Pub Date : 2017-05-09DOI: 10.1108/IJLBE-09-2016-0015
H. Moreno, Núria Lambea Llop, Rosa Maria Garcia Teruel
Purpose The global economic crisis and the housing bubble meltdown have had a significant impact on the Spanish property market. As a result, the homeownership–tenancy dichotomy has become a matter of discussion, and efforts are made to discover formulas that provide affordable, stable and flexible housing access. Taking this background into account, the Catalan lawmaker has implemented the so-called “intermediate tenures” (temporal ownership and shared ownership) into the Catalan Civil Code, which are conceived as a middle ground between ownership and renting. This paper aims to explores how these “intermediate tenures” work. Design/methodology/approach These tenures are conceived as a middle ground between ownership and renting and may be used for a variety of purposes. As the Catalan lawmaker has fragmented the right of ownership on the basis of English law, which is a great breakthrough regarding the long-standing conception of the right of ownership in continental legal systems, the paper explores how these “intermediate tenures” work, as regulated in Act 19/2015, in a comparative perspective. Findings The paper offers an overview of how these “intermediate tenures” are regulated and which are the problems arising from legislation and the potential uses. Originality/value As the temporal ownership confers on the titleholder the domain of an asset for a specifically defined period of time, it does not conform to the right of ownership as it is currently conceived in continental European legal systems, given that it is based on the English leasehold; shared ownership confers on the buyer a property share in the thing, entitling him to the full possession, use and exclusive enjoyment of the thing and to gradually acquire the remaining share. Both are based on the English shared ownership scheme and leasehold, and are legal transplants worth to be analysed.
{"title":"Shared ownership and temporal ownership in Catalan law","authors":"H. Moreno, Núria Lambea Llop, Rosa Maria Garcia Teruel","doi":"10.1108/IJLBE-09-2016-0015","DOIUrl":"https://doi.org/10.1108/IJLBE-09-2016-0015","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000The global economic crisis and the housing bubble meltdown have had a significant impact on the Spanish property market. As a result, the homeownership–tenancy dichotomy has become a matter of discussion, and efforts are made to discover formulas that provide affordable, stable and flexible housing access. Taking this background into account, the Catalan lawmaker has implemented the so-called “intermediate tenures” (temporal ownership and shared ownership) into the Catalan Civil Code, which are conceived as a middle ground between ownership and renting. This paper aims to explores how these “intermediate tenures” work. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000These tenures are conceived as a middle ground between ownership and renting and may be used for a variety of purposes. As the Catalan lawmaker has fragmented the right of ownership on the basis of English law, which is a great breakthrough regarding the long-standing conception of the right of ownership in continental legal systems, the paper explores how these “intermediate tenures” work, as regulated in Act 19/2015, in a comparative perspective. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000The paper offers an overview of how these “intermediate tenures” are regulated and which are the problems arising from legislation and the potential uses. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000As the temporal ownership confers on the titleholder the domain of an asset for a specifically defined period of time, it does not conform to the right of ownership as it is currently conceived in continental European legal systems, given that it is based on the English leasehold; shared ownership confers on the buyer a property share in the thing, entitling him to the full possession, use and exclusive enjoyment of the thing and to gradually acquire the remaining share. Both are based on the English shared ownership scheme and leasehold, and are legal transplants worth to be analysed.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"2675 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116167170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-05-09DOI: 10.1108/IJLBE-10-2016-0016
M. Strack
Purpose The purpose of this paper is to describe and critically review the new tenure arrangements that have been established to recognise Māori relationship with land (Te Urewera) and river (Whanganui River), to ascribe them their own legal personality. Design/methodology/approach The paper describes the development of the legal arrangements in Aotearoa, New Zealand, for Treaty settlements with Māori, and documents the various forms of rights and divisions of space that are changing the face of property institutions. Findings The paper finds that the acknowledgement of land and nature as having their own legal status and, therefore, owned by themselves is bold and innovative, but is still not a full recognition of customary tenure. The recognition of rivers as indivisible entities is stated but not clearly implemented. Practical implications Māori interests and authority are now more clearly articulated, and Māori may expect to be able to engage in customary practices and restore their traditional relationships with their land more explicitly. Social implications The avoidance of an ownership regime has tempered public concerns about issues such as ownership of flowing water. The formalities are still being completed in the case of the Whanganui River, so the full implications are yet to be felt. Originality/value This is an innovative development in tenure arrangements seen by some as providing for the rights of nature, but actually responding to the rights of the Indigenous people. This article may inform others about possible models for more diverse tenure arrangements elsewhere.
