Journal of Property, Planning and Environmental Law

Publisher:: Emerald Group Publishing Limited
Publication date:: 2019-03-18

ISBN:: 2514-9407

Issue Number

No. 16-2, May - May - January - December - November 2024

Latest documents

Delivering a culture change in property guardianship: recommendations for reform to the regulatory landscape
Purpose: Property guardianship is increasingly being viewed as an alternative and, in many cases, a last resort to the unaffordable private rental market. This upsurge in the incidence of guardianship necessarily amplifies the existing legal grey areas and the inherent insecurity and precarity in the sector for guardians. Drawing on interviews with property guardians and archival research, the purpose of this study is to explore the background to the guardianship occupation model; highlight the key problems guardianship generates and, building on this, propose recommendations for reform to the regulatory landscape of guardianship. This study argues that a culture change in property guardianship is needed so that guardians can be better protected, and local authorities empowered to be more proactive in overseeing standards of guardian properties in their areas. Design/methodology/approach: This study draws on qualitative semi-structured interviews with 46 property guardians and archival research. Findings: The author argues that property guardians routinely enter the sector largely as a matter of last resort based on financial considerations or following difficult life experiences. Insecure and precarious, guardianship operates under licence agreements which provide less protection for guardians. Coupled with ambiguity around the application of existing housing legislation to guardianship and research showing non-engagement by local authorities with guardianship, this study suggests regulatory reform is urgently needed. Originality/value: With traditional residential tenancies in the private rental sector increasingly unaffordable for many and guardianship becoming a viable alternative, this study argues for significant regulatory reform to the guardianship sector to ensure guardians are adequately protected under the law. This study presents a series of proposals to deliver a culture change in the sector.
Guest editorial: Law and regulation to tackle land degradation in Asia
Urban green open space in developing countries: Indonesia regulations, problems and alternative solutions
Purpose: This paper aims to work toward a new approach in providing green open spaces in the middle of urban land in Indonesia that has been densely built up and on it has attached land rights. An approach is needed through a specific spatial policy that contains zoning regulations for the provision of public green open spaces on top of residential houses built on the green zoning plans. Design/methodology/approach: This approach considers an interconnected ecological holistic approach, as previously existing regulations have not normatively identified the green open space as an ecological landscape consisting of blue open spaces and several objects that function as green open spaces. Findings: Indonesia in terms of green open space for local climate instrument is still identified as one of the three lowest countries in Southeast Asia in the number of green open space areas. We found that the regulating process of development rights and property rights, in the construction of Indonesian law, still requires many alternative efforts to this day in providing urban green open spaces. The delivery of desired outcomes depends on the alternative policy as a form of legal politics in compensating planning and community interests through developing green open spaces in an ecoregion approach. Originality/value: This writing was shaped by the understandings of the author with regards to the development of urban green open space regulating issues in Indonesia as one of the emerging country group in Asia and Jakarta as the second-most populous urban area in the world. This paper aims to work toward providing green urban open spaces in Indonesia that has been densely built up and on it has attached land rights, through a specific spatial policy that contains zoning regulations for the provision of public green open spaces on top of residential houses built on the green zoning plans.
Guest editorial: Comparative perspectives in multi-owned developments across City-States
Market shared liability: an alternative to proportionally impose guilt in civil lawsuits against corporations causing land degradation
Purpose: This paper aims to analyze the legal framework of land degradation in Asia and provide market shared liability as a new theory to solve a problem regarding the difficulty for judges to determine the percentage of compensation for corporations responsible for land degradation. This paper aims also presents a theory to solve the problem of the vacuum of legal responsibility theory, which can make corporations proportionally responsible in terms of causing land degradation. Design/methodology/approach: This was done through legal research methods, mainly with systematical interpretation. The approach used in this paper is conceptual, statute and comparative approach. Findings: By analyzing the related legal norms, it can be understood that in Asian countries, such as Indonesia, Thailand and Malaysia, there are regulations regarding land degradation. However, the regulations in these countries are not specific and tend to focus on nature conservation, which has an impact on handling land degradation. Therefore, it needs special regulation to deal with land degradation. One of the things that need to be regulated about land degradation is a market shared liability. Research limitations/implications: This research is limited to regulation in the Asia region. By analyzing the regulation, this paper will provide an analysis about the land degradation regulation mechanism in Asia and give an analysis about market shared liability as one of the solution to handling land degradation. Having the same ground rules will create synergies between countries in Asia to handle land degradation. Originality/value: This paper is the first systematic legal research comparing regulations from three nations in Asia on land degradation and the first paper to provide market shared liability as a solution to handling land degradation.
Is mandatory disclosure an effective panacea for buyer beware?
Purpose: The purpose of this paper is to examine whether mandatory disclosure of information accompanying the sale of real estate achieves its aim of informed purchasers. Design/methodology/approach: Using a case study approach focused on mandatory disclosure in South Australia data was collected from interviews and focus groups with key personnel in the property industry involved in the production of information required to fulfil vendors’ disclosure obligations. Findings: The authors found that purchasers are ill-served by a long and complex form of mandatory disclosure with a short time frame that prevents the use of the information provided. Without good form design and increased digital affordances provided by the cadastral and conveyancing systems, mandatory disclosure is insufficient to ensure minimisation of information asymmetry between vendor and purchaser. Originality/value: To the best of the authors’ knowledge, this is the first Australian qualitative study that examines the utility of mandatory vendor disclosure in real estate sales and the first to consider the impact of the digitalisation of cadastral and conveyancing systems upon the efficacy of mandatory disclosure regimes.
