set of tribunals depicted in current literature raises many additional questions beyond the ones mentioned above. A pressing issue relates to why these institutions were established in the first place. The literature provides interesting insights, yet these accounts are isolated, garbled, and sporadic and do not offer a coherent analysis. A closer look enables us to “connect the dots” and weave together some of the reasons behind the establishment of appeal tribunals in the field of planning.
In his important book, Specialized Justice: Courts, Administrative Tribunals and a Cross-National Theory of Specialization, Legomsky (1990, 22) lists key factors that contribute to the introduction of specialized courts and tribunals, such as (1) cases with a mix of law and fact, (2) disputes involving technical complexity and intertwined statutory provisions, (3) conflicts with a degree of isolation, namely those which can be resolved on the spot without referral to legal issues in other fields, (4) a degree of cohesiveness which means that in a given field, like planning, specialized tribunals will be preferred when there exists a high degree of interrelationship within a single field (for instance subdivision disputes are interrelated to zoning and permit applications), (5) the degree of repetition in a given field, namely conflicts and issues that require similar if not identical tools for their resolution, (6) disputes that do not contain a high degree of controversy, (7) the degree of “clannishness” in a given field, namely whether it consists of a close-knit group of practitioners and experts, (8) when consistency in rule making and interpretation of policies is of essence, (9) when the subject matter is dynamic and fast changing, (10) when the volume of litigation is high, (11) when here exists a need for a speedy and prompt resolution of a dispute, and finally, and (12) when there exists a need to tailor a unique procedural framework for disputes in a given field.
Legomsky’s analysis does not relate directly to planning tribunals but points to several possible reasons for the introduction of appeal tribunals in the twenty-three jurisdictions presented previously. Several sources in planning literature have elaborated on this issue, separately mirroring Legomsky’s research. They provide specific accounts from around the world regarding the reasons for introducing planning tribunals and other specialized planning courts. By so doing, they highlight the thorny nature of planning disputes and the need for professional, efficient, and speedy rule making.
A prevalent reason mentioned in the literature for the introduction of appeal bodies in the field of planning is to ensure efficient administration of disputes by an agency outside the generalist courts system. As an example, the LUBA in Oregon was established in order to develop and establish expertise, to create a consistent body of precedence and rules, and to create an efficient system outside the judiciary where routine cases are decided by the same experienced tribunal (Sullivan 2000). Other tribunals, such as the OMB in Canada, have been established in order to ease the workload of the courts (Ontario Municipal Board 2009).
In the case of New South Wales, a long-standing process has been underway since the early 1930s, with the intention of providing an effective appeals system, culminating in the establishment of the Land and Environment Court. The system in New South Wales also corresponds to other factors mentioned by Legomsky, such as the need to shape a unique and flexible procedural framework where conflicts can be resolved (Squire 1970).
In several jurisdictions, the goal of the government has been to achieve a “people-friendly” system of appeals. As an example, in New Zealand, the Environment Court was created with the intention of conducting open and patient hearings (Goelz 2009, 174–75). In Victoria (Australia), the appeal system was conceived in an attempt to provide aggrieved appellants “with the opportunity of having a re-hearing of an application before individuals with special knowledge in the field of town planning” (Bryant 1978, 209). In relation to Victoria’s appeal tribunals, it is also pointed out that legislators attempted to create a unique “‘arena’ to deal with the problem of balancing private property rights against the public good” (Middleton 1976, 507).
Historically, tribunals have also been put in place as part of larger ideological and structural changes in the planning system. Both centralization and decentralization have propelled government to utilize specialist appeal bodies. In Victoria, tribunals were a vital measure to counterbalance centralization processes that had been taking place in the planning system, which had threatened the public by closing off avenues for citizen participation (Raff 1996, 137). In Israel, “Appeal Committees” were introduced as part of mid-1990s reforms which devolved powers to localities. The decentralization process also raised concerns about localities becoming more powerful and thus called for a more efficient system of review, based on the merits of each case (Molcho 2005).
As noted by Legomsky, the cohesiveness and interrelatedness of the subject matter can also push governments to create specialized systems of adjudication. This factor mirrors the unique conditions of the planning field, where environmental issues are tied to planning matters. Indeed, in several jurisdictions, this interrelatedness propels the introduction of specialized tribunals that oversee a variety of topics. Such is the case of the appeals system in New Zealand, which was established as early as 1953. Appeal tribunals were eventually succeeded by the Environment Court which was created with the intention to adopt a holistic approach to planning as well as environmental conflicts.
