Journal of Property, Planning and Environmental Law

Publisher:
Emerald Group Publishing Limited
Publication date:
2019-03-18
ISBN:
2514-9407

Issue Number

Latest documents

  • Repair in the private rented sector: where now?

    Purpose: This paper aims to analyse the extent to which recent changes in the law, most notably the Homes (Fitness for Human Habitation) Act 2018 and proposals for changes in tenant redress, will help tenants living in the private rented sector (PRS) with issues of disrepair and poor living conditions. Design/methodology/approach: It applies theoretical scholarship on procedural justice, to two proposals for reform, namely, compulsory membership of redress schemes and a new housing court or use of the first-Tier Tribunal for claims relating to disrepair. Findings: The Homes (Fitness for Human Habitation) Act 2018 will not provide decent private rented homes without increased security of tenure and a requirement for inspection prior to letting. Tenants should have the right to a fit home at the time of moving in and a cheap and relatively fast method of redress when things go wrong. A combination of compulsory licencing, membership of an ombudsman scheme and either the transfer of disrepair cases to the first-tier tribunal or a new housing court would provide the best overall solution for tenants with regard to repair and condition. Originality/value: This study contributes to the important scholarship on procedural justice and applies it to ongoing current debates regarding disrepair in the PRS.

  • A journey from Rio to Paris via Kyoto to facilitate technology transfer to the LDCs under the UNFCCC

    Purpose: The purpose of this study is to evaluate to what extent the Paris Agreement and the United Nations Framework Convention on Climate Change (UNFCCC) have supported (or could support) the least developed countries (LDCs) particularly for accessing the climate technologies and thereby to meet the objectives of the Paris Agreement. Design/methodology/approach: This study adopted legal dogmatism to evaluate the gradual development of technology transfer issues to support the LDCs under the international climate regime. Findings: This study suggested a few potential measures to facilitate meaningful technology transfer to LDCs – such as clarifying and linking the role of the technology and financial mechanism, a more robust role of capacity building, using the sustainable development mechanism with a technology transfer focus, improving the transparency and reporting mechanism to particularly indicate support regarding technology transfer requested and received by the LDCs linking it with the nationally determined contributions, and adapting a pragmatic approach to intellectual property. Originality/value: This study is an original contribution as it identified concern over technology transfer under the UNFCCC since 1992 with a focus on the LDCs and indicated required actions that need to be taken to support the LDCs in the context of climate-related technology transfer and beyond.

  • The circular economy and the implied terms of contract in English sales law

    Purpose: The purpose of this article is to examine the contractual framework for the sale of goods in order to gauge whether the English sales law regime can promote a circular business model. Design/methodology/approach: Theoretical and doctrinal legal analysis. Findings: Due to the absence of rules and regulations requiring manufacturers produce goods compliant with the circular economy (CE), English Sale of Goods Act has limited capacity in holding manufacturers accountable and liable in failing to manufacture goods compliant with the CE. The only currently practical solution for this gap is that the buyers should ensure that their particular intention of obtaining goods compliant with the CE is fully communicated to manufacturers. Originality/value: This is the first examination of the implied terms of English sales law from the perspective of the CE.

  • Guest editorial
  • China in transition towards a circular economy: from policy to practice

    Purpose: The purpose of this paper is to examine China's approach to circular economy (CE) and investigate how the foreign concept of CE has been turned into a national strategy for implementation in production, circulation and consumption. This study aims to highlight the Chinese characteristics in the implementation of CE from central to local levels including the “trial and test” by pilot schemes and the role of local governments in CE transformation of industrial parks and in building CE cities. Based on what has been achieved, this paper aims to identify the gaps to be filled in the next stage of CE implementation. Design/methodology/approach: This paper engages in critical analysis of state policies, plans, laws and regulations and case studies of Suzhou New District and Shanghai city in the building CE-oriented industrial park and CE city, respectively. Findings: China has taken a top-down approach to CE characterised by strong government involvement in both policy and plan making and implementation at local levels. The government’s financial investment and administrative assistance proved to be crucial in the early stage of CE implementation to close the loop at industrial parks and in cities. In comparison, participation by enterprises and individuals is still weak and limited, which should be the focus of the next stage of CE implementation. Originality/value: There is an absence of legal literature that studies circular economy in China. This paper fills the gap by examining the development of CE law and policy as well as CE implementation at local levels from industrial parks to cities.

  • 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, to enhance the visibility of models of community ownership and interrogate their potential. Design/methodology/approach: Case study research was undertaken into three public houses to investigate the ways in which the orthodoxies of property and ownership in the academy are challenged by evidence of “alternative property practices” in the community. Findings: Using this approach renders visible tensions between the logics of economic value and social asset, carried in processes of abstraction and materiality, and mediated within the field of property by the development of techniques for holding property as title and benefit. It reveals the ways in which “property” as idea, practice and technique is used by people seeking to disrupt or defend against the economic logic of profit and investment. It raises questions concerning how property and law is imaged in the academy and it introduces one way of using an image-idea to open new perspectives and potential. Research limitations/implications: These implications emerge: the partiality of orthodox accounts of property; the importance of thinking property in terms of life-cycle and logics ecologies, field and techniques; how an model-theory derived from one discipline can be repurposed, in a second life, in an other discipline as an “image-idea” to refresh the host discipline; the significance of investigating “community assets” within and for property law and the need for more research into “alternative property practices” and the importance of case studies. Practical implications: An enhanced knowledge of the development and potential of “community assets” within the academy, and of the potential to promote and support “alternative property practices” with the requisite legal skills and techniques – alongside a consideration of the limits of formal law in terms of policy expectations. Social implications: The research is of value to community activists in thinking how law can be used to support community development in terms of holding community assets; and the limitations of formal law which then requires an embedded approach considering how the development of practices and narratives can support community initiatives in relation to property held for community benefit. Originality/value: There has been very little coverage of “community assets” within legal research, especially moving across business and property as subject areas, and no coverage on public houses taken into community ownership. This paper combines an introduction to the relevant legal forms with a consideration of the use of them in practice: considering, in particular, how practices and narratives deployed by and within the community think and present “property” as a means by which to counter the economic logic of profit. All this is made possible through the use of case-studies made visible by the utilization of the image-idea of the circular economy – used here not as a model-theory, but rather as an aid to opening thinking into new territories accessed through new perspectives.

