Journal of Property, Planning and Environmental Law

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

ISBN:: 2514-9407

Issue Number

Latest documents

The compliance of foreign investment projects with local environmental standards and the role (non-role) of the applicable BITs: the case of Ethiopia
Purpose: The purpose of this paper is to investigate the compliance of foreign investment projects with local environmental standards in Ethiopia. It examines the cause and impact of the environmental problems created by such projects as well as the necessary policy response, especially by examining the role of the applicable bilateral investment treaties (BITs) in enforcing local standards. Design/methodology/approach: The research approach is fundamentally an empirical study with some doctrinal analysis. The empirical data (qualitative) was collected through interviews, focus group discussions and observation tools. Findings: The investment projects selected for the case studies were not complying with the local environmental standards, which resulted in several environmental problems. The major cause for the overall environmental problems was not a legal gap in the local standards, but the failure of enforcing such standards by the government bodies and foreign investors. The applicable BITs also played no role in environmental protection as they do not impose environmental obligations along with enforcement mechanisms. Non-compliance with local standards can be mitigated if the applicable BITs impose environmental obligations along with workable enforcement mechanisms – as a treaty obligation has more binding force. The author argues that, in general, foreign investments are not environmental-friendly unless otherwise strictly regulated by combining local environmental standards and a BIT that imposes environmental obligations (along with enforcement mechanisms) on the foreign investors, host state and home state. Originality/value: The existing literature does not deal with the environmental problems, the enforcement constraints and the role of the applicable BITs together in a single publication. They separately address these issues, which do not give a comprehensive understanding of the cause-and-effect relationship. This paper fills this gap by presenting comprehensive findings that combine the environmental problems and the associated enforcement constraints as well as the role of the applicable BITs in this regard. It also contributes to the ongoing debate concerning whether foreign direct investment is good or bad for the environment by producing empirical evidence from Ethiopia, the African continent.
Homes and home working: a property law perspective
Purpose: This purpose of this paper is to examine whether disciplines outside law demonstrate consensus on the attributes of home, whether, to the extent that there is consensus, property law supports those attributes, whether those attributes can be reconciled with working from home, and how far property law is able to address uncertainty regarding the regulation of working from home. Design/methodology/approach: This paper identifies conceptions of “home” from non-law disciplines. It examines the extent to which property law in England and Wales supports or challenges those conceptions. It examines the extent to which working in homes disrupts or distorts those conceptions. It assesses the extent to which property law engages with that disruption. Findings: A lack of clarity in how “home” is defined and perceived in non-law disciplines, and a tendency in those disciplines to produce static and decontextualized notions of home is reflected in inconsistent property law approaches to protection of important “home” attributes. Recognition by property law of the prevalence of home working is relatively undeveloped. An under-appreciation of “context” dominates both cross-disciplinary perceptions of home, and the support which property law provides to those perceptions. Research limitations/implications: This paper focuses on conceptions of “home” drawn from disparate disciplines and seeks to find consensus in a diverse field. It concentrates on the regulation by covenants of the use of homes for non-domestic purposes in England and Wales. Practical implications: Suggested alterations to property law and practice, and to the imposition and construction of covenants against business use, might better reflect the prevalence of working from home and clarify the circumstances in which homes can properly be used for work purposes. Social implications: This paper identifies that in its inconsistent recognition of “home” attributes in general, and in the lack of established principles for regulating the use of homes for business purposes in particular, property law offers insufficient certainty to occupiers wishing either to work at home, or to resist doing so. It identifies that a broader cross-disciplinary investigation into the inter-relationship between living spaces and working spaces would be beneficial. Originality/value: The originality of this paper lies in its examination from a property law perspective of established cross-disciplinary conceptions of home in the context of the recent growth of working in homes.
Rehabilitation of abandoned housing projects in peninsular Malaysia: reaching out to rescue mechanisms in the companies act 2016
