Journal Title : Zoning or Discretionary Action: Certainty and Responsiveness in

Implementing Planning Policy

Writer : Philip Booth
Journal Name : Journal of Planning Education and Research
Pages : 104-112
Year Published: 1995

JOURNAL REVIEW
Planning as a tool of development and manage the use of land has always involve
public sector in the process as it is managing public needs and desires. But as all things in this
world goes, there are many ways or tools or media in order to achieve -in this context is a
better future for humans through spatial planning. Spatial planning or planning which
involves public sector generally uses the ever debatable two systems; regulatory and
discretionary planning. Although it is not always fall between the two, planning system will
fall on spectrum of maximizing certainty or allowing maximum flexibility to some degree. In
practice, countries which has tendencies toward regulatory or discretionary planning has
different characteristic which can be understood through comparative studies.
Therefore, the difference emphasis on flexibility and certainty in every process of the
system are what makes them has difference problems too. But this journal will not suggest
specific solution for specific system. Because as what has been said by Booth, 1993 that
planning systems are deeply rooted in the culture which gives them life. Thus, in presenting
case of regulatory and discretionary systems of planning, the writer opened up by exploring
some of the primary assumption of the two systems by considering their specific
characteristic in particular countries, and by reviewing the ways in which changes have been
made to modify their perceived inadequacies in practice. The writer explained this by
examining case of three countries which is France, Britain, and Hong Kong.
To begin with, the writer explained each of the planning systems, first is regulatory
system. Regulatory systems identify precise zonings for every part of an area covered by
plans and attach regulations or ordinances that typically specify land use and statistical limits
on new development. This systems clearly emphasis on certainty and proposed difference set
of regulation under every condition which development may take place. The certainty offered
by this systems are of two kinds. First, is certainty for landowners and developers. This
system will give them incontrovertible brief for the future use of land and the potential
development and permit them to put forward proposals with minimum risk. The second kind
of certainty is for thos decision-makers to give them least possible opportunity for decisions
to be made according to whim, chance, or political expediency.
Regulatory system has its own distict characteristics. The first is that zoning systmes
confer developments rights upon landowners affected by zoning and regulations. The second,
because zoning plans usually have a statutory force therefore plans and decisions based on
those plans may be contested in courts of law. The third, third parties are allowed and offered
extensive rights to challenge the decision making in that they are able to attck decisions on
the grounds of legality. This regulatory system is not somewhat an option chosen by certain
government but more of a product of particular kinds of political, legal, and administrative
culture. This system also came with its own difficulties. First there is problem of the
unforeseen circumstance which negates the very basis on which the ordinances rests. It can
be solved with two strategies , one is to try and make the ordinances and zoning more
detailed to cope with bigger possibilites or to build flexibility and scope for negotiation into
the system. But then the basic rights for landowners and developers will be questioned if
more set of rules proposed. And also accountability becomes in great danger of being tested.
Countries which used this planning systems U.S., France, etc.- turns out has widespread
attempts to build flexibility but turns put this flexibility is seen as a game in which
developers, municipalities, and residents seek an advantage through manipulation of the
apparent certainties of the system.
Second difficulty in implementing this system is that not all developers wish to have
absolute certainty, because restraining economic conditions to maximize their profits. The
third difficulty related to power of decision maker which they can wish to retain discretion
over individual decisions as a way of expressing power. Indeed, this system allows political
will to win over its policy decision. Fourth difficulty that may appear in drafting the
regulation is the difficulty in creating a document that organize individual development rights
and at the same time present coherent view of a long term strategy. Its hard to find balance
between managing the present and future land use and development taking into account every
stakeholders needs.
