Pub Date : 2023-11-09DOI: 10.1108/jppel-01-2023-0003
Tom Spencer
Purpose This paper aims to use doctrinal legal investigative methods combined with economic analysis to investigate the efficacy of the Law. Design/methodology/approach The purpose of this paper is to explain the inherent absurdity in the modern law of town and village greens (TVGs). The author wishes to show that the public understanding of what constitutes a green worth protecting is incomparable with how the Law currently operates, instead providing a crude vehicle to prevent development. Findings Applying an efficiency maximisation framework to the law of TVGs the Law fails to protect land worth protecting, as well as prevents allocatively efficient bargaining from taking place. Research limitations/implications This research has not presented empirical evidence to suggest the extent of the damage identified. This is a separate question to the marginal impacts of the damage. Originality/value A Law and Economics analysis of TVG Law in England and Wales has not been attempted before.
{"title":"The absurdity of the modern law of town and village greens","authors":"Tom Spencer","doi":"10.1108/jppel-01-2023-0003","DOIUrl":"https://doi.org/10.1108/jppel-01-2023-0003","url":null,"abstract":"Purpose This paper aims to use doctrinal legal investigative methods combined with economic analysis to investigate the efficacy of the Law. Design/methodology/approach The purpose of this paper is to explain the inherent absurdity in the modern law of town and village greens (TVGs). The author wishes to show that the public understanding of what constitutes a green worth protecting is incomparable with how the Law currently operates, instead providing a crude vehicle to prevent development. Findings Applying an efficiency maximisation framework to the law of TVGs the Law fails to protect land worth protecting, as well as prevents allocatively efficient bargaining from taking place. Research limitations/implications This research has not presented empirical evidence to suggest the extent of the damage identified. This is a separate question to the marginal impacts of the damage. Originality/value A Law and Economics analysis of TVG Law in England and Wales has not been attempted before.","PeriodicalId":41184,"journal":{"name":"Journal of Property Planning and Environmental Law","volume":" 8","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135192530","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 : 2023-11-02DOI: 10.1108/jppel-05-2023-0021
Faizal Kurniawan, Xavier Nugraha, Julienna Hartono, Angelica Milano Aryani Wibisono
Purpose This paper aims to analyze regulation regarding sustainable construction procurement in Southeast Asia and provide a reconstruction of regulation regarding the sustainable construction procurement to prevent land degradation. Design/methodology/approach This was done through legal research methods, mainly historical and systematical interpretation. The approaches used in this paper are the conceptual approach, statute approach and comparative approach. Findings By analyzing the related legal norms, it can be understood that many nations in Southeast Asia do not have regulation regarding sustainable construction procurement. Between Indonesia, Singapore and Thailand, only Indonesia has a ministrial regulation that provides general norms regarding sustainable construction procurement. Regarding the reconstruction of regulation, the bare minimum standards consist of principle, indicators, pillar, the phases of the procurement, law enforcement, both preventive and repressive, and sustainable procurement committee. Research limitations/implications This research is limited to regulation in Southeast Asian region. By analyzing the regulation, this paper will provide a reconstruction of regulations regarding sustainable construction procurement that will act as an ground rules. Having the same ground rules will create synergies between countries in Southeast Asia to apply the principles of sustainable procurement and move together toward to prevent land degradation. Originality/value To the best of the authors’ knowledge, this paper is the first systematic legal research that compares regulations from three nations in Southeast Asia regarding sustainable construction procurement and also the first paper to provide reconstruction of regulation regarding sustainable construction procurement to prevent land degradation.