{"title":"Land and rivers can own themselves","authors":"M. Strack","doi":"10.1108/IJLBE-10-2016-0016","DOIUrl":"https://doi.org/10.1108/IJLBE-10-2016-0016","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000The purpose of this paper is to describe and critically review the new tenure arrangements that have been established to recognise Māori relationship with land (Te Urewera) and river (Whanganui River), to ascribe them their own legal personality. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000The paper describes the development of the legal arrangements in Aotearoa, New Zealand, for Treaty settlements with Māori, and documents the various forms of rights and divisions of space that are changing the face of property institutions. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000The paper finds that the acknowledgement of land and nature as having their own legal status and, therefore, owned by themselves is bold and innovative, but is still not a full recognition of customary tenure. The recognition of rivers as indivisible entities is stated but not clearly implemented. \u0000 \u0000 \u0000 \u0000 \u0000Practical implications \u0000 \u0000 \u0000 \u0000 \u0000Māori interests and authority are now more clearly articulated, and Māori may expect to be able to engage in customary practices and restore their traditional relationships with their land more explicitly. \u0000 \u0000 \u0000 \u0000 \u0000Social implications \u0000 \u0000 \u0000 \u0000 \u0000The avoidance of an ownership regime has tempered public concerns about issues such as ownership of flowing water. The formalities are still being completed in the case of the Whanganui River, so the full implications are yet to be felt. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000This is an innovative development in tenure arrangements seen by some as providing for the rights of nature, but actually responding to the rights of the Indigenous people. This article may inform others about possible models for more diverse tenure arrangements elsewhere.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130719519","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-05-09DOI: 10.1108/IJLBE-09-2016-0013
E. Walsh
Purpose This paper aims to compare the law with regard to private property rights and restrictions and public controls in England and the USA, and the theoretical debates that surround them, to understand whether the private land use controls of nuisance and restrictive covenants could have a greater role to play or the public law system of planning is the best way to manage land. Design/methodology/approach This paper starts by summarising and comparing, firstly, the private laws of nuisance and restrictive covenants and then laws relating public planning, zoning and takings in England and the USA. It then reviews theoretical approaches taken in both jurisdictions to land use restrictions. Findings The paper concludes that private land use restrictions can only play a limited role in land management in England. Scarcity and cost of available housing necessitate a mechanism by which the state can intervene to remove or modify restrictions to enable alteration and development. The structure of freehold ownership in England and the low take-up of Commonhold as an alternative tenure mean that expansion in the use of private land use restrictions to control the use of land is unfeasible. Originality/value The value of this paper is that it seeks to provide insight into the contested relationship between private and public law and the relationship between property law and planning.
