Summaries of Articles published in French and Spanish
| Published date | 01 December 1981 |
| Date | 01 December 1981 |
| DOI | 10.1177/002085238004700408 |
| Subject Matter | Articles |
Summaries
of
Articles
published
in
French
and
Spanish
General
Principles
of
Town
Planning
Law
J.
GONZALEZ
PÉREZ
Town
planning
law
rests
upon
a
body
of
general
principles,
some
of
which
are
recogn-
isably
general
principles
of
the
body
of
law
as
a
whole,
some
of
which
are
proper
to
the
discipline
itself.
And
it
is
these
latter
tenets
-
rights
of
private
ownership,
and
the
prin-
ciples
of
legality,
equality
and
subsidiarity
-
which
will
be
considered
in
detail
here.
1.
Rights
of
ownership
This
is
the
’fundamental
right ’
par
excel-
lence
of
Western
legal
systems.
In
many
cases,
it
is
constitutionally
conferred
(cf.
article
33
of
the
Spanish
Constitution).
Its
absolute
nature,
however,
has
been
tempered
by
time
and
the
growth
of
competing
societal
require-
ments.
But
the
continuing
conflict
between
private
and
public
interests
remains
at
the
root
of
all
the
problems
encountered
in
the
realm
of
municipal planning:
private
interests
de-
mand
unfettered
freedom
of
exercise,
while
the
public
interest
demands
that
rights
of
private
ownership
be
exercised
only
within
a
generally
applicable,
rational
and
coherent
structure
in
accordance
with
community
and
societal
objectives.
Ownership
must
involve
societal
obligations.
This
is
made
clear
by
article
33
(2)
of
the
Spanish
Constitution,
which
also
seeks
to
reconcile
private
owner-
ship
with
community
needs
in
order
to
create
a
viable
basis
for
a
coherent
framework
of
town
planning
law.
The
problem
is
to
delimit
the
content
of
the
right
to
title.
The
much-amended
Spanish
legislation,
modelled
on
West
German
land
law,
has
sought
to
control
the
use
of
land
in
accordance
with
town
planning
requirements,
without
attacking
fundamental
rights
of
owner-
ship.
The
reaction
from
civil
lawyers
has
been
immediate and
forceful,
but
in
vain.
The
content
of
ownership,
then,
is
now
defined
by
law,
which
effectively
creates
three
classes
of
land:
non-development
land
(which
creates
no
problem),
development
land,
and
developed
areas.
The
focal
point
of
the
law
is
the
realizing
of
the
development
potential
of
land
by
transforming
it
into
developed
areas.
The
owner
cannot
profit
from
the
land
without
incurring
expense.
The
urban
devel-
opment
plan
prepared
in
accordance
with
town
planning
legislation
may
impose
new
duties
on
the
landowner,
including
the
duty
to
build
on
the
land.
Three
procedures
were
there-
fore
provided:
compulsory
acquisition
(giving
rise
to
the
question
of
compensation),
in-
demnity,
and
cooperation.
Once
the
area
has
been
scheduled
for
development,
the
practical
aspects
of
construction
and
building
manage-
ment
and
maintenance
must
be
considered.
The
duty
to
build
may
be
legally
imposed;
and
the
duty
to
maintain
and
preserve
build-
ings,
even
those
of
no
historic
or
artistic
value,
must
also
be
accounted
abridgements
of
the
absolute
right
of
ownership.
2.
The
principle
of
legality
The
‘ legality ’
test
is
applicable
to
town
planning
legislation
-
but
what
is
its
sign-
ificance ?
-
The
control
of
land
use,
which
constitutes
a
restriction
of
the
generally
absolute
content
of
ownership
rights,
is
not
unlawful
to
the
extent
that
it
is
enforced
in
accordance
with
its
enabling
legislation.
―
Neither
does
the
execution
of
develop-
ment
plans
infringe
the
law,
since
the
establish-
ment
of
the
plan
is
a
legal
obligation,
even
where
the
enabling
legislation
confers
a
wide
measure
of
discretion..
-
The
authority’s
means
of
control
over
building
and
land
use
are
also
derived
from
statute.
’
Spanish
municipal
planning
procedures,
then,
would
seem
to
comply
with
the ’
legality’
requirement.
There
is
no
question
that
the
absolute
enjoyment
of
estates
in
land
has
been
abridged
by
the
controls
over
use
provided
by
the
law.
This
has
led
to
allegations
that,
in
this
case,
the
law
has
turned
from
a
symbol
of
freedom
into
a
tool
of
repression,
denying
the
citizen
his
rights.
Be
that
as
it
may,
the
law
is
still
the
law...
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