{"title":"Legal framework of sustainable construction procurement to prevent land degradation: comparison between Indonesia, Singapore and Thailand","authors":"Faizal Kurniawan, Xavier Nugraha, Julienna Hartono, Angelica Milano Aryani Wibisono","doi":"10.1108/jppel-05-2023-0021","DOIUrl":"https://doi.org/10.1108/jppel-05-2023-0021","url":null,"abstract":"Purpose This paper aims to analyze regulation regarding sustainable construction procurement in Southeast Asia and provide a reconstruction of regulation regarding the sustainable construction procurement to prevent land degradation. Design/methodology/approach This was done through legal research methods, mainly historical and systematical interpretation. The approaches used in this paper are the conceptual approach, statute approach and comparative approach. Findings By analyzing the related legal norms, it can be understood that many nations in Southeast Asia do not have regulation regarding sustainable construction procurement. Between Indonesia, Singapore and Thailand, only Indonesia has a ministrial regulation that provides general norms regarding sustainable construction procurement. Regarding the reconstruction of regulation, the bare minimum standards consist of principle, indicators, pillar, the phases of the procurement, law enforcement, both preventive and repressive, and sustainable procurement committee. Research limitations/implications This research is limited to regulation in Southeast Asian region. By analyzing the regulation, this paper will provide a reconstruction of regulations regarding sustainable construction procurement that will act as an ground rules. Having the same ground rules will create synergies between countries in Southeast Asia to apply the principles of sustainable procurement and move together toward to prevent land degradation. Originality/value To the best of the authors’ knowledge, this paper is the first systematic legal research that compares regulations from three nations in Southeast Asia regarding sustainable construction procurement and also the first paper to provide reconstruction of regulation regarding sustainable construction procurement to prevent land degradation.","PeriodicalId":41184,"journal":{"name":"Journal of Property Planning and Environmental Law","volume":"27 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135875332","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 : 2023-10-09DOI: 10.1108/jppel-07-2023-0035
Gerson Barboza De Las Casas
Purpose In pursuit of affordable housing, the Sustainable Urban Development Act of 2021 contains regulations for community land trusts (CLTs) in Peru. This study aims to assess whether the CLT model can be an effective tool for low-income housing generation in the Peruvian context. Design/methodology/approach This study draws upon information collected from qualitative research and official statistical data to identify the main problems in the Peruvian housing sector. The authors gathered evidence from specialised literature to examine the benefits and drawbacks of CLT implementation and functionality as experienced in the USA, England and Canada in contrast to Puerto Rico and Brazil. To assess the potential effectiveness of the CLT model in Peru, the results from the examination of both groups of countries are analysed and contrasted with the evidence from the Peruvian experience. Findings Through micro-scale interventions in places with a consolidated sense of community, the CLT model can be an effective tool for affordable housing generation. However, no robust evidence suggests that the CLT model could be an effective tool for large-scale intervention in cities with disorganised and accelerated growth. Moreover, the level of housing affordability defined by the CLT model may be insufficient for people from the lowest-income percentiles. Originality/value Peruvian CLT adaptation will require a shift in individual property mind-sets. Furthermore, the model should be enhanced by governmental support through public subsidies and backed by mortgage loans and land grant programmes.
{"title":"Can community land trust models work in Peru? Researching community-based land tenure models for affordable housing","authors":"Gerson Barboza De Las Casas","doi":"10.1108/jppel-07-2023-0035","DOIUrl":"https://doi.org/10.1108/jppel-07-2023-0035","url":null,"abstract":"Purpose In pursuit of affordable housing, the Sustainable Urban Development Act of 2021 contains regulations for community land trusts (CLTs) in Peru. This study aims to assess whether the CLT model can be an effective tool for low-income housing generation in the Peruvian context. Design/methodology/approach This study draws upon information collected from qualitative research and official statistical data to identify the main problems in the Peruvian housing sector. The authors gathered evidence from specialised literature to examine the benefits and drawbacks of CLT implementation and functionality as experienced in the USA, England and Canada in contrast to Puerto Rico and Brazil. To assess the potential effectiveness of the CLT model in Peru, the results from the examination of both groups of countries are analysed and contrasted with the evidence from the Peruvian experience. Findings Through micro-scale interventions in places with a consolidated sense of community, the CLT model can be an effective tool for affordable housing generation. However, no robust evidence suggests that the CLT model could be an effective tool for large-scale intervention in cities with disorganised and accelerated growth. Moreover, the level of housing affordability defined by the CLT model may be insufficient for people from the lowest-income percentiles. Originality/value Peruvian CLT adaptation will require a shift in individual property mind-sets. Furthermore, the model should be enhanced by governmental support through public subsidies and backed by mortgage loans and land grant programmes.","PeriodicalId":41184,"journal":{"name":"Journal of Property Planning and Environmental Law","volume":"2015 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135043835","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 : 2023-09-28DOI: 10.1108/jppel-05-2023-0024
Jed Meers
Purpose Much like their residential counterparts, commercial leases have a reputation problem. Although often derided as painfully dull and mundane documents, residential leases have begun to be interrogated by socio-legal scholarship with renewed interest. This paper aims to continue this line of work in the commercial context through a detailed examination of a widespread form of leasehold in the pub sector: the “tied lease”. Design/methodology/approach The paper draws on interviews with 14 publicans and archival research. Findings The author argues that the lease is a decisive actor in determining the balance of power between publicans and pub-owning companies and shaping the physical environment of pubs in the UK. Originality/value The author’s broader agenda is to argue that socio-legal scholars’ renewed interest in leases should not be confined to the residential context: commercial leases warrant far greater socio-legal scholarly attention.