Whilst regulatory planning emphasis on restricted and certainty of developemnt in
every zoning plans, discretionary system offer more flexibility and easeness to everyone who
would like to use their land development rights. It uses quite different set of regulation than
the one in regulatory planning. But discretionary systems offer no guarantee of development
rights because they the decision partly open on which development decisions are made. The
plan itself is not the only basis on which the decisions are made, but the decision makers or
political actor take a huge part on its decision. Discretionary system also presume a high level
of trust in local decision making, which become essentially political rather than
administrative in character. Other than that, in discretionary systems, although plans may be
produced by virtue of power conferred by statute, they do not have statutory force in relation
to development control decision-making. They cannot be challenged in courts of law nor, by
and large, can the decisions which are based upon them.
The consequences of this kind of practice are both positive and negative. The negative
impact of discretionary systems is fairly obvious. First, the potential for political or
administrative waywardness in making decisions is high because of the extent to which
decision makers are left to define what is important to any decisions. Second, the system is
clearly capable of producing a high deree of uncertainty. Third, because the relationship
between the plan and the development is weakened, the purpose of preparing a plan at all
may be hard to see. And even if the value of preparing a plan is clear, the form it takes may
not be. Fourth, because plans may be lacking or because they ,ay lack the detail necessary to
provide a secure base for all development control, there is a risk of parallel system of policy
being developed which may be far less exposed to the process of consultation and discussion
than the formal system of plans. In addition, discretionary system offer nothing like the
guarantees for third parties that exist.
Discretionary systems are able to respond to uncertainty due to change with a degree
of flexibility that is obviously lacking in zoning system. These plans made in discretionary
systems are also prepared to become a strategic plan but cannot be bound to particular time or
site. Add up on previous statement, discretionary systems will allow even large strategic plan
to have a direct impact on individual bearing since the link between one level of planning is
loosened, all forms of plan and policy statement are then become potentially material
considerations.
When we are talking abour regulatory and discretionary systems in practice, the
previous characteristics mentioned by writer can be distinctly seen in some countries. To
strengthen the argument, the writer had three countries example in implementing this
systems. France has been chosem as an example of regulatory, zoning systems. Britain as a
model for discretionary and Hongkong as other example.
The first example, France rooted this systems back in Revolution era which place
great emphasis upon the need for a unified state and a unified administration with all citizens
equal before the law. The administrative law did not only provide rules for citizens but ut was
equally vital for everyone who wants to challengen the law itself. The present system has
developed to recognize the basic principle of government. The basic regulation now spells
out detain about natural planning instrument, the procedures to be adopted, and also much pf
the context both forward planning policy and development control decision making. The type
of regulation itself is a lot, the level of a whole conurbation and detailed lan use zoning plan
(POSI) covers no more than single local authority. The development control system is a step
above (permis de construire) has to conform with POS itself. There is also tools called zones
damenagement concerte (ZAC), its an action area zoning where development is not merely
permissible but actually promoted in a coherent form. ZAC has its own set of regulations and
takes over from POS in the area to which it applies.another flexibility in the system comes
with a name of code de lurbanisme which is a regulatory document that offers permissive
options to the decision maker, characterized by the use of may and must contained in the
document. Out of 32 sections of the code dealing with the control of development, 15 of them
offer discretionary system. In the regulatory system as such in French, a way which flexibility
can optimize is through the possibilities that exist for modifying and revising existing plans.
Even though the revision should through lengthy procedure and consultation, the possibility
of revision is highly recommended.
In a recent study which take place in Lyon, the people there were concerned about the
frequency of changes and raised suggestion to limit the scope of manuevering itself. This
concern was brought up because of lack accountability, and how the small cumulated plans
can threaten the strategic policy. From French policy it can be seen that the offer at least two
sokutions to the concerns. One is to elaborate further rules to allow ever more complex
possibilites and to ensure that accountability through law is retained
The model for discretionary system is Britain which right now provide an open-ended
invitation to decision makers to consider applications in the light of circumstances at the time
of the decision and by implication, not to feel entirely bound by previously defined rules. In
1980s Britain, the upper tier of local authorities, County Councils, are obliged to prepare
strategic policy documents and the lower tier authoritis, District Councils are empowered to
make detailed local plans but not required to do so. But this absence of detailed plans can be
a ploy for local authorities to show its power. These detailed plans also seen as a fetter to
allow market finction at its maximum efficiency. So preparing plans did not seen as
something needed to be useful to economic development. But as time goes, thee are a lot of
conflict arise, developers began to question government power to regulate lan development
and tested them by propose a development in a restricted area ang resulted in a pretty big
chaos between government, public, and developers. And since then, the government made a
major change to British planning legislation. Local authorities are required to make local plan
which cover the whole area and give that local plans more power so it can be a guideline for
any developer when they want to develop something.
