Planning rights: what are they, and how to use them

ABSTRACT

Planning rights are institutional rights: the rights of affected parties in a specific planning system. Three kinds of planning rights are identified: 1) abstract-general; real planning rights in a specific planning system: 2) positive and 3) potential. Positive planning rights are recognized and enforceable; potential planning rights are suggested, but not recognized. Planning rights can be ascertained for a particular planning system; advocates and communities can use them in three ways: 1. Consciousness-raising and empowerment; 2. Promoting social justice: political action to turn potential into positive planning rights. 3. Advocacy and defense: contesting plans and actions that violate planning rights.

KEYWORDS:

• Planning rights
• planning
• rights
• advocacy
• social justice

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. For example, Porter’s (2014) exposure of the costs of rights ignores the positive aspect of rights as planning rights, and Agarwal’s (2022) book Rights and the City has no index entry for planning rights.

2. This paper does not present original research, but is a condensed summary of previous publications on planning rights (Alexander, 2002a, 2007a, 2007b, 2013).

3. A specific planning system is the institutional framework for all the relevant parties’ and actors’ (from state agencies and planners to affected people, firms and communities) behavior and actions in that polity’s (nation’s or city’s) planning processes.

4. In particular, in British-derived land-use law (Fairlie, 2000; Upton, 2006).

5. Examples include devolution in Scotland (Miers, 2006), privatization of planning rights (Pennington, 2000), ‘sovereign planning rights’ in the EU (EMS, 2000), and Australian State-local and Canadian Province-municipal conflicts (Gillespie, 2002; Verity & Davies, 2003).

6. In the context of the UK planning system such planning rights are called ‘Third Party Rights’ (Ellis, 2000); the term planning rights has been used to raise public awareness in England (Friends of the Earth, 2004) and to advocate third-party appeal rights in Scotland and Ireland (Scottish Environment Link, 2003; Friends of the Irish Environment, 2003). Other users of planning rights in this sense include Kasaegae et al. (2000), Nederveen (2001) (Netherlands infrastructure planning), and Garcia-Zamor (2001)- Frankfort airport planning

7. These norms determine whether planning rights are direct or implied in each specific case and context. In Israel, for example, eligible households’ right to shelter is a direct Planning Right per the Public Housing Law, while the right to an affordable/free essential water supply is implied in a High Court of Justice ruling based on the Basic Law Human Dignity & Freedom.

8. These planning rights’ application is highly correlated with the democracy of a country’s regime, and positive enforceable planning rights based on this principle vary widely between different societies’ planning systems.

9. This term, used in Anglo-Saxon law (and in translation in other countries’ legal systems that have borrowed from English law) is here intended to embrace other, related principles that have somewhat different terms, e.g. sound administration (in Dutch: behoorlijke bestuur; in Hebrew: מינהל תקין).

10. This is often how affected parties’ (especially minorities, marginalized cultures and disadvantaged groups) participation rights are defined, with its most radical expression as their empowerment (Breton & Breton, 1997). While not denying its validity, this approach to planning rights demands fundamental transformation of current practices and basic institutional change of planning systems; see e.g. Ellis (2000). Therefore, discussion here focuses on positive participation rights.

11. e.g. the involvement of consulting bodies in the Netherlands’ and U.K. statutory planning process (Mastop, 1997, p. 812; Cullingworth & Nadin, 1997; Alexander, 2002b), and the representation of extra-governmental interests on the steering committees supervising statutory planning in Israel.

12. e.g. the ‘maximum feasible participation’ requirement and its operationalization in some U.S. federal programs (Fagence, 1977).

13. e.g. the New England ‘town meeting’, and local ‘ballot box zoning’ (by referendum) in the U.S (Callies et al., 1991; Caves, 1992).

14. See note 7 above.

15. Examples include Oregon’s Measure 37 diluting that State’s growth-control regulation, legislation in some U.S. States to overturn the Kelo vs. City of New London Supreme Court decision, which significantly broadened local governments’ regulatory taking powers, and the enactment of ‘Property Rights Impact Statements’ (analogous to EIS) for new zoning regulations, which require local planning authorities to compensate property owners for any prospective losses in property values attributable to the regulatory action (Gilroy, 2006).

16. The Public Interest is a complex and debated concept. There are various approaches to determining what is in the public interest: aggregative (e.g. utilitarian), unitary (e.g. etatisn), deontic (rights-based) and dialogic: formed in a political interactive process (Alexander, 2002b). For a condensed review of the planning theory discussion of the Public Interest, see Alexander (2022, p. 189).

17. This section is based on Alexander (2006) where the discussion is elaborated.

18. The best-known and most widely used of these is Benefit-Cost Analysis (BCA).

19. Though even here deontic considerations may influence the assessment, e.g. in identifying cultural-political factors affecting some options’ feasibility, and legal constraints that limit the effective decision-space.

20. In contrast to traditional evaluation theory, the note sounded here has been anticipated in many ways over the last decade or so by what I could label ‘revisionist’ evaluation theory; for an overview see e.g. Voogd (2001) and Alexander (2006).

21. See for example Miller and Pattasini (2005).