{"title":"“From the lease’s point of view”: the role of tied leases in shaping the UK pub sector","authors":"Jed Meers","doi":"10.1108/jppel-05-2023-0024","DOIUrl":"https://doi.org/10.1108/jppel-05-2023-0024","url":null,"abstract":"Purpose Much like their residential counterparts, commercial leases have a reputation problem. Although often derided as painfully dull and mundane documents, residential leases have begun to be interrogated by socio-legal scholarship with renewed interest. This paper aims to continue this line of work in the commercial context through a detailed examination of a widespread form of leasehold in the pub sector: the “tied lease”. Design/methodology/approach The paper draws on interviews with 14 publicans and archival research. Findings The author argues that the lease is a decisive actor in determining the balance of power between publicans and pub-owning companies and shaping the physical environment of pubs in the UK. Originality/value The author’s broader agenda is to argue that socio-legal scholars’ renewed interest in leases should not be confined to the residential context: commercial leases warrant far greater socio-legal scholarly attention.","PeriodicalId":41184,"journal":{"name":"Journal of Property Planning and Environmental Law","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135342850","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 : 2023-09-26DOI: 10.1108/jppel-04-2023-0016
Hazel Easthope, Laura Crommelin, Charles Gillon, Simon Pinnegar, Kristian Ruming, Sha Liu
Purpose High-density development requires large land parcels, but fragmented land ownership can impede redevelopment. While earlier compact city development in Sydney occurred on large-scale brownfield sites, redeveloping and re-amalgamating older strata-titled properties is now integral to further densification. The purpose of this study is to examine collective sales activity in one Sydney suburb where multiple strata-titled redevelopments and re-amalgamations have been attempted. The authors explore how owners navigate the process of selling collectively, focusing on their experience of legislation introduced to facilitate this process, the Strata Schemes Development Act 2015 [New South Wales (NSW)]. Design/methodology/approach By reviewing sales listings, development applications and media coverage, and interviewing owners, lawyers and estate agents, the authors map out collective sale activity in a case study area in Sydney’s northwest. Findings Strata collective sales are slow and difficult to complete, even when planning and market drivers align. Owners find the Strata Scheme Development Act 2015 (NSW) difficult to navigate and it has not prevented strategic blocking attempts by competing developers. The long timelines required to organise collective sales can result in failure if the market shifts in the interim. Nonetheless, owners remain interested in selling collectively. Originality/value This case study is important for understanding the barriers to redevelopment to achieve a more compact city. It highlights lessons for other jurisdictions considering similar legislative changes. It also suggests that legislative change alone is insufficient to resolve the planning challenges created by hyper-fragmentation of land through strata-title development.