{"title":"Public versus private land use controls in England and the USA","authors":"E. Walsh","doi":"10.1108/IJLBE-09-2016-0013","DOIUrl":"https://doi.org/10.1108/IJLBE-09-2016-0013","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000This paper aims to compare the law with regard to private property rights and restrictions and public controls in England and the USA, and the theoretical debates that surround them, to understand whether the private land use controls of nuisance and restrictive covenants could have a greater role to play or the public law system of planning is the best way to manage land. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000This paper starts by summarising and comparing, firstly, the private laws of nuisance and restrictive covenants and then laws relating public planning, zoning and takings in England and the USA. It then reviews theoretical approaches taken in both jurisdictions to land use restrictions. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000The paper concludes that private land use restrictions can only play a limited role in land management in England. Scarcity and cost of available housing necessitate a mechanism by which the state can intervene to remove or modify restrictions to enable alteration and development. The structure of freehold ownership in England and the low take-up of Commonhold as an alternative tenure mean that expansion in the use of private land use restrictions to control the use of land is unfeasible. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000The value of this paper is that it seeks to provide insight into the contested relationship between private and public law and the relationship between property law and planning.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"50 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133746549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-05-09DOI: 10.1108/IJLBE-09-2016-0012
Michael W. Poulsom
Purpose The purpose of this paper is to explore how S.62 LPA 1925 and its equivalent provisions in other jurisdictions have been interpreted as having the capacity to create new easements. It is intended to identify that the theoretical justification for this interpretation can be viewed as flawed, and that its practical implications are unsatisfactory. It intends to restate the need for reform and to challenge arguments that this interpretation is correct and justified. Design/methodology/approach This paper examines and analyses the origins of the principle that S.62 LPA 1925 can create new legal rights, consider similar provisions from other jurisdictions, examine recent attempts to justify the creative effect of the section and offer observations on proposals for reform. Findings It is found that the ability of S.62 LPA 1925 to create legal easements from precarious rights has been replicated in many jurisdictions, has been widely criticised as both incorrect in principle and problematic in practice and has been the subject of well-reasoned and workable proposals for reform for more than 40 years. Originality/value From both theoretical and property practitioner perspectives, this paper highlights the lack of justification for the principle that S.62 LPA can create easements from precarious rights, challenges the arguments for retaining the principle and offers practical proposals drawn from several jurisdictions as to how the section and its equivalent provisions abroad could be reformed.
{"title":"S.62 LPA 1925: restating the case for reform","authors":"Michael W. Poulsom","doi":"10.1108/IJLBE-09-2016-0012","DOIUrl":"https://doi.org/10.1108/IJLBE-09-2016-0012","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000The purpose of this paper is to explore how S.62 LPA 1925 and its equivalent provisions in other jurisdictions have been interpreted as having the capacity to create new easements. It is intended to identify that the theoretical justification for this interpretation can be viewed as flawed, and that its practical implications are unsatisfactory. It intends to restate the need for reform and to challenge arguments that this interpretation is correct and justified. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000This paper examines and analyses the origins of the principle that S.62 LPA 1925 can create new legal rights, consider similar provisions from other jurisdictions, examine recent attempts to justify the creative effect of the section and offer observations on proposals for reform. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000It is found that the ability of S.62 LPA 1925 to create legal easements from precarious rights has been replicated in many jurisdictions, has been widely criticised as both incorrect in principle and problematic in practice and has been the subject of well-reasoned and workable proposals for reform for more than 40 years. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000From both theoretical and property practitioner perspectives, this paper highlights the lack of justification for the principle that S.62 LPA can create easements from precarious rights, challenges the arguments for retaining the principle and offers practical proposals drawn from several jurisdictions as to how the section and its equivalent provisions abroad could be reformed.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124049804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-27DOI: 10.1108/IJLBE-06-2016-0008
P. Williams, Angelique Williams
Purpose Since 1992, all levels of government in Australia have pursued a policy of ecologically sustainable development (ESD). Crafted in response to the World Commission on Environment and Development 1987 report Our Common Future (the Brundtland Report), the principles contained in the Australian Government’s National Strategy for Ecologically Sustainable Development have been progressively implemented at the national, state and local levels of government. The purpose of this paper is not only to track the implementation of these principles, through both policy and law in Australia, but also to highlight recent challenges to the concept of ESD using the state of New South Wales (NSW) as a case study. Design/methodology/approach Beginning with a description of the Australian concept of ESD, this paper first examines the implementation of ESD through both policy and legislation at the national level. The state of NSW is then selected for more detailed assessment, with examples of key State government legislation and court decisions considered. Equal emphasis is placed on both the achievements in ESD policy development and implementation through legislation, statutory planning procedures and litigation, as well as the challenges that have confronted the pursuit of ESD in NSW. Findings Since its introduction in 1992, the concept of ESD has matured into a key guiding principle for development and environmental decision-making in Australia. However, in recent years, ESD has been the target of significant challenge by some areas of government. Noteworthy among these challenges has been a failed attempt by the NSW Government to introduce new planning legislation which sought to replace ESD with the arguably weaker concept of “sustainable development”. Apparent from this episode is strong community and institutional support for robust sustainability provisions “manifested through ESD” within that State’s statutory planning system. Originality/value This paper provides an overview of the implementation of ESD in Australia within both a broader international context of sustainable development and specific instances of domestic interpretation and application. It extends this analysis by examining recent public policy attempts to reposition sustainability in the context of statutory planning system reform in NSW.
