Journal of Property, Planning and Environmental Law
- Emerald Group Publishing Limited
- Publication date:
- 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.
- 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.
- An evaluation of EIA system performance in Turkey in the context of procedural effectiveness
Purpose: In Turkey, where the environmental impact assessment (EIA) has been applied since 1993, there have been numerous amendments in the legal and administrative process of the EIA. This study aims to evaluate the effectiveness of those amendments to the EIA process. Design/methodology/approach: This paper evaluated EIA system performance in the context of procedural effectiveness in Turkey from the day implementation was begun. From its beginning to the present day, the positive and negative developments at the EIA process in Turkey caused by the amendments were evaluated and at which stages. Measures recommended increasing the effectiveness of each of the EIA systems were also identified. Findings: As the EIA Directive first came into force in the USA in 1970, EIA procedures have been widely adopted throughout the world. Although it has been implemented for many years, expectations regarding the EIA process have still not been realized which has forced countries to conduct studies to increase the effectiveness of the EIA process. Turkey, like other countries that are implementing the EIA, acknowledges that the EIA is a significant impact assessment tool and continues its studies to implement this system effectively. In this respect, in Turkey, where the EIA has been applied since 1993, there have been numerous amendments in the legal and administrative process of the EIA. Originality/value: The results obtained from this study were expected to facilitate the evaluation of the EIA process in Turkey and to guide other similar countries.
- Guest editorial
- International environmental law and environmentally harmful space activities: learning from the past for a more sustainable future
Purpose: The purpose of this paper is to present and analyse part of the relevant legal instruments currently available for regulating environmentally harmful space activities. Design/methodology/approach: This paper opted for a functional research method combined with a comparative methodology. To make the argument, this paper relies on the contextual analysis of primary and secondary sources of law, instrument of soft law and the relevant background material (e.g. journal articles, textbooks, law reform and policy papers). Findings: The central section will focus on the principles of international environmental law to outline their utility in the contemporary context. Finally, the conclusive part will point out the several ways in which the use of analogies can shape the outer space regime, especially concerning how those principles that are developed to safeguard the Earth, can also be extended for the protection of the space ecosystem. Originality/value: Environmental hazards are rapidly increasing and the current international law and policy on planetary protection are inadequate to meet the challenges of the near future. There is no possibility of an environment-friendly and sustainable future if not strictly connecting it with a comprehensive and transparent acknowledgement of the human mistakes made on Earth. There are valuable lessons to be learned from our past, and it is under this perspective that the trend of polluting the outer space can be reverted. This paper fulfils an identified need to study the correlation between principles of international environmental law, space law and the current situation in the outer space.
- (Un)earthly governance: beyond functional frameworks to flourishing spacescapes
Purpose: Humanity has a weakness in how we approach the “challenge” of using outer space. This paper aims to show how the global and national frameworks that address our planetary activities and crises are inadequate for the opportunities and challenges of life in outer space. Design/methodology/approach: The authors draw on multidisciplinary perspectives to refine an organising governance framework that better showcases the challenges and pathways needed for living and thriving in space-age. The authors prioritise two key pillars and overview the practical and social implications that space-age humanity must address. Findings: Social sciences and humanities are vital to problematising post-war colonial legacies of governance by distinguishing the unique and overlooked challenges for thriving and working offworld and identifying progressive research agendas. Research limitations/implications: The highlighted agenda has implications for collaborative research institutes and project design. As the vital basis for continuous learning, university-based research institutes span bodies of knowledge, experience, convention and imagination that can support vibrant and overdue debate on good governance that is out of this world. Practical implications: This expansive approach has practical implications for the decision-making processes and subjects of spacescape, from reconciling the space commons with prospecting and human occupation to potential governance regimes that capitalise on the zeal for moving beyond merely “existing” off-world. Social implications: Examining the governance deficit as we pursue developing spacescape frontiers is an enriching (not reductionist) agenda that deliberately troubles the existing and emerging regime for governing our scientific and imagined off-world society. Originality/value: This framework appeals to humanity’s highest evolution in co-producing a fair and flourishing off-world governance framework (beyond replicating planetary regimes).
