When enforcement fails. Comparative analysis of the legal and planning responses to non-compliant development in two advanced-economy countries

• Author: Inês Calor, Rachelle Alterman
• Position: CICS.NOVA-Interdisciplinary Centre of Social Science, Universidade Nova de Lisboa, Lisbon, Portugal
• Pages: 207-239

When enforcement fails

Comparative analysis of the legal and planning

responses to non-compliant development in two

advanced-economy countries

Inês Calor

CICS.NOVA-InterdisciplinaryCentreofSocialScience,UniversidadeNovadeLisboa,

Lisbon, Portugal, and

Rachelle Alterman

Faculty of Architecture and Town Planning,

Technion–Israel Institute of Technology, Haifa, Israel

Abstract

Purpose –This paper aims to present a comparative analysis of noncompliance with planning laws in

advanced-economy countries. Most research to date has focused on the widespread phenomenon of

“informal”construction in developing countries. However, advanced-economy countries also encounter

illegal development, though at different scales and attributes. Because planning law is at the foundation

of land-use and urban policies, it is time that the “orphan”issue of noncompliance be adopted by more

researchers to enable cross-national learning. The two OECD countries selected for in-depth analysis –

Portugal and Israel –probably fall mid-way in the extent of noncompliance compared with the range

among advanced-economy countries. Like most OECD countries, the selected countries have generally

viable planning-law systems. Their experiences can thus offer lessons for many more countries.

Recognizing the limitations of enforcementmechanisms as prevention, the paper focuses on how each of

these countries respondsto illegal development.

Design/methodology/approach –The method relies on two main sources: analysis of official

documents –laws,policies and court decisions in both countries –and field interviewsabout practice. In both

Portugal and Israel, the authorsheld face-to-face open interviews with lawyers and other professionalstaff at

various government levels. The interviews focused on four issues: the effectiveness of the existing

enforcement instruments, the urban consequences of illegal development, the law and policy regarding

legalizationand the existence of additional deterrent measures.

Findings –In both countries, there is a significant phenomenon of illegal development though it is

somewhat less in Israel than in Portugal. In both countries, efforts to reduce the phenomenon have been

partiallyeffectiveeventhoughinboth,extensivedemolition is not exercised. Neither country has

adopted a general amnesty policy for existing noncompliance, so both resort to reliance on ex-post

revision of statutory plans of granting of variances as a way of legalization. The shared tension between

local authorities and national bodies indicates that not enough thought has gone into designing the

compliance and enforcement systems. In Israel, a recent legislative amendment enables planning

authorities, for the first time, to set their own priorities for enforcement and to distinguish between

minor and major infringements. This approach is preferable to the Portuguese law, where there is still

no distinction between minor and major infringements. By contrast, Portuguese law and policy are more

effective in adopting financial or real-estate based deterrence measures which restrict sale or

mortgaging of illegal properties.

Originality/value –There is very little researchon noncompliance with planning controls in advanced-

economy countries. Thereis even less research on the legal and institutional responses to thisphenomenon.

This paper pioneers in creating a framework for looking at alternative types of government responses to

illegal construction. The paper is, to the authors’best knowledge, the first to present a systematic cross-

national comparative analysisand critique of such responses. The authors thus hope to expand the viewof

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Received25 June 2017

Accepted14 July 2017

InternationalJournal of Law in the

BuiltEnvironment

Vol.9 No. 3, 2017

pp. 207-239

© Emerald Publishing Limited

1756-1450

DOI 10.1108/IJLBE-06-2017-0021

The current issue and full text archive of this journal is available on Emerald Insight at:

www.emeraldinsight.com/1756-1450.htm

the possible legaland policy response strategies available to planning authoritiesin other advanced-economy

countries. Thecomparative perspective will hopefully encourage,expansion of the research to more countries

and contributeto the exchange of experiences between jurisdictions.

Keywords Portugal, Israel, Enforcement, Planning law, Illegal building, Legalization

Paper type Research paper

Introduction

Noncompliance with planning and building laws occurs in most countries, not just in

developing ones (though in different degrees and forms). Unauthorized development may

also have a positive function, especially in developing countries where the planning

law system is largely dysfunctional and informality and self-construction play important

social and economic roles (among themany scholars who have studiedthis issue in recent

years are Gouverneur, 2014;Birch et al.,2016;Attia et al.,2016;Brueckner and Lall, 2014;

Chiodelli and Moroni, 2014;Fernandes,2011). In this paper, we focus on countries where the

planning and legal systemsoperate reasonably well but enforcement falls short.

Because planningand building laws pertain to real estate –the main capital asset of most

households around the globe –it is unlikely that such laws would be fully obeyed simply

through socially embedded normsof compliance. Indeed, all planning laws do contain some

enforcement mechanisms and sanctions for violations. However, enforcement often fails to

prevent noncompliantdevelopment.

