Land Development and Design 1st Edition Paul M. Syms

Get ebook downloads in full at ebookname.
com
Land development and design 1st Edition Paul M.

Syms
https://ebookname.com/product/land-development-and-
design-1st-edition-paul-m-syms/
OR CLICK BUTTON
DOWNLOAD EBOOK
Explore and download more ebook at https://ebookname.com

Instant digital products (PDF, ePub, MOBI) available
Download now and explore formats that suit you...
Previously Developed Land Industrial Activities and

Contamination 2nd Edition Paul Syms
https://ebookname.com/product/previously-developed-land-
industrial-activities-and-contamination-2nd-edition-paul-syms/
Previously Developed Land Industrial Activities and

Contamination Second Edition Paul Syms(Auth.)
https://ebookname.com/product/previously-developed-land-
industrial-activities-and-contamination-second-edition-paul-
symsauth/
Finite Element Analysis For Design Engineers Paul M.

Kurowski
https://ebookname.com/product/finite-element-analysis-for-design-
engineers-paul-m-kurowski/
The Politics Of Slavery 1st Edition Laura Brace
https://ebookname.com/product/the-politics-of-slavery-1st-
edition-laura-brace/
From the local to the global key issues in development
studies 2nd ed Edition Mccann
https://ebookname.com/product/from-the-local-to-the-global-key-
issues-in-development-studies-2nd-ed-edition-mccann/
Devil to Pay Richard Delancey Novels No 2 2nd Edition

C. Northcote Parkinson
https://ebookname.com/product/devil-to-pay-richard-delancey-
novels-no-2-2nd-edition-c-northcote-parkinson/
Augenblick the concept of the decisive moment in 19th

and 20th century western philosophy Dr Koral Ward
https://ebookname.com/product/augenblick-the-concept-of-the-
decisive-moment-in-19th-and-20th-century-western-philosophy-dr-
koral-ward/
Lifespan Investing Building the Best Portfolio for

Every Stage of Your Life 1st Edition Clifford Pistolese
https://ebookname.com/product/lifespan-investing-building-the-
best-portfolio-for-every-stage-of-your-life-1st-edition-clifford-
pistolese/
GeoHumanities Art History Text at the Edge of Place 1st

Edition Michael Dear
https://ebookname.com/product/geohumanities-art-history-text-at-
the-edge-of-place-1st-edition-michael-dear/
Tapestry Bead Crochet Projects Techniques Ann Benson
https://ebookname.com/product/tapestry-bead-crochet-projects-
techniques-ann-benson/
Land, Development
and Design
Paul Syms
Foreword by Sir Peter Hall

Land, Development
and Design
Paul Syms
Foreword by Sir Peter Hall

# 2002 by Blackwell Science Ltd, First published 2002 by Blackwell Science Ltd
a Blackwell Publishing Company 2 2007
Editorial Offices:
Blackwell Science Ltd, 9600 Garsington Road, Oxford Library of Congress
OX4 2DQ, UK Cataloging-in-Publication Data
Tel: +44 (0) 1865 776868 is available
Blackwell Publishing Inc., 350 Main Street, Malden, MA
02148-5020, USA ISBN 978-0-632-06484-7
Tel: +1 781 388 8250
Blackwell Science Asia Pty, 550 Swanston Street, Carlton, A catalogue record for this title is available from the British
Victoria 3053, Australia Library
Tel: +61 (0)3 8359 1011
Set in 11/13pt Bembo
The right of the Author to be identified as the Author of by DP Photosetting, Aylesbury, Bucks
this Work has been asserted in accordance with the Printed and bound in Singapore by
Copyright, Designs and Patents Act 1988. Fabulous Printers Pte Ltd
All rights reserved. No part of this publication may be For further information on
reproduced, stored in a retrieval system, or transmitted, in Blackwell Publishing, visit our website:
any form or by any means, electronic, mechanical, www.blackwellpublishing.com
photocopying, recording or otherwise, except as
permitted by the UK Copyright, Designs and Patents Act Maps reproduced from Ordnance Survey mapping on
1988, without the prior permission of the publisher. behalf of the Controller of Her Majesty's Stationery Office
# Crown Copyright MC 100003836.
Contents
Foreword viii
Preface ix
Part One Planning and Development 1

Introduction 2
1 The Development Process 3
1.1 Introduction 3
1.2 The phases of redevelopment 5
1.3 Summary 13
2 Planning and Development Policies 14

2.1 Introduction 14
2.2 Planning Policy Guidance Notes 15
2.3 Planning policies relating to the development of urban land 17
2.4 The Urban Task Force 23
2.5 Land for housing 24
2.6 Effect of the Government's current planning policies 28
2.7 The CBI ten-point action plan 30
2.8 Summary 35
2.9 Checklist 35
Planning and Development Weblinks 36
3 Project Inception 38
3.1 Introduction 38
3.2 Land for development 39
3.3 Assessing the market potential 42
3.4 Forecasting rents and prices 49
iii
iv Contents
3.5 Summary 50
3.6 Checklist 51
Part Two Land 53

Introduction 54
4 Site Assembly and the Professional Team 55
4.1 Introduction 55
4.2 Finding and acquiring the site 55
4.3 Land values and owner aspirations 57
4.4 Agreements for the purchase of development sites 61
4.5 Land pooling 63
4.6 Legal advice 66
4.7 The professional team and fees 68
4.8 Summary 74
4.9 Checklist 74
5 Site Assessment 75
5.1 Introduction 75
5.2 The historical study 76
5.3 Walk-over survey 87
5.4 Intrusive site investigation 88
5.5 The final report 94
5.6 Summary 96
5.7 Checklist 97
6 Risk Analysis 98
6.1 Introduction 98
6.2 Greenfield development 99
6.3 Previously developed land and the potential for pollution 99
6.4 Guidance documents 102
6.5 Contaminated land legislation 105
6.6 Summary 113
6.7 Checklist 114
7 Remediation and Treatment Options 115

7.1 Introduction 115
7.2 Alternative treatment and remediation methods 116
7.3 Remediation case studies 121
7.4 Containing the contamination 133
7.5 Insurance 138
Contents v
7.6 Summary 139

7.7 Checklist 139
Part Three Development 141

Introduction 142
8 The Feasibility Study 143
8.2 Financial appraisals 144
8.3 An example development appraisal 147
8.4 Other issues affecting the appraisal 163
8.5 Summary 165
8.6 Checklist 165
9 Planning and Environmental Regulation 167

9.2 The interface between planning and the environment 168
9.3 The planning process 169
9.4 Planning guidance for contaminated sites 172
9.5 Protection for workers and the public 175
9.6 Waste management licensing 178
9.7 Summary 183
9.8 Checklist 183
10 Development Finance and Joint Ventures 185

10.2 Financing a new development 186
10.3 Types of bank finance 188
10.4 Joint ventures and single-purpose vehicles 190
10.5 Forward sales and rental guarantees 192
10.6 Public-sector finance 193
10.7 Summary 199
10.8 Checklist 200
11 Tendering Entering into Contracts, Monitoring and

Supervising the Work 201
Tim Abbott
11.2 Allocation of risk 202
11.3 Selection of tenderers 204
11.4 The tender documents 205
vi Contents
11.5 The form of contract 207

11.6 Summary 214
11.7 Checklist 215
12 Marketing and Sales 216

12.2 Branding 217
12.3 Marketing tools 219
12.4 Communicating information 225
12.5 Selling the development 227
12.6 Closing the deal 228
12.7 Summary 229
12.8 Checklist 230
Part Four Design 231

Introduction 232
13 Land Use and Design 233
13.2 The importance of good urban design 234
13.3 Development densities 235
13.4 The public realm 239
13.5 Security in design 241
13.6 Environmental performance 247
13.7 Mixing uses 249
13.8 Cars and public transport 251
13.9 Summary 253
13.10 Checklist 255
14 Masterplanning 256
14.2 Revitalising the city centre ± Sheffield One 257
14.3 Urban waterfront regeneration ± Ipswich Wet Dock 265
14.4 Meeting demand ± masterplanning greenfield
development, Cambourne 271
14.5 Paying for regeneration ± Millenium Quarter,
Tower Hamlets 276
14.6 Summary 281
14.7 Checklist 283
Contents vii
15 Building and Concepts 284

15.2 Strategic redevelopment ± the newBullRing, Birmingham 284
15.3 Affordable city-centre living 288
15.4 Reusing buildings 292
15.5 Providing for modern industries 297
15.6 Summary 299
15.7 Checklist 300
16 Planning for the Future 301

16.2 The problems with planning 302
16.3 Proposals for change 304
16.4 Development control 310
16.5 Compulsory purchase and compensation 312
16.6 Planning obligations 315
16.7 Planning fees 317
16.8 Regulatory impact appraisal 318
16.9 Summary 322
Appendix 1 Sample Option Agreement 324
References 336
Copyright Acknowledgements 343
Index 344
Foreword
by Sir Peter Hall, Director of the Institute of Community Studies
One of the strangest and saddest features about urban development in Britain is
that it is traditionally seen by all the actors as some kind of war game, in which
private developers fight to make as much money as possible while public
planners use every possible means to stop them. This should not be necessary,
and in other European countries ± such as the Netherlands, widely admired for
the quality of much of its development ± it does not seem to be the case. Part of
the problem, no doubt, lies in the adversarial character that the planning process
has acquired, far from the ideas of those who framed the historic 1947 Town
and Country Planning Act, but part lies in the nature of professional education.
Planners are trained in planning schools, developers in schools of surveying, and
very seldom do the two professional streams come together.
There is thus a chicken and egg problem: the two professions are reared on
significantly different literatures, so authors write for one market or the other.
This is compounded by a basic lack of literature on the development process:
there is an extraordinary dearth of books that describe this process as the
developer experiences it, either for the budding surveyor-developer or the
intending planner.
Paul Syms has written to fill this gap, and is to be congratulated on doing it so
thoroughly and so clearly. His book concentrates primarily on brownfield
development, because that is where current priorities lie and where some of the
greatest complexities arise, but in his carefully chosen case studies he does not
ignore greenfield development either. It will immediately and justifiably
become a standard text for every student and professional who wants to
understand the land development process and its outcomes.
viii
Preface
My objective in writing Land, Development and Design was to produce an up to

date text for use by both students and practitioners in the surveying and town
planning disciplines. I wished to concentrate on the reuse of urban land, in line
with the emerging policies relating to increasing densities and greater reliance
on public transport ± what I have called regeneration of the built environment.
However, it would have been wrong to totally ignore greenfield development
and many of the issues discussed in the book are equally relevant to greenfield
sites. One of the masterplanning case studies in Chapter 14 also deals with a
major new greenfield project ± Cambourne in Cambridgeshire.
Inevitably, given my interests, part of the book deals with the problems
surrounding the redevelopment of land affected by contamination. It is not
intended to be a technical treatise on dealing with contamination, rather it is
aimed at the developer, surveyor and town planner, all of whom need to know
what to look for in technical reports. Nevertheless, I hope that the book will be
of interest to engineers, environmental scientists and the regulators in envir-
onmental health departments and the Environmental Agencies, providing
them with an insight into the development process.
Land, Development and Design is divided into four parts. Part One consists of
three chapters, which introduce the development process and describe plan-
ning policies as they currently exist in England. The approach to the devel-
opment process is based on the eleven phases of development, as they relate to
the re-use of land, which Peter Knight and I first described in our book Building
Homes on Used Land1.
Part Two opens with site assembly and putting together the professional
team before moving on to site assessment, risk analysis and the remediation of
contaminated land. The feasibility study is discussed in the first chapter of Part
Three. Here I have taken a fairly straightforward approach to the subject of
1
Based on research for the Joseph Rowntree Foundation and published by RICS Books.
ix
x Preface
financial appraisals, similar to that which a property developer might adopt in

