Planning Law

The private sector substantially spearheads the housing industry in Malaysia. While the Malaysian Government regulates the industry through laws, one of the laws is the Town and Country Planning Act 1976 (Act 172) ('TPCA'). Nevertheless, despite there are many housing policies and legal means to ensure housing success, there are still issues plaguing housing industry in Malaysia. For instance, one of the significant problems is the issue of abandoned housing projects. This paper focuses on planning law issues in abandoned housing projects. This paper aims to discuss this issue and suggest particular improvement in the planning law in dealing with abandoned housing projects. The research methodology used is qualitative and legal research methodologies. This paper finds that there are specific provisions under the TCPA and planning law that should be improved to protect the interests of the stakeholders.

This paper provides a synopsis of the Law Commission’s December 2018 Report recommending a new Planning Act/Planning Code for Wales. It followed an extensive consultation exercise, including submissions by the United Kingdom Environmental Law Association (UKELA).  The proposals would amount to a radical shake up and modernisation of planning law in Wales, building on the diversification from England that has already taken place.  Some 190 recommendations were made for reform, leading to a simplified and codified planning system (containing legislation, policy and guidance) if enacted by the Welsh Government.
Correction: Since publication, the author's attention has been drawn to an error in this paper.  It was stated that the Law Commission was proposing no change to the present statutory arrangements in Part 12 of the Town and Country Planning Act 1990 concerning High Court challenges.  In fact, the Commission is proposing that Part 12 is not restated in the new Planning Bill, but instead that all Court proceedings should bought by way of judicial review under Part 54 – as the two procedures are now more or less identical.

A commentary - primarily for non-lawyers involved in responding to planning (land use) applications - on the England/Wales Court of Appeal decision in Suffolk Coastal District Council v. Hopkins Homes Limited and Secretary of State for Communities and Local Government and Richborough Estates Partnership LLP v Cheshire East Borough Council and Secretary of State for Communities and Local Government.  Note: it is important to refer to the subsequent UK Supreme Court judgment on this case.

Article 182, § 1, of the Constitution of the Federative Republic of Brazil of 1988 vests the master plan with the role of “basic tool of the urban development and expansion policy”. Based on that, the Federal Supreme Court recognised, in the judgement of the Extraordinary Appeal 607.940/DF, on the 29th of October 2015, that “not every municipal (or district) normative competence about the urban spaces occupation ends with the master plan’s approval.” Hence, it has considered constitutional the Supplementary District Act (SDA) 710, 6 September 2005, which provides for Urban Projects with Special Guidelines for Autonomous Unities, and it has approved, by a majority of votes, the thesis that “the municipalities over twenty thousand inhabitants and the Federal District are allowed to legislate on specific programs and projects of urban space planning by means of laws that are compatible with the guidelines established by the master plan”. Taking the applicable legal literature and the reasons presented in this ruling as a reference, this paper points out the constitutional competences in terms of Planning Law and analyses the referred supplementary law of the Federal District in light of those competences. Finally, this article assesses whether there are subjects reserved to the master plan by the Brazilian Constitution and whether the STF erred when it declared the SDA 710/2005 constitutional and when it set the general repercussion thesis.

גישת התכנון המודרניסטית, שמעצבת את הערים שאנו חיים בהן, נמצאת במשבר עמוק. תוכניות המתאר העירוניות, המגובשות על ידי מומחים ללא השתתפות ציבורית משמעותית, מנותקות מלכתחילה מהצרכים המקומיים; ומכיוון שמימושן תלוי בשיתוף הפעולה של גופים עסקיים וממשלתיים, אלה יכולים לשנות אותן ללא הכר עד כדי ריקונן מתוכן בשירות אינטרסים הפוגעים בציבור ובסביבה. כדי להתמודד עם המשבר יש ללמוד מעקרונות תכנון קדם-מודרניסטיים שאפיינו ערים עתיקות ברחבי העולם, להתאים אותם לצרכינו העכשוויים ולבנות מערכת תכנון דמוקרטית יותר

The position of this essay is that –both in principle and in effect– the courts’ role should remain solely supervisory when dealing with planning-related issues, and not invade the decision-making realm; this position is supported by researching the implications of the current state of affairs and the implications of a potential reform, allowing the courts to exceed their supervisory role and act as primary decision-makers, in regard to various issues, including representative democracy, justice in regulating the use and development of land, and the need for informed decision-making through an efficient planning system. This work’s research question is about the courts’ role in planning matters; the legal supervision of decision-making and the function of decision-making are seen as mutually exclusive functions, from which the courts can/should only select one. The legal concepts to be used in elaborating the arguments are given at the beginning of every Section.

The structure of this essay follows the three main arguments that support the afore-mentioned position, which are related to both parts of the research question. Section 2 argues that exceeding the courts’ current role opposes the principles of representative democracy, since it removes the planning system’s legitimacy and accountability; Section 3 supports that maintaining the courts’ supervisory role ensures the planning system’s fair operation in regulating land issues, since it adds consistency and coherence in decision-making; Section 4 stresses the decision-makers’ familiarity with local needs/conditions and the planners’ professional expertise that renders the courts unsuitable for making planning decisions; finally, Section 5 clearly restates the afore-mentioned position and summarises its supporting arguments.