The last case study is Hong Kongs planning system, which is very different from the
previous planning system. The significant characteristic of Hong Kongs system is that the
government is the landlord of almost all the territory and over the past 150 years has been in
the business of granting leases for development as a major sources of revenue. The relation
between Hong Kong and its private sector is more like a landlord and tenant, the early plans
were even designed principally to allow orderly issuing of leases. One of the tools in Hong
Kong to control its development is Outlines Zoning Plan (OZP) which can identify uses to
which land could be put and the form of physical developmetn should take. In its
development OZP then grew to also accommodate land uses that might be permitted subject
to obtaining expressed approval. Then, Development Permission Areas (DPA) emerged ehich
functions as a OZP in rural areas. This hybrid planning system was born because of the
pressure to allow development to proceed under the best possible circumstances and thus
promoting maximum certainty in OZP and the need to provide reasonable flexibility for the
government to change its mind and for developers to produce acceptable schemes for which
no zoning exists. To remove any political impediment, town planning board whose member
are primarily not officials is made. In the future, to ensure the accountability of the planning
system, Hong Kong will need to separate present use of land form considerations of
development potential.
In the end, we can draw a conclusion that any planning system a country has is a
result from politics or government culture. Whether we want to choose either planning
systems is a matter of a country identity, how do we see the role of government or every
stakeholder in aland development. In regulatory system, the mainquestion is what happens
when the certainty is breached by a given decision. Regardless of the planning system, there
has to be agreement as to the level of certainty that is desirable and attainable.

CRITICAL REVIEW
To begin with, planning system is systems of law and procedure that set the ground
rules for planning practice (Healey, 1997:72). In essence, planning system provides legal
and regulatory framework for the practice of planning in policy field. Planning system itself
is a product of culture (de Vries & van den Broeck, 1997; Booth 2005) and field of policy
(Healey, 1997), this journal provide another point of view which explains that planning
system is the result of law and politics culture of a country. It is further explained in study
cases happened in France which rooted back inrevolution era where the political condition is
still unstable.
This journal has explained thoroughly about the pro and cons of zoning and
discretionary planning system. Simply put, the zoning system presumed as system which
maximizing certainty of the development. With zoning regulation, we can secure the certainty
of land development in the future by developers and decision makers cannot involve its
political will which is not in line with the plan. Whilst in discretionary system emphasizing
on flexibility of the plan, thus the plan will be more of a policy which do not have any legal
power. With its low rigidity, discretionary seems to be most suitable for a long term,
visionary plan which will develop as time goes. But discretionary also come with its own
perks, involvement of third party is not recognized and with that flexibility, it is not hard
when a developer wants to tweak the plan and use that to make their own profit. This journal
also explain very well the study case where it represents regulatory, discretionary, and hybrid
planning system.
Overall, this journal is very good for planning education, it has explain in detail and
important stuff only. But what I would like to criticize in this journal is the perspective
offered by the writer is too binary. Planning system is not only techincal matter where there is
only good or bad, or right or wrong. Planning system is merely a spectrum of methods with
certainty and flexibility in its polar. The writer has not explained adequately about other type
of planning system or whether there are other planning systems that we, as an urban planner,
can explore and find. Introductory for this journal can explain more about the root of
planning system and why are there only two planning system in which the writer talks about.