Public-private partnership in municipal solid waste management in the Sunyani municipality of Ghana
Purpose: Poor municipal solid waste management is a major characteristic of urban development in Africa. In Ghana, local governments are mandated to ensure the collection, treatment and disposal of solid waste. However, this has been a herculean task for local governments in Ghana, owing to inadequate resources and weak technical capacities. This has prompted calls for, and actual involvement of the private sector through public-private partnerships (PPPs) in municipal solid waste management, particularly in the urban areas. This study aims to assess the roles, effectiveness and challenges of PPPs in urban waste management in the Sunyani municipality of Ghana. Design/methodology/approach: Adopting a case study design, the study used a qualitative research approach to provide in-depth insights into PPPs in municipal solid waste management in the Sunyani municipality of Ghana. Therefore, key informant interviews and two focus group discussions were conducted. Findings: The study revealed that some policies and actions of the local government (Assembly) do not positively facilitate the effective functioning of PPPs in municipal solid waste management. There is also lack of effective stakeholder consultation, collaboration and grassroot inclusion in the PPPs which affect the effective management of the increasing volumes of solid waste being generated within the municipality. Practical implications: To achieve the objectives of the PPP arrangements, local authorities should initiate steps to effectively coordinate all the involved private companies. There must also be ways of involving the beneficiaries in the design and implementation of PPPs on waste management to allow for effective grassroots and participatory monitoring and evaluation. Originality/value: The uniqueness of the case study being a mid-sized and secondary city in a developing country enhances the value of the findings and the application of recommendations in cities with similar characteristics and initiatives in improving PPPs in municipal waste management.
Overcoming the “tenant-owner dilemma” to foster energy efficiency in residential private rented housing
Purpose: The Recast Energy Efficiency Directive 2023 has defined the concept of “split incentive,” also known as “tenant-owner dilemma.” This dilemma refers to the situation where neither landlords nor tenants have incentives to invest in energy efficiency upgrades. Although the Energy Efficiency Directive calls Member States to overcome legal barriers to remove split incentives and to encourage retrofits, the list of possible measures is too vague. This paper aims to discuss tenancy law measures designed to increase the energy efficiency of residential housing and to detect which Member States have already addressed this phenomenon. Design/methodology/approach: This paper analyses, from a civil legal perspective, the possible private law barriers arising from the tenant-owner dilemma when performing energy efficiency works in selected countries and proposes legal reforms in tenancy law and related policies to overcome them. To do so, this paper follows a legal-dogmatic and comparative law methodology. Findings: This paper concludes that some tenancy law provisions, such as the possibility to increase the rent after energy efficiency renovations and long-term leases, may challenge the tenant-owner dilemma in private rented markets, thus promoting renovations and retrofitting for energy efficiency purposes. It also proposes other policies intended to increase parties’ willingness to undertake works. Research limitations/implications: More research on the economic and legal efficiency to regulate some of the civil law measures to challenge the tenant-owner dilemma should be necessary. Practical implications: The civil law measures included in this paper may help national policymakers meet the energy efficiency targets, according to what is established in the Recast Energy Efficiency Directive 2023. Originality/value: Based on the economic theory of the tenant-owner dilemma, this paper investigates the elements of tenancy law that may contribute to less energy-efficient homes, proposing policies for those countries interested in addressing the energy-efficiency challenge from a private law point of view.
The impact of environmental terrorism on land degradation: legal comparative studies between Indonesia and Malaysia
Purpose: The purpose of this paper is to explore the problem of land degradation as a category of environmental terrorism, which has been increasing along with the rise of open pit mining and oil palm plantation activities. Design/methodology/approach: This study uses a doctrinal approach that aims to find the best solution to address the problem of land degradation and environmental terrorism activities in Indonesia through a comparative legal study conducted with the handling of similar cases in Malaysia, which has almost the same character as Indonesia. Findings: This paper finds that both Indonesia and Malaysia have enacted laws and regulations to address environmental concerns. However, it turns out that relying only on law enforcement is not an optimal solution. Addressing the problem of land degradation would also require the implementation of sustainable development practices, public awareness and cooperative dialogue. Originality/value: This paper provides a new approach to answer the inclusion of environmental degradation as environmental terrorism, which should also be considered a crime against humanity.
Promoting ethnic diversity in public housing: Singapore and England compared
Purpose: Although the Singapore model of ethnic integration through its public housing programme is well known, the formula for replicating its success elsewhere remains underexplored. This study aims to identify the criteria for successful transplantation, specifically by identifying the housing tenure types that are most amenable to the implementation of the Singapore model. Design/methodology/approach: Through a comparative study of two common law jurisdictions – Singapore and England – this article highlights the differences in their housing landscapes and how such differences impact upon the adoption of ethnic integration policies through housing. The article also unpacks, through a cross-disciplinary lens, the concepts of public housing and housing tenures, drawing heavily on socio-legal and housing literature. Findings: The authors observe that the implementation of ethnic integration policies is best justified and most easily achieved in leasehold estates that exhibit a strong tenurial relationship with the state retaining a more than notional role. Public housing in Singapore being an exemplar of this model, the implementation of its ethnic integration policy is relatively straightforward. By contrast, the shrinking public housing sector in England means that adoption of a similar policy would have limited reach. Even then, the political–legal environment in England that promotes home ownership is potentially hostile to the adoption of such policy as it may be seen as an infringement of private property right. Originality/value: The cross-jurisdiction comparison is supplemented by an interdisciplinary analysis that seeks to bridge differences in the categorisation of tenure in housing and law literatures so as to promote cross-disciplinary dialogue.