高密度发展需要大片土地，但分散的土地所有权会阻碍重建。虽然悉尼早期的紧凑型城市开发发生在大规模的棕地，但重新开发和重新合并旧的地层产权现在是进一步致密化不可或缺的一部分。本研究的目的是研究悉尼郊区的集体销售活动，该地区尝试了多个分层的重新开发和重新合并。作者探讨了业主如何在集体销售过程中进行导航，重点介绍了他们为促进这一过程而引入的立法经验，即《2015年分层计划发展法案》[新南威尔士州(NSW)]。通过审查销售清单、开发申请和媒体报道，并采访业主、律师和房地产经纪人，作者在悉尼西北部的一个案例研究区域绘制了集体销售活动。Strata集体销售缓慢且难以完成，即使在计划和市场驱动因素一致的情况下也是如此。业主发现《2015年Strata Scheme Development Act》(NSW)难以驾驭，而且它并没有阻止竞争开发商的战略封锁企图。如果市场在此期间发生变化，组织集体出售所需的漫长时间可能导致失败。尽管如此，业主们仍然对集体出售感兴趣。这个案例研究对于理解重建的障碍以实现更紧凑的城市非常重要。它为其他考虑进行类似立法改革的司法管辖区提供了经验教训。它还表明，仅靠立法改革不足以解决通过分层产权开发造成的土地过度碎片化所带来的规划挑战。
{"title":"Redeveloping the compact city: the challenges of strata collective sales","authors":"Hazel Easthope, Laura Crommelin, Charles Gillon, Simon Pinnegar, Kristian Ruming, Sha Liu","doi":"10.1108/jppel-04-2023-0016","DOIUrl":"https://doi.org/10.1108/jppel-04-2023-0016","url":null,"abstract":"Purpose High-density development requires large land parcels, but fragmented land ownership can impede redevelopment. While earlier compact city development in Sydney occurred on large-scale brownfield sites, redeveloping and re-amalgamating older strata-titled properties is now integral to further densification. The purpose of this study is to examine collective sales activity in one Sydney suburb where multiple strata-titled redevelopments and re-amalgamations have been attempted. The authors explore how owners navigate the process of selling collectively, focusing on their experience of legislation introduced to facilitate this process, the Strata Schemes Development Act 2015 [New South Wales (NSW)]. Design/methodology/approach By reviewing sales listings, development applications and media coverage, and interviewing owners, lawyers and estate agents, the authors map out collective sale activity in a case study area in Sydney’s northwest. Findings Strata collective sales are slow and difficult to complete, even when planning and market drivers align. Owners find the Strata Scheme Development Act 2015 (NSW) difficult to navigate and it has not prevented strategic blocking attempts by competing developers. The long timelines required to organise collective sales can result in failure if the market shifts in the interim. Nonetheless, owners remain interested in selling collectively. Originality/value This case study is important for understanding the barriers to redevelopment to achieve a more compact city. It highlights lessons for other jurisdictions considering similar legislative changes. It also suggests that legislative change alone is insufficient to resolve the planning challenges created by hyper-fragmentation of land through strata-title development.","PeriodicalId":41184,"journal":{"name":"Journal of Property Planning and Environmental Law","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134884386","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 : 2023-09-08DOI: 10.1108/jppel-05-2023-0027
David D. Knoll A.M.
Purpose This study aims to investigate Australian civil tribunal decisions to ascertain compliance with decisional quality standards in Australian law, with a particular focus on strata and community title cases. Design/methodology/approach An orthodox doctrinal legal analysis and assessment of cases and tribunal policies was adopted. All Australian jurisdictions were surveyed, including federal, state and territory jurisdictions. The case law in each jurisdiction was screened to identify whether the principles applicable to decisional quality were engaged and then analysed as to the extent of that engagement. Findings Where a party presents a substantial, clearly particularised argument relying upon established facts, tribunals are obliged to address those facts and the arguments by way of an active intellectual process. However, appellate decisions disclose a degree of deference not often accorded to judicial officers, and there is a need for a more disciplined approach to ascertain whether any errors have been made by a tribunal lie on the critical path to the decision. As strata and community title disputes become more complex, the importance of decisional quality standards can only increase. Research limitations/implications Up to date as of 1 March 2023. Practical implications The present position would appear to be that where a party presents a substantial, clearly particularised argument relying upon established facts, a tribunal must address its mind to those facts and the arguments by way of an active intellectual process. The requirement is limited to circumstances prescribed by a statute and factual and legal issues which are necessary to be determined in order for the tribunal to be satisfied as to circumstances prescribed by a statute. However, where the errors are not gross and plainly obvious, appeals from defective tribunal decisions are unlikely to succeed. There is a degree of deference not often accorded to judicial officers. That deference is unfortunate when tribunals are allocated jurisdiction over what quite often are significant property disputes. Social implications The impact on community living of uncorrected poor quality tribunal decisions can be immense, depending on the degree of error. For example, water ingress into people’s homes might remain unremedied for many years, as, for example, occurred in the Marinko case. Originality/value The research and analysis is entirely original. A search of journals and textbooks did not identify any prior analysis, at least in the Australian context, relating to decisional quality standards of tribunals.