{"title":"Sustainability and planning law in Australia: achievements and challenges","authors":"P. Williams, Angelique Williams","doi":"10.1108/IJLBE-06-2016-0008","DOIUrl":"https://doi.org/10.1108/IJLBE-06-2016-0008","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000Since 1992, all levels of government in Australia have pursued a policy of ecologically sustainable development (ESD). Crafted in response to the World Commission on Environment and Development 1987 report Our Common Future (the Brundtland Report), the principles contained in the Australian Government’s National Strategy for Ecologically Sustainable Development have been progressively implemented at the national, state and local levels of government. The purpose of this paper is not only to track the implementation of these principles, through both policy and law in Australia, but also to highlight recent challenges to the concept of ESD using the state of New South Wales (NSW) as a case study. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000Beginning with a description of the Australian concept of ESD, this paper first examines the implementation of ESD through both policy and legislation at the national level. The state of NSW is then selected for more detailed assessment, with examples of key State government legislation and court decisions considered. Equal emphasis is placed on both the achievements in ESD policy development and implementation through legislation, statutory planning procedures and litigation, as well as the challenges that have confronted the pursuit of ESD in NSW. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000Since its introduction in 1992, the concept of ESD has matured into a key guiding principle for development and environmental decision-making in Australia. However, in recent years, ESD has been the target of significant challenge by some areas of government. Noteworthy among these challenges has been a failed attempt by the NSW Government to introduce new planning legislation which sought to replace ESD with the arguably weaker concept of “sustainable development”. Apparent from this episode is strong community and institutional support for robust sustainability provisions “manifested through ESD” within that State’s statutory planning system. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000This paper provides an overview of the implementation of ESD in Australia within both a broader international context of sustainable development and specific instances of domestic interpretation and application. It extends this analysis by examining recent public policy attempts to reposition sustainability in the context of statutory planning system reform in NSW.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128574474","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-27DOI: 10.1108/IJLBE-01-2016-0001
R. Leshinsky
Purpose The purpose for this paper is to share jurisdictional knowledge on local law-making theory and praxis, an area of law not well represented in the literature despite its involvement in day-to-day life. Design/methodology/approach The paper not only shares knowledge about the local law-making process in Melbourne, Australia, but also explores attitudes to local law-making gathered through semi-structured interviews from a sample of relevant stakeholders. Findings The paper reports on findings from a study undertaken in Melbourne, Australia. Stakeholder perceptions and attitudes were canvassed regarding local law-making in the areas of land use planning and waste management. Overall, stakeholders were satisfied that Melbourne is a robust jurisdiction offering a fair and transparent local law-making system, but they see scope for more public participation. Research limitations/implications The findings suggest that even though the state of Victoria offers a fair and transparent system of local law-making, there is still significant scope for more meaningful involvement from the community, as well as space for more effective enforcement of local laws. The stage is set for greater cross-jurisdictional reciprocal learning about local law-making between cities. Originality/value This paper offers meaningful and utilitarian insight for policy and law makers, academics and built environment professionals from relevant stakeholders on the operation and transparency of local law-making.
