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,
TechnionIsrael 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
informalconstruction 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 orphanissue 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 ofcial
documents laws,policies and court decisions in both countries and eld 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 signicant 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 rst 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 nancial 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 authorsbest knowledge, the rst 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 ofcials 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
retrottingthe 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 practicesthat
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 rst 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 countrys 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 illegalbut as informal,irregular,unauthorizedor 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 regularizedby 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 insufcient
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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