{"title":"Quality standards for tribunal decision making in strata disputes","authors":"David D. Knoll A.M.","doi":"10.1108/jppel-05-2023-0027","DOIUrl":"https://doi.org/10.1108/jppel-05-2023-0027","url":null,"abstract":"\u0000Purpose\u0000This study aims to investigate Australian civil tribunal decisions to ascertain compliance with decisional quality standards in Australian law, with a particular focus on strata and community title cases.\u0000\u0000\u0000Design/methodology/approach\u0000An orthodox doctrinal legal analysis and assessment of cases and tribunal policies was adopted. All Australian jurisdictions were surveyed, including federal, state and territory jurisdictions. The case law in each jurisdiction was screened to identify whether the principles applicable to decisional quality were engaged and then analysed as to the extent of that engagement.\u0000\u0000\u0000Findings\u0000Where a party presents a substantial, clearly particularised argument relying upon established facts, tribunals are obliged to address those facts and the arguments by way of an active intellectual process. However, appellate decisions disclose a degree of deference not often accorded to judicial officers, and there is a need for a more disciplined approach to ascertain whether any errors have been made by a tribunal lie on the critical path to the decision. As strata and community title disputes become more complex, the importance of decisional quality standards can only increase.\u0000\u0000\u0000Research limitations/implications\u0000Up to date as of 1 March 2023.\u0000\u0000\u0000Practical implications\u0000The present position would appear to be that where a party presents a substantial, clearly particularised argument relying upon established facts, a tribunal must address its mind to those facts and the arguments by way of an active intellectual process. The requirement is limited to circumstances prescribed by a statute and factual and legal issues which are necessary to be determined in order for the tribunal to be satisfied as to circumstances prescribed by a statute. However, where the errors are not gross and plainly obvious, appeals from defective tribunal decisions are unlikely to succeed. There is a degree of deference not often accorded to judicial officers. That deference is unfortunate when tribunals are allocated jurisdiction over what quite often are significant property disputes.\u0000\u0000\u0000Social implications\u0000The impact on community living of uncorrected poor quality tribunal decisions can be immense, depending on the degree of error. For example, water ingress into people’s homes might remain unremedied for many years, as, for example, occurred in the Marinko case.\u0000\u0000\u0000Originality/value\u0000The research and analysis is entirely original. A search of journals and textbooks did not identify any prior analysis, at least in the Australian context, relating to decisional quality standards of tribunals.\u0000","PeriodicalId":41184,"journal":{"name":"Journal of Property Planning and Environmental Law","volume":"49 1","pages":""},"PeriodicalIF":2.3,"publicationDate":"2023-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86584051","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 : 2023-08-18DOI: 10.1108/jppel-01-2023-0002
P. Hubbard
Purpose Despite opposition from housebuilders, the Nationally Described Space Standard (NDSS) was introduced in 2015 amid concerns about shrinking home sizes. This paper examines Planning Appeal cases to examine how the standard has been enforced. Design/methodology/approach This paper considers how the NDSS has informed the regulation of housing size, based on an overview of post-2015 Planning Appeal Decisions in England where the gross internal area of the home was below the NDSS. Findings Appeals by developers have tended to fail where homes are “significantly” – i.e. 10% or more – below the NDSS. However, in some instances – especially where local authorities have not adopted the NDSS – the Planning Inspectorate rules considerably smaller homes “adequate”. These discrepancies appear related to (subjective) judgements about who might occupy the space, alongside consideration of layout, light and fenestration. Originality/value This paper is the first exploration of how the NDSS has been enforced, highlighting important contradictions in the adjudication of space standards. Many of these contradictions emerge because the NDSS is discretionary rather than mandatory, with the paper suggesting the need for clearer guidance on their application.
