• Journal of Property, Planning and Environmental Law

Publisher:
Emerald Group Publishing Limited
Publication date:
2019-03-18
ISBN:
2514-9407

Latest documents

  • Ownership at stake (once again): housing, digital contents, animals and robots

    Purpose
 This paper aims to discuss the questioning around the current suitability of ownership both for accessing to certain property (housing, to be more specific) and chattels (digital contents, animals and autonomous robots) that have recently flourished, favored by technological advances and the change in the values of the millennials’ in a context of crisis.
 Design/methodology/approach
 The process of substitution (e.g. through alternative housing tenures, such as intermediate tenures and collaborative housing, licensing digital contents) or erosion/elimination (e.g. owning animals and robots, tokenization through blockchain) of ownership through key types of property and chattels.
 Findings
 Ownership, both of land and goods, is again at the stake. Technological advances and/or new values of millennials in a context of crisis have led to questioning the suitability of ownership to favor universal access to housing, of holding music and other digital contents, have limited the faculties of animals’ and pets’ owners and are favoring the evolution of autonomous robots into subjects of law rather than mere objects.
 Research limitations/implications
 Only key property (housing) and chattels are studied (digital contents, animals, robots). There is no broad study of the global current situation of ownership.
 Practical implications
 It is discussed how the changes of values and technological advances in a context of crisis have impacted in the strength and reliability of ownership to allow access to property and chattels.
 Social implications
 These changes in ownership change how we can access to property (housing) and to chattels (digital media) and even to changes in what is considered “object” such as what is happening in Europe with animals and robots.
 Originality/value
 This is a new approach to consequences of the crisis in the field of housing (fractioning of ownership -temporal and shared ownership-, collaborative economy) and a change of values in the new millennial generation (animals) in this context and owing to the advance of the new technologies (robots). Is ownership again at the stake?

  • Five-foot ways as public and private domain in Singapore and beyond

    Purpose
 This paper aims to explore the concept and spread of the five-foot way (5FW) as an aspect of urban design peculiar to Southeast Asia. It locates the 5FW as an aspect of planning law and property law that has been adapted culturally to provide a unique space for public-private interaction. The paper also explores, in a related context, conflicts over the appropriate use of 5FWs and the issue of regulating such use.
 Design/methodology/approach
 The approach adopted is to look at the development of the 5FW over the entire colonial period of Singapore, starting in 1819 up to the present day. Comparisons are drawn from other urban settlements over a similar period.
 Findings
 The paper finds that the 5FW, with its related device of the shophouse, provided a uniquely efficacious space for protection of the public from the elements and for public-private interaction. It finds that regulation of 5FWs should be undertaken with due regard both to public right of way and to the cultural element of making private use of the space.
 Originality/value
 The originality of the article lies in the fact that the 5FW has not been considered as an artefact of legal culture in addition to being an artefact of urban design.

  • Compensation for harm caused by nuclear installations: what’s the damage?

    Purpose
 This paper aims to explain the changes to the liability regime for nuclear installations before reviewing the traditional heads of damage under the 1965 Act. It argues that while there is some welcome clarification of what amounts to an “occurrence” in the purposes of the 1965 Act, disappointingly, little has been done to clarify how concepts of personal injury and property damage under the Act sit alongside traditional tort notions leaving the law highly dependent on earlier, but not always consistent, case law. The paper then goes on to consider the impact of the new categories of compensation, introduced by the Order, evaluating the extent to which these draw upon EU law structures for environmental impairment liability. Again, it questions whether this approach will achieve sufficient clarity and certainty.
 Design/methodology/approach
 This paper is a desk-based legal research.
 Findings
 This study is a discussion of statutory material and case law.
 Originality/value
 This paper is a first in-depth treatment of changes to liability principles in the Nuclear Installations Act 1965.

  • Editorial
  • Morphological analysis of legal ideology: locating interpretive divergence

    Purpose
 The purpose of this paper is to present a “manifesto” exploring a methodological approach to legal analysis, relying upon a morphological understanding of ideology.
 Design/methodology/approach
 The authors explore ideology within law and legal culture. They examine one such ideology - rule of law - and consider how this can shape judicial decision-making. They suggest techniques by which such influences can be identified.
 Findings
 The authors make four findings. First, following Freeden, ideology can be understood as a ubiquitous form of political thinking which seeks to fix the meanings of essentially contested concepts. Second, ideology in this sense forms an important part, but is distinguishable from the wider notion of legal culture. Considering ideology in law as a sub-system of legal culture can therefore be fruitful in providing a rich understanding of interpretive disagreements among the judiciary. Third, rule of law as an ideal is itself ideological, as it comprises contested concepts such as certainty, equality, stability and legality. It can be considered to constitute an internal ideology of law and it can be analysed how the concepts are de-contested in individual decisions. Finally, understanding this can help in the analysis of judgments in areas with high levels of administrative discretion and political contestation, such as planning and environmental law, as it helps us to understand how any particular judge sees the role of the court in its wider political context.
 Originality/value
 The originality of the authors’ approach lies in the drawing together of methodological techniques and understandings of ideology in, and in relation to, law.

