Introduction: Why reconsider planning by law and property rights?

Abstract

Present day spatial planning began with something called urban planning, or landuse 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, could it be replaced by another way of planning? Or is it indispensable, in one form of another? In short, we ‘reconsider’ planning by law and property rights. Our argument is that planning by law and property rights is unavoidable and indispensable in a society with a rule of law. But it is not just a necessary evil, for it can give the users and producers of the physical environment the stability and certainty that they desire. On the other hand, it has its limitations, for the corollary of stability and certainty is inflexibility. Once rights in land have been determined by a combination of private law and public law, changing them can be difficult. If the assignment of property rights thus determined turns out to be inconvenient or out-dated, spatial planning by legal regulations carries the danger of creating lock-in situations. Planning by law and property rights which aims to be flexible runs the risk of doing that by treating peoples’ property rights in an ad hoc way. It is partly because of those limitations that in the last few years planning theorists have given much attention to another way of spatial planning, namely planning by agreement or ‘collaborative planning’. This book is not about such planning, but we do have to pay some attention to it as a possible alternative, or complement, to planning by law and property rights, as a way of remedying the limitations of that latter. This introduction analyses a central dilemma with this type of planning, namely how can planning by law and property rights be practised to the best advantage without creating undesirable (for example unsustainable or socially unfair) lock-in situations? In the remainder of this book, this and other important issues for the development of such a theory of planning by law and property rights are explored.