Purpose: In response to the housing needs of its people, Malaysia has allowed private housing developer companies to build houses on a sell-then-build basis. Despite having legislation designed to protect the interests of purchasers, insolvent housing developers have left behind many uncompleted housing projects with their land charged to financial institutions. Consequently, the affected purchasers will lose their houses when those financial institutions foreclose on the land in the housing projects. In addition, those purchasers remain legally obligated to repay loans taken to finance their house purchase. The housing development laws lack provisions to rehabilitate abandoned housing projects. The purpose of this paper is to explore the viability of rescue mechanisms in the Companies Act 2016, being corporate voluntary arrangement (CVA), judicial management (JM) and schemes of arrangement (SOA), to aid in the rehabilitation of abandoned housing projects in Peninsular Malaysia. Design/methodology/approach: Doctrinal research is adopted in this paper. Findings: This research highlights the flexibility of the SOA as a tool to rehabilitate abandoned housing projects. This research also reveals the potential of CVA and in particular, JM with its “public interest” feature, as useful rehabilitation mechanisms once the proposed reforms are adopted. Originality/value: The authors are hopeful that the suggested reforms will enhance the value of all three rescue mechanisms as rehabilitation tools for abandoned housing projects so as to alleviate the plight of house purchasers.
Justice as fairness: a Rawlsian perspective in compensating regulatory land takings
Purpose: The purpose of this paper is to articulate the inherent unfairness in compensation outcomes between landowners whose land is physically taken versus those whose land is regulated. Using Rawlsian theory as the normative standard of “fairness as justice”, the paper argues that both physical and regulatory takings should be compensated. Design/methodology/approach: Most jurisdictions invariably provide market price compensation when land is physically acquired. When land is not physically taken but merely subject to regulation, however, there is no corresponding need to compensate, even where the economic loss suffered by the landowner is the same. Adopting Rawlsian theory, this paper explains why justice and fairness in land use planning require both physical takings and regulatory takings to be equally compensable. Findings: Applying Rawlsian theory to compare compensable compulsory purchase with non-compensable regulatory takings of land show that the latter is not compatible with an ethical planning praxis. Originality/value: While Rawlsian theory has been applied in urban planning research before, this would be its first application in highlighting the apparent justice paradox which now distinguishes a physical and regulatory taking of land.
The regulatory failure of spatial planning and its environmental impact: a case study of hotel projects in Bali, Indonesia
Purpose: This paper aims to explain the impact of spatial planning regulations in the development of hotels in Bali, particularly as regards environmental damage. It then analyzes the factors that cause spatial planning to fail to prevent environmental damage. Design/methodology/approach: This paper is based on both fieldwork and library research, and a broadly socio-legal approach is adopted, involving a combination of doctrinal research and empirical legal method. Findings: This paper finds that interrelated legal, political and economic factors contribute to this failure, including conflicting regulations on the review and amendment of spatial plans, the pursuance of economic enrichment and an unsustainable approach to economic development. Although some or even all of these factors may have seemed obvious from the start, because they are common causes of regulatory failure, this paper demonstrates empirically that they are exacerbated and made more challenging because of the interrelationship between legal, political and economic factors. Research limitations/implications: Given the existence of intertwined legal, political and economic factors behind the regulatory failure of spatial planning, more studies need to be undertaken to restore spatial planning objectives as a means of preventing tourism projects in Bali from damaging the environment. Originality/value: The author proposes a reform to make spatial planning regulations more effective, particularly in preventing environmental damage by tourism projects.
The regulatory failure of spatial planning and its environmental impact: a case study of hotel projects in Bali, Indonesia
Purpose: This paper aims to explain the impact of spatial planning regulations in the development of hotels in Bali, particularly as regards environmental damage. It then analyzes the factors that cause spatial planning to fail to prevent environmental damage. Design/methodology/approach: This paper is based on both fieldwork and library research, and a broadly socio-legal approach is adopted, involving a combination of doctrinal research and empirical legal method. Findings: This paper finds that interrelated legal, political and economic factors contribute to this failure, including conflicting regulations on the review and amendment of spatial plans, the pursuance of economic enrichment and an unsustainable approach to economic development. Although some or even all of these factors may have seemed obvious from the start, because they are common causes of regulatory failure, this paper demonstrates empirically that they are exacerbated and made more challenging because of the interrelationship between legal, political and economic factors. Research limitations/implications: Given the existence of intertwined legal, political and economic factors behind the regulatory failure of spatial planning, more studies need to be undertaken to restore spatial planning objectives as a means of preventing tourism projects in Bali from damaging the environment. Originality/value: The author proposes a reform to make spatial planning regulations more effective, particularly in preventing environmental damage by tourism projects.
When a backer is an expropriator: pitfalls in the consumer protection mechanism for off-plan building sales in Vietnamese law