{"title":"Touching on transparency in city local law making: Experiences from waking up each day in City of Melbourne, Australia","authors":"R. Leshinsky","doi":"10.1108/IJLBE-01-2016-0001","DOIUrl":"https://doi.org/10.1108/IJLBE-01-2016-0001","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000The purpose for this paper is to share jurisdictional knowledge on local law-making theory and praxis, an area of law not well represented in the literature despite its involvement in day-to-day life. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000The paper not only shares knowledge about the local law-making process in Melbourne, Australia, but also explores attitudes to local law-making gathered through semi-structured interviews from a sample of relevant stakeholders. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000The paper reports on findings from a study undertaken in Melbourne, Australia. Stakeholder perceptions and attitudes were canvassed regarding local law-making in the areas of land use planning and waste management. Overall, stakeholders were satisfied that Melbourne is a robust jurisdiction offering a fair and transparent local law-making system, but they see scope for more public participation. \u0000 \u0000 \u0000 \u0000 \u0000Research limitations/implications \u0000 \u0000 \u0000 \u0000 \u0000The findings suggest that even though the state of Victoria offers a fair and transparent system of local law-making, there is still significant scope for more meaningful involvement from the community, as well as space for more effective enforcement of local laws. The stage is set for greater cross-jurisdictional reciprocal learning about local law-making between cities. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000This paper offers meaningful and utilitarian insight for policy and law makers, academics and built environment professionals from relevant stakeholders on the operation and transparency of local law-making.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131987572","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-27DOI: 10.1108/IJLBE-06-2016-0007
Blanca Mamutse
Purpose: The paper examines the question whether legislative reform is the ‘silver bullet’ for the problems generated by the failure of a company which is exposed to claims arising from the non-fulfilment of its environmental obligations. The limited capacity of the United Kingdom insolvency regime to facilitate the fulfilment of a debtor company's environmental obligations is often illustrated with reference to some significant judicial decisions. However, no real picture has emerged of the frequency with which these issues arise, based on which firm proposals for reform could be advanced. This paper argues that greater regard should be paid to existing mechanisms which provide a means of enabling insolvency risks to be managed or minimised, as these point towards the scope for these issues to be resolved through the environmental protection framework rather than through reliance on company and/or insolvency law. Design/methodology/approach: Research was conducted into the statutory and non-statutory regulations (such as statutory guidance), and case law principles, which underpin the treatment of the claims against an insolvent (or potentially insolvent) company resulting from its environmental activities. This included research into policies which have a bearing on this area, developed through governmental and civic consultations and studies. Findings: The paper concludes that the likelihood of a case for legislative reform being made out is weak, and the focus should accordingly shift to strengthening the effectiveness of existing law, policy and practice. Originality/value: This paper is the first (in the United Kingdom context) to challenge the perceived need for reform in this area, engaging with recent examples of such corporate failures and the impact of recent legislative and policy developments.
{"title":"Environmental liabilities in insolvency – an area ripe for reform?","authors":"Blanca Mamutse","doi":"10.1108/IJLBE-06-2016-0007","DOIUrl":"https://doi.org/10.1108/IJLBE-06-2016-0007","url":null,"abstract":"Purpose: The paper examines the question whether legislative reform is the ‘silver bullet’ for the problems generated by the failure of a company which is exposed to claims arising from the non-fulfilment of its environmental obligations. The limited capacity of the United Kingdom insolvency regime to facilitate the fulfilment of a debtor company's environmental obligations is often illustrated with reference to some significant judicial decisions. However, no real picture has emerged of the frequency with which these issues arise, based on which firm proposals for reform could be advanced. This paper argues that greater regard should be paid to existing mechanisms which provide a means of enabling insolvency risks to be managed or minimised, as these point towards the scope for these issues to be resolved through the environmental protection framework rather than through reliance on company and/or insolvency law. Design/methodology/approach: Research was conducted into the statutory and non-statutory regulations (such as statutory guidance), and case law principles, which underpin the treatment of the claims against an insolvent (or potentially insolvent) company resulting from its environmental activities. This included research into policies which have a bearing on this area, developed through governmental and civic consultations and studies. Findings: The paper concludes that the likelihood of a case for legislative reform being made out is weak, and the focus should accordingly shift to strengthening the effectiveness of existing law, policy and practice. Originality/value: This paper is the first (in the United Kingdom context) to challenge the perceived need for reform in this area, engaging with recent examples of such corporate failures and the impact of recent legislative and policy developments.