the early stages of a project. For readers who wish to extend their reading in this
area there are a number of good texts on advanced valuations. Planning and
environmental regulation, the thorny subject of waste management licensing,
development finance and joint ventures, tendering and contracts are also
considered in Part Three, which concludes with a look at marketing and selling
the development.
Part Four deals with design issues in the first three chapters. I must stress that
it is not intended as a handbook for urban designers or architects, as there are
plenty of people far more competent than myself to write for these audiences.
Instead, I have looked at some aspects that are of interest to me, and I hope to
others in the field of development.
The last chapter in Part Four brings the reader up to date with the proposed
changes to the town planning regime in the 2001 planning Green Paper and its
`daughter papers'.
When I started to write this book in the early summer of 2001 I was con-
scious of the fact that a great many changes had taken place during the pre-
ceding couple of years in terms of Government policies relating to property
development in the urban environment. I was also aware that even more
changes, concerning town planning policies and the reuse of urban land, were
likely to be proposed over the ensuing months and years. I could have decided
to defer writing the book until all the new policy ideas had been either
implemented or abandoned but that would have resulted in a delay of several
years. Therefore I agreed with Julia Burden, Deputy Publishing Director at
Blackwell Publishing, that we would have a `cut-off' date of the end of
December 2001. In the event, writing extended into the first few weeks of
January 2002 and I should like to thank Julia and the team at Blackwell for their
patience in respect of the constantly changing manuscript of the last few weeks.
I am also grateful to the technical reviewers, especially Judith Lowe, Special
Professor at the University of Nottingham, for their input and helpful
comments.
As with my earlier book, Contaminated Land: the practice and economics of
redevelopment 2, I have included checklists at the end of each chapter. Many
people commented to me about the usefulness of these in Contaminated Land
and I hope that the checklists in this book are equally helpful to the reader.
A great many people have helped in the production of this book and it is not
possible to name them all but I should like to mention a few. My good friend
Tim Abbott of Abbott and Associates, civil engineering quantity surveyors,
wrote Chapter eleven on Tendering and Contracts. I cannot claim any
expertise in this subject and I am grateful to Tim for his help. I should also like
2
Blackwell Science, 1997.
Preface xi
to thank the team at Taylor Young Urban Design, especially Andy Clarke, for
producing the mini masterplan used in Chapters 5 and 8.
Dr Sarah Macnaugton of Bio-wise suggested some of the remediation and
treatment case studies in Chapter seven, whilst others were provided by QDS
and Knight Environmental. Staff members at N.M. Rothschild & Co,
Ansbacher & Co and the Royal Bank of Scotland spent time explaining the
approaches adopted by their banks when financing development projects.
Gwyn Griffiths of the Welsh Development Agency provided the Port of Barry
joint venture case study.
David Gray of the East of England Development Agency and Sue Arnold of
Ipswich Borough Council both provided me with information for the Ipswich
case study, as too did the Concept Centre team and Terry Farrell & Partners for
the Cambourne Study. I am also extremely grateful to the various developers,
architects and town planners who assisted me with the other design case studies.
I should like to thank everyone who provided photographs and other
illustrations used throughout the book. Their copyright is noted in the
Acknowledgements after the references section. Where possible I have tried to
provide Internet `weblinks', so as to enable the reader to follow up topics in
more detail. These weblinks are listed at the end of Chapter 2.
I should like to thank my colleagues at Sheffield Hallam University, who
made suggestions as to what should be included in the book and allowed me
the time to undertake the writing. Finally, I should like to thank my wife and
collaborator, Janice, for her perseverance in reading countless drafts and for
suggesting a number of the topics covered in the book. Without her help the
final outcome would not have been achieved.
Biographical note
Paul Syms is Professor of Urban Land Use in the School of Environment and
Development at Sheffield Hallam University. He has extensive practical
experience in the field of re-using previously developed land and buildings,
having established his own consultancy practice in 1986. He still continues to
practise, acting mainly as an expert witness.
Paul originally qualified as a valuer and then went on to research a Masters
degree in Economic Geography at the University of Manchester. His doctorate
from Sheffield Hallam University was awarded in respect of his research into
the development and valuation of contaminated land. His work on urban
regeneration has been extensively published in the United Kingdom and
overseas. Paul is frequently invited to speak at conferences and seminars on the
subject of re-using land.
Part One
Planning and Development
Introduction
This part introduces the reader to the preliminary development stages, and to
the planning process. The Government is committed to making radical changes
to the planning process, criticised by many developers as a major cause of delays
in getting developments under way. The process can indeed be very lengthy,
regardless of whether the site in question is a greenfield or a previously used site
and can be a very emotive issue.
Chapter 1 describes the development process and introduces eleven phases of
development. Each of these phases is then covered more fully elsewhere in the
book.
Chapter 2 deals with planning policies and comments in detail on land for
housing, having briefly set out the Urban Task Force's recommendations.
PPG3 has only been in effect for a relatively short time but the aim of this
guidance is to encourage the reuse of previously used land wherever possible.
Chapter 3 considers the inception of the project, commencing with an idea
or a piece of land, through the process of market research and initial assessment
of the likely rents or prices that might be achieved.
Planning is returned to in the final chapter of the book with a summary of
the proposals contained in the December 2001 Planning Green Paper.
Chapter 1
The Development Process
1.1 Introduction
`We calculate that, on current policy assumptions, the Government is

unlikely to meet its own target that 60% of new dwellings should be built on
previously developed land. Achieving this target is fundamental to the health
of society. Building more than 40% of new housing on greenfield sites is
both unsustainable and unacceptable. It will lead to further erosion of the
countryside. It will also increase traffic congestion and air pollution, accel-
erate the depletion of natural resources, damage biodiversity and increase
social deprivation within our towns and cities.'
(Lord Rogers of Riverside, Introduction to Towards an Urban
Renaissance, Urban Task Force, 1999)
Urban regeneration is not just about renewing and revitalising the built
environment in our towns and cities. It must also address issues involving the
economic and social well-being of the community and should also take
account of cultural backgrounds. Without having regard for economic, social
and cultural aspects, property development projects may not meet the needs of
the community and may be unsustainable in the long run, notwithstanding any
short-term profitability that might be achieved. They may even fail to produce
a development profit.
The purpose of this book is to focus upon the property development process.
It does this mainly by considering the reuse of previously developed land. The
book does not seek to examine in depth economic, social and cultural issues
but, where these might have a significant bearing on a property development,
they are flagged up for the reader's attention. Checklists are provided at the end
of each chapter, highlighting the issues raised and are intended to assist
developers, planners, surveyors and others involved in the execution of
development projects.
3
4 Planning and Development
It is often the case that planners see property developers as greedy, money-
grabbing individuals without a thought for the wider good. They seek planning
permissions which are impossible to deliver and in unrealistic time-scales. On
the other hand, developers sometimes regard planners as being obstructive,
lacking an understanding of development issues and overly constrained by local
plans and Unitary Development Plans (UDPs). In practice, however, they both
have important roles to play in the development process.
There may well be faults on both sides but, in many cases, the problem is due
to a lack of communication and a failure to see the other person's point of view.
This chapter looks at the development process and seeks to identify areas where
conflicts may arise. In view of policies that focus development attention on the
reuse of previously developed sites, and because development of such sites
tends to be more complex than greenfields, the chapter concentrates on the
redevelopment process, although most of the points are equally applicable to
greenfield development.
A number of authors, including Adams (1994) and Cadman and Topping
(1995), have looked at the property development process. Adams approached
the subject from the viewpoint of the planner working within and in response
to property markets. He also considered development models described by
previous authors, such as Barrett et al. (1978) and Gore and Nicholson (1985).
Cadman and Topping's objective was to describe the development process,
enabling the reader to obtain a complete overview. They identified the
following main stages:
(1) Initiation
(2) Evaluation
(3) Acquisition
(4) Design and costing
(5) Permissions
(6) Commitment
(7) Implementation
(8) Let/manage/dispose
They also emphasised that these stages may not always follow this sequence and
often overlap or repeat.
The stages described by Cadman and Topping apply to speculative
development situations, where a developer might not seek an occupier until
construction is well advanced, or even completed. Where a development is
pre-let or pre-sold, the letting, management and disposal stage might come
much earlier in the development process, possibly even preceding the initiation
stage in situations where a developer receives an enquiry from a prospective
occupier and then seeks a site in order to satisfy the demand. It is also more
The Development Process 5
appropriate to greenfield development than to the generally more complex

processes associated with the redevelopment of `brownfield' or `previously
developed' land and buildings.
For successful redevelopment to take place it is usually important for each
phase of the process to have been completed, or a definable objective to be
achievable, before committing too far to the subsequent phases. However, this
should not preclude work on the later phases being undertaken at earlier points
in the project; indeed, this is often essential if a successful development is to be
created. For example, early discussions with the local planning authority will
reduce the risk of the developer finding out after the planning application has
been submitted that the proposed development runs contrary to an impending
policy change or is affected by some future road improvement. Early discus-
sions with environmental regulators will also enable the developer to ascertain
whether or not they have any particular concerns relating to the site or its
environs.
The basis adopted in the book for describing the redevelopment process is
the 11 phases approach outlined in the book Building Homes on Used Land (Syms
& Knight, 2000). These are shown in summary in the box below and discussed
in more detail in the next section.
Box 1.1 The eleven phases of the redevelopment process

. Phase 1: Project inception
. Phase 2: Site acquisition and site assembly
. Phase 3: Site assessment
. Phase 4: Risk analysis
. Phase 5: Detailed design
. Phase 6: Feasibility study
. Phase 7: Planning and regulatory approvals
. Phase 8: Land and development finance
. Phase 9: Tendering
. Phase 10: Construction
. Phase 11: Sales and marketing
1.2 The phases of redevelopment
The redevelopment process should be seen as consisting of 11 phases, many of

which are interdependent upon each other. As the focus is on reusing land, site
assessment, including investigation, risk analysis and development funding are
identified as additional discrete phases within the development process.
Property developers are in business to make profits. The level of profit
should be commensurate with the risks involved and should produce a return
for the capital employed. Therefore a development that is pre-let or pre-sold
will involve less risk than one which is entirely speculative and the developer
may be able to accept a reduced profit. The amount of profit required will
depend on each individual project and the developer concerned but 15±20% of
the end value of the development may be used as a `rule of thumb'.
Developments that are partly pre-let or pre-sold (or are grant-aided) may be
at the lower end of the profit range whilst speculative projects will be at the
higher end. Profits on fully pre-let or pre-sold schemes may be lower than 15%,
especially if the developer has been in competition to secure the tenant. Profits
on housing developments or commercial developments constructed in several
phases may also appear to be lower, when compared against end value, but may
in fact be significantly higher if considered in terms of returns on capital
employed, which may be `rolled over' several times during the course of the
development.
1.2.1 Phase 1: Project inception
This phase includes the initial idea, site identification, preliminary design,
tentative demand studies, initial costs and development appraisals, etc. The
developer may start off with a specific site or building but equally well may
commence with something far less tangible, such as an idea. The developer may
have identified a `gap in the market', possibly from feedback received as a result
of other developments, or as the result of a visit to other towns or countries.
Design at this stage may consist of no more than a few simple sketches and
the financial costing would be equally basic `back of an envelope' calculations.
The market research may have been simply obtaining the views of local estate
agents, possibly people the developer has worked with on other occasions and
with whom a relationship of trust has developed.
From these initial concepts a more detailed development idea will emerge,
or the developer will decide to abandon the project. In this early phase,
members of the development team, architect, engineer, cost consultant and
estate agent, may well be working àt risk', with their future remuneration
being based on the expected viability of the project.
If the project is to succeed, the developer must be prepared to act in a flexible
manner to achieve the redevelopment of `previously used' or `brownfield' land
and buildings. This may entail changing the type of scheme to be developed
and `what if' alternatives need to be reflected in the development appraisals. It is
possible that sites identified for residential development in local plans or
Unitary Development Plans are in fact unsuited to that type of use, due to
contamination or other problems in the ground. In such situations it is also
important for planners and other regulators to adopt a similarly flexible

approach when allocating land uses to previously developed sites, whilst taking
care not to adversely compromise planning policies or environmental con-
siderations.
1.2.2 Site acquisition and site assembly

