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Planning By Law and Property Rights
Reconsidered
This page has been left blank intentionally
Planning By Law and Property
Rights Reconsidered
Edited by
Thomas Hartmann
Utrecht University, The Netherlands
and
Barrie Needham
Radboud University Nijmegen, The Netherlands
First published 2012 by Ashgate Publishing
Thomas Hartmann and Barrie Needham have asserted their right under the Copyright, Designs
and Patents Act, 1988, to be identified as the editors of this work.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any
form or by any electronic, mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information storage or retrieval system, without
permission in writing from the publishers.
Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only
for identification and explanation without intent to infringe.
2011048029
ISBN 9781409437215 (hbk)
ISBN 9781315600710 (ebk)
Contents
Conclusion 219
Barrie Needham and Thomas Hartmann
Index 229
List of Figures and Tables
Figures
6.1 Indicative sketch of the design of the climate dyke at the Dutch
town of Tiel 127
11.1 Land use plans, project decisions and exemptions under WRO
and Wro 213
11.2 Examples of bestemmingsplannen 215
Tables
Edwin Buitelaar works as a senior researcher and programme leader at the PBL
Netherlands Environmental Assessment Agency, a government-funded research
agency, and as a research fellow at the Amsterdam School of Real Estate of
the University of Amsterdam. He does research on land development, land-use
planning, planning law and (social) housing. Before he moved there at the end
of 2007, he worked as a lecturer (assistant professor) and a researcher in the
department of Spatial Planning and the research team Governance and Places
(GaP) of the Radboud University Nijmegen.
Esther Geuting is a partner of a consultancy firm (Stec Groep) in land and property
markets in the Netherlands. She does research and advises on land markets, the
value of land and real estate, restructuring of neighbourhoods and industrial
estates, and property development strategies. She has been a part-time researcher
in the department of Spatial Planning and the research team Governance and
Places (GaP) of the Radboud University Nijmegen. In 2011 she finished her PhD
thesis on the subject of market structuring as a policy tool in planning.
Erwin van der Krabben holds a position as professor of land management and
area development in the Institute of Management Research, Department of Spatial
Planning at Radboud University Nijmegen. He also holds a position as (part-time)
professor of real estate in the School of the Built Environment, University of Ulster
(Northern Ireland). He has published in a variety of academic journals with respect
to land policy, area development, and the regulation of land and property markets.
He has acquired substantial funds for scientific research (including Transumo,
Habiforum, NICIS and COST) and supervises a number of PhD projects in those
academic fields. He is the coordinator of the research program Governance and
Places (group of circa 50 researchers). In an international context, he is AESOP
country representative for the Netherlands and co-coordinates the EU COST Action
Land Management and Urban Dynamics. Erwin van der Krabben is frequently
invited to advise or give expert opinions to various organizations (including the
Ministry of spatial planning, provinces, municipalities).
List of Contributors xi
Mark Oranje is Professor and Head of the Department of Town and Regional
Planning at the University of Pretoria. He has authored and co-authored numerous
academic papers, articles, chapters in books and technical reports. His key areas of
interest are planning policy, long-term planning and planning history. Over the last
two decades, he has acted as a consultant to a number of national and provincial
government departments, national and provincial planning commissions and
science councils on issues relating to municipal integrated development plans,
local and regional economic development, municipal, provincial, national and
supra-national planning, land-use management, intergovernmental relations and
the integration of land use and transport planning.
Tejo Spit (1955) got his Master’s degree as a physical planner at the Nijmegen
University (Department of Urban and Regional Planning) in 1983. Since then he
has been working both in the academic world (Radboud University of Nijmegen
and University of Utrecht) and the more problem-oriented world of municipalities
(first the municipality of Enschede and from 1985 onwards the Association of
Netherlands Municipalities). In that way, he has developed wide knowledge of
spatial planning in (local) practice. In this period he also wrote his thesis on the
subject of fiscal austerity and urban innovative policies (1993). In 1995 he moved
to a full time academic career as an associate professor at the Department of Human
Geography and Planning (Faculty of Geosciences, Utrecht University). He is now
full professor in Urban and Regional Planning and chairing the department. He
is specialized in land policy, planning methodology, infrastructure planning and
administrative aspects of spatial planning. He lectures on these subjects regularly
within the Netherlands and abroad.
We would like to thank Professor Dr Willem Salet for his kind and supportive
feedback and review. Willem Salet is Professor of Urban and Regional Planning at
the Faculty of Social and Behavioural Sciences, University of Amsterdam.
In addition, we would like to thank Professor Rachelle Alterman for supporting
the idea of publishing this book. Rachelle Alterman is Professor at the Faculty of
Architecture and Town Planning at the Technion – Israel Institute of Technology in
Haifa, and founder of the International Academic Association on Planning, Law,
and Property Rights (see: www.plpr-association.org).
The International Academic Association on Planning, Law, and Property Rights
provided a good forum for discussing the ideas in, and drafts of, the contributions
of this book.
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Introduction
Why Reconsider Planning By Law and
Property Rights?