  • Transitioning towards circular systems: property rights in waste

    Purpose: The purpose of this paper is to explore the impact that property rights can have on the implementation of circular waste economies, in which waste is reused, recycled or recovered, within the European Union’s Waste Framework Directive. Design/methodology/approach: A theoretical lens is applied to the legal definition as well as production and treatment cycle of waste to understand the property rights that can exist in waste. Findings: This paper argues that even though different property rights regimes can apply to waste during its creation, disposal and recovery, the waste management regulatory and legal system is currently predominantly set up to support waste within classic forms of private property ownership. This tends towards commodification and linear systems, which are at odds with an approach that treats waste as a primary wanted resource rather than an unwanted by-product. It is recommended that adopting state or communal property approaches instead could affect systemic transformative change by facilitating the reconceptualisation of waste as a resource for everyone to use. Research limitations/implications: The property rights issues are only one dimension of a bigger puzzle. The roles of social conceptualisation, norms, regulations and policies in pursuing circular strategies are only touched upon, but not fully explored in this paper. These provide other avenues that can be underpinned by certain property regimes to transition to circular economies. Originality/value: The literature focused on property rights in waste has been very limited to date. To the best of the authors’ knowledge, this paper is the first to consider this question in detail from a legal perspective.

  • A circular economy for electric vehicle batteries: driving the change

    Purpose: With the UK’s accelerating plans to transition to electric mobility, this paper aims to highlight the need for policies to prepare for appropriate management of electric vehicle (EV) lithium-ion batteries (LIBs) as they reach the end of their life. Design/methodology/approach: This is a regulatory review based on projections of EV LIBs coming off the market and associated problems of waste management together with the development of a servitisation model. Findings: Circular economy in EV LIBs is unlikely to shape itself because LIB recycling is challenging and still in development. LIB volumes are insufficient for recycling to be currently profitable, and a circular economy here will need to be driven by regulatory intervention. Ignoring the problem carries potentially high environmental and health costs. This paper offers potential solutions through new EV ownership models to facilitate a circular economy. Research limitations/implications: The authors suggest a new EV ownership model. However, despite environmental benefits, re-shaping the fundamentals of market economies can have disruptive effects on current markets. Therefore, further exploration of this topic is needed. Also, the data presented is based on future projections of EV markets, battery lifespan, etc., which are uncertain at present. These are to be taken as estimates only. Originality/value: The paper proposes regulatory interventions or incentives to fundamentally change consumer ideas of property ownership for EVs, so that EV automotive batteries remain the property of the manufacturer even when the consumer owns the car.

  • Waste, marginal property practices and the circular economy

    Purpose: This paper aims to examine the effect of circular economy’s ending of waste on marginal property practices. Design/methodology/approach: This paper utilises doctrinal and theoretical legal analysis, along with theoretical perspectives and qualitative empirical evidence drawn from non-legal academic disciplines. Findings: The current legalistic conception of waste depends on control and value. The indeterminate status of waste as goods at the margins of consumption attracts attention from legal regimes. This process is evidenced by a commercialised treatment of goods at the margins of consumption, limiting the scope of radical marginal property practices such as freeganism (taking goods abandoned by others, to use such goods). Social implications: The circular economy aims to end waste. Restriction, and ultimately elimination, of marginal property practices is necessary for circular economy. Freegans will be limited to acting in a “challenge” role, identifying breaches of commercial commodification processes. Control over the use (including disposal) of goods reduces the spaces available for marginal property practices, which in turn raises problematic normative implications for “normal” consumption practices involving waste. Originality/value: This is the first examination of the impact of circular economy on freeganism. It is also the first sustained application of marginal property theory (van der Walt, 2009) in a legal analysis of circular economy and waste.

  • Tort law makes a quantum leap: a review of the civil liability regime for nuclear operators in UAE law

    Purpose: This study aims to illustrate the special liability regime applying to a nuclear operator for damage caused to individuals, property and natural resources, after the United Arab Emirates (UAE) implemented the Vienna Convention on Civil Liability for Nuclear Damage of 1963 through Federal Law No. 4 of 2012. This paper contrasts this special regime with the default regime of civil liability set out in the UAE Civil Code. The comparison helps clarify the legal nature of nuclear operator liability, the extent of protection it affords to the parties injured in a nuclear incident, the conditions under which it obtains, as well as the different damage headings it allows. Design/methodology/approach: This paper is a desk-based legal research. Findings: The main novelties enshrined in the special liability regime for nuclear facility operators are the adoption of an objective approach (strict liability) and the introduction of exceptions different from those contemplated in the default regime spelled out in the UAE Civil Code, thereby affording greater protection to victims of nuclear leakages. Originality/value: This paper is a first in-depth commentary of UAE Federal Law No. 4 of 2012 Concerning Civil Liability for Nuclear Damage. Considering the UAE’s dualistic approach to the implementation of international obligations, and the present lack of reliable alternative avenues towards compensation beyond private operator liability, the overview provided here will be of value to regional and international practitioners – including from neighbouring countries to the UAE (Oman, Qatar, Bahrain) – that are not currently signatories to any convention on nuclear liability.

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