At times, the refinement of an appeals system is influenced by societal factors and crisis, such as mass immigration which mandates a streamlining of planning processes, careful review of haphazard local decisions, and the provision of better services. In the 1990s, these factors led to the establishment of a new appeals system in the state of Israel (Alterman 2000).
At times an appeal system is put in place by emulating the arrangements of other countries. This is the case of the planning inspectors in the Isle of Bermuda, whose decision-making procedures resemble that of the planning inspectorate in England and Wales. 1
Other motivations for putting a planning tribunal in place include the need to provide an impartial system where appeals are heard by an independent agency. This was the reason for appointing planning inspectors in Bermuda to hear appeals instead of the minister. Given the small community where many people know ministers personally or may have some affiliation with them, the Bermuda policy has been that the inspector should review all appeal cases and if the minister is minded to reject the inspector’s recommendation, proper reasons must be put forward (Rickards 2013).
In several jurisdictions, the appeals system in the field of planning was carefully contrived following endeavors to reform the way decisions are made. In Western Australia, a special taskforce was appointed in order to review the current administrative powers held by numerous boards and institutions and to offer recommendations about the establishment of a unitary appeals institution. In 2002, the taskforce recommended constituting a specialized tribunal with all-encompassing powers to review administrative decisions including planning-related disputes (Western Australian Taskforce 2002). The reasons given by the taskforce for establishing such a tribunal correspond with Legomsky’s criteria. In its report, the taskforce explained that a State Administrative Tribunal of Western Australia should be put in place for the purpose of removing confusion in the public mind so that one overarching tribunal is identified as the place where the public can seek redress. It was argued a tribunal would create less formal, less expensive, and more flexible procedures than used in traditional courts and would also provide more appropriate and timely means for citizens to obtain administrative justice (Western Australia Taskforce 2002).
Likewise, when Queensland sought to reform its fragmented civil and administrative justice system (Government of Queensland 2007b), the state’s Ministry of Justice recommended establishing a consolidated system of strong and specialized appeal tribunals. The government repealed the 1997 Integrated Planning Act and replaced it with the 2009 Sustainable Planning Act, which replaced the Building and Development Tribunals with the Building and Dispute Resolution Committees. These reforms expanded the jurisdiction of the existing appeal tribunals to include new types of appeals (Walton 2010).
The purpose of the Queensland reform was not to replace an inefficient appeal system in the field of planning but rather to utilize the existing system and strengthen its scope of review of local decisions. In its comprehensive 2007 report, Planning for a prosperous Queensland: A reform agenda for Planning and Development in the Smart State (Government of Queensland 2007a), the government mentioned that the former appeal tribunal “has proved an effective, low-cost way of resolving technical disputes and has strong support among its users” (Government of Queensland 2007a, 7). The government’s wish was to build on this relative strength and also to allow highly technical conflicts to be resolved by a specialized appeal system, therefore alleviating the need to address courts. The report states that, “Although the Planning and Environment Court (the Court) is highly efficient at managing proceedings and ensuring timely outcomes of appeals, there are some disputes of a technical nature that are not adjudicated on because they do not warrant the cost and time involved in a full appeal to the Court” (Government of Queensland 2007a, 7). One way for ensuring this was to create the new appeal committees and to expand their powers.
The Queensland case example fleshes out Legomsky’s account of appeal agencies. In the main, the Queensland reform shows the critical motivation for the introduction of appeal tribunals in planning, namely to provide a place for highly technical disputes which must not clog the court system. Because some planning disputes are characterized by a high degree of “technical isolation” (to use the words of Legomsky) their resolution can be made on the spot, without referral to legal tools from other fields. The Queensland case also demonstrates how appeals can become a plausible route for conflict resolution when the public is reluctant (both financially and professionally) to address the courts.
Whatever the context-specific reasons are, the constitution of special planning tribunals has primarily aimed to provide a venue for conflict resolution, to prevent arbitrary decisions, and to protect aggrieved individuals against the unsatisfactory decisions of lower-tier planning agencies. Future investigation of appeal tribunals may wish to address the processes leading to their establishment and the societal, institutional, and statutory components which enable the introduction of such appeal agencies.
Seeing the Trees in the Forest: Building a Typology of Tribunals
Future research may also build different typologies of tribunals. In the global “sea” of institutions carrying out the role of appellate bodies, it is essential to accurately define what counts as a planning tribunal.