For the whole paper, please contact me via my emai: avgevl@gmail.com

Reference:
Vlachos A. (2016), The courts' role in planning: Legal supervisors or decision-makers?, Newcastle University: School of Architecture, Planning & Landscape (SAPL)

This paper's main aim is to outline research into the controversial legal mechanism of compulsory purchase for urban regeneration in the UK. It also asks questions about the way regeneration in the UK is often characterised as gentrification. The paper presents findings from consultancy research regarding the Aylesbury Estate (London, England) Compulsory Purchase Order, Estate Regeneration, Public Inquiry in 2018. In recent decades neoliberal urbanism has exerted a powerful influence on what is possible in planning and urban regeneration. The response of the UK government is to champion mixed communities-led regeneration initiatives that often involve the private sector, demolition of Brutalist public housing estates built in the 1970s and their replacement with higher density redevelopment. Critics of this approach condemn it as gentrification. A major challenge is a legal one. Private land interests must be acquired through the compulsory purchase process using section 226 of the Town and Country Planning Act 1990. The decision making forum is the public inquiry. The role of the academic, expert, researcher, consultant is examined. I explore the issue of differential residential property rights in processes of regeneration. I conclude that gentrification is too blunt a research instrument to help politicians and planners who are facing difficult regeneration choices. And I conclude that although, like all major regeneration the Aylesbury Estate regeneration brings some disbenefits, it also brings significant benefits. One of the principal benefits is the creation of new convivial public spaces: the coming of public spaces of hope for a better future.

Through Australia's history, private developers have introduced restrictive covenants to property titles. Typical private covenants stipulate building materials, limit dwelling numbers, and prohibit particular land uses or the sale of alcohol. Covenants, like zoning, have tended to " put the single-family, owner-occupied home at the pinnacle of uses to be protected " , and have functioned as security for homeowners (Fischel 2004). This paper explores the power of private arrangements – from the past, and from more recent developments – in influencing contemporary housing and planning outcomes. We analyse 75 sampled Victorian planning tribunal cases substantially concerned with private covenants over 2013-2016. Legislative changes to Victorian planning legislation have meant – through a combination of legislative creep and apparent drafting errors – restrictive covenants now explicitly take precedent in permit assessments. We examine patterns in what covenants restrict; the hearing types and issues raised; and outcomes. We profile spatial patterns in the ages of covenants arising in planning disputes. Showing idiosyncrasies where decisions are determined by whether covenants are (literally) written in pencil or in ink, we argue covenants sometimes have enduring 'ink' legacies, compared to the transient 'pencil' of strategic policy. This is despite the covenants frequently being either directly contrary to current planning policy; or simply being nonsensical and outdated. We argue covenants illustrate the varied genealogy of planning: Booth's (2005) characterisation of planning as originating in private rights and morphing into public interest. This interlinked history is relevant to conflict over density and to the rebound of private zoning in response to urban consolidation.

Le papier revient sur la subjectivisation du contentieux administratif de l'urbanisme en France. Il fait l'hypothèse que cette subjectivisation est sélective, c'est-à-dire au profit du pétitionnaire et de l'administration, quasiment jamais au profit du requérant. Il met également en avant les éléments issues des droits européens qui sont susceptibles de limiter ce mouvement de subjectivisation.

This (summary) paper returns to the original gentrification paper by Ruth Glass as a way into the continuing and somewhat unsatisfactory gentrification debate. It does so within the framework of the 'reflective practitioner'  and the theoretical ideas of Henri Lefebvre. Some urgency is required because accusations of the evil that is gentrification are having an impact, I think unhelpfully on regeneration policy and practice in the UK and elsewhere. The paper starts with a critical engagement with Ruth Glass’ gentrification before considering ‘community and mixed communities -led regeneration. Since the 1970s the term gentrification has been used in a wholly derogatory way to signify harmful social change related to the operation of the housing market. This makes impartial evaluation of the processes and outcomes involved difficult indeed. Local authorities have taken the brunt of the criticisms although government has also been implicated. It is important to consider the original piece that coined the term because, although it is decades old, several of the arguments apply today, especially those regarding the so called displacement impacts of gentrification. The paper explores issues of gentrification and estate regeneration through a case study of the Aylesbury (public housing) Estate in central London and explores too the issues raised when an academic takes on a planning consultancy role involving work over a year long period.

This book has a special format: 13 instruments of land policy are presented in their respective context, and then commented by academics from a different perspective. The aim of this book it to examine not only how instruments of land policy are used to tackle the complex distribution of property rights, but also how they can be strategically used to manage the scarcity of land.

“This book offers a fresh and much-needed perspective on one set of instruments that planners in many countries use to resolve competition among land uses – instruments grounded in property rights and land use regulations” – Rachelle Alterman, foreword of the book.