{"title":"Enforcing the Nationally Described Space Standard: the regulation of “Sub-standard” English housing","authors":"P. Hubbard","doi":"10.1108/jppel-01-2023-0002","DOIUrl":"https://doi.org/10.1108/jppel-01-2023-0002","url":null,"abstract":"\u0000Purpose\u0000Despite opposition from housebuilders, the Nationally Described Space Standard (NDSS) was introduced in 2015 amid concerns about shrinking home sizes. This paper examines Planning Appeal cases to examine how the standard has been enforced.\u0000\u0000\u0000Design/methodology/approach\u0000This paper considers how the NDSS has informed the regulation of housing size, based on an overview of post-2015 Planning Appeal Decisions in England where the gross internal area of the home was below the NDSS.\u0000\u0000\u0000Findings\u0000Appeals by developers have tended to fail where homes are “significantly” – i.e. 10% or more – below the NDSS. However, in some instances – especially where local authorities have not adopted the NDSS – the Planning Inspectorate rules considerably smaller homes “adequate”. These discrepancies appear related to (subjective) judgements about who might occupy the space, alongside consideration of layout, light and fenestration.\u0000\u0000\u0000Originality/value\u0000This paper is the first exploration of how the NDSS has been enforced, highlighting important contradictions in the adjudication of space standards. Many of these contradictions emerge because the NDSS is discretionary rather than mandatory, with the paper suggesting the need for clearer guidance on their application.\u0000","PeriodicalId":41184,"journal":{"name":"Journal of Property Planning and Environmental Law","volume":"122 1","pages":""},"PeriodicalIF":2.3,"publicationDate":"2023-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90942353","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 : 2023-08-01DOI: 10.1108/jppel-11-2022-0035
M. J. Gwaleba, S. Kongela, W. Kombe
Purpose This paper aims to explore the role of participatory governance to actors’ participation in land use planning for tenure security in rural Tanzania. Three case studies where land use planning project implemented were selected to make assessment on how local actors were involved in the process. Design/methodology/approach This paper uses qualitative research methods, whereby semi-structured interviews with village landholders and key informants were conducted to get their perspectives on land use decisions and land tenure (in)security. Besides, focus group discussions with the village landholders were also used. Findings The research findings indicate low participation of local actors in land use planning process. Decisions on land use by the local actors were very minimal. Further, communication between the involved actors was also difficult. Originality/value The study offers insights on participatory governance into land use planning for tenure security. The study develops a framework to improve land use planning process toward tenure security outcome. A tri-partite strategy consisting of enabling mechanisms of governance capacity, institutional capacity and converging discourses articulates a framework for the evolution in the degree of local actors’ participation to improve security of land rights through land use planning process in rural Tanzania.