This is relatively straightforward if the intention is to acquire a single site that is
being actively marketed but it becomes more complex with increasing num-
bers of ownerships and interests, possibly several of which might exist in the
same piece of land, e.g. freehold, long leasehold and occupational lease. The
developer will be reluctant to make major financial commitments to site
assembly unless there is some degree of certainty in being able to acquire all the
ownerships and interests, as well as some certainty in obtaining planning per-
mission. This requires carefully negotiated options and conditional contracts to
secure the site or sites.
There are important differences between options and conditional contracts.
Under an option the developer secures control over the land for a specified
period of time, usually related to the planning process, during which the owner
is prevented from selling except to the developer or, at least, from selling it
without the developer's consent. A price formula may be included, based on
the number of dwellings or the floor area of the commercial development. The
developer is normally responsible for obtaining planning permission and for all
the costs involved, including any appeals. Having obtained the planning per-
mission the developer can then decide whether or not to proceed with the
purchase. This is the major difference between options and conditional
contracts; under the latter, once planning permission has been granted for at
least the minimum number of residential units or the floor area specified in the
contract, the contract goes unconditional and the developer has to complete
the purchase within a specified time period. The developer has the possibility of
forfeiting the contract deposit but this is likely to be much larger than the fee
paid under the option agreement.
One of the main problems attaching to site assembly is that landowners may
have completely unrealistic ideas about the value of their land but, equally, they
may be trapped by historic valuations and the fact that the land is used as
collateral against bank borrowings or other loans. The landowner may thus
appear to be intransigent in holding out for the maximum payment. Letters of
intent, options and conditional contracts must be carefully worded, clearly
identifying who is to do what and who will be responsible for bearing what
proportion of the costs. Otherwise the developer may be in an impossible
position if it is not possible to obtain the planning permission or development
density needed to meet the owner's demands.
1.2.3 Phase 3: Site assessment
This is the very important investigation phase, to determine whether or not the
site is affected by contamination and, if so, the extent to which it may affect the
development. The National House-Building Council (NHBC) now requires
its members to undertake geotechnical and geoenvironmental investigations of
all sites if the builder wishes to have the benefit of the Buildmark warranty. This
phase also includes assessment of available service infrastructures. It is important
to identify any access or site constraints, including any underground obstruc-
tions, which may affect the development.
A properly planned investigation is essential, starting with a study of the
historical uses on the site and examination of map records from the earliest
development. All site assessments should then be followed by a `walkover'
survey. Only then can an intrusive investigation be designed.
In some cases it will be necessary for intrusive investigations to be undertaken
in several stages, developing the site assessment in the light of knowledge
obtained from the earlier work. Whilst it may be desirable to obtain a `fixed
price' quotation from the environmental consultant or the site investigation
contractor, this may not always be possible, especially if the extent of laboratory
testing cannot be determined at the outset. If possible, intending developers
should talk to previous owners, employees, tenants and local residents, as they
may be able to assist in locating unexpected deposits of waste material.
1.2.4 Phase 4: Risk analysis
Where the presence of contamination has been disclosed as a result of the site
investigation, it is necessary to determine the extent to which it might affect the
development. For this purpose the possibility of any source (or contaminant)±
pathway±receptor linkage needs to be considered. This is the analysis and
reporting phase that can only follow the site assessment phase. If any con-
tamination has been found the report should include recommendations as to
remediation strategy. This work should be undertaken by developing con-
ceptual models of any significant contaminant pathways and identifying the
possible receptors, including building site operatives, residents, visitors and
workers on commercial developments. All possible linkages should be con-
sidered. It may not be necessary to remove all contamination from the site; it
may be feasible to break or remove the pathway instead. This option must,
however, be considered in the context of how it is likely to be viewed by future
purchasers, tenants or investors. The possibility of the site being contaminated
in the legal sense, in accordance with Part IIA of the Environmental Protection
Act 1990, should be considered (see Chapters 6 and 9).
Remediation strategies should be prepared on the basis of suitability for use
and careful consideration should be given to any planning conditions that

might be imposed. Quite often developers submit site investigation reports and
remediation strategies as part of the planning application. Most planners will
need specialist help in dealing with these reports, either from their environ-
mental health colleagues or from outside consultants. Similarly, developers and
development surveyors will need to obtain specialist advice.
1.2.5 Phase 5: Detailed design
Only when the foregoing phases have been substantially completed can the
project move to the detailed design phase. This will involve reworking the
original ideas to take account of discovered ground conditions and other
possible constraints, such as the inability to acquire, or redevelop, the entire site.
It will be necessary for the project team to examine the layout of the site and
be prepared to consider alternative remediation strategies given different lay-
outs or reuse of land. On sites affected by landfill gas, it will be necessary to
address the gas protection, venting and monitoring measures at an early stage, as
part of the integrated design process. If monitoring is required, then the
development will probably be better suited for `managed' (usually rented)
housing or for commercial use. Developers and regulators should agree in
advance the duration of any monitoring, or the criteria to be achieved before
monitoring is discontinued. Different local authorities may have different ideas
in respect of monitoring, often driven by their previous experience.
Community considerations are most important during this phase and it may
be appropriate to arrange public exhibitions and meetings to discuss the
proposals before they are finalised.
1.2.6 Phase 6: Feasibility study
Although the development team should have been taking account of the
financial implications of any changes brought about as a result of earlier phases
in the development, it is only now that a full and accurate feasibility study can
be produced. Having completed the site assessment and having identified all
potential pollutant linkages, the revised design should be the subject of a
comprehensive review, involving all members of the development team.
It is possible that a considerable period of time, at least several months and
possibly more than a year, will have elapsed since the project inception phase
and it may be advisable to undertake a new demand study, especially if the
nature of the development proposal has undergone any significant changes.
The review will involve a complete reassessment of detailed design and costs,
as well as consideration of any competing schemes that may be under
construction or in planning stages. Many developers use commercially available

computer packages to model the financial implications of changes, whilst others
have developed in-house packages or use computer spreadsheets.
1.2.7 Phase 7: Planning and regulatory approvals
Although it is only now that a full planning application can be submitted,

developers would be ill-advised to leave it until this point to establish contact
with the planning department. There is, however, a degree of wariness, or even
mistrust, on the part of many developers. They feel that if they talk to the
planning officer at an early phase in the process, their ideas will become public
knowledge, as members and other agencies are asked for their views, and that
competitive advantage will be lost. As a result developers sometimes leave it
until the last moment to submit an application, then they want a decision in six
to eight weeks, leading to friction all round. Intending developers also need to
be aware of the fact that, when considering the redevelopment of previously
developed land, other regulatory approvals may be required (e.g. waste man-
agement licences) and these may take even longer than planning permission to
obtain.
It should be recognised that applications involving the remediation of soil
contamination through the planning process may involve the need to satisfy the
council's environmental health department and the Environment Agency as
well as the planning officers. This will inevitably take longer than for an
application on an uncontaminated site. Ideally therefore, developers should
establish contact with the planners during the inception phase but some
understanding regarding confidentiality as to the development proposals may
be needed.
Close liaison between developers and regulators during the earlier phases
should ensure that the necessary information regarding land condition has been
collected and can be presented in support of the applications. The ways in
which existing planning guidance on contaminated land is applied do vary
between authorities but it is important, from the developer's point of view, to
ensure that all relevant information is available and is fully understood by the
regulators. The need, or otherwise, for waste management or mobile plant
licences should be identified as early as possible.
1.2.8 Phase 8: Land and development finance
Relatively few developers fund projects entirely from their own resources and
developers who need to raise finance are unlikely to leave it until this stage
before considering approaches to banks or other financial institutions. It will be

necessary to identify appropriate sources, including possible partners (e.g.
sources of grant aid) and to negotiate funding agreements at an earlier stage of
the project but only now will they be in a position to conclude the financing
arrangement. Larger developers often have a `rolling facility' and do not have to
seek funding for each individual project.
Interest charges on development projects are generally calculated by refer-
ence to the London Interbank Offered Rate (LIBOR), the rate banks charge
for lending money to each other. Development finance will be charged at a
percentage above LIBOR, the actual margin depending upon the financial
standing and `track record' of the developer. This type of financing is referred
to as `debt' and may produce around 70% of the funding for the project. Other
types include equity, where the financial institution takes a stake in the project
in return for finance; and `mezzanine', usually at a higher interest rate, used
where funding in excess of 70% is needed.
Banks and other financial institutions are probably more prepared to provide
development finance for `previously used' sites than they were a few years ago,
but there are still a few exceptions. Financiers will, almost certainly, require full
site investigation reports and may insist on appointing their own environmental
consultants to comment upon the reports. They may also wish to oversee the
remediation works. There may be some reluctance to provide finance for
projects that involve innovative, or relatively untried, remediation meth-
odologies. Possible sources of grant aid should be identified and negotiations
commenced as soon, as possible after project inception. Remember, even if the
land is included at nil cost the project may still not be viable without some
public sector support. It may also be necessary to arrange insurance to protect
purchasers or investors against any deficiencies in the site remediation,
including the possibility that some contaminants may have been overlooked.
1.2.9 Phase 9: Tendering
This includes the selection of suitable contractors and decisions relating to

single or multiple contracts (e.g. site remediation, infrastructure, construction).
The form of contract, for example whether or not it includes contractor's
design, also forms part of this phase. Members of the development team have
important roles in the tendering process, and advising on contract
documentation etc.
The appointment of contractors with experience of site remediation can be
beneficial for redevelopment projects, as they may be able to suggest ways of
undertaking the work. The tendering process will inevitably vary, with some
developers having established relationships with contractors, leading to a
negotiated contract, whilst others will undertake a full competitive tendering

process. Either way, the scope of the work should be adequately described in
the tender documents.
1.2.10 Phase 10: Construction
This includes: site remediation, monitoring and auditing; site infrastructure,

construction, landscaping, etc. In many respects the construction phase may
seem straightforward after all the earlier phases. However, the lack of com-
plications during the construction phase may be largely due to the careful
planning and organisational work that has preceded it.
The site remediation/preparation works must be properly supervised and,
most important where decontamination is involved, must be fully recorded.
Ideally this will involve maintaining photographic and written records,
including sketches of where contaminants, or other site constraints such as old
services or underground obstructions, were located. Developers should be
aware that debris from previous uses, including glass, metal and plastics, can be
just as harmful to building workers and small children as chemical contaminants
and should be removed as part of the remediation contract.
1.2.11 Phase 11: Sales and marketing
It is unlikely that a developer will leave this to the very end of the project but it
is only now that a saleable or lettable product has been produced. Ideally the
sales and marketing team should have been involved since project inception
and they should certainly have had an input into the detailed design phase.
Reports from the sales team may also be essential in securing development
finance.
This phase should also include communication of information regarding site
history, site investigations and remediation works, to purchasers, tenants and
investors. Developers will have different ways of dealing with this. Some will
be quite open about the site history, including `before' photographs in the sales
office and on brochures, whereas others will only provide information as part of
the package sent to purchasers' solicitors. Either way, it is important to be open
with information relating to the site and its development, as any attempt at
concealment is likely to have an adverse effect once it is discovered. As a general
rule openness is probably the best policy, otherwise buyers may feel that the
developer is trying to hide something.
1.3 Summary
Redevelopment of `previously developed' land and buildings is complex,

involves risks and some degree of flair. It also means that those involved need to
understand each other's objectives and constraints. Good communication is
often the key to success.
The second chapter in Part One outlines government policies and legislation
having a direct bearing on the development process. Part Two (Chapters 4 to 7)
looks specifically at land-related issues, including site assembly, site investiga-
tion and risk analysis. Available site remediation and treatment options are also
reviewed in this part. Part Three (Chapters 8 to 12) covers the development
process from the feasibility study to sales and marketing. Part Four (Chapters 13
to 16) deals with design issues, looking at traditional and innovative layouts,
development densities and sustainability. Several case studies, of both greenfield
and brownfield developments are described. The book concludes with a
chapter setting out the proposed changes to planning policies.
Chapter 2
Planning and Development Policies
2.1 Introduction
`The land use planning system, and the decision makers within it, play a key
role in national life. They determine where and in what form development
can occur, protect key environmental assets, and establish the location of
essential infrastructure.'
(CBI, 2001)
The above quote from the CBI (formerly the Confederation of British
Industry) planning brief Planning for productivity, emphasises the importance
of the planning system in ensuring the availability of land for commercial
developments. The brief, which is supported by the British Property
Federation (BPF), the House Builders Federation (HBF) and the British
Chambers of Commerce (BCC), states that there are around 150 000
planning applications a year for commercial developments in England: `But
for business, the planning system is too slow, involves too many
uncertainties and often results in poor decisions.' Highlighting the problems,
the brief proposes a ten-point action plan, which is discussed later in this
chapter.
The importance of planning is also recognised by Government:
À key role of the planning system is to enable the provision of homes and
buildings, investment and jobs in such a way which is consistent with the
principles of sustainable development. It needs to be positive in promoting
competitiveness while being protective towards the environment and
amenity. The policies which underpin the system, summarised [in Planning
Policy Guidance Note 1], seek to balance these aims. It will frequently be the
case, in relation to a particular development proposal, that several economic,
environmental, social or other factors need to be taken into account. This
14
Planning and Development Policies 15
requires a framework which promotes consistent, predictable and prompt

