Public versus private land use controls in England and the USA

Author:Emily Walsh
Position:School of Civil Engineering and Surveying, Portsmouth University, Portsmouth, UK
Pages:18-31
Public versus private land use
controls in England and the USA
Emily Walsh
School of Civil Engineering and Surveying, Portsmouth University,
Portsmouth, UK
Abstract
Purpose This paper aims to compare the law with regard to private property rights and restrictions and
public controls in England and the USA, and the theoretical debates that surround them, to understand
whether the private land use controls of nuisance and restrictive covenants could have a greater role to play or
the public law system of planning is the best way to manage land.
Design/methodology/approach This paper starts by summarising and comparing, rstly, the private
laws of nuisance and restrictive covenants and then laws relating public planning, zoning and takings in
England and the USA. It then reviews theoretical approaches taken in both jurisdictions to land use
restrictions.
Findings The paper concludes that private land use restrictions can only play a limited role in land
management in England. Scarcity and cost of available housing necessitate a mechanism by which the state
can intervene to remove or modify restrictions to enable alteration and development. The structure of freehold
ownership in England and the low take-up of Commonhold as an alternative tenure mean that expansion in the
use of private land use restrictions to control the use of land is unfeasible.
Originality/value The value of this paper is that it seeks to provide insight into the contested
relationship between private and public law and the relationship between property law and planning.
Keywords USA, England, Planning, Zoning, Eminent domain, Restrictive covenants
Paper type Viewpoint
Introduction
While carrying out a thematic analysis of responses to the Law Commission’s (2008)
consultation on easements, covenants and prots a
`prendre in England and Wales, the writer
became aware that some members of the public were extremely anxious to protect private
land use restrictions in the form of restrictive covenants. They did not want the law to change
in such a way that restrictive covenants became time-limited, or in any way easier to remove
from the land register. The general feeling among this group was that restrictive covenants
served to temper the greed of developers, protect against the corruption of the planning
system and, ultimately, to preserve heritage and open spaces. This led the writer to consider
the relationship between private and public law in controlling the use and distribution of
land.
There has been considerable academic debate regarding the extent to which land use
should be governed by private property rights and restrictions or public controls. Much of
this discussion has centred on the law in the USA. The writer, therefore, decided to carry out
a comparison of the law and theory relating to public and private land use controls in
England and the USA to see whether the USA could provide a useful insight into the
relationship between public and private law use restrictions in England.
Part I of this article compares the private land use mechanisms of nuisance and restrictive
covenants in England and the USA. Part II examines the public law controls exerted by
planning and zoning, and compulsory purchase and eminent domain. Part III considers the
debate on both sides of the Atlantic regarding the extent to which the state should be
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1756-1450.htm
IJLBE
9,1
18
Received 25 September 2016
Revised 1 February 2017
Accepted 10 February 2017
InternationalJournal of Law in the
BuiltEnvironment
Vol.9 No. 1, 2017
pp.18-31
©Emerald Publishing Limited
1756-1450
DOI 10.1108/IJLBE-09-2016-0013

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