In this respect, the survey in Table 2 affords initial directions for the creation of several typologies of tribunals. One possible avenue is to identify the style and power of adjudication by tribunals. For example, it is possible to ask whether the powers of tribunals in different jurisdictions are shrinking or expanding, whether appeals are a frequent phenomenon, whether these institutions resemble “mini-courts” or planning institutions, whether they have the powers to decide or only to advise, whether they allow “third-party” right of appeal, and whether the content of their decisions is legalistic or more induced with deliberations about “good planning.”
It is also possible to categorize tribunals according to their power of review (see, e. g., Moore 2013, 45–52). The following table exemplifies how this can be done. It samples several jurisdictions and offers one possible direction for typifying planning tribunals.
Table 4 provides several tribunals with short brushstokes. It showcases the complexity of planning tribunals and the gigantic task ahead, however, it also illustrates that it is possible for researchers to create robust cross-national frameworks for studying and defining those institutions. In the main, the cross-national survey could help define planning tribunals as qualified agencies which address planning conflicts, debates over development, property-related differences, or fiscal disagreements about the use of land.
A Cross-national Analysis of the Powers of Tribunals: An Exploratory and Tentative Typology.
Note: PAC = Planning Appeal Commission, LUBA = Land Use Board of Appeals, OMB = Ontario Municipal Board, SMB = Saskatchewan Municipal Board, VCAT = Victoria Civil and Administrative Tribunal.
aInspectors carry out inquiries into new proposed plans and amendments to existing plans. Their powers, however, are limited to advising the government on what to do, rather than making an independent decision about the appropriateness and legality of new enactments.
bCan only make recommendations with respect to plan amendments.
cCan only make recommendations about new plans. Can make decisions in limited cases involving road and motorway schemes and certain infrastructure-based plans.
dMostly hearing and reporting on objections to development plans.
eA form of value capture mandated by primary legislation. The analysis herewith focuses on betterment levies, as opposed to “impact mitigation” fees or developer “contributions.”
fNo betterment levies are imposed in England or North Ireland. However, their respective tribunals do examine “planning obligations” which are a form of ad hoc betterment taxation.
gThe court holds the power to discuss certain monetary and developer contributions that do not amount to statutory betterment levies.
hBetterment taxation in the form of growth areas infrastructure contribution (GAIC) may be dealt with by Victoria Civil and Administrative Tribunal in limited cases.
iThe word “variance” is frequently used in North American parlance. It is not used in other jurisdictions to describe similar powers. Variances enable a landowner to build a structure not otherwise permitted under current regulations. For example, when the parcel is different from others to which the regulation applies. In a discretionary system of planning such as the one in England, Wales, and North Ireland, planning bodies have the power to grant variances, yet this is imprinted into their discretionary powers to decide planning applications which do not exactly fit the plan.
jThere is a level of discretion which can only be exercised within legal constraints, that is, within the Planning and Environment Act 1987 (Vic) and the local planning scheme.
kOntario Municipal Board may require that the application conforms with existing municipal building codes, but it does not issue independent administrative certificates of compliance.
lThe court does not issue special certificate, although it is able to examine whether applications comply with the building code.
mOntario Municipal Board deals with limited types of “indirect injuries”; mostly when land is expropriated and the decrease in value to the remaining land has resulted from the use of the expropriated portion (“Edwards Rule”).
nThe Environment Court in New Zealand may address Takings claims, however, New Zealand stands out as having a weak protection against regulatory takings.
oLand Use Board of Appeals (LUBA) applies several tests to discuss regulatory takings through Eminent Domain. The test is whether a decision to compulsory acquire land has significant impact on future land uses (see LUBA 2001).
pDeals with some procedural matters and valuation of land following acquisition.
qProperty assessment appeal are directed to the Assessment Review Board. Few Ontario Municipal Board decisions handle land and property valuation according to the national Assessment Act.
rVictoria Civil and Administrative Tribunal has a land valuation list.
This definition, however, is a general starting point but cannot become an all-exhaustive characterization owing to the great variety of appellate agencies. Tribunals are institutionalized with diverse powers and some are significantly weaker than others. Several tribunals are charged with the fiscal aspects of planning, while others limit their function to the examination of building permits and planning applications. Stronger tribunals, such as the OMB, are able to consider plan amendments and new statutory measures (zoning bylaws, comprehensive, and official plans), while weaker agencies, such as Victoria Civil and Administrative Tribunal (VCAT), cannot decide on new plans or plan amendments.