The perspective that is brought in this journal is zoning and discretionary with study
cases in developed countries. But what about Indonesia as developing country? Indonesia
with fundamental social and economic structures and institutions change rapidly or called as
transitional country. Before that, we should really understand the planning system in
Indonesia first.
Spatial plans in Indonesia first gained a legal basis with the passage of Law No.
24/1992 (Spatial Planning Act). The act was amended in 2007 in the context of
decentralization, urbanization, and other factors (Law No.26/2007). In the amendment
process of the act, response to rapid progressing urbanization was regarded as the most
prioritized issue. Therefore, the act contains transport plan, green space plan and information
related to informal sectors especially in the city's spatial plan (not always required in the
provincial spatial plan), and the act also sets out numerical goal to secure 30 % of the city
land as open space (city parks, green roads, cemeteries, etc.). Moreover, for large cities such
as Jakarta and Surabaya, metropolitan spatial plans are under establishment process.
The current national spatial plan, which was established as National Spatial Plan (Law
No. 26/2008), covers 20-year period and it is to be reviewed every five years. The
organization responsible for drafting the plan was the National Spatial Planning Coordination
Board, which was chaired by the Coordinating Minister for the Economy. The board's offices
were set up in the National Development Planning Agency (BAPPENAS) and headed by
BAPPENAS's director. The Directorate General of Spatial Planning of the Ministry of Public
Works was charged with handling the practical implementation of the board's plan. The
planning system has been developed comprehensively in order to facilitate the broad
authorities of the government in the land property affairs. Comprehensive scope of planning
system can be recognized in the integration of the three policy areas which are plan making
process, development promotion, and development control. The prevasive role of
government occurs particularly in the areas of plan-making and development control. The
Act obliges all tiers of the government to make spatial plans in order to direct the spatial
development in theeir regions. Thus, in Indonesia it is still a necessity to have a control
guidance to make spatial plans become operable.
The content of the plan are to be the guidelines for effective and efficient planning
processes to achieve the stated objectives of the plan. The purpose of Strategic Development
Framework is to create national land strategy. The framework seeks to achieve security,
economic viability, and sustainability in the use of land in this archipelagic country to
enhance national cohesiveness and stability. In concrete, as for urban development, all cities
are classified into four groups; national central city, inter-region central city, regional
central city or national strategic central city, and the classification standard and the role of
each group is defined, for example; national central city is i) export/import center or
international gateway, or a urban area with such potential, ii) center of industry and service
(nationally or among more than one province) or a urban area with such potential, iii)
transportation node (nationally or among more than one province) or a urban area with such
potential. Below is the diagram of overall planning policy in Indonesia.
 The complexity of Indonesia planning system needs a systematic explanation on its
nature and development. Right now, there are two driving forces behind it, which are internal
and external forces. Internal is more of institutional-cultural forces and the external is more of
globalization process. Characterized by highly pluralistic basic cultures, it is obvious that
Indonesia has no single political culture, there are at least three significant political cultures
that influence the policy arrangement in modern Indonesia. From the characteristic we
learned about Indonesia planning system, we can see that Indonesia has the tendency of
regulatory system. There are a lot of type of planning document in Indonesia. But if we want
to take a look deeper, Indonesia planning system is more of a hybrid from the two. Indonesia
as a developing and transitional country do not have to choose to fall between the two. But as
we all know, this planning system in Indonesia still has a lot of weaknesses in terms of its
implementation. This reflect the discretionary part of it where developer can still tweak the
policy for their own good. All in all, Indonesia planning system fall under the spectrum of
certainty and flexibility spectrum with tendency towards the certainty.
REFERENCES
Healey, P. (1997) Collaborative planning: shaping places in fragmented societies (London:
MacMillan).
Healey, P. & R. Williams (1993) European Urban Planning Systems: Diversity and
Convergence, Urban Studies,
30(45), pp. 70120.
Booth, P. (1997) Zoning or Discretionary Action: Certainty and Respomsiveness in
Implementing Planning Policy