decision making.'
(DTLR, 2001a, paragraph 1)
This chapter was written during what may be regarded as an important period
in the development of English town planning policies. The preceding 18
months had seen the publication of an Urban White Paper (DETR, 2000a),
new planning policies in relation to housing development (DETR, 2000b) and
extensive guidance relating to design and urban capacity. Many of the devel-
opments in policy and guidance are referred to in this and succeeding chapters.
However, policies and guidance are not static, therefore this chapter can only
provide an outline of planning policies and guidance, as they existed in the
autumn of 2001. In order to ascertain the latest situation readers are advised to
consult the various websites listed in the Weblinks at the end of this chapter.
Opening the debate on the future of planning, Stephen Byers, the Secretary
of State for Transport, Local Government and the Regions, described the
importance of planning in the following terms:
`Planning is fundamental to the way our cities, towns and villages look, the
way they work and the way they interconnect. Getting planning right means
that our goals for society are easier to achieve. Good planning can have a
huge beneficial effect on the way we live our lives.'
(Byers, 2001)
The British system of town planning is now over 50 years old and, in the view
of the Government, is in need of a radical overhaul. The intention of opening a
debate was therefore to inform Government thinking, leading to the pub-
lication of a Green Paper on planning in the autumn of 2001. This is referred to
later in this chapter. First, however, current planning policies are considered.
2.2 Planning Policy Guidance Notes
In England, the Department of the Environment, Transport and the Regions

issues various statements relating to planning policy, including Planning Policy
Guidance Notes (PPGs) covering many different aspects of development (see
Box 2.1). It is not the purpose of this chapter to examine each of these in detail,
but some of the more important development aspects are outlined. The actual
guidance notes can be downloaded from www.databases.dtlr.gov.uk and double-
clicking on the title of the appropriate guidance note.
The PPGs play a major part in guiding local planning authorities and
intending developers. Whilst all are important in their context, some PPGs are
more relevant to the generalities of development than others that are more
specialist in their application. Reference is made in this and subsequent chapters
to the implications for development arising out of different PPGs.
PPG1 sets out the Government's approach to planning and to sustainable
development, seeking to deliver the objective of achieving, now and in the
future, economic development to secure higher living standards while
protecting and enhancing the environment. The most commonly used
definition is `development that meets the needs of the present without
Box 2.1 Planning Policy Guidance Notes.

. PPG01General Policy and Principles
. PPG02Green Belts
. PPG03Housing
. PPG04Industrial and Commercial Development and Small Firms
. PPG05Simplified Planning Zones
. PPG06Town Centres and Retail Developments
. PPG07The Countryside: Environmental Quality and Economic
and Social Development
. PPG08 Telecommunications
. PPG09 Nature Conservation
. PPG10 Planning and Waste Management
. PPG11 Regional Planning
. PPG12 Development Plans
. PPG13 Transport
. PPG14 Development of Unstable Land
. PPG14A Annex 1: Landslides and Planning
. PPG15 Planning and the Historic Environment
. PPG16 Archaeology and Planning
. PPG17 Sport and Recreation
. PPG18 Enforcing Planning Control
. PPG19 Outdoor Advertisement Control
. PPG20 Coastal Planning
. PPG21 Tourism
. PPG22 Renewable Energy
. PPG22A Annexes to PPG22
. PPG23 Planning and Pollution Control
. PPG24 Planning and Noise
. PPG25 Development and Flood Risk
compromising the ability of future generations to meet their own needs'

(World Commission on Environment and Development, 1987). It also
emphasises the importance of urban regeneration and the reuse of previously
developed land as important objectives in supporting more sustainable patterns
of development and the Government's commitment to:
. `concentrating development for uses which generate a large number of

trips in places well-served by public transport, especially town centres,
rather than in out-of-centre locations; and
. preferring the development of land within urban areas, particularly on
previously-developed sites, provided that this creates or maintains a good
living environment, before considering the development of greenfield
sites.'
(PPG1, 1997, paragraph 7; see DTLR, 2001a)
2.3 Planning policies relating to the development of urban land
The Green Paper Household Growth: where shall we live? (DETR, 1996a)
addressed the problem of providing development land in order to satisfy the
growth in demand for housing, expected as a result of the 1992-based
Household Projections. These showed that the number of households in
England was expected to grow by 4.4 million (23%) over the 25 years 1991 to
2016, to reach 23.6 million by 2016. The underlying population was expected
to increase by 3.6 million over the same period (DETR, 1996a, p. 5).
The reasons given for household growth formation exceeding the increase in
population were given as:
. a reduction in marriage rates, only partly offset by cohabitation;

. people marrying at a later age or not marrying at all;
. an increase in divorce and separation;
. single (never-married) mothers;
. young people leaving home at a younger age; and
. people living longer. (See DETR, 1996a, pp. 13±17.)
In numerical terms the greatest increases in household formation were

expected to be in London and the South-East, Hampshire, Greater Manchester
and West Yorkshire. In some parts of the country, particularly the South-East
this would result in considerable pressure being placed on greenfield land for
housing development. According to the Green Paper (see DETR, 1996a,
p. 18):
. Around 169 000 ha, or 1.3% of England's area, are projected to change from
rural uses to urban uses between 1991 and 2016, equal to about 6800 ha per
year.
. By 2016 about 11.9% of England's land area is projected to be in urban uses
compared with an estimated 10.6% in 1991.
. Between 1991 and 2016, households are projected to increase by 23% but
land in urban uses is projected to increase by 12.2%. The difference is
explained primarily by the recycling of land in urban uses.
The figure for expected growth in household formation was later revised in a
downward direction, to 3.8 million, for the 25-year period 1996±2021
(DETR, 1999). Although a reduction, the revised projection still represented a
19% increase in household formation and, numerically, exceeded the popu-
lation growth projection for the same period.
The Green Paper considered a number of options for future development,
assessing the merits of:
. urban infill;
. urban extensions;
. key village extensions and multiple village extensions;
. new towns and new villages.
It concluded that all of these options would need to be considered as potential

elements of a response to the latest household projections. The extent to which
they are appropriate, and the degree to which they will be able to make a
substantive contribution to the scale of development needed, will vary from
area to area (DETR, 1996a, pp. 35±38).
The Green Paper also sought views as to whether or not an àspirational
target' of 60% of new homes to be built on previously-used land could be
achieved òr whether we could do better' (DETR, 1996a, p. 40), recognising
that there existed a wide variation in land reuse, with the average for London
being 83%, whilst in the East Midlands it was only 32%.
PPG6: Town Centres and Retail Development
Planning Policy Guidance Note 6, Town Centres and Retail Developments, places
the emphasis on a plan-led approach to promoting development in town
centres, both through policies and the identification of locations and sites for
development. It stresses the need for a sequential approach to the selection of
sites for development, for retail, employment, leisure and other key uses in
town centres and support for local centres. Thus, in the absence of a planning
brief, when identifying a site for retail development, if a developer is proposing
an out-of-centre development the onus will be on the developer to demon-
strate that he has thoroughly assessed all potential town centre options (PPG6,
DETR, 1996b, paragraph 1.10). This means that where suitable sites, or
buildings for conversion, are available in town centres, preference should be
given to the redevelopment of these (followed by edge of centre, district and
local centres) before out-of-centre locations are considered.
A study by CB Hillier Parker, on behalf of the National Retail Planning
Forum, the British Council of Shopping Centres and the DETR, has examined
how the sequential test set out in PPG6 is being applied in practice and its
effects on retail development (CB Hillier Parker, 2000). The objectives were to
establish the availability of evidence on policy and practice before and after
introduction of the sequential approach and then to test the quality of that
evidence to arrive at conclusions on the effects of the policy measure. The
research consisted of the following:
. In-depth interviews with 12 local authorities.

. A detailed review of the documentary evidence they provided.
. In-depth interviews with six retail developers, seven food retailers and six
non-food retailers.
. Analysis of the documentation provided by the private sector.
. In-depth analysis of the Inspector's conclusions and decisions taken at nine
public inquiries into major retail developments.
. An outline review of a further 20 Planning Inquiry decisions.
From this study the conclusion was reached that local plan policies and
decisions for retail development have changed to incorporate the sequential
approach. However, further research is needed addressing the definition of
edge-of-centre, into the availability of town centre sites, the flexibility of
retailers and the capacity of town centre and edge-of-centre locations to
accommodate new retail development.
Mixed-use development is promoted by PPG6, retaining key town centre
uses and maintaining urban vitality. The vitality and viability of town and
district centres depend on:
. retaining and developing a wide range of attractions and amenities;

. creating and maintaining an attractive environment;
. ensuring good accessibility to and within the centre; and
. attracting continuing investment in development or refurbishment of
existing buildings. (PPG6, DETR, 1996b, paragraph 2.2.)
In order that these objectives may be achieved, the planning system should
provide a positive framework to encourage appropriate investment in town
centres, through the development of town centre strategies and development
plans and by facilitating site assembly. The Government wishes to attract
investment into upgrading existing buildings and high-quality new
development, including an increase in housing in town centres. A set of
indicators for measuring the vitality and viability of town centres is included
in PPG6 and these are reproduced in Box 2.2. They provide baseline and
time-series information on the health of the centre, allow comparison
between centres and are useful for assessing the likely impact of out-of-centre
developments.
PPG13: Transport
PPG13 deals with transport and opens by making the point that our quality of
life depends on transport and easy access to jobs, shopping, leisure facilities and
services. It goes on to say that we need a safe, efficient and integrated transport
system to support a strong and prosperous economy. But the way we travel and
the continued growth in road traffic is damaging our towns, harming our
countryside and contributing to global warming (PPG13, DETR, 2001
paragraph 1).
The objectives of the guidance are to integrate planning and transport at the
national, strategic and local level. In order to deliver the objectives of this
guidance, when preparing development plans and considering planning
applications, local authorities should:
. actively manage the pattern of urban growth to make the fullest use of
public transport, and focus major generators of travel demand in city, town
and district centres and near to major public transport interchanges;
. locate day-to-day facilities which need to be near their clients in local
centres so that they are accessible by walking and cycling;
. accommodate housing principally within existing urban areas, planning for
increased intensity of development for both housing and other uses at
locations which are highly accessible by public transport, walking and
cycling;
. ensure that development comprising jobs, shopping, leisure and services
offers a realistic choice of access by public transport, walking, and cycling,
recognising that this may be less achievable in some rural areas;
. in rural areas, locate most development for housing, jobs, shopping, leisure
and services in local service centres which are designated in the develop-
ment plan to act as focal points for housing, transport and other services, and
encourage better transport provision in the countryside;
Box 2.2 Measuring the health of town centres.

. Diversity of uses. How much space is in use for different functions, such as
offices; shopping; other commercial, leisure, cultural and entertainment activ-
ities; pubs, cafeÂs and restaurants; hotels; educational uses; housing ± and how has
that balance been changing?
. Retailer representation and intentions to change representation. It may
be helpful to look at the existence and changes in representation including street
markets, over the past few years, and at the demand from retailers wanting to
come into the town, or to change their representation in the town, or to
contract or close their representation.
. Shopping rents. Pattern of movement in Zone A rents within primary
shopping areas (i.e. in retail units the retail value for the first 6 m depth of
floorspace from the shop window).
. Proportion of vacant street-level property. Vacancies can arise even in the
strongest town centres, and this indicator must be used with care. Vacancies in
secondary frontages and changes to other uses will also be useful indicators.
. Commercial yields on non-domestic property (i.e. the capital value in
relation to the expected market rental). This demonstrates the confidence
of investors in the long-term profitability of the centre for retail, office and other
commercial developments. This indicator should be used with care.
. Pedestrian flows. The numbers and movement of people on the streets, in
different parts of the centre at different times of the day and evening, who are
available for businesses to attract into shops, restaurants or other facilities.
. Accessibility. The ease and convenience of access by a choice of means of
travel, including the quality, quantity and type of car parking, the frequency and
quality of public transport services, the range of customer origins served and the
quality of provision for pedestrians and cyclists.
. Customer views and behaviour. Regular surveys of customer views will help
authorities in monitoring and evaluating the effectiveness of town centre
improvements and in setting further priorities. Interviews in the town centre
and at home should be used to establish views of both users and non-users of tile
centre. This could establish the degree of linked trips.
. Perception of safety and occurrence of crime. This should include views
and information on safety and security.
. Town centre environmental quality. This should include information on
problems (such as air pollution, noise, clutter, litter and graffiti) and positive
factors (such as trees, landscaping, open spaces).
Source: PPG6 Town Centres and Retail Developments; DETR, 1996b