Once built, reversal of illegality is not easy.Planning bodies or elected officials are often

faced with dilemmas of what to do with existing violations: To demolish? Grant time

extensions? Tolerate and do nothing? Legalize through amnesty? Or legalize through

“retrofitting”the statutory rules in the plan (or another regulatory document)? In practice,

the twilight zone between legal andillegal development is a much larger legal and planning

issue than previouslyrecognized.

Focusing on advanced-economy countries, this paper analyses the interrelationship

between the legal structure of planning laws, the enforcement mechanism and the legal and

policy responses availableto deal with violations. What are the challengesthat the planning

and development-controlagencies face and what measures do they implemented in practice?

Comparative research is a useful approach to help unlock some of the answers to these

questions. While enforcementis a shared issue in most countries, it takes on many forms in

different countries. To date, there is no systematic research on the varieties of strategies,

processes, sanctions, resources allocated or the effectiveness and impacts of enforcement.

The current state of knowledge is too rudimentaryto offer examples of “best practices”that

can be transplanted from one planning law context to another. Comparative cross-national

research can therefore enable mutual learning. In the planning law area, comparative

research has been shown to provide scale, suggest alternative instruments and stimulate

broader and innovativethinking about solutions. On the usefulness of comparativeresearch

in other sub-areas of planning law, see Alterman(2010,2011,2017).

This paper is, to the best of our knowledge, among the first to study in detail the legal

and policy responses to illegal development comparatively, focusing on OECD countries. At

this rudimentary stage of international knowledge about enforcement in planning, this

paper should be regarded as exploratory research. We have therefore limited our scope to

only two countries with some shared characteristics. We chose two Mediterranean OECD

countries: Portugal and Israel (analysisof Israel refers to the country’s pre-1967, recognized

borders, to which Israeli law and institutions apply. We do not address the highly

controversial legal and policy issues surrounding the occupied areas). Our purpose is to

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identify both similarities and differences in how these two countries approach enforcement

and related issues and hope that our study will deliver insights to stimulate broader

research.

Current knowledge: illegal development in advanced-economy countries

The dominant pattern of unauthorized development prevalent in developing countries

differs in many ways from the pattern characteristic of advanced-economy countries

(Aguilera and Smart, 2016). The attention of scholars and various development-aid

organizations has been directedmostly to the mammoth phenomenon of illegal construction

in developing countries. Due to their scale and social function, these phenomena are often

not designated as “illegal”but as “informal”,“irregular”,“unauthorized”or “self-organized”.

There is a large body of scholarlyliterature and policy reports about informal development.

By contrast, the issue of unauthorized development and approaches to enforcement in

developed countries has been largely ignored by researchers (Aguilera and Smart, 2016).

Yet, the entire structure of planning law rests on the lynchpin assumption that an effective

enforcement system is in operation and that there will be general compliance with planning

law and development controls. To date, there is no comparative data base about the

parameters related to enforcement and not even much empirical research on individual

countries.

A major distinction between developed and developing countries pertains to property

rights and land titles. Among many developing countries, much unauthorized or informal

development occurs on land where the residents have no clear property rights. Land

occupancy may have variousgradations of informality of tenure, from clearly unauthorized

squatting on land owned by others, through various categories of incomplete or contested

rights. In some cases, these are later “regularized”by land-titling (Gouverneur, 2014;

Fernandes, 2011;Durand-Lasserve et al., 2013;Parsa et al.,2010;De Soto,2003).

By contrast, among advanced-economy countries, the phenomenon of squatting and

other forms of contested tenure is less prevalent, except in special cases. In our two case-

countries, these exceptions are mostly the Romas in Portugal and in Europe in general

(ECRI, 2007;Dias et al.,2009) and the Bedouins in the South of Israel (Shmueli and Khamaisi,

2011;Orenstein and Hamburg, 2009;Abu-Saad,2008). These special cases are not the focus

of this paper. In advanced-economy countries, the major part of illegal development occurs

on land where the builder or occupier does have formal property rights. One cannot

exaggerate the importance of this distinction, which currently receives insufficient

recognition in the literature.

All the planning and development-control laws we have ever encountered do include

some mechanism of enforcement. Most of the literature on this topic pertains to the legal

realm. There are books entirelydedicated to planning enforcement (Harwood,2015). Regular

texts on planning-and-development law often do include a chapter on enforcement.

Examples of textbooks from variousperiods include McAuslan (1975, pp. 486-518), Ratcliffe

et al. (2009, pp. 85-92) and Moore and Purdue (2012, pp. 387-430). Yet, compared with other

aspects of the statutory planning process(such as plan preparation, public information and

participation, building permits or legal recourse), enforcement has been an orphan among

planning scholars.

This is not to say that compliance with law, in general,is a neglected topic. In the social

sciences, there is an extensive body of research on the links between regulation and

compliance in general (Edelman and Talesh, 2011). However, the special aspects of land-

related violations are usually not addressed. Among the few theoretical contributions that

do focus on land and construction are two papers by Harris (2010,2011) which offer an

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