International Law of the Built Environment

Publisher:: Emerald Group Publishing Limited
Publication date:: 2011-12-21

ISBN:: 1756-1450

Issue Number

Latest documents

Sustainable development: greening and urban agriculture in Lithuania
Purpose The purpose of this paper is to discuss the measures implemented under the spatial planning law of the Republic of Lithuania, along with various initiatives, to identify whether Lithuania is following the international trend of greening cities. Design/methodology/approach The authors’ analysis is based on an evaluation of the urban theory-based approach towards greening cities and adopting urban agriculture in Lithuania and legal regulations introduced by the Lithuanian government. The paper specifically analyses the legal requirements enshrined in Lithuanian law that are intended to encourage green infrastructure and urban agriculture in cities as part of the adoption of the principles of sustainable development. The paper focuses on Vilnius, the capital city of Lithuania, to gauge the extent to which the new regulations encourage urban greening and agriculture. Findings The authors’ reveals that Vilnius is lacking initiatives with regard to urban agriculture, while existing areas for urban agriculture are disappearing. This is happening despite the promising spatial planning reform in Lithuania, which introduced the principle of sustainable development into spatial planning regulations. This is a cause for concern and should lead to renewed calls for a coherent and ambitious approach to the greening of Vilnius and other cities in Lithuania. Furthermore, the lack of action shows that the vague wording used by the regulations does not actively encourage urban agriculture and even results in ignorance of its virtues. Therefore, more precise regulations on encouraging urban agriculture and greening of the cities should be introduced. Originality/value This paper is the first to analyse the extent to which the newly adopted principle of sustainable development in spatial planning could affect the greening of Lithuanian cities and encourage urban agriculture. The paper identifies the sequence of opening the meaning of the sustainable development principle in regular legal norms which encouraging the greening and indicates the lack of imperative norms to ensure the due implementation of sustainable development principle.
Chilean housing policy: a pendant human rights perspective
Purpose This paper aims to analyse the Chilean housing policy from a human rights perspective. The work is based on the framework to study socio, economic and social rights as human rights developed by the current special rapporteur on extreme poverty and human rights to describe the steps undertaken by the Chilean State in terms of recognition, institutionalisation and accountability of the right to adequate housing. Design/methodology/approach First, the authors describe the different levels of legal recognition of the right and the lack of constitutional and legislative recognition in the different levels of the Chilean Legal System. Second, they analyse the Chilean Housing Policy and the institutionalisation of the different elements that compose the right to adequate housing, describing and critically reviewing the Chilean housing policy in the past 30 years. The final section analyses the accountability of such policy, taking into consideration the developments of international and regional mechanisms and the processes of accountability lead by civil society and tribunals. Findings The paper concludes that a human rights perspective of the right to adequate housing with legal recognition could improve the accountability, the results and development of the Chilean housing policy. Originality/value The importance of this paper is both empirical and theoretical. Empirically, this paper adds to the current understanding of housing policies in Chile, aiming to complete the narrative of housing laws at the national level. Theoretically, this paper uses for the first time a recognition, institutionalisation and accountability human rights approach to analyse the Chilean housing policies and its loopholes at the national level.
The European Commission’s proposal for a cross-border mechanism (ECBM). Potential implications and perspectives
Purpose The purpose of this paper is to examine the viewpoints of key stakeholders on the European Commission’s proposal for a regulation for a mechanism to resolve legal and administrative obstacles in cross-border regions. The mechanism known as ECBM, or European Cross-border mechanism, was presented as part of the legislative package for EU Cohesion Policy 2021-2027. The regulation will allow one Member State to apply their legal provision in another Member State for a concretely defined case. This proposal is particularly interesting as it does not give further competence to the European level, but changes how Member States may interact with one another, yet, it raises critiques as regards to its compliance with constitutional, international and European law. Design/methodology/approach This paper outlines the main elements of contention, which are legal justification, state sovereignty, compliance with the subsidiarity and proportionality principle, thematic and territorial scope, voluntariness and the administrative burden. Findings The author concludes that the assessment of the voluntariness of the regulation will be crucial in examining the regulations compliance with EU principles and suggests that a more nuanced reading as to which parts of the regulation are voluntary is needed. The author further expects the legal text to change substantial during the legislative procedure, in particular in regard to the thematical scope and the bindingness. Originality/value This piece summarises the debate currently held in the European Council and the European Parliament in a structured way to an interested readership. Examining the proposed regulation and the arguments for and against it offers the opportunity to review the main arguments that will be raised in any future debate on legal proposals on territorial development initiatives.
Editorial
Regeneration of brownfield land: the environmental law challenges