Discovering Diverse Content Through
Random Scribd Documents
I believe I ought to call this to your attention as I do not plead
today for the SD, because I have been waiting for a ruling on my
motion. I reserve for myself the right to make further statements
after I receive a copy of the record of 28 February, in particular on
the question of the membership of individuals and groups of persons
in the SS, on the definition of the lines of demarcation between the
SS and the governmental sector, on limitations as to periods and
organizations, on the question of voluntary membership, on
limitation of responsibility for other reasons according to criminal
law, and on the jurisdiction of the SS courts.
In view of the tremendous amount of work which I had to do so
far, I have to this date not yet been able to take a stand on all these
points. I wish to make the remark that the suggestions made by the
Prosecution and several of the Defense Counsel as to the
presentation of evidence seem untenable to me. They would entail a
considerable restricting of the Defense. To carry them out seems to
be impossible also for reasons of time.
This concludes my argument.
THE PRESIDENT: The Tribunal will now adjourn.
[The Tribunal recessed until 1400 hours.]
Afternoon Session
THE PRESIDENT: The Tribunal has decided to alter the order of
procedure, and they will therefore not sit in open session tomorrow
but sit in closed session tomorrow, Saturday; and sit on Monday in
order to hear the applications for witnesses and documents by the
next four defendants in order.
Now, there is another counsel for the organizations to be heard,
is there not?
DR. LATERNSER: The main subject of the discussion which, by
request of the Tribunal, has taken place today and yesterday is the
question as to what is relevant evidence in the case against the
indicted organizations.
As a preliminary question the concept of the criminal organization
in particular must be clarified. Consequently it is not the task of
counsel for the organizations to plead in detail; that should be
reserved for the later final address by Defense Counsel, but rather
the subject of discussion is definitely limited, as far as the Defense is
concerned, to the above-mentioned question of the relevancy of
evidence and also to certain fundamental issues which must be
touched upon in order to judge the relevancy of evidence.
According to the sequence provided by the Indictment, our
colleague Dr. Kubuschok spoke first as defense counsel for the Reich
Government. In his address he dealt with the general issues in
compliance with Point Number 1 of the decision of the Tribunal of 14
January 1946. In order to avoid unnecessary repetition, I should like
to make the legal arguments of my colleague Kubuschok, to their full
extent, part of my own argument. At the same time I submit the
request that the Tribunal pay particular attention to the contents of
these arguments presented yesterday.
With regard to the definition of the concept “criminal
organization,” I should like to make a few short remarks and
additional statements. It is obviously a well-considered provision of
the Charter that the Tribunal can declare the indicted organizations
criminal; it is thus not obliged to do so but can exercise its free and
conscientious judgment.
If the Tribunal comes to the conclusion that the declaration of the
group as criminal can or has to lead to impossible, untenable, and
unjust consequences, then the rejection of the Prosecution’s demand
would as a matter of course be mandatory.
It has already been stated by those who have just spoken what
grave legal consequences would result, as far as the members are
concerned, from a declaration of the criminality of the groups and
how the undoubtedly vast number of innocent members would also
be affected by that declaration. As far as these consequences for the
members are concerned, it cannot be emphasized strongly enough
that all the members of the groups and organizations will be affected
directly by a declaration of criminality, insofar as by the verdict of the
Tribunal it would irrefutably be established that they are accused of
a crime, namely, the crime of having belonged to a group or
organization which has been declared criminal. That this
membership is a crime already follows clearly from Articles 10 and
11 of the Charter. In Article 10 it is stated that the competent courts
of the individual occupation zones have the right to put all members
on trial because of their membership in groups or organizations
which have been declared criminal.
It is further enacted that in those trials the criminal nature of the
group or organization shall not be questioned. Thus, the members
can be indicted because of membership in the group or organization;
and, if every indictment before a court can, of course, deal only with
a crime, then it is already established that membership in the group
or organization is a crime. Furthermore, in Article 11 of the Charter
membership in a group or organization declared criminal is
specifically designated a crime. That follows from the very words of
the article, which reads: “. . . with a crime other than of membership
in a criminal group or organization. . . .”
In the same way in the law of 20 December 1945, issued to
implement the Charter, membership in a group or organization
declared criminal is specifically declared a crime. Consequently the
finding of the criminal character of the group or organization by the
Tribunal will state with immediate effect that all members, because
of their membership in the group or organization, have committed a
crime, and this must necessarily lead to untenable consequences.
It is not correct to say that these members can exculpate
themselves in the subsequent trials before the individual military
courts. If mere membership in the organization is defined as a
crime, they can take exception to the charged guilt only by declaring
that they were not members of the group or organization.
If Justice Jackson is of the opinion that in the subsequent trials
they could plead that they had become members under duress or by
fraud, the admissibility of this plea nevertheless seems to be highly
questionable.
Justice Jackson himself pointed out that a plea of personal or
economic disadvantages cannot serve as grounds for duress. What
other kind of duress could be considered relevant? According to
German criminal law only physical coercion would be left for
consideration, and that only for the period of its duration. In this
case also fear of personal or economic disadvantage is no ground for
exculpation as far as remaining in the group or organization later on
is concerned.
Thus a member of a group or organization declared criminal has
in the subsequent trial only the possibility of pleading certain
extenuating circumstances which might influence the degree of
penalty. The question is now whether, according to the principles of
justice, these inevitable consequences are tolerable; so far as
innocent members are concerned, this question can be definitely
answered only in the negative.
Justice Jackson is further of the opinion that there probably are
no innocent members of the organizations concerned, because it is
simply incomprehensible to sound common sense that anyone joined
the indicted groups or organizations without having known from the
very beginning, or at least very soon after, what aims and methods
these groups and organizations were pursuing.
This point of view may appear comprehensible to the
retrospective observer, after the crimes charged to the groups and
organizations have collectively been brought to light. That the
mental attitude of the members to the aims and tasks was or could
have been entirely different at that time cannot be doubted by
anyone.
If one were to subscribe to Justice Jackson’s interpretation, then
the provision of Article 9 of the Charter providing for a hearing of
members on the question of the criminal character of the
organizations would make no sense at all. It would then be entirely
superfluous to admit any sort of evidence in respect to this, and it
would furthermore be unnecessary to discuss the criminal character,
as the Tribunal itself has suggested.
If we follow the Prosecutor’s line of thought that, according to
sound common sense, it is obvious that all the members took part in
the crimes mentioned in Article 6 of the Charter, then the provisions
regarding the Common Plan or Conspiracy would suffice altogether
as grounds for prosecuting and punishing these members who,
without exception, are to be considered guilty. In this case the
structure of the declaration of criminality and the stipulation of its
consequences would in no way have been necessary.
From the following deliberation it is to be inferred that the
declaration of the criminality of the organizations is not necessary
and can be dispensed with altogether.
Justice Jackson declared that, of course, no one intended an
indictment of the innumerable members of the groups and
organizations, which would result in a flood of trials which could not
possibly be dealt with in one generation. What will be done is to
seek out and find only those who are actually guilty and have them
brought to trial.
Thus it is not in any way necessary to create such a large circle
of members through the declaration of criminality and to select the
guilty from this circle. This selection can take place without creating
this circle. That in a group or organization of many members there
were obviously a number of innocent members is a fact of common
experience which cannot be disputed, and this thought is taken into
consideration not only by the Charter, but also by the Prosecution in
that they want to exempt from one of the organizations the category
of those with low-grade routine tasks, obviously because of the
conviction that these had nothing to do with crimes, for otherwise
they would have been members of or participants in the criminal
conspiracy.
Besides this category, however, a number of other members
come into consideration whom one cannot speak of as guilty in the
legal sense of the term; for instance, those people who did not give
any thought at all to the aims of the group. All these people would
of necessity not only be dishonored by a declaration of the
criminality of the group or organization but, if indicted, would also
be punishable because of mere membership. Incidentally it might be
mentioned that eventually their economic existence would be
menaced or destroyed because of their membership in the group or
organization and the defamation brought about by the declaration of
criminality.
But again it must be asked whether all these consequences have
been weighed and can be justified in view of the basic principle of all
criminal law systems, according to which only the guilty are to be
punished, and in view of the principle of substantive justice. That
ought to be answered in the negative all the more if these members
who would necessarily be affected by the verdict of the Tribunal
were not granted any legal hearing in this Trial.
It has already been pointed out that granting a legal hearing to
the vast majority of the members is unfeasible for technical reasons.
Thus the unique situation arises that the Tribunal would pass verdict
on all those members without knowing whether or not numerous
innocent members would be affected thereby.
If Justice Jackson further pointed out that the issue under
dispute is nothing new, but can be found in the penal codes of all
other states and in particular also in Germany, this view likewise can
in no wise be supported. The German laws and precedents quoted
are of a character entirely different from the structure of the Charter.
In Germany, as in almost all other states, the punishment of
groups and organizations is not known at all, only the punishment of
individuals is known. No German judgment has yet been passed by
which a group or organization as such was subjected to penalty or
was declared criminal. It is very well possible, though, that in the
trials against members of criminal organizations the criminal
character of the organization was stated in the opinion. This
statement, however, had effect only on the convicted members and
not on other members who were neither indicted nor convicted.
The provisions quoted of Articles 128 and 129 of the German
Penal Code are provisions which corroborate exactly the view of the
Defense, because they threaten only the participants in an illegal
association with penalties and not the association itself. Also, the
French laws quoted deal merely with the threat of punishment for
participation and membership in certain associations with punishable
pursuits. A possibility for declaring the association itself criminal is
not to be found in these legal sources either.
The French Prosecutor quoted, first of all, Articles 265 and 266 of
the Penal Code. The first provision forbids the forming of
associations with a punishable pursuit; the second subjects only the
participants to penalty. Likewise, the French law concerning armed
groups and private militia, of 10 January 1936, provides only for the
punishment of the participants. The same is true of the other law
quoted, that of 26 August 1944, which provides only for individual
responsibility. None of the above-mentioned laws allows the
punishment of organizations. Consequently, they can support only
the legal view of the Defense.
If in England and America—as exceptions—associations as such
can be punished, that can be done only on account of certain groups
of offenses and only to the effect that either the dissolution of the
corporation may be pronounced or fines imposed. Naturally in such
proceedings it is a necessary condition for the Prosecution and the
Defense that the corporation as such be represented during the
proceedings by its functionaries and representatives and be able to
defend itself; whereas in this Trial the groups and organizations as
such are summoned before the Court, although they do not exist
any longer and although their functionaries are absent.
It has never been the case in any country that groups and
organizations are declared guilty or criminal and that on the basis of
this declaration of the Court all members of the groups or
organizations can be or must be indicted and punished because of
their mere membership. This is the completely novel and odd feature
which stands in contrast to the existing law of any country.
I believe it is permissible to say that neither England nor America
would ever be willing to pass such a law for their own population. If
all this proves that the declaration of criminality demanded must
automatically result in grave and completely untenable
consequences as demonstrated, then the demand of the Prosecution
should be denied in the name of justice. The Charter, which in no
way obliges the Tribunal to make such a declaration, would also not
be violated thereby. In this way an injustice which could only injure
the integrity of the judgment of the Tribunal in the eyes of our
contemporaries and of posterity would be avoided.
My arguments lead to the following conclusion:
1. The Tribunal should, because of the legal arguments
presented, as a matter of principle, refuse to declare any group or
organization criminal; it is within the Tribunal’s power to do so.
2. If this is not done, the concept of the criminal organization
must be so defined that the innocent members are protected from
serious consequences. This can be done only by means of a
definition, as suggested yesterday by my colleague, Kubuschok.
Accordingly, those subjects of evidence proposed by him should also
be admitted if they are not a priori irrelevant because of the fact
that, for legal reasons, the Prosecution’s demand of a verdict against
the groups and organizations cannot be granted. It is necessary that
the following additional evidence be admitted for the group of the
General Staff and the OKW, which I represent:
(1) The group included under the designation “General Staff and
OKW” is not such a group and is not an organization. My explanation
of this subject of proof is as follows:
(a) Justice Jackson is of the opinion that the concept of “group”
is more comprehensive than that of “organization,” that it does not
have to be defined but can be understood by common sense. To this
I must object that those who occupied the highest and the higher
command posts represent the heads of a military hierarchy as it is to
be found in every army in the world. There was no relationship
whatsoever evident among the members of this group. Nor can such
relations be assumed merely because of the official connections
between the various offices or because of the channels which
actually existed. Moreover, since the circle of people whom the
Prosecution wish to include in this group is admittedly composed in a
completely arbitrary way, simply on the basis of official positions
occupied within a period of 8 years, there is no evident tie which
could justify the assumption of the existence of a group. But to form
a group it is absolutely necessary to have some connecting element
in addition to the purely official contact between offices.
(b) Aside from the Chiefs of the General Staffs of the Army and
the Air Force, none of the individual persons in the group belonged
to the General Staff. The German General Staff of the Army and the
Air Force—the Navy had no admiral staff—was headed by the Chief
of the General Staff and consisted of the General Staff officers who
acted as operational assistants to the higher military leaders. For
these reasons the designation or name given by the Prosecution to
this fictitious group under indictment is false and misleading as well.
(2) The following subject of evidence, in addition to those
advanced by my colleague, Kubuschok, should be admitted for the
group of the General Staff and OKW: The holders of the offices
forming the group did not join a group voluntarily, nor did they
remain in it voluntarily. The admission of this subject of evidence is
necessary for the following reasons: Justice Jackson stated
yesterday that joining a group, or membership in it, must be
voluntary. This condition is not present in the case of the group
which I represent. The vast majority of the indicted higher military
leaders had come from the Imperial Army and Navy; all of them had
served in the Reichswehr long before 1933. They did not join any
group, but were officers of the Armed Forces and got their positions,
which they were not at liberty to choose, only on the basis of their
military achievements. They also were not at liberty to withdraw
from these positions without violating their duty of military
obedience.
(3) All evidence is to be admitted which refers to the charge
against the group of the General Staff and the OKW as contained in
the summary of arguments. Evidence on these points could be
presented in the following way:
(1) A number of people concerned should make sworn affidavits
from the contents of which conclusions could be drawn regarding
the typical attitude of a certain number of those involved. (2) Some
typical representatives of the group ought to testify before this Court
about the subjects of evidence submitted. (3) Every other sort of
evidence having some probative value should be admitted to the
extent necessary.
We request that this evidence should be admitted at present to a
full extent for the time being without prejudice to a subsequent
decision on the weight of this evidence, just as Justice Jackson
suggested the same thing on 14 December 1945 with regard to the
evidence offered by the Prosecution, for at present a binding
decision on the relevancy of the evidence offered cannot be reached.
Whether this evidence is necessary at all and whether or not and
to what extent it is relevant depends on the following: (1) Whether
the Tribunal, following the arguments of justice and fairness as
submitted and by authority of the power given it, will decline to
declare these groups and organizations criminal. (2) Or, if this is not
done, in what way it defines the concept of criminal groups and
organizations. These two points cannot be definitely decided at
present, since there is still a great deal to be said about these
thoroughly difficult and significant and completely novel problems,
as well as about the impressive address delivered by Justice Jackson.
One of my colleagues has undertaken to work out a comprehensive
memorandum on all these problems and questions which will be
ready in about two or three weeks. I request that additional
arguments pertaining thereto be reserved for me and my colleagues
at that time.
One last point: The Tribunal ought also to reach a ruling as to
what is to be done about the last word for the organizations.