  • Neighbourhood planning: national strategy for ‘bottom up’ governance

    Purpose
 The paper aims to consider whether Neighbourhood Panning provides the appropriate output legitimacy for citizen engagement in the planning process. The Localism Act 2011 transformed the planning process by shifting decision-making powers away from the local institutions and transferring them to local people. Neighbourhood planning has created a new dynamic in planning by using “bottom up” governance processes which enables local people to shape the area where they live. Local referenda are used to inject output legitimacy in to neighbourhood planning, and this planning self-determination can be considered as “spatial sovereignty”, whereby the recipients of the planning decisions are also the primary stakeholders that have shaped planning policy.
 Design/methodology/approach
 This paper will examine how Localism, as an evolving concept of local governance, is enfranchising local communities to take control of planning and development in their area. The paper will draw upon the experience of the revised planning methodology introduced by the Localism Act 2011 and consider its impact on the delivery of broader public policy objectives contained within the National Planning Policy Framework.
 Findings
 Localism provides an alternative form of citizen engagement and democratic legitimation for planning decisions which transcends the traditional forms of participatory democracy, and recognises that other paths of democratic law-making are possible.
 Originality/value
 The paper argues that neighbourhood planning has created a paradigm whereby local planning preferences, as an expression of spatial sovereignty, do not necessarily align with the broader public policy objective to build homes in the right places.

  • Towards a new EU regulatory law on residential mortgage lending

    Purpose
 The measures enacted so far at European level to address the global financial crisis are likely to have limited effects as they are still market efficiency oriented. Accordingly, this study aims to explore how the EU Charter on Fundamental Rights may be useful to achieve a more human right dimension in EU regulatory law.
 Design/methodology/approach
 The work departs from the current commodification of housing worldwide and the limited capacity of EU to tackle new housing challenges. The work takes the link already established by the CJEU between EU consumer law and the EU Charter on Fundamental Rights one step further and addresses the potential implications concerning residential mortgage lending.
 Findings
 The main finding is the potential influence that the EU Charter of Fundamental Rights may have on EU regulatory mortgage lending, as there are indicators of a bifurcation of mortgage law regimes at the EU level, separating home loans from other mortgages.
 Social implications
 The influence of the Charter of Fundamental Rights on EU regulatory law, mainly consumer law treated in a human rights dimension, could be a first step to treat housing as a social good and not as a commodity in the EU. This could lead to a completely new approach concerning the traditional rules governing residential mortgage loans.
 Originality/value
 The potential constitutionalisation of consumer law and the impact of the CJEU cases on national procedural rules have already been addressed by scholarship. The present work goes one step further as it addresses the potential implications of the EU Charter of Fundamental Rights on EU regulatory law in terms of the potential bifurcation of EU rules on mortgage lending.

  • Tackling rogue landlords and substandard housing. Local authorities’ legal instruments and their effectiveness

    Purpose
 In 2011, Dutch municipalities requested supplementary legal enforcement instruments to tackle rogue landlords and substandard housing. The national government implemented new legislation granting municipalities’ local authorities more legal instruments in 2015. The purpose of this paper is to evaluate the application and effectiveness of these instruments.
 Design/methodology/approach
 Using both quantitative and qualitative (legal) empirical research methods, this study establishes the frequency these instruments are used and the manner they are applied in practice to determine their role in limiting abusive practices of rogue landlords.
 Findings
 By comparing legislation and policies with their enforcement, the authors pinpoint differences between the law in the books and the law in practice and argue that the legal instruments have a stronger effect on the informal power than on formal power of local authorities. Moreover, the paper shows that the shift of responsibility from the Public Prosecutions Office to local authorities has left the Public Prosecutions Office disinterested, feeling that it no longer has to deal with substandard housing violations at all, therefore leaving the repeat offenders free to continue their activities with minor consequences.
 Originality/value
 The paper presents original data on the ways governments address substandard housing and rogue landlords. This is the first study that analyses the fight against substandard housing in the Dutch context. Although centred on legislation and procedures in The Netherland, the paper’s findings are relevant in other jurisdictions facing similar issues.

  • Premises recovery through adoption of alternative dispute resolution (ADR) techniques. Experiences from Lagos, Nigeria

    Purpose
 This paper aims to explore the use of alternative dispute resolution (ADR) techniques as a legitimate means of ejection of recalcitrant tenant in property. This is with a view of providing information that will improve property investment and management.
 Design/methodology/approach
 The paper adopts a case study approach using five selected case studies where ADR approach was used to recover premises.
 Findings
 The experience from the case studies shows that the use of ADR in premises recovery is effective but has its challenges. In the five case studies, consent judgment, mediation and negotiation were used to recover premises in less than three months compared to an average of 18 months using litigation. Also, the cost in all the cases were lower where they exist at all than when litigation are used. The paper provides useful information to practitioners on the use of the effective alternative approach to recover premises from recalcitrant tenants.
 Originality/value
 The paper provides practical ways through which recovery of premises could be achieved through non-adversarial technique in developing property markets, which hitherto was not available in literature.

  • Land administration practices in Tanzania: a replica of past mistakes

    Purpose
 This paper aims to examine current land administration practices (LA) in Tanzania to pinpoint divergences and convergences from past experiences that necessitated the 1990s reforms.
 Design/methodology/approach
 Literature review was carried out to understand historical practices which were then matched with current regulatory framework and observable LA practices captured through in-depth individual and group interviews of LA professionals in the public and private sectors, as well as LA customers in Dodoma Region Tanzania.
 Findings
 The current practices and government’s responses through land law reforms is largely a replica of what happened in the pre- and post-independence eras until just before the 1990s reform and is still characterised by corruption, inefficiency in service delivery and poor coordination among LA actors. It introduces superficial land governance structure over customary land as it was during colonialism; induces a temporary hikes in title delivery without any sustainability prospects just as it was immediately after independence; and induces more uncertainties for local land holders/investors than it addresses as it was during the implementation of the 1982 agricultural policy. Furthermore, the current awareness education during rural land titling programmes is inadequate to address the perceived risk of land alienation and dispossession among the poor.
 Practical implications
 A uniform LA system and tenure type throughout Tanzania that cater for the need of the time rather than a fragmented system of LA, which fuels maladministration and inefficiency in LA, is dearly needed.
 Originality/value
 Convergence of current LA practices with some of the worst past experiences explains some failures in land policy reform in Tanzania and the developing world in general.

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