- Situating real estate law for the new outer-space economy
Purpose: With current commercial space activities accelerating, the purpose of this paper is to contexualise enlivening the discipline of real estate law for outer space. Design/methodology/approach: Drawing on essential topics in real estate law, contracts and insurance, this paper discusses these themes in their terrestrial and extra-terrestrial contexts. Findings: Real estate law for the outer space environment carries many similarities to real estate law but also significant differences. At this early stage in human space exploration and travel, there is a need to deal more with goods/chattels (property assets); however, this will change as land – the Moon, asteroids, planets – are made available for mining and other activities. Given outer space activities carry high risk for spacecraft and humans, there are reciprocal lessons for real estate law and practice. Practical implications: Real estate law for outer space is an area already in existence. However, as access to space develops further, particularly with inevitable human presence on the Moon and exploration to Mars, real estate law will also grow in importance and sophistication. Real estate law for outer space relies on contract and property law. These are levers for commercial activities, and a further array of complex law and governance – the Outer Space Treaties, international and national law, international custom, guidelines, codes and standards. Real estate law for space will require an interdisciplinary and global approach in an era where human needs are already reliant on goods and services derived from space, as well as in the quest for exploration beyond the earth and the moon itself. Originality/value: The time is ripe for space law to be taken into nuanced areas, with real estate law being an important step. Entrenched into the combined real estate and outer space disciplinary context must be consideration of the environment (earth and beyond), sustainability, heritage protection issues, etc., as well as ensuring outer space has equitable opportunities for all nations and citizens.
- Legal frameworks for urban agriculture: Sydney case study
Purpose: This paper aims to examine the planning policy and legal framework governing the creation and operation of urban agriculture in Sydney, Australia’s global city. All levels of urban agriculture are considered – from domestic and small community gardens to large agribusiness – as all make an important contribution to agricultural production in an urban context. Design/methodology/approach: Using the Australian State of New South Wales and its capital Sydney, as a focus, the study examines the recent trend of the recognition and re-establishment of agriculture as a desired land use in cities. Three examples are selected for closer scrutiny – Horsley Park Urban Agriculture Precinct, located in the Western Sydney Parklands; City of Sydney’s City Farm, located in the inner suburb of St Peters; and the Western Sydney Aerotropolis Agribusiness Precinct, located at a new airport on the fringe of Sydney. Findings: As more city-dwellers embrace urban food production and as city authorities seek to encourage and facilitate farming activities, it is clear that regulatory structures which allow it to happen should be incorporated into urban planning legislation at (in the Australian context) state government level. If cities want to encourage urban agriculture, planning legislation needs to be part of the broader legal framework for enabling it to germinate and thrive. Originality/value: This paper explores the emergence of two new types of urban agriculture: first, the multi-functional, small-scale urban farming operation, situated conceptually between a community garden and a full-scale commercial agricultural enterprise, and located spatially in the midst of built-up urban form; and second, the intensive, high tech export-oriented model exemplified by the Aerotropolis Agribusiness Precinct.