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"25 9","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131805686","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-27DOI: 10.1108/IJLBE-12-2015-0021
Haytham Besaiso, P. Fenn, M. Emsley
Purpose This paper aims to investigate the use of alternative dispute resolution (ADR) techniques in the Palestinian construction industry. It also seeks to identify some of the drivers and barriers to the greater use of particular ADR techniques. Design/methodology/approach In this study, 12 semi-structured in-depth interviews were conducted with senior ADR practitioners comprising nine construction professionals, two eminent lawyers and a retired judge. Findings This research has explored the practices of mediation, adjudication and expert evaluation in the Palestinian construction industry and has identified deficiencies in implementation and the roles that the cultural and legal contexts play in this. The research findings cast some doubt on the results of previous studies asserting the widespread use of construction mediation. Originality/value This paper contributes to knowledge by bringing new insight into the practice of particular ADR techniques in the Palestinian construction industry and in identifying challenges to the more widespread adoption of these ADR techniques. This paper exposes the myth of the popularity of construction mediation and the dilemma to the use of mediation brought by the social construction and conceptualisation of the mediator’s role.
{"title":"Alternative Dispute Resolution in Palestine: The myth and dilemma of construction mediation?","authors":"Haytham Besaiso, P. Fenn, M. Emsley","doi":"10.1108/IJLBE-12-2015-0021","DOIUrl":"https://doi.org/10.1108/IJLBE-12-2015-0021","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000This paper aims to investigate the use of alternative dispute resolution (ADR) techniques in the Palestinian construction industry. It also seeks to identify some of the drivers and barriers to the greater use of particular ADR techniques. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000In this study, 12 semi-structured in-depth interviews were conducted with senior ADR practitioners comprising nine construction professionals, two eminent lawyers and a retired judge. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000This research has explored the practices of mediation, adjudication and expert evaluation in the Palestinian construction industry and has identified deficiencies in implementation and the roles that the cultural and legal contexts play in this. The research findings cast some doubt on the results of previous studies asserting the widespread use of construction mediation. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000This paper contributes to knowledge by bringing new insight into the practice of particular ADR techniques in the Palestinian construction industry and in identifying challenges to the more widespread adoption of these ADR techniques. This paper exposes the myth of the popularity of construction mediation and the dilemma to the use of mediation brought by the social construction and conceptualisation of the mediator’s role.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131616120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-27DOI: 10.1108/IJLBE-11-2015-0019
L. Brown
Purpose The purpose of this paper is to investigate how the remediation of contaminated land has been damaged, perhaps immeasurably, in a period of devastating and crushing austerity. Design/methodology/approach A legal doctrinal and regulatory analysis of the contaminated land regime under Part 2A of the Environmental Protection Act (EPA) 1990 was used to investigate the extent to which austerity changes have affected future contaminated land identification and remediation. Findings Austerity changes have impacted upon Part 2A of the EPA 1990, the planning system and development incentives. The recent changes are going to contribute to the problem of the under-resourcing of local authorities and are likely to reduce voluntary remediation by developers. As a result, future contaminated land clean-up is going to decrease. Originality/value Originality/value is assured because, as far as the author is aware, there is no other literature in this research area dealing specifically with the coalition’s adverse impact on Part 2A; this paper fills the knowledge gap that existed in the research field.