Purpose: To motivate investments in housing projects, the state may allow private entities to mobilize capital through selling off-plan buildings and use proceeds to complete the project. The state senses the risks for consumers in these projects: frauds certainly occur. To safeguard consumers’ interests, the Vietnamese Government requires developers to obtain a bank's refund guarantee to sell off-plan. This paper aims to point out how consumers are marginalized due to the mechanism (mechanisms) dedicated to protecting them. Design/methodology/approach: The authors review the legal regulations in Vietnam, contracts in transactions on which they have given legal consultation (the authors leave the information anonymous for privacy issues), and real disputes exposed by newspapers re: off-plan sales. Findings: This paper argues that the measure fails for two reasons. First, there are many weaknesses allowing banks to avoid this mechanism. Second, banks lend to developers, and as such, play the role of a secured creditor. In these situations, there is a conflict of interest between the bank's roles and between the bank and consumers. Moreover, Vietnamese law, by endowing banks the privilege of seizing and obtaining possession of collaterals, may put aside consumers' interests. Originality/value: Bank's refund guarantee’ is a recent initiative of the Vietnamese Government, offered to safeguard consumers’ interests in off-plan sales. Issues arising thereupon have not yet been fully exposed, especially, in conjunction with a broad view of the Vietnamese legal system. The analysis and critiques offered by this study may have policy implications for other jurisdictions as well.
When a backer is an expropriator: pitfalls in the consumer protection mechanism for off-plan building sales in Vietnamese law
Purpose: To motivate investments in housing projects, the state may allow private entities to mobilize capital through selling off-plan buildings and use proceeds to complete the project. The state senses the risks for consumers in these projects: frauds certainly occur. To safeguard consumers’ interests, the Vietnamese Government requires developers to obtain a bank's refund guarantee to sell off-plan. This paper aims to point out how consumers are marginalized due to the mechanism (mechanisms) dedicated to protecting them. Design/methodology/approach: The authors review the legal regulations in Vietnam, contracts in transactions on which they have given legal consultation (the authors leave the information anonymous for privacy issues), and real disputes exposed by newspapers re: off-plan sales. Findings: This paper argues that the measure fails for two reasons. First, there are many weaknesses allowing banks to avoid this mechanism. Second, banks lend to developers, and as such, play the role of a secured creditor. In these situations, there is a conflict of interest between the bank's roles and between the bank and consumers. Moreover, Vietnamese law, by endowing banks the privilege of seizing and obtaining possession of collaterals, may put aside consumers' interests. Originality/value: Bank's refund guarantee’ is a recent initiative of the Vietnamese Government, offered to safeguard consumers’ interests in off-plan sales. Issues arising thereupon have not yet been fully exposed, especially, in conjunction with a broad view of the Vietnamese legal system. The analysis and critiques offered by this study may have policy implications for other jurisdictions as well.
Mistakes, mispleading and overreaching: understanding title registration and correcting the register
Purpose: The purpose of this paper is to analyse whether title to land is secure in England and Wales when registered under the Land Registration Act (LRA) 2002, in particular when a title is registered, where there has been a mistake and how that connects with the doctrine of overreaching. Design/methodology/approach: This paper analyses the reported judgments, with particular emphasis on the decision in Knight v Fernley (2021). Findings: This paper explores the concepts of “mistake” and “overreaching” and concludes that LRA 2002 provides a complex, but complete answer to concerns about the application of these doctrines. Practical implications: This paper will encourage certainty in the judicial decision-making process when “mistakes” occur in the land register. It will contribute to the resolution of difficult, and current, controversies. Social implications: To enable legal advisers to be clear in their obligations and the advice they give to clients, and to further a better understanding of title registration in England and Wales. Originality/value: The LRA 2002 replaces registration of title with title by registration. The real force of this is only now being realised and there are few reported judgments, and less consistency, working out what this means in practice. There are no other comments on this critical case, even though it helps elucidate the circumstances in which the title register may be altered.
Mistakes, mispleading and overreaching: understanding title registration and correcting the register
Purpose: The purpose of this paper is to analyse whether title to land is secure in England and Wales when registered under the Land Registration Act (LRA) 2002, in particular when a title is registered, where there has been a mistake and how that connects with the doctrine of overreaching. Design/methodology/approach: This paper analyses the reported judgments, with particular emphasis on the decision in Knight v Fernley (2021). Findings: This paper explores the concepts of “mistake” and “overreaching” and concludes that LRA 2002 provides a complex, but complete answer to concerns about the application of these doctrines. Practical implications: This paper will encourage certainty in the judicial decision-making process when “mistakes” occur in the land register. It will contribute to the resolution of difficult, and current, controversies. Social implications: To enable legal advisers to be clear in their obligations and the advice they give to clients, and to further a better understanding of title registration in England and Wales. Originality/value: The LRA 2002 replaces registration of title with title by registration. The real force of this is only now being realised and there are few reported judgments, and less consistency, working out what this means in practice. There are no other comments on this critical case, even though it helps elucidate the circumstances in which the title register may be altered.