Purpose The purpose of the project was to investigate environmental law issues surrounding the regeneration of brownfield land. Design/methodology/approach Following a literature review, an inductive approach and an interpretivist epistemology with a phenomenological focus were chosen. A constructionist ontological stance was adopted. A qualitative paradigm was selected to explore the issues in a focus group comprising industry, legal expert and academic contributors. Findings A critique of the literature on relevant environmental law issues including contaminated land, waste management, water pollution, environmental impact assessment (EIA) issues and finally the political agenda is presented. Contaminated land, waste management, regulators and legislation were discussed in the focus group. The participants contributed their experiences and proposed several changes to environmental law. However, water pollution and EIAs were not considered by the contributors. Research limitations/implications Developers face many environmental law challenges when endeavouring to progress housing on brownfield sites including contaminated land, funding, waste treatment permits, water pollution and EIAs. The benefits of the remediation of brownfield sites for housing seem to be a political priority, but reform of challenging environmental law issues less so. Understandably, the legal complexities of Brexit will take precedence. Originality/value The literature review identified the need to research the experience of brownfield environmental law challenges and recommended changes to environmental law from industry, legal experts and academia.
Buying a hotel room in Spain: the “condohotels”
Purpose The “condohotel” is a type of condominium, which is most commonly used in tourist buildings, such as hotels, where investors can buy a private room/unit and offer it to a hotel company, which manages the “condohotel” and offers the units to guests through an accommodation contract. According to the Spanish regions called autonomous communities that provide a special legal framework for “condohotels”, room owners are also permitted to use their units for a specific period. However, residential use is prohibited. In exchange, the hotel company pays a part of its profit to those owners. This paper aims to analyse how the “condohotel” regime works in Spain and what the main weaknesses are that explain its limited success, despite the importance of the real estate and tourist sectors and the popularity of the condominium regime in this country. Design/methodology/approach In this paper, the complex concept of “condohotel” is explained. The role of the participating parties is examined along with the supplementary legal regimes that are applied to identify the reasons why it has had a limited success and how its regulation could be improved. Findings This paper identifies the changes that are needed to address the relative failure of this regime in Spain, as “condohotels” can be an attractive type of alternative accommodation for someone interested in hotel services or for retired people who want to stay some months of the year in the beautiful and sunny Spain with all the amenities of a hotel or for those who need to live in a place for a few months for work reasons. Research limitations/implications This paper identifies different contracts to cede private units to hotel company. However, further research is necessary to identify which contract is the best option or if it could be a mixture of them. Originality/value The “condohotels” facilitate becoming an owner of a hotel room or unit of another tourist establishment under the condominium regime. However, the unit can only be used for tourist purposes. Despite this limitation, “condohotels” might potentially be used not only as a second residence or a tourist solution but also as a temporal housing solution or as an investment to obtain some extra income. Thus, it is worthwhile improving the legal framework and offering more legal certainty to the parties that intervene in this regime.
Regulating the private rented sector: millennial themes
Purpose This paper considers the evolution of government policies regarding the provision of housing in the private rented sector and the regulation of landlord behaviour by mapping this onto known regulatory theory. It argues that the current regulatory trajectory is highly problematic both from the perspective of land law (by further attenuating the conception of property rights) and indeed regulatory compliance. Design/methodology/approach The approach maps successive governments’ policy stance, what is known of the configuration of the sector and the current demand for housing against evolving regulatory theory (in particular compliance). The piece draws on both property theory and economic analysis. Findings Enrolling private sector landlords to enforce policies, other than those relating to the landlord and tenant relation (as indicated by the “right to rent” provisions), and attempts at professionalizing the sector may be highly problematic. Furthermore, the growth of regulation may impose an increasing regulatory burden on a significant proportion of the sector, namely, the smaller landlord especially those owning who own only one property. Research limitations/implications The hypothesis has not been tested aside in a generalized manner by making reference to the evidence obtained by other researchers and landlord associations. It is for other researchers who may wish to test the hypothesis empirically. Practical implications This paper includes a view that has not (to the author’s knowledge) been expressly articulated by Government or through its policies and is one which it may wish to reflect upon. Originality/value This paper adopts a novel stance by deploying regulatory theory with understandings of property to highlight potential adverse effects.
Environmental assessment under the Habitats Directive: something other than a procedure?
Purpose The purpose of this paper is to examine the impact of the assessment procedure under the European Union Habitats Directive. The wider scope of this procedure together with the lack of detail as to its requirements has originated from an important body of case law from the European Court of Justice. The Court has steadily clarified some of the key matters underlying the procedure. Its case law now represents a significant constraint for development plan and projects affecting Natura 2000 sites. Design/methodology/approach The methodology is based on the analysis of the directive’s text [Article 6(3) and (4)] in the light of the case law. This paper aims to highlight the relevant findings of the European Court and how they limit the prima facie discretion on the part of the Member States. Findings The basic findings could be summarised as follows: the environmental assessment procedure under the Habitats Directive represents a strong tool for controlling activities affecting Natura 2000 sites. Unlike the other environmental assessment directives, a negative conclusion concerning their effects precludes any execution. Significant territorial gaps between plans and projects and Natura 2000 sites do not necessarily avoid the carrying out of complete assessments. The conjunction between a general duty to prevent the deterioration of sites and environmental assessments requires that projects authorised before the designation of sites may be subject to this procedure. Originality/value The originality of this paper is based on a structured presentation of the key matters surrounding the assessment procedure in the light of the recent case law.
