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:

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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