{"title":"Governing land use planning in pursuit of customary tenure security: A case of Kilombero District in rural Tanzania","authors":"M. J. Gwaleba, S. Kongela, W. Kombe","doi":"10.1108/jppel-11-2022-0035","DOIUrl":"https://doi.org/10.1108/jppel-11-2022-0035","url":null,"abstract":"\u0000Purpose\u0000This paper aims to explore the role of participatory governance to actors’ participation in land use planning for tenure security in rural Tanzania. Three case studies where land use planning project implemented were selected to make assessment on how local actors were involved in the process.\u0000\u0000\u0000Design/methodology/approach\u0000This paper uses qualitative research methods, whereby semi-structured interviews with village landholders and key informants were conducted to get their perspectives on land use decisions and land tenure (in)security. Besides, focus group discussions with the village landholders were also used.\u0000\u0000\u0000Findings\u0000The research findings indicate low participation of local actors in land use planning process. Decisions on land use by the local actors were very minimal. Further, communication between the involved actors was also difficult.\u0000\u0000\u0000Originality/value\u0000The study offers insights on participatory governance into land use planning for tenure security. The study develops a framework to improve land use planning process toward tenure security outcome. A tri-partite strategy consisting of enabling mechanisms of governance capacity, institutional capacity and converging discourses articulates a framework for the evolution in the degree of local actors’ participation to improve security of land rights through land use planning process in rural Tanzania.\u0000","PeriodicalId":41184,"journal":{"name":"Journal of Property Planning and Environmental Law","volume":"13 1","pages":""},"PeriodicalIF":2.3,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85083562","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 : 2023-07-11DOI: 10.1108/jppel-05-2023-0020
T. Gibbons
Purpose The purpose of the paper is to examine the phrase “just and equitable”, and associated terminology, within New Zealand’s strata law, to inform other jurisdictions. In particular, this paper temporarily suspends the notion of a statutory hendiadys to consider what kind of justice is reflected in judicial consideration of the phrase. Design/methodology/approach This paper takes a mixed-methods approach, drawing on a combination of black-letter law, property law theory and insights from literary and philosophical analysis. Findings While justice is often considered as “treating like cases alike”, this is not apparent from this study. The analysis shows that different kinds of justice outcomes emerge, with some emphasis on justice as economic efficiency. In addition, the paper highlights the inherent uncertainty in what is “just and equitable” and how associated disjunctive phrases, such as “unjust or inequitable” are still treated as hendiadys, but are no more clear. Research limitations/implications The research is limited to consideration of a single jurisdiction (New Zealand), though the useful degree of case law from this jurisdiction provides broad insight. Practical implications Among other things, the paper argues for further consideration of the usefulness of the “just and equitable” test in light of the kind of justice we want to achieve. The addition of mandatory considerations to existing statutory tests may allow more of a focus, beyond the exigencies of individual cases or narrow outcomes of economic efficiency. Originality/value While there is existing literature on the “just and equitable” phrase within strata law, the paper is the first, to the best of the authors’ knowledge, to provide an analysis focused on how suspending the statutory hendiadys normally inherent in “just and equitable” provides insight into the kind of justice that emerges from the application of this test within a single strata jurisdiction. As such, the paper provides lessons for other jurisdictions on how to improve relevant statute and case law outcomes.
{"title":"The “just and equitable” test in New Zealand’s strata law: reflections and lessons for other jurisdictions","authors":"T. Gibbons","doi":"10.1108/jppel-05-2023-0020","DOIUrl":"https://doi.org/10.1108/jppel-05-2023-0020","url":null,"abstract":"\u0000Purpose\u0000The purpose of the paper is to examine the phrase “just and equitable”, and associated terminology, within New Zealand’s strata law, to inform other jurisdictions. In particular, this paper temporarily suspends the notion of a statutory hendiadys to consider what kind of justice is reflected in judicial consideration of the phrase.\u0000\u0000\u0000Design/methodology/approach\u0000This paper takes a mixed-methods approach, drawing on a combination of black-letter law, property law theory and insights from literary and philosophical analysis.\u0000\u0000\u0000Findings\u0000While justice is often considered as “treating like cases alike”, this is not apparent from this study. The analysis shows that different kinds of justice outcomes emerge, with some emphasis on justice as economic efficiency. In addition, the paper highlights the inherent uncertainty in what is “just and equitable” and how associated disjunctive phrases, such as “unjust or inequitable” are still treated as hendiadys, but are no more clear.\u0000\u0000\u0000Research limitations/implications\u0000The research is limited to consideration of a single jurisdiction (New Zealand), though the useful degree of case law from this jurisdiction provides broad insight.\u0000\u0000\u0000Practical implications\u0000Among other things, the paper argues for further consideration of the usefulness of the “just and equitable” test in light of the kind of justice we want to achieve. The addition of mandatory considerations to existing statutory tests may allow more of a