European spatial governance – towards a sectoralisation of spatial planning
Purpose European spatial governance underwent substantial changes over the past two decades with the expansion of European territorial cooperation programmes, the introduction of new instruments for cooperation and an increasing role of financial and regulatory framework in sector policies. Against this background the paper develops the argument that today’s European spatial governance has become more diversified and fragmented, leading to an increasing role for sector policies, and that the cumulative effect of these diverse activities on domestic planning processes are under researched. Design/methodology/approach This paper summarises the legal recognition of spatial planning and categorises European spatial governance as being composed of spatial policies, financial instruments and governance frameworks. This paper then presents three explorative case studies: the Common Transport policy as one European Union (EU) sector policy, a cross-border cooperation supported by the European Regional Development Fund and macro-regional cooperation. Findings This paper concludes that the increasing regulatory impact of European spatial governance on domestic spatial planning goes far beyond the pure Europeanisation of narratives and agendas or “ways of doing things”. Furthermore, this paper illustrates that European spatial governance is characterised by a process of sectoralisation, supported by the EU’s regional policy and the provision of governance tools. The paper calls for further investigation of the interrelatedness of these processes and their reciprocal influences on planning practices. Originality/value The value lies in recognising the incremental changes that have come alongside European integration, and highlighting the importance of these processes for domestic planning processes. This paper highlights the hidden process of sectoralisation that leads to an increase in planning competences at the European level.
Transnational environmental regulation and the normativisation of global environmental governance standards. The promise of order from chaos?
Purpose This paper aims to propose a legal characterisation of the recent proliferation, across the broad range of global environmental good governance initiatives and practices, of a diverse mix of regulatory environmental standards, many of which are informal in origin insofar as they are neither State-driven nor State-centred. It examines the novel conception of legal order posited by Twinning and Walker, to determine whether it encompasses the myriad rules and standards emerging in the field of environmental governance. Design/methodology/approach Surveying the rapidly developing montage of formal and informal rules and standards associated with global environmental governance, this paper uses the analytical framework provided by scholars of “global administrative law” to reconcile the complementary roles of formal and informal sources of legal rules, and to explain their increasing convergence around a set of good governance principles and standards commonly used in national administrative law systems. Findings The paper concludes that the emerging regulatory framework for global environmental governance comprises an almost endless variety of forms of novel transnational regulatory activity, many succeeding in having a profound impact on environmental outcomes. Yet all appear to be founded upon and guided by a discrete set of good governance standards and principles of an administrative law character - including transparency, participation, legality, rationality, proportionality, reviewability and accountability - which serve to enhance the credibility and legitimacy of each regulatory mechanism. Research limitations/implications It appears that new and informal forms of environmental regulatory activity enjoy a complex symbiotic relationship with formal systems of environmental law. In addition to filling lacunae and addressing deficiencies in such systems, owing, for example, to the transnational character of much of today’s trade, informal regulatory systems are increasingly influencing the evolution of formal legal frameworks and, in so doing, are improving the responsiveness, flexibility and accessibility of this new environmental “legal order”. Practical implications At a practical level, viewing the wide range of new forms of environmental regulatory activity through the prism of global administrative law (or global environmental law) brings unity to this diverse field and, in so doing, makes available to all the actors involved in this “community of practice” a wealth of established practice and principle which can help to inform the elaboration and interpretation of rules and standards of environmental governance through a process of cross fertilisation of ideas and approaches. Social implications Recognition of the legal character and significant role of the wide range of novel forms of environmental regulatory activity lends further credibility and legitimacy to such mechanisms, which often comprise the only truly relevant and applicable environmental controls or truly accessible mode of redress and accountability. The challenges of realising sustainability are immense and, as one leading commentator has noted, “all normative means are useful to this end”. Originality/value This paper attempts to characterise the legal nature of the range of novel forms of environmental regulation which (can) play such an important role in modifying the behaviour of many of the key environmental actors globally - actors who have largely been unaffected by more formal legal frameworks. For this reason, it seeks to encourage a fundamental shift in the way we think about environmental law and legal authority.