Thomas Hartmann and Barrie Needham
Present day spatial planning began with something called urban planning, or land-
use planning, or town-and-country planning. These were introduced in the second
half of the nineteenth century in response to the appalling conditions in the towns
and cities which were growing rapidly to accommodate the industrial revolution.
Governments decided that the use of property rights in land and buildings should
be regulated. Owners should neither always be allowed to build what they wanted
where they wanted, nor always to use their buildings in ways that they wanted.
So regulations were introduced, and plans were made to guide and legitimize
the contents of those regulations. Later, in the first half of the twentieth century,
such regulations were extended in response to cities growing rapidly into the
countryside. So, gradually, most industrialized countries came to have a system
of plans, control over building development, and ordinances about environmental
nuisances. Gradually, spatial planning has grown as a recognizable and recognized
discipline – academically and in practice. Now, the task of planning is much wider
than the facilitation and regulation of urban growth. The tasks and challenges
of planning have changed over the last decades – and they keep changing. As
planning challenges change, planning approaches also change.
Nevertheless, those approaches are still rooted in the activities of making,
implementing and enforcing legal rules about how people may use their property
rights over land and buildings. This we call planning by law and property rights
and that is the subject of this book. It is still commonly practised, for it includes
the making of land-use plans, the issuing of building permits, and so on. But is it
necessary to write a book about it?
The answer is yes, for it is our contention that planning by law and property
rights is so familiar and taken for granted that we do not think about the theory
behind it. As a result, we do not think abstractly about its strengths and weaknesses,
about what can be achieved with it and what not, how it can be improved, how it
could be complemented. Such reflections are essential to cope with current and
future challenges of spatial planning. In this book, we make the (often implicit)
theory behind planning by law and property rights explicit and relate it to the
challenges. Therefore, we ask questions such as: Is planning by law and property
rights desirable? What are its strengths and limitations? Because of its limitations,
2 Planning By Law and Property Rights Reconsidered
In order to give persons that ‘peaceful enjoyment’, the state creates property
rights. The owners of land (or of rights in land) can ask the courts to protect them if
others endanger their ‘peaceful enjoyment’. Property rights are created under what
is called ‘private’ or ‘civil’ law: the law is enforced only if a private person (legal
person) takes the initiative. That person considers that his/her interest is being
damaged by the action of another legal person (which could be a government
body), and asks the state to correct the situation. Those laws are called ‘private’,
Introduction 3
because they regulate the direct relationships between legal persons: the state acts
only if requested to do so. Examples of private laws concerning land are the laws
about freehold and leasehold interests, about easements and covenants, about
mortgages, and so on. Rights give power to the owner of the rights, power not
only over the object (or circumstances) of interest, but also over all others, who
may be excluded from that right (Bromley 2000: 29–30). ‘A right’, he explains, ‘is
to have the ability and the capacity to require the government to act in your behalf’
(Bromley 2000: 29).
In these terms, it would seem that planning ‘interferes’ with the peaceful
enjoyment of property. For under land-use planning, a state body says what the
owner of a property right in land or buildings may or may not do with his or her
land. The state body might even be empowered to acquire that right compulsorily
(expropriation). The state is given those powers under what is called ‘public’ or
‘administrative’ law. Such laws are not only made, but also enforced, by the state:
it is the state which intervenes if a law is broken. Such laws are called ‘public’
because they concern directly the relationship between the citizen and the state.
Examples of public laws concerning land are the laws for land-use planning, much
of environmental law, many laws concerning roads and highways, and so on.
In both cases – private and public law – we are talking about formal laws,
laws which are enforceable in courts. They are all determined by the state, for it
must be possible to enforce them, and the state has the monopoly on the legitimate
use of power (for example levying fines, imprisoning, requiring compensation for
damage).
Three things follow from this. The first is that all formal laws are a social
creation (Bromley 2000: 28). Bromley explains that the law ‘reflects the influence
and interests of yesterday and, through its application, the law seeks to bind the
future’ (Bromley 2000: 29). Seen in this way, whenever a spatial plan or a planning
measure specifies how a particular plot of land may or may not be used, it is
socially constructing and assigning property rights by using the law (Needham
2006: 4). The second is that in a state with a rule of law, all public actions to
‘interfere’ with the exercise of property rights must be justifiable by law (no
arbitrary actions). This means that all land-use planning is inevitably ‘planning
by law and property rights’. The third is that there must be a close connection
between the use of private and of public law, for both affect how land is used, and
the two types of law may not be used in a contradictory way on one plot of land.
For example, if public law intervenes in the exercise of an existing property right,
that ‘contradiction’ must be carefully and explicitly resolved by legal means.