THE PRESIDENT: Mr. Justice Jackson, the Tribunal would be glad
to hear you in reply.
MR. JUSTICE JACKSON: I think there is not much that I care to
say in reply, but there are one or two points which I would like to
cover. It has been suggested that there be a separation of the trial
of the issues as to the organizations from the Trial now pending. I
think that is impossible under the Charter. I think the Trial must
proceed as a unit. Of course, it is possible to take up at separate
times different parts of the Trial, but the jurisdiction conferred by
Article 9 for the trial of organizations is limited.
It is at the trial of any individual member, of any group, et cetera,
that this decision must be reached and it must be in connection with
any act of which the individual may be convicted. So I think that any
separation, in anything more than a mere separation of days or
separation of weeks of our time, is impossible.
I find some difficulty in understanding the argument which has
been advanced by several of the representatives of the organizations
that there would be some great injustice in dishonoring the
members of these organizations or branding the members of these
organizations with the declaration of criminality. I should have
thought that if they were not already dishonored by the evidence
that has been produced here, dishonor would be difficult to achieve
by mere words of the declaration. It isn’t we who are dishonoring
the members of those organizations. It is the evidence in this case,
originating largely with these defendants, that may well bring
dishonor to the members of these organizations. But the very
purpose of this organizational investigation is to determine that part
of German society which did actively participate in the promulgation
of these offenses and that those elements may be condemned; and,
of course, if it carries some discredit with it, I think we must say that
the discredit was not originated by any of our countries; the
dishonor originated mainly with those in this dock, together with
those whom the fortunes of war have removed from our reach.
There seems to be some misunderstanding as to just what we
mean, or at least we do not agree as to what is to be meant by
treating these organizations as generally voluntary. The test which
has been advanced by the counsel for the organizations would, it
seems to me, completely nullify any practicable procedure.
Now let us contrast the Wehrmacht and the SS to get at what I
mean by regarding an organization as generally voluntary. The
Wehrmacht was generally a conscript organization, but it may have
had a good many volunteers in it. I do not think we would be
justified, because there were volunteers, in calling the Wehrmacht a
voluntary organization. The SS, on the other hand, was generally a
voluntary organization, but it did have some conscripts, and I do not
think it would be any more just to carry the SS into the class of
conscript organizations because of a few members than it would to
classify the Wehrmacht as voluntary because of a few members. In
other words, in neither case would we be justified in allowing, as we
might say, the “tail to wag the dog.” It is a question of the general
character of the over-all organization that decides what these
organizations are.
Now, of course, if the Tribunal saw fit to say that its declaration
was not intended to apply to any groups, sections, or individuals
who were conscripts, that is one thing. I have no quarrel with that.
From the very beginning I have insisted that of course we were not
trying to reach conscripts. But if you sit here week after week
determining who is a conscript and just where that principle leads,
that, I think, would be quite apart from what we ought to do here.
A great deal of argument is addressed to the fact that proof is
lacking—or that here should be stronger proof—that these
organizations’ real criminality was known to the members; and the
inference seems to be that we must prove that every member—or, at
least—that we cannot hold members who did not know this criminal
program on the part of these organizations. I think this gets into a
question, perhaps, of the sufficiency of proof rather than one of
principle, but it seems to me again that we have the common sense
division.
If someone organized a literary society for the study of German
literature and accumulated some funds and had a home, a house,
and some of the defendants became its officers and secretly diverted
its funds to a criminal purpose, while all the time to the public it was
presenting only the appearance of being a literary society, it might
very well be that a member should not be held unless we proved
actual knowledge. Or, if a labor union, ostensibly for the purpose of
improving the welfare of its members, has its funds or properties or
the prestige of its name diverted by those who happened to gain
control of it to criminal purposes, then you have a situation where
the members might not be chargeable with knowledge.
But when I speak of knowledge sufficient to charge members, as
I did, I do not mean the state of mind of each individual member.
That would be an absurd test in any court of law. In the first place,
it is never a satisfactory thing to explore the state of mind of an
individual; and, in the second place, it is impossible to explore the
state of mind of a million individuals. So we might as well drop this
from consideration, if that were to be the test.
But let us look at this over-all program. How did these few men
who were the heads of this Nazi regime kill 5 million Jews, as they
boast they did? Now, they didn’t do it with their hands; and it took
disciplined, organized, systematic manpower to do it. That
manpower wasn’t casually assembled. It was organized, directed,
and used. Can the killing of 5 million Jews in Europe be a secret?
Weren’t the concentration camps known in every one of our
countries? Were they not a byword in every land in the world—the
German concentration camps—and yet we have to hear that the
German people themselves had no knowledge about it.
Our public officials were protesting against the slaughter of Jews
diplomatically and in every other way, and yet we are told this was a
secret in Germany. The name of the Gestapo was known throughout
the world, and there isn’t a man among counsel who would not have
turned white if, in the night at his door, someone rapped and said he
was representing the Gestapo. The name of that organization was
known—unless we are to assume that it was singularly secret in
Germany, but known to the rest of the world.
That sort of thing bears on this question of what men who joined
these organizations ought to know. There was no declared and
ostensible purpose of the SS, SA, and several of these organizations,
except to carry into effect the Nazi program. They would make
themselves masters of the streets.
The story is all in the evidence, and I won’t go on to repeat it.
The program was an open, notorious program, and these were the
strong-arm organizations. So it seems to me that we get down to
the situation where, as Chief Justice Taft once said to the Supreme
Court of the United States on a somewhat similar question: “We as
judges are not obliged to close our eyes to things that all other men
can see.” And this was notorious and open.
It is a little hard, if Your Honors please, for an American patiently
to listen to the arguments made here again and again, that there is
some plan here to punish with death penalties or extremely severe
penalties people who innocently got caught in this web of
organizations. If there were the slightest purpose to go through
Germany with death we wouldn’t have bothered to set up this
Tribunal and stand here openly before the world with our evidence.
We were not out of ammunition when the surrender took place, and
the physical power to execute anyone was present.
These powers have voluntarily, in their hour of victory, submitted
to the judgment of this Tribunal the question of the criminality of
these organizations. And it seems to me a little trying on the
patience of representatives of those powers to be told that in back
of this is some purpose to wreak vengeance on innocent people. I
think it is difficult for those who have survived this Nazi regime to
understand how reluctant we are to kill any human being. It is a
commentary on the state of mind that survived this Nazi regime,
rather than upon us.
Control Council Act Number 10—I don’t know whether Your
Honors have copies of that—Control Council Act Number 10, does
make membership in the categories which may be convicted a crime,
and I think it ought to. It ought to be sufficient to bring before a
Tribunal inquiring into the detail of each individual any individual as
a member, and that is all that we have here in a declaration, in
substance, an indictment which enables you to put the individual on
trial.
It is true that the punishment may include a death penalty, and
so long as the death penalty is imposed by any society for anything,
the penalty of death ought to follow in some of these cases; the SS
men who were responsible for the destruction of the Warsaw Ghetto,
for example, or SS men who are shown to have been responsible for
the top planning, even though they did not actually participate.
But I call your attention to the fact that in Provision Number 3 of
Act Number 10 the slightest penalties are also provided. The
restitution of property wrongfully acquired is one of the penalties
that may be imposed. The deprivation of some or all civil rights is
another. And during this period of reconstruction of German society,
those minor penalties may very well be imposed upon people who
entered into these organized plans. If not, you have the situation
that the people who organized themselves to force this Nazi
program, first on the German people and then on the world, are
treated exactly the same as the German who was the victim of it.
Now, isn’t it our duty as occupying powers of a prostrate country to
draw some distinction between those who organized to bring on this
catastrophe and those who were passive and helpless in the face of
overwhelming power?
Counsel for one of the defendants has already shown that, in
administering the affairs, an SA man has been made a councillor in
one of the districts. There is no purpose, because a man happened
to get into the SA, to take his life or to take his property or to
condemn him to hard labor for life. There is a purpose to have the
basis for bringing these people in for what the military people call a
“screening” and find out what kind of people they are and what they
have been up to.
This Control Council Act—while I am frank enough to say I would
not have drafted it in the language it is drafted in—this Control
Council Act leaves, in the first place, discretion as to whether
prosecutions will take place, in the hands of the occupying powers. I
do not share the fears of counsel that millions—I have forgotten how
many millions it was estimated—would be brought to trial. I know
that the United States has worries enough over manpower to bring
to trial 130,000, so we do not want to bring to trial millions. And it is
for that reason that we have consented to the exclusion of some of
these categories where it seemed we could exclude them very safely
without jeopardizing the over-all program of dealing with these
people.
Now, I want to make clear why it is that we do not want to go, in
this Trial, into this question of each of these many subdivisions of
these Nazi organizations and the functions of each. You have heard
some of them named. They are innumerable. Some of them existed
a short time and then disappeared.
The trial of each of these subdivisions would take—I would not
venture to say how long. We do not want to see this Court
trivialized. This is not a police court. This was not set up to be a
police court; and this is a police court function, after this Court has
laid down the general principles, to take up the case of individuals or
of many individuals and to determine whether they are within or
outside the definition.
I do not know whether a mounted group of SS men are any less
dangerous than an unmounted group. I had always associated the
equestrian art with warfare, but I do know it will take a long time to
determine it.
I do not know whether SS motorcycle mounted traffic officers are
less dangerous than those who do not have motorcycles, or were
less criminal, but I should have a suspicion that the greater the
mobility, the more active the group was in carrying out these
widespread offenses.
I do not know about the physicians. I do not think it is up to us
to try it in this case, but I suspect that a medical corps meant there
might be some casualties; and this thing isn’t innocent on its face, as
it appears. This will require a great deal of evidence, if we go into
each of these things, and it seems to me that it would be out of
keeping with the character of this Tribunal to go into that kind of
question.
It is not necessary to go into the group any more than it is the
individual, and if you go into the group I know of no reason why you
should not go into the individual, because if the group is within the
general contour, each one member of that group is entitled to his
hearing before he is condemned. It may very well be that the
occupying authorities will decide that the whole group is not worth
prosecuting. We have no illusions about this thing. We are never
going to catch up with all the people who are guilty, let alone
prosecuting the innocent. If they are prosecuted, however, it may
very well be that the group would be treated together in some way,
so that there could be a single determination as to each group.
In any event, since each individual has to have a hearing, there
can be no point in having a hearing for subgroups between the
individual and the principal organization that we ask to have
declared guilty.
If there were any point in our fully trying this question and
deciding just who is in and who is out of the circle of guilt, there
would be no reason why the Charter would not have given you
power to sentence. There would be no reason for further trials.
It seems to me that we must look at this matter somewhat in the
light of an indictment. It is true it is an accusation against all
members of the group. It has no effect unless it is followed by a trial
and a conviction, any more than an indictment that is never followed
by a trial would have effect. The effect of the declaration is that the
occupying power may bring these individual members to trial.
Administrative considerations will enter into it—the degree of
connection. It may very well be that it will be decided that those
who were mere members and not of officer rank of any capacity
should not be punished. We cannot say just what will be necessary.
Frankly, I do not know just what manpower is going to be
available for the United States’ part in the follow-up of these trials.
There are difficulties which I do not underestimate, but I do know
that the idea that this means a wholesale slaughter or a wholesale
punishment of people in Germany is a figment of imagination and is
not in accordance with either the spirit of this Trial or the purpose of
the Charter.
I think that is all that I care to say unless the Tribunal has some
question, which I will be glad to answer.
THE PRESIDENT: Mr. Justice Jackson, there are one or two
questions I should like to put up to you.
First of all, in your submission, do the words in Article 11 have
any bearing, the words at the end of Article 11, where it is provided
that “such court”—in the last three lines—“may, after convicting him,
impose upon him punishment independent of and additional to the
punishment imposed by the Tribunal for participation in the criminal
activity of such groups or organizations.” Do the words “for
participation in the criminal activity of such groups or organizations”
add anything to the definition of the word “membership“ in Article
10?
MR. JUSTICE JACKSON: I do not think they add anything.
Frankly, the wording of this article has bothered me as to just what it
does mean, since no punishment is imposed by this Tribunal at all
for participation in the activities of the group. The purpose of the
language was to make clear that the punishment for an individual
crime, if one committed a murder individually or was guilty of
aggressive warfare planning, is not to interfere with the punishment
for being a member of a criminal organization or vice versa, to make
clear that they are not mutually exclusive. But the language I am not
proud of.
THE PRESIDENT: Secondly, would an individual who was being
tried before a national court be heard on the question whether, in
fact, he knew of the criminal objects of those groups?
MR. JUSTICE JACKSON: Well, I think he would be heard on that
subject, but I do not think it would be what we in the United States
would call a complete defense. It would perhaps be a partial defense
or mitigation. I should think that the tribunal might well—the court
trying it—might well have felt that he should have known under the
circumstances what his organization was, despite his denial that he
did not; and that his denial, if believed, will weigh in mitigation
rather than in complete defense. In other words, I do not believe
that you can make as a decisive criterion of guilt the state of mind of
one of these members where you have no power whatever, no
ability whatever, to controvert his statement of that state of mind. I
think you have to have some more objective test than his mere
declaration.
THE PRESIDENT: Then I understood you to say that it was not
for the Tribunal to limit or define the groups which were to be
declared criminal; but, as the Charter does not define them, isn’t it
necessary for the Tribunal to define what the group is?
MR. JUSTICE JACKSON: I think it is necessary for the Tribunal to
identify the groups which it is condemning, sufficiently so that it
would afford a basis for bringing the members to trial for
membership. I do not think it is necessary to define the exact
contours of guilt. It is defined in reference to membership rather
than in terms of guilt or innocence. That is to say, it may be that
there is some little section of the SS that on trial would be said to be
not guilty of participating in the crimes of the organization. I do not
think it is up to this Tribunal to take evidence, because if you take
evidence as to some you must as to all, to separate out those
elements. The SS is a well-known organization. Its contour is easily
defined by membership, and within those contours it does not seem
to me necessary to make exceptions.
THE PRESIDENT: But if there were to be an essential distinction
on the question of criminality between the main body of the SS and,
for instance, the Waffen-SS, would it not be the duty of the Tribunal
to make that distinction?
MR. JUSTICE JACKSON: I do not think that would be necessary. I
think when the member was brought to trial—one may be a
conscript and still have remained in on a voluntary basis, or he may
have gone beyond his duty as a conscript. I do not think it is
necessary at this stage of the proceeding, where the individual is not
here, to eliminate him. I do think that the principle that acts
performed under conscription are not within the condemnation of
the Tribunal is quite a different thing.
THE PRESIDENT: Is it possible for this Tribunal to limit the
powers of the national courts under Article 10 by either defining the
group or giving a definition of the word “membership” in Article 10?
MR. JUSTICE JACKSON: Well, if Your Honor pleases, I think every
tribunal in its judgment has a right to include, in its judgment,
provisions which will prevent its abuse. And I do not think this
Tribunal is lacking in power to protect its decision against distortion
or abuse. I take it that is the question rather than the question of if
the national courts brought these persons to trial and paid no
attention to the declaration—I do not suppose that there would be
any power in this Tribunal to stop them from doing it. But I assume
you mean as a consequence of this declaration, and I think that the
declaration can be circumscribed or limited. I certainly would insist
that the Court had inherent power to protect its judgment against
abuse.
THE PRESIDENT: Do you think this Court could direct the national
court to take any particular defenses into consideration?
MR. JUSTICE JACKSON: I do not know that it could put it in just
that way, but I suppose it could define the categories in a way that
the declaration would not reach any except those included within it.
In other words, I think the declaration that this Tribunal will make is
