Guest editorial: comparative research at the frontier of planning law

• Author: Rachelle Alterman
• Position: Center for Urban and Regional Studies, Technion – Israel Institute of Technology, Haifa, Israel

Introduction

Since the world's first national planning law was enacted in the UK in 1909 ( McAuslan, 2003 ), the vast majority of countries across the globe gradually enacted laws for planning and regulating land use – most recently the post-communist countries. Although planning laws are not always applied and enforced (especially in developing countries), in most advanced-economy countries – the members of OECD – planning laws are a major force in the economy and society.

Planning laws potentially affect more aspects of our lives than many other laws: they are multi-faceted pertaining to many areas of people's day-to-day lives; they aim for the long range and have multi-generational outputs; they apply to real property which is the major part of most people's investments; and they can and do create major socio-economic distribution and redistribution of wealth. Planning laws produce decisions that affect where people may live; how neighborhoods will function and what will be their socio-economic profiles; where businesses may locate and the distribution of employment opportunities; the implications for people's travel behavior; the location and physical quality of public services, and the sustainability of the environment.

Cross-national comparative research in planning law

In many countries there is perennial dissatisfaction with whichever planning laws hold at a given time. Legislators and practitioners face difficult challenges in formatting laws and regulations that meet their own objectives, no less in engendering a satisfactory degree of support among stakeholders and interest groups. In some countries, such as in the UK, the frequent reforms and revisions reflect chronic restlessness within this field of law.

The purpose of comparative research

Despite the many differences from country to country, planning laws across the world do play many similar functions and are called upon to resolve similar meta-dilemmas. Given the perpetual quest for better laws and practices, one would have thought that an energetic “knowledge trade” would have emerged whereby planning law scholars and practitioners from many countries would routinely seek opportunities to exchange knowledge about alternatives approaches. This is not the case. To date, not much systematic comparative research has been conducted in planning law. Until 2007 there was not even a truly international academic platform for exchange among planning-law scholars¹. The launching of the International Journal of Law in the Built Environment two years ago has provided an important venue for such research publications.

Even though the state of theory and method in comparative research are still at a rudimentary stage, comparative research can give a significant “push” to the frontiers of knowledge in planning law. The findings of comparative research may also have practical utility. They enable cross-national learning about alternative legal approaches and “solutions” to the inherent dilemmas that confront legislators and lawyers who are always in quest for better solutions. Such mutual learning does not necessarily imply direct transplantation of specific legal approaches. Laws are grounded in legal systems and reflect public policies, socio-political conditions and cultural milieus that cannot be replicated ( Mamadouh et al., 2002 ). But since there is frequently a quest for better, more just, or more operational planning laws, and since the variety of alternatives is usually not intuitively apparent, the capacity to learn systematically from other countries' laws and their implementation is a valuable policy resource.

The challenge of designing methods for comparative research

There is no single, agreed-upon approach for conducting comparative legal research. The authors of a leading textbook on comparative law note that comparative research is:

[…] a variety of methods for looking at law […] The range and eclecticism of its methods is matched by the wide variety of its aims and uses. Cross-national studies have yielded important contributions to the understanding, practice, and reform of law in the last century. […] In a world where national and cultural “difference” is often seen as posing a formidable challenge, comparatists hold up a view of diversity as neither an impenetrable barrier to comparison nor an aberration to be ignored or reduced, but instead as an invitation, an opportunity, and a crucible of creativity and dynamism ( Mamadouh et al., 2002 at 13).

To date, much comparative legal research has been devoted to private law². The state of research and method-building on public law related to property is especially rudimentary. The present study has a modest goal: to create a fundamental layer of knowledge that describes the various laws on regulatory injuries to land value and points out some similarities and differences. This basic level of comparative analysis has been called a “juxtaposition”, where the different countries are placed side by side. This level is suited to the present rudimentary state of knowledge in comparative planning law. There is no robust theoretical platform for deducting hypotheses and “testing” them.

The implications are that scholars in this field may not be able to identify convincingly the variables that could explanation why certain specific legal arrangements in planning laws emerge in some countries and not in others, why there are convergences or divergences. Such “explanations” must await the time when more factual and theoretical knowledge builds up.

Comparative researchers should also consider whether they wish to go beyond a descriptive-analytical approach and adopt a normative or critical approach. At the current state of theory building and factual findings, a normative stand may be more problematic, as Dagan (2007) and other scholars have noted³.

The rest of this paper presents an example of how comparative research has been harnessed to enhance the understanding of one of the perennial – and universal – dilemmas in planning regulation and law. This is a 13-country research project is one of the largest-scale comparative studies conducted to date on any topic of planning law. The full research was published in the form of a book ( Alterman, 2010 ).

Applying comparative research to a universally shared issue in planning law: compensation rights for reduced land values

No land-use law in the world can evade the need to address the relationship between land use regulation and property values. The issue is universal, yet the solutions are domestic and local – each country on its own, usually in isolation from other countries' experiences (even those of neighboring countries). Despite the importance of this subject for cross-national knowledge exchange, it has not drawn much attention from researchers.

At times the effects on property values are upwards, leading to increase in property values, at other times the effects are downwards, causing a reduction in current or future values. Understandably, the upwards effect is usually less controversial than the downwards effect. The latter is one of the “raw nerves” of planning law and practice. This issue can have extensive economic and social-justice implications and is at times a major impediment to the implementation of land-use planning and environmental policies. There are many answers to this dilemma – from an absolute “no” to compensation rights, to many degrees and nuances of “yes”. These may apply to a great variety of legal and factual situations.

How can the decision makers or legal scholars in a given country assess whether the specific degree of compensation rights (or their absence) in their domestic planning law is in fact on the more generous or restrictive sides? Systematic cross-national comparative research can provide the scale and the answers. I chose to study this topic extensively because it serves as a good illustration of the usefulness of comparative research. After four years of research, I published a book entirely devoted to this issue. It takes an in-depth and detailed view of the laws and practices of 13 national jurisdictions ( Alterman, 2010 ).

The current state of comparative research on compensation rights

This research project is, to the best of our knowledge, the first large-scale comparative research devoted entirely to regulatory injuries. There have been several previous comparative publications, but they have covered fewer countries or pertained to topics only indirectly related to compensation rights. The seminal theoretical and comparative contribution directly focusing on the relationship between land use regulations and land values was published in 1978 in the USA ( Hagman and Misczynski, 1978 )⁴.

Interestingly, all the contributions surveyed were published by American legal scholars. Considering Europe's quest for a “single market” and the importance of the free movement of capital – including real estate investments – one would have expected that European scholars would study the similarities and differences in regulatory injuries to land values...