Moreover, the authority of some tribunals is limited in a manner which prevents them from hearing appeals involving development applications (as in the case of Alberta’s Municipal Government Board). At the same time, other tribunals, such as An Bord Pleanála in Ireland, are empowered to review a wider array of decisions concerning development and building permits.
Most tribunals act as reactive bodies, responding to a particular dispute, while others maintain a more proactive role in planning. In this respect, the planning inspectorate in England and Wales stands out. The inspectorate was entrusted with powers that go beyond mere adjudication of disputes and nowadays encompass presiding over the entire process of local plan preparation while receiving submissions from participants. This suggests that planning tribunals are no longer delimited to appeal hearings—they “wear many hats.” Gradually, tribunals carry out a wider and wider array of tasks, which enables the state to exert control over a variety of conflicts. Whether this process should be a source of worry for democracies, local politicians, and administrators is another issue worth investigating. It also stands to show that if appeal systems are to make sense, any attempt to satisfactorily define them needs to be cognizant of the nuanced settings in which they operate.
Summing up and Looking ahead
The exploratory analysis in this essay demonstrates that appeal tribunals in the field of planning are an international phenomenon. They provide a professional arena of specialized justice and their widespread institutionalization enables governments to address numerous planning conflicts. The analysis also points out, however, existing gaps in the literature with respect to appeal tribunals and appeal decisions. The survey of appeal tribunals, presented in this article, expounds the lacunas and offers future avenues for research.
The survey also provides a macro-level outlook on these institutions, but the answers to questions about their powers and related procedures should also be conducted through microlevel inquiries into planning appeals. The exploratory reconstruction of former research, government websites, reports, and statutory instruments draws attention to a few matters including terminological issues, the geographic spread of tribunals, their age, the availability of their decisions, the reasons underlying their establishment, the statutes empowering them, and their placement within the democratic system of planning. The findings represent cursory observations and overarching contemplations, yet further research is needed to elaborate on these topics.
It is up to planners, theorists, and practitioners to explore the unique role accorded to tribunals within planning systems, to investigate the link between planning disputes, planning policy, and the machinery of appeal tribunals, to expand the analysis to nondemocratic, non-Western countries, and to determine whether the persisting phenomenon of planning tribunals marks an inseparable tie between planning conflicts and the need for specialized justice, or is it the result of other factors.
The large set of appeal tribunals implies that it is possible to engage in an extensive cross-national research that transcends local boundaries. Despite the inherent diversity of tribunals, it is possible for research to create unitary frameworks for their identification and comparison.
Notwithstanding the legal aura of appeal tribunals, planners, for their part, should not be indifferent. Planners can become involved in the creation and operation of appeal tribunals, as well as in conferring upon them new legal powers and responsibilities. In this regard, it is essential for planners to tap comparative knowledge by asking questions about the way planning appeals operate in different countries. These questions may relate to foundational microissues in the appeal process, such as who may lodge an appeal? Are third parties represented in the process? How formal are the deliberations before the appeal tribunal? Is the tribunal bound by its own precedence? Is the tribunal confined to the record of the original decision maker, or can it collect new evidence? Is there any room for alternative dispute resolution measures within the confines of the tribunal’s jurisdiction? What are the powers granted to tribunals? These questions are helpful in directing future research into tribunals. They are also useful for better understanding the content of appeal decisions and the outcome of conflicts.
The twentieth century propelled the establishment of the modern state, and with it came a realization that planning tribunals are a key component for providing speedy, efficient, and professional service to the public and a venue for dealing with diverse stakeholders. Democratic countries have taken many steps in that direction and so, new appeal tribunals have taken over powers formerly held by weaker tribunals, while some tribunals have superseded ministerial decision making. These processes can be perceived as both democratic and antidemocratic impulses.
In the beginning of the twenty-first century, many localities and central governments are faced with fiscal cliffs and economic difficulties which call for efficient decision making and institutional reconfiguration. With the intensification of development, emergence of megacities, and expedited urbanization, intensified conflicts are likely to emerge in force. It remains to be seen whether, given their alleged merit, appeal tribunals become an expanding phenomenon for addressing said conflicts. Through future research, it will become apparent which tool kit is available for such institutions and how certain features of tribunals in one jurisdiction can inspire change and reconfiguration elsewhere.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.