within this Tribunal’s control. When you get away from the
declaration, I think you would have no control over the national
courts. But insofar as they relied on the declaration, you would have
power to control the effect of the declaration, provided the effect
was not inconsistent with the provisions of the Charter.
THE PRESIDENT: You did, I think, make some suggestions for
obtaining such evidence as you thought was necessary. Do you wish
to add anything to that?
MR. JUSTICE JACKSON: I have nothing to add to that, Your
Lordship. I realize that the defendants’ counsel have great difficulty
in getting evidence, great difficulty in communication. I have it
myself—great difficulty in getting letters delivered, great difficulty in
all of these things. But I will state to this Tribunal categorically—I do
not know what camp it is that was referred to yesterday as
substantially refusing counsels’ application to see their clients—but
so far as the American Zone is concerned, counsel, if they are
properly cleared to go there, will be given every facility to get every
kind of evidence that is available in that camp. If they are there at
mealtimes they will be fed, and if they are there at night they will be
sheltered. We will put everything in their way to help them that is
possible.
Of course, there are security problems involved, and counsel
cannot just walk into a camp and make himself at home. He will
have to be cleared in advance so that he meets the security
requirements; but there is no purpose to obstruct, and there is every
purpose to assist.
THE PRESIDENT: Thank you.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I should like to
ask you a few questions. Some of them will be somewhat repetitious
of what the President has already said. You will excuse me if I
repeat one or two of those. Most of them are directed for the
purposes of this argument, which, I take it, is to form some kind of
definition of the organizations, which may, of course, not be final but
will at least give us a view of what should be relevant to the
defendants’ making up their cases. So the questions are addressed
to that, rather than any ultimate theory of definition.
You said that you would suggest excluding clerks, stenographers,
and janitors in the Gestapo. Well, now, if we accepted that, would
we not be obliged to exclude such categories from other criminal
organizations?
MR. JUSTICE JACKSON: Not at all, Your Honor. I think there is a
difference between a concession by the Prosecution and the
necessity for the Tribunal’s making a decision.
It might appear logical that if we conceded clerks, stenographers,
and janitors of the Gestapo were not to be included, that no clerks,
stenographers, or janitors should be included. It does not follow.
The relationships in different organizations differ.
From what we know about the Gestapo situation, we are satisfied
that clerks, stenographers, and janitors in that organization ought
not to be included, and we do not want to waste any time on it.
THE TRIBUNAL (Mr. Biddle): Was the reason for that, that those
clerks would not have had knowledge of what was going on in the
Gestapo?
MR. JUSTICE JACKSON: I do not think either that they had
sufficient knowledge, in general, to be held or that they had
sufficient power to do anything about it if they did.
Now, this question of dealing with minor people—and it is one of
the questions that the Court inevitably gets into, if it undertakes to
draw these lines itself rather than letting them be drawn
administratively by what we choose to prosecute—is illustrated by
just this sort of thing.
One of the difficulties with the Court is that it tries to be logical,
and ought to be logical perhaps. I have always thought that was the
great merit of the jury system, that juries do not have to be, and in
prosecuting we do not have to be. It may look illogical to exempt
small people in one organization and not in another, but there were
differences in them.
For example—I think it is in evidence; if not, it will be—it was
pointed out at one meeting by the Defendant Göring that chauffeurs
to certain officers had profited to the extent of half a million
Reichsmark from Jewish property that they had gotten their hands
on. Now, I suppose ordinarily you would say that a chauffeur for an
official was not a man who had much discretion and not a man who
was expected to know much about what his employer was doing,
but you have a great deal of difference in their relations to these
men.
So far as I am concerned, I want to make perfectly clear—and I
think it will be assumed—the United States is not interested in
coming over here 3,500 miles to prosecute clerks and stenographers
and janitors. That is not the class of crime, even if they did have
some knowledge, that we are after, because that is not the class of
offender that affects the peace of the world. I think there is little
reason to fear that that sort of person—unless there is some reason
to feel that some guilty connection exists beyond merely performing
routine tasks—will be prosecuted in as big a problem as we have on
hand here.
THE TRIBUNAL (Mr. Biddle): But in spite of that, you would
include them in the SS, let us say?
MR. JUSTICE JACKSON: I would not exclude them.
THE TRIBUNAL (Mr. Biddle): I take it that would include them.
MR. JUSTICE JACKSON: If they were members, they would be
included; if they were merely employees, that is something different;
but if they took the oath and became a part of the SS organization, I
think they stand in a different relation to the employed clerks of a
government agency.
THE TRIBUNAL (Mr. Biddle): Now, somewhat along those same
lines, you stated, in trying to define what a criminal organization
was, that its membership must have been—I am quoting your words
—“generally voluntary” and its criminal purpose or methods open
and notorious and “of such character that its membership in general
may properly be charged with knowledge of them.”
Now I am going to ask you a question which is somewhat
repetitious of what the President asked you, but perhaps you can
specify a little more. Would it not be inconsistent with that test
which you suggest for criminality, if we decline to consider whether
any substantial segment of the organization—I mean a section or
segment might comprise a third of the whole organization or even
more, like the Waffen-SS within the general SS—was either
conscripted, which is one test, or ignorant of the criminal purpose?
Because if such a substantial segment could be shown to be
innocent under these tests, would it not be necessary either to
decline a declaration on that ground—that the criteria were not
generally satisfied as to the accused organization—or else to exclude
the innocent segments from the deposition of the criminal
organization?
Now, that is a rather involved question but it seems to me, if the
test is the knowledge or assumed knowledge, that evidence that a
very large segment did not and probably could not have had
knowledge would be relevant and would be relevant not only for the
purposes of evidence, but for the purposes of definition?
MR. JUSTICE JACKSON: Well, I think you have at least two ideas
in the question that must be dealt with separately. The first is that
conscription and knowledge, to my way of thinking, present a very
different problem.
As to conscription, as I said before, I think, if the Tribunal saw fit
to condition its judgment not to apply to conscripted members of
any organization, I shall have no quarrel with it. I have always
conceded we did not seek to reach conscripted men. If the
overwhelming power of the state puts them in that position, I do not
think we should pursue them for it.
If the Tribunal says that the Waffen-SS must be excluded
because it was conscripted, that raises a question of fact.
THE TRIBUNAL (Mr. Biddle): Yes.
MR. JUSTICE JACKSON: And it raises a question of fact that we
would be 3 weeks trying and that is what I want to avoid, because
there were Waffen-SS and other Waffen-SS and there were different
periods of time and there were different conditions; and we get into
a great deal of difficulty if we undertake to apply the principle that
the conscript is not to be punished; and that, it seems to me, is
what is properly left to the future course, the question as to whether
an individual or a number of individuals comes within that principle.
In other words, I think this Court should lay down principles and not
undertake what I call “police court administration” of those principles
as applied to individuals.
THE TRIBUNAL (Mr. Biddle): May I interrupt you for a moment on
the first point? I take it, then, that you would think it appropriate to
express a general limitation with respect to conscription in the
declaration, but not to designate to whom that applies?
MR. JUSTICE JACKSON: I would have no objection to such a
designation as far as I am concerned. Now, the other question is a
question of knowledge, which is infinitely more difficult. We do not
want to set up a trap for innocent people. We are not so hard up for
somebody to try that we have to seek and to catch people who had
no criminal purpose in their hearts; but there can be no doubt that
every person affiliated with this movement at any point knew that it
was aimed at war and aggressive war. There can be no doubt that
they knew that these formations under the Nazi Party were
maintaining concentration camps to beat down their political
opposition and to imprison Jews and the terrible things that were
going on in these camps.
To ask us to prove individual knowledge or to ask us to accept
the man’s own statement of his state of mind is to say that there can
be no convictions, of course. It seems to me that the scale of this
crime and the universality of it, going on all over Germany,
concentration camps dotting the landscape, and the vast population,
is sufficient to charge with knowledge the principal organizations of
the Nazi Party which were responsible for those things. The test that
I think applies as to knowledge is not what some member now on
the witness stand may say he knew or did not know; but what, in
the light of the conditions of the times, he ought to have known—
what he is chargeable with.
THE TRIBUNAL (Mr. Biddle): Wouldn’t it follow from that that
there was no taking of any evidence on what was generally known?
MR. JUSTICE JACKSON: Well, I think the proof of what was going
on establishes the point as to chargeability with knowledge.
THE TRIBUNAL (Mr. Biddle): Do you claim that the defendants
should not be permitted to give any evidence as to that which was
generally known with respect to what was going on?
MR. JUSTICE JACKSON: To what was generally known, I do not
think the defendant’s denial that he knew what was going on has
any materiality.
THE TRIBUNAL (Mr. Biddle): That was not my question. My
question was whether a witness could be permitted to testify that
the acts of the particular organizations were not generally known to
its members. Would you exclude that evidence?
MR. JUSTICE JACKSON: I certainly would, and if I heard it I
would not believe it; but perhaps my . . .
THE TRIBUNAL (Mr. Biddle): Excuse me. Although on your test of
knowledge, you wouldn’t permit the defendants to meet that test?
MR. JUSTICE JACKSON: I should say that that is just exactly the
situation, that the Court would take judicial notice, from the
evidence that is in, that this was a thing that must have been known
in Germany; and I would not think that it would be permissible for a
citizen of the United States to testify that he did not know the United
States was at war, a fact of which he is chargeable with knowledge;
and it seems to me that the magnitude of these things is so equally
established and the repeated daily connection between the
organizations and this criminal program is so equally clear.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I only have two
or three more questions. One is directed to the General Staff. Does
the particular date when an individual accused—I beg your pardon—
when an individual assumed one of the commands listed in Appendix
B of the Indictment have any bearing on whether he is a member of
the organization? Now, I am going to bring that question down to
the General Staff.
MR. JUSTICE JACKSON: Perhaps I should warn you of this—that
I am not a military man. I have not specialized on that subject and I
shall want to refer your question to someone whose knowledge is
more reliable than mine.
THE TRIBUNAL (Mr. Biddle): I shall ask the question directed to
you as a lawyer and not an expert in military matters. Assume that
one of these individuals became an army group commander after
the wars of aggression had been planned, proposed, initiated—
roughly, that would be after 1942; let us say, after Pearl Harbor—
and had reached the stage when Germany was on the defensive; is
his acceptance of a command at that date sufficient to make him a
member of the organization?
MR. JUSTICE JACKSON: I should think it would.
THE TRIBUNAL (Mr. Biddle): The reason I asked you that, Mr.
Jackson, is that I thought you had rather indicated in your opening
address that the starting of the war was the essence of the crime
rather than the waging of war, and I was wondering whether in that
case there would be any difference which we should consider?
MR. JUSTICE JACKSON: Well, I think when one joins, he ratifies
what has gone before, and it would seem to me that when he came
into the picture at that point, it was a ratification of all that had gone
before on the ordinary principles of conspiracy.
Now I think it is a difficult question, whether a man had not had
any prior connection with the Nazi Party—if you take the example of
a man who disapproved all that the Nazi Party had done, who never
became a member of it, who stood out against it and publicly his
position was clear, and he took no part in the war until the day his
country was being invaded and he said, “I don’t care what happened
before; my country is being invaded and I shall now go to its
defense,” I would have difficulty convicting that man. I do not know
such a man.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, there is only
one more question I should like to address in connection with Law
Number 10. I am a little puzzled myself on Law Number 10, the
Control Council Law of December 20—I think that was the date. You
spoke of one reason for declaring the organizations criminal and
bringing persons into the Control Council for screening. I take it they
can do that easily without any help on our part.
MR. JUSTICE JACKSON: That is right.
THE TRIBUNAL (Mr. Biddle): Now, you said something very
interesting. You said the act would not have been so, if you would
have drafted it. How would you have drafted it, if that is not an
improper question?
MR. JUSTICE JACKSON: Well, I think I would not have made
these penalties of this act apply to all of the crimes. You have one
lumping of a whole list of crimes which, to my mind, range from the
very serious to the very minor. Then you have applicable to all of
those crimes, penalties from death down to deprivation of the right
to vote in the next election.
THE TRIBUNAL (Mr. Biddle): For instance, you would not have
made the death penalty applicable to the members of the SA who
might have resigned in 1922?
MR. JUSTICE JACKSON: I would not; and I think that in that way
I would have been more explicit with the penalties. Like the Mikado,
I would try to make the punishment fit the crime, rather than leave
it wide open.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, what defenses
do you think are expressly permitted under the Control Council Law?
Don’t we have to assume that the members of the Tribunal will
permit certain defenses or are any defenses expressly permitted?
MR. JUSTICE JACKSON: No; no defense is expressly permitted. I
take it that any defense which goes to the genuineness of
membership, as the volition of the individual, duress, fraud—and by
duress I mean legal duress—I do not think that the fact that it is
good business, that the man’s customers may leave him if he does
not join the Party—that is not duress; but anything which goes to
the genuineness of his membership.
THE TRIBUNAL (Mr. Biddle): Only one more question. If the
Tribunal were of the view that a declaration of criminality of the
organization is an essentially legislative matter, as suggested by
some of the defense lawyers, rather than a judicial one—if we were
of that view, would it be appropriate for the Tribunal to consider the
legislative authority of the Control Council, to make such a
declaration, which undoubtedly we could do in exercising that
discretion which is conferred on us under Article 9 of the Charter?
MR. JUSTICE JACKSON: I would not think so, Your Honor. I think
that this Tribunal was constituted by the powers for the purpose of
determining on the record—after hearing the evidence, after
knowing the facts—determining what organizations were of such a
character that the members ought to be put to trial for membership.
The fact that some other group which does not have hearing
processes and which is not constituted as this might, either
administratively or some other way, reach that same result, I do not
think is a proper consideration. I should think it was rather a way of
avoiding the duty—there are other ways of doing it, but this is the
way our governments have agreed upon. I should think it would not
be a proper consideration.
Of course, you could punish these members without anything.
We have them in our power and in our camps. But our governments
have decided they want this thing done after a full consideration of
the record, and in this matter I think that. . .
THE TRIBUNAL (Mr. Biddle): But you have no doubt of the power
of the Control Council to do it, irrespective of what we do, do you?
MR. JUSTICE JACKSON: I do not know of any limitations on the
power of the Control Council. There is no constitution. It is a case of
the victor and the vanquished, and I think that is one of the reasons
why, however, we should be very careful to observe the request of
our governments to proceed in this way. In a position where there
was no restraint on their power except their physical power, and
mighty little of that today, they have voluntarily submitted to this
process of trial and hearing, and it seems to me that nothing should
be done, by us as members of the legal profession at least, to
discredit that process or to avoid it.
THE TRIBUNAL (Mr. Biddle): Those are all the questions I have to
ask.
THE TRIBUNAL (Professeur Donnedieu de Vabres, Member for
the French Republic): I would like to ask Mr. Jackson a few details on
the consequences of the declaration of the criminality of an
organization. Suppose an individual belonging to one of the
organizations classified as criminal—for instance, an SS man or a
member of the Gestapo—is brought before the military jurisdiction of
an occupying power. According to what has been said so far, he will
be able to justify himself by proving that his membership in the
group was a forced membership. He was not a volunteer and if I
have understood correctly, he will also be able to justify himself by
proving that he never knew of the criminal purpose of the
association. That, at least, is the interpretation which has been
adopted and defended by the Prosecution, and which we consider
exact.
But I suppose that the tribunal in question has a different
conception. I suppose that it considers the condemnation of the
individual who was a member of the criminal organization, obligatory
and automatic. Strictly speaking, the interpretation which has been
advocated by Mr. Jackson is not written in any text. It does not
appear in the Charter. Consequently, by virtue of what texts would
the tribunal in question be obliged to conform to this interpretation?
MR. JUSTICE JACKSON: The control of the future tribunal is the
control of the effect of the declaration of this Tribunal. This Tribunal’s
effect, when brought before a subsequent tribunal, is defined by the
Charter, and it has only the effect that the issue as to whether the
organization is criminal cannot be retried. There could be no such
thing as automatic condemnations, because the authority given in
the Charter is to bring persons to trial for membership.
It would, of course, be incumbent on the prosecutor on ordinary
principles of jurisprudence to prove membership. I think proof that
one had joined would be sufficient to discharge that burden, but
then the question could be raised by the defendant that he had
defenses, such as duress, force against his person, threats of force,
and would have to be tried; but the Charter does not authorize any
use of the declaration of this Tribunal except as a basis for bringing
members to trial.