- The commons institution of Antarctica: a roadmap to governance of mankind resources
Purpose: This paper aims to draw on Ostrom’s commons theory to analyse the governance regime of Antarctic as a commons institution. Antarctic is a peculiar territorial space on Earth, which due to its unique characteristics constitutes a global common resource that very much resembles outer space resources. On these grounds, the paper highlights successful, and less successful, arrangements developed in the Antarctic commons to be considered as a blueprint or roadmap towards the governance of outer space resources as a commons. Design/methodology/approach: The paper uses first, the social-ecological system (SES) framework to outline the characteristics of Antarctic as a commons institution, and second, Ostrom’s design principles to assess the commons institution of Antarctic. The Antarctic commons institution is used next, as an analogy to reflect on the challenges outer space global resource face and the way it could be managed. Findings: The paper concludes that Antarctic enjoys a functional, credible and successful commons institution that should reinforce the twofold governance structure it exhibits. Similar cases of global common resources, such as these of outer space, that seek to establish a similar commons institution should take into account issues related the benefits spectrum and the credible commitment of actors to engage in different levels of the governance regime. What matters is not necessarily the form of the regime but rather how the commons as an institution functions, whether it fulfils the needs and interests of the driving actors and, on these grounds, how credible these arrangements are in the eyes of the committed members. Research limitations/implications: Both Antarctica and outer space are rather unique cases and domains of multiple resources. Practical implications: The paper provides an analogy to consider sustainable appropriation of global resources (“global commons”) for peace and prosperity to all. Originality/value: The paper is original, in the sense that according to the best of the authors’ knowledge, no published work has identified Antarctic as a commons institution or has used the aforementioned methodologies to analyse Antarctica as a commons and to employ their findings in providing directions for the design of appropriate governance frameworks for other resources that exhibit the characteristics of global commons, such as these of the outer space.
- Compensation for harm caused by nuclear installations: what’s the damage?
Purpose: This paper aims to explain the changes to the liability regime for nuclear installations before reviewing the traditional heads of damage under the 1965 Act. It argues that while there is some welcome clarification of what amounts to an “occurrence” in the purposes of the 1965 Act,...
- Housing not for all. The lack of universal accessibility to housing in multi-unit buildings in Spain, Sweden and Germany
Purpose: This study aims to explore the current situation of universal accessibility to multi-unit buildings in three European countries (Spain, Germany and Sweden), in view of the lack of effective European rules on this topic, with the aim to identify which legal frameworks and policies may be...
- Privatising land in England
Purpose: This paper aims to analyse the extent to which privatising – or denationalising land – has legal and policy effects. Design/methodology/approach: It applies the law in context scholarship to the question of land privatisation. Findings: Of all the recent privatisations in England, the...
- The legal framework for the Syrian urban reconstruction
Purpose: As the Syrian civil war winds down, the massive reconstruction of the devastated cities has become a recurring subject of political and scientific discussions. A crucial question pervades all these debates: is the current legal framework adequate for confronting the reconstruction...
- Compulsory purchase and the state redistribution of land. A study of local authority-private developer contractual behaviour
Purpose: The compulsory purchase of land forms the subject of much legal and urban regeneration research. However, there has been little examination of the contractual arrangements between local authorities and private sector property developers that often underpin the compulsory purchase process....
- Human rights and the moralities of property. Participation, obligation and value in R (on the application of Mott) v. Environment Agency
Purpose: Responding to the Supreme Court’s decision in R (on the application of Mott) v. Environment Agency, the purpose of this study is to explore the interface between property, environment and human rights. It examines the space within human rights jurisprudence for a richer notion of property...
- Property’s competing values: the public house re-cycled as “community asset”
Purpose: This paper aims to investigate the potential of the “image-idea” of a “circular economy” for re-thinking property in law: In particular, to develop a strategy for making visible “alternative property practices” of community ownership across the subject areas of business and property law,...
- The order is rapidly fadin’. Responding to the impact of climate change on property with reference to the Aotearoa New Zealand context
Purpose: This paper reviews the relationship between property and the changing coastal environment. It looks at issues around the mismatch between the protection of private property rights implicit in our property law, which assumes stability and permanence, and the protection of public rights and...
- Constraints and benefits of the blockchain use for real estate and property rights
Purpose: Many recent social media posts and news may create a perception of big success in the use of blockchain for the real estate industry, land registration and protection of titles and property rights. A sobering outlook is crucial because misleading concepts may bury the whole idea of...
- International environmental law and environmentally harmful space activities: learning from the past for a more sustainable future
Purpose: The purpose of this paper is to present and analyse part of the relevant legal instruments currently available for regulating environmentally harmful space activities. Design/methodology/approach: This paper opted for a functional research method combined with a comparative methodology....