Methodology and framework of comparative urban planning law
| Date | 15 May 2023 |
| Pages | 45-62 |
| DOI | https://doi.org/10.1108/JPPEL-12-2022-0037 |
| Published date | 15 May 2023 |
| Subject Matter | Property management & built environment,Building & construction,Building & construction law,Real estate & property,Property law |
| Author | Jinwon Jeon |
Methodology and framework of
comparative urban planning law
Jinwon Jeon
Real Estate and Construction Practice Division, Yulchon LLC, Seoul,
Republic of Korea
Abstract
Purpose –This study aims to systematise the methodologyused in comparative urban planning law and
propose primarycontexts for comparison in planning law.
Design/methodology/approach –This study undertook a review of comparative law methodology
discourseand sought to establish connections betweenthe discourse and the field of planning law.
Findings –This study argues for establishment of a realistic goal for comparative planning l aw by focusing on
the planning law’smodifiability. The goal of comparison in planning law should not be to find universally
desirable principles or better solutions. Rather, the goal should be to identify a motive for devising a solution. This is
becauseitisnotonlydifficult to establish legal values that are universally applicable to planning law but also
inappropriate to determine superiority of planning laws that have been developed over time by each jurisdi ction’s
sovereignty and policies on land use. When determining comparable systems for analysis among le gal systems that
are functionally equivalent, it is important to consider the context of land use relations alongside th ec omparative
analysis to be done. To set realistic goals, the context should not be extended indefinitely but be systematised.
Based on the foundational relationship underlying planning law, including the tension between planni ng authorities
and property owners, this study presents five specific contexts for comparative analysis: “Strength of Property
Rights,”“Level of Judicial Intervention,”“Plan- or Development-led System,”“Allocation of Planning Power”and
“Level of Participation.”Examination of these contexts will allow better understanding of the similarities and
differences among different systems and practical application of the results of comparative studies.
Originality/value –This study presents a novel approach to systematising the methodology and
frameworkof comparative planning law.
Keywords Planning law, Comparative planning law, Comparative methodology, Urban planning,
Property rights, Functionalism
Paper type Conceptual paper
1. Introduction
A city is a breathing place where people gather, work and live. Although itsphysical space
may be likely fixed, it is constantly evolving withthe ongoing changes brought in people’s
© Jinwon Jeon. Published by Emerald Publishing Limited. This article is published under the
Creative Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate and
create derivative works of this article (for both commercial and non-commercial purposes), subject to
full attribution to the original publication and authors. The full terms of this licence may be seen at
http://creativecommons.org/licences/by/4.0/legalcode
Sincere thanks to Prof Dr Jongbo Kim (Dean of the School of Law, Seoul National University) for
his teachings in planning law, Yulchon LLC and Mr. Ju-Bong Park, Esq. (Yulchon LLC) for their
strong support of the author's comparative law research and Mr. Yongjoo Kwon, Esq. (Yulchon LLC)
for meticulous proofreading of this paper. The author would also like to express my sincere thanks to
three anonymous reviewers and Prof Dr Luke Bennett. If there are any errors in this paper, they are
solely the responsibility of the author. This paper is supported by APC from Yulchon LLC.
Comparative
urban
planning law
45
Received31 December 2022
Revised7 March 2023
Accepted16 March 2023
Journalof Property, Planning and
EnvironmentalLaw
Vol.15 No. 2, 2023
pp. 45-62
EmeraldPublishing Limited
2514-9407
DOI 10.1108/JPPEL-12-2022-0037
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/2514-9407.htm
lives. This dynamism createsvarious planning issues that have perplexed policymakers.In
addressing these issues, it is natural to be curious about how other cities or countries cope
with comparable challenges.As such, comparative approaches to urban planning have been
attempted at various levelsfor a considerable time, from individual planningadjustments to
complete system overhauls. Furthermore, efforts to adopt comparative approach have also
been matched by legal researchers andpractitioners in the field of planning law, who have
engaged in an “energetic knowledgetrade,”as described by Alterman (2011, p. 101).
However, this does not mean that comparative planning law has been methodologically
systematised. Rather, this implies that there remains an undeniable gap between the
comparative law methodologiesand studies in comparative urban planning law.
The complex nature of planning law is partially responsible for this gap. In planning law,
the legal and political components are intricately intertwined. For instance, considerable
discretion is afforded to local governments exercising a development control in the United
Kingdom (“UK”)(
Booth, 2003, p. 5). German authorities have discretion to establish and
interpret plans (Schmidt-Eichstaedt, 2018,p.14;Künnecke, 2007,p.80).Becauseofthe
discretion, many judicial and policy decisions cannot be fully explained by statutory laws alone
(Arnold, 2007, p. 447). While the judiciary traditionally plays a crucial role in urban planning,
the administrative officials’perception often has a significant impact. Additionally, legislative
changes remain frequent in this the field. In sum, the multidimensional nature of planning law
presents extraordinary challenges for planning law’s direct integration into comparative law,
requiring in-depth examination of the rationale behind laws, policies and the underlying
background.
This multidimensional nature of planning law may potentially cause it to be overlooked
in comparative planning law studies by making legal analysis a mere ancillary element
within planning studies. Moreover, literature that elaborates on what it means to study
planning from a legal perspective is scarce. The unpleasant clich
e that it is uncommon for
solicitors to be well-versed in planning concerns (Gaine, 2021, p. 66) clearly stems from the
common belief that planning is the exclusive domain of planners, not lawyers. Of course, it
is difficult to answer the questions of what and how to compare planning law unless the
meaning and status of planninglaw are clearly established.
Legal theorists have been developing comparative law methodologies for almost a
century. The traditional approachhas focused on functionalism and its criticism. The recent
approach now follows the postmodern trends that accept more profound topics, such as
legal mentality, context and legal culture (Siems, 2022, p. 171), as well as numerical or
empirical approaches based on social scientificmethods (Siems, 2022, pp. 254-255). As such,
the methodologies for comparativelaw have become increasingly diverse. Although we will
not address all these topics, through methodological discussion of comparative planning
law, it should be possible to find the nexus for basic issues, which would serve as a
foundation for developingsystematic methodologies for comparativeplanning law.
For methodological systemisation, it is important to firstcomprehendwhatitmeansto
perform a legal analysis of planning before proceeding with comparing the planning laws
across various jurisdictions (Section 2). This is followed by the key fundamental discussion
concerning comparative law methodology as well as its relevance to the comparative planning
law (Section 3). Then, based on the discussion of planning law and comparative methodology,
this article will provide practical guidance on “how far to explain”and “what should be
analysed”in the comparison by suggesting and analysing five embodied contexts (Section 4).
This article is based on a review of existing literature on comparative and domestic
planning law and comparative law methodologies. This article aims not to draw definitive
conclusions about individual comparative themes, but to present research structures and
JPPEL
15,2
46
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