Land Development and Design 1st Edition Paul M. Syms

Uploaded by

Copyright:

Available Formats

Land Development and Design 1st Edition Paul M. Syms

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Land Development and Design 1st Edition Paul M. Syms

Uploaded by

Copyright:

Available Formats

Get ebook downloads in full at ebookname.

Land development and design 1st Edition Paul M.

Explore and download more ebook at https://ebookname.com

Previously Developed Land Industrial Activities and

Previously Developed Land Industrial Activities and

Finite Element Analysis For Design Engineers Paul M.

The Politics Of Slavery 1st Edition Laura Brace

Devil to Pay Richard Delancey Novels No 2 2nd Edition

Augenblick the concept of the decisive moment in 19th

Lifespan Investing Building the Best Portfolio for

GeoHumanities Art History Text at the Edge of Place 1st

Foreword by Sir Peter Hall

Foreword by Sir Peter Hall

Part One Planning and Development 1

2 Planning and Development Policies 14

Part Two Land 53

7 Remediation and Treatment Options 115

7.6 Summary 139

Part Three Development 141

9 Planning and Environmental Regulation 167

10 Development Finance and Joint Ventures 185

11 Tendering Entering into Contracts, Monitoring and

11.5 The form of contract 207

12 Marketing and Sales 216

Part Four Design 231

15 Building and Concepts 284

16 Planning for the Future 301

Appendix 1 Sample Option Agreement 324

Copyright Acknowledgements 343

My objective in writing Land, Development and Design was to produce an up to

financial appraisals, similar to that which a property developer might adopt in

`We calculate that, on current policy assumptions, the Government is

appropriate to greenfield development than to the generally more complex

Box 1.1 The eleven phases of the redevelopment process

1.2 The phases of redevelopment

The redevelopment process should be seen as consisting of 11 phases, many of

1.2.1 Phase 1: Project inception

important for planners and other regulators to adopt a similarly flexible

1.2.2 Site acquisition and site assembly

1.2.3 Phase 3: Site assessment

1.2.4 Phase 4: Risk analysis

and careful consideration should be given to any planning conditions that

1.2.5 Phase 5: Detailed design

1.2.6 Phase 6: Feasibility study

construction or in planning stages. Many developers use commercially available

1.2.7 Phase 7: Planning and regulatory approvals

Although it is only now that a full planning application can be submitted,

1.2.8 Phase 8: Land and development finance

before considering approaches to banks or other financial institutions. It will be

1.2.9 Phase 9: Tendering

This includes the selection of suitable contractors and decisions relating to

negotiated contract, whilst others will undertake a full competitive tendering

1.2.10 Phase 10: Construction

This includes: site remediation, monitoring and auditing; site infrastructure,

1.2.11 Phase 11: Sales and marketing

Redevelopment of `previously developed' land and buildings is complex,

requires a framework which promotes consistent, predictable and prompt

2.2 Planning Policy Guidance Notes

In England, the Department of the Environment, Transport and the Regions