{"title":"The contaminated land regime and austerity","authors":"L. Brown","doi":"10.1108/IJLBE-11-2015-0019","DOIUrl":"https://doi.org/10.1108/IJLBE-11-2015-0019","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000The purpose of this paper is to investigate how the remediation of contaminated land has been damaged, perhaps immeasurably, in a period of devastating and crushing austerity. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000A legal doctrinal and regulatory analysis of the contaminated land regime under Part 2A of the Environmental Protection Act (EPA) 1990 was used to investigate the extent to which austerity changes have affected future contaminated land identification and remediation. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000Austerity changes have impacted upon Part 2A of the EPA 1990, the planning system and development incentives. The recent changes are going to contribute to the problem of the under-resourcing of local authorities and are likely to reduce voluntary remediation by developers. As a result, future contaminated land clean-up is going to decrease. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000Originality/value is assured because, as far as the author is aware, there is no other literature in this research area dealing specifically with the coalition’s adverse impact on Part 2A; this paper fills the knowledge gap that existed in the research field.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132592361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-20DOI: 10.1108/IJLBE-09-2015-0014
Ian Trushell, B. Clark, A. Agapiou
Purpose This paper aims to address the knowledge gap, by exploring the attitudes and experiences of mediators relative to the process, based on research with practitioners in Scotland. Recent research on construction mediation in Scotland has focused exclusively on construction lawyers’ and contractors’ interaction with the process, without reference to the views of mediators themselves. Design/methodology/approach The entire research design of this research was constrained by the small population of practising Scottish construction mediators (thought to be circa. 20 in 2013). The design encompassed a literature search, participant interviews, questionnaire survey and qualitative and quantitative data. The research questionnaire was designed to capture data related to the biography, training and experience of those interviewed before their opinion on the benefits of, and problems with, mediation were sought. Findings The results indicate that mediations failed because of ignorance, intransigence and over-confidence of the parties. Barriers to greater use of mediation in construction disputes were identified as the lack of skilled, experienced mediators, the continued popularity of adjudication and both lawyer and party resistance. Notwithstanding the English experience, Scottish mediators gave little support for mandating disputants to mediate before proceeding with court action. A surprising number were willing to give an evaluation of the dispute rather than merely facilitating a settlement. Originality/value There are few experienced construction mediators in Scotland, and the continued popularity of statutory adjudication is a significant barrier. Mediators believe that clients’ negative perceptions of mediation are a bigger barrier than lawyers’ perceptions. The mediators wanted judicial encouragement for mediation backed by some legislative support, mediation clauses incorporated into construction contracts and government adoption of mediation as the default process in its own contracts.
{"title":"Construction mediation in Scotland : an investigation into attitudes and experiences of mediation practitioners","authors":"Ian Trushell, B. Clark, A. Agapiou","doi":"10.1108/IJLBE-09-2015-0014","DOIUrl":"https://doi.org/10.1108/IJLBE-09-2015-0014","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000 \u0000This paper aims to address the knowledge gap, by exploring the attitudes and experiences of mediators relative to the process, based on research with practitioners in Scotland. Recent research on construction mediation in Scotland has focused exclusively on construction lawyers’ and contractors’ interaction with the process, without reference to the views of mediators themselves. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000 \u0000The entire research design of this research was constrained by the small population of practising Scottish construction mediators (thought to be circa. 20 in 2013). The design encompassed a literature search, participant interviews, questionnaire survey and qualitative and quantitative data. The research questionnaire was designed to capture data related to the biography, training and experience of those interviewed before their opinion on the benefits of, and problems with, mediation were sought. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000 \u0000The results indicate that mediations failed because of ignorance, intransigence and over-confidence of the parties. Barriers to greater use of mediation in construction disputes were identified as the lack of skilled, experienced mediators, the continued popularity of adjudication and both lawyer and party resistance. Notwithstanding the English experience, Scottish mediators gave little support for mandating disputants to mediate before proceeding with court action. A surprising number were willing to give an evaluation of the dispute rather than merely facilitating a settlement. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000 \u0000There are few experienced construction mediators in Scotland, and the continued popularity of statutory adjudication is a significant barrier. Mediators believe that clients’ negative perceptions of mediation are a bigger barrier than lawyers’ perceptions. The mediators wanted judicial encouragement for mediation backed by some legislative support, mediation clauses incorporated into construction contracts and government adoption of mediation as the default process in its own contracts.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130767693","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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