No matter how many levels of planning are involved in preparing planning
decisions, no matter how many stakeholders have contributed to a decision, no
matter which parties and lobby-organizations have influenced a decision, in the end,
a private landowner is either restricted or enabled to enjoy his possessions – to use
the term of the European Convention on Human Rights. It makes ‘a person poorer
or richer, by affecting the value of the rights on her land’ (Needham 2006: 3). For
that reason, planning by law and property rights requires a thorough understanding
4 Planning By Law and Property Rights Reconsidered
of the law (Ingram and Hong 2009: 3): spatial planners need to reflect continually
on the legal implications of their plans. The sought-for understanding, however, is
elusive, since neither planning nor law and property rights are the same in all places
and at all times. The relation between political power – which spatial planning to
some extent exercises – and property is described by Goodin and Tilly as context
dependent: ‘as analysts of political processes, we have no choice; we must place
rights to resources in context’ (2008: 6). The reflection on the context provides an
opportunity to rethink how spatial planning can work constructively with law and
property rights, precisely so as to achieve the chosen planning aims better – which
could mean fairer, more efficient, more effective or sustainable plans. There is an
unavoidable logical relationship between planning, law, and property rights, and
certain aspects of this need to be worked out better.
‘Rights in land are granted by the political unit because of the larger social
benefits to arise therefrom’ (Bromley 2000: 28). ‘Defenders of private ownership
of land argue that it promotes individual liberty, political stability, and economic
prosperity’ (Ellickson 1993: 1317). What is then the purpose of imposing in
addition planning regulations on how private people use their property?
The ultimate purpose is to achieve a way of using land which is ‘better’ than
if the private person had been allowed to determine that land use in the absence
of the plan, even though working within the constraints of private property rights.
But better for whom?
It can be – is often – better for others than the property owner. The necessity
of governmental intervention in private property results from the inevitability of
scarcity which creates conflicts (Bromley 2000). Land is a scarce good; a decision
for one use often excludes other uses. For example if landowners along a river are
enforced to leave their land empty so as to retain the water of the next flood wave,
landowners downstream profit from that, whereas the upstream landowner cannot
use his/her land (or only within crucial constraints). Sometimes these ‘others’ who
gain from planning are few and easily identifiable (for example if actions can be
taken to prevent someone causing nuisance – an external negative effect – to the
immediate neighbourhood). Sometimes these others are very many and difficult to
identify and isolate (for example diffuse negative external effects, such as when
a beautiful landscape would be damaged by the private action). ‘Better’ can also
even refer to the private person owning the land which is regulated: for example,
planning can make it possible to redevelop a difficult site profitably (a positive
external effect).
Spatial planners work within that framework: ‘the planner is the leader,
the professional’ (Schiller 2001: 10). ‘Traditional land-use planning … aims at
controlling land use’ (Albrechts 2004: 744). However, it is not only the owners of
rights in land who are affected: there can be other stakeholders too, who have an
Introduction 5
interest in the use of space. For example, water managers, environmental agencies,
or other public authorities. All those stakeholders might perceive the regime of law
and property rights as a threat or a constraint to achieving their cherished design
(Schiller 2001: 11).
Two ways of planning by law and property rights can be distinguished. The first
way is the most familiar: it is when a public agency makes plans using public
law about how land may be used. That plan sets the conditions under which
people may use their property rights. That use of public law should not be an
‘uninspired instance of bureaucratic business’, as Forester (Forester 2004: 242)
criticizes much planning practice, for it can also be applied creatively in such a
way that it directs and steers certain uses of private law. It could include planners
not trying to control, but to create a frame for stakeholders’ activities. This could
mean determining the desired outcome and leaving it to the stakeholders how they
achieve that; that is, not to try to determine the procedures but the substance of an
intended future land use. The second way of planning by law and property rights
is more indirect. It consists of a public agency creating markets in property rights,
purposefully so that the outcome of those markets is a physical environment
which the public agency wants to achieve. Creating transferable development
rights is a well-known example of this, or making it possible for the residents of a
neighbourhood to set up a residents’ association which maintains the qualities of
that neighbourhood. This kind of spatial planning works by structuring markets in
property rights.
With both approaches, plans need to remain within the legal boundaries
specified by both law and property rights. But planners can nevertheless think
constructively about what are appropriate property arrangements for certain
locations. For example, who should own public spaces, who the gardens in front
of the houses, who the streets, who the retention area upstream, who the nice view
of a landscape? More generally, planning can be regarded as spatial governance:
how should the use of space be ‘managed’?
Language: Finnish
Kirj.
KAARLO HEMMO
Marjamatka.
Politiikasta.
Herra sen salli eikä Pekkakaan pannut vastaan
Yhteiskunta ja kansakoulunopettajat
Kadonnut morsian
Palkollisten valistusiltama
Kun Marja-ahon Mikko viljeli juurikkaita
Rautatielaitoksemme.
Joulurauha
Osuusruokala "Yhteishyvä"
Matti Aution rakkaudentunnustus
— Mistä kotoisin?
— Minäkö?
— Niin?
— Kuopiosta.
Pietari Pyhälä,
apulaispappi."
(Sinetti).
— No, jos luulet, että minä eukoksesi kelpaan, niin pannaan vaan
ryysyt yhteen.
Kun oli kotvan aikaa sillä tavoin istua nokotettu, katkaisi Marketta
äänettömyyden kaulan.
— Niin, tuota noin… muut miehet saavat sanoa: Minä nain. Mutta
minun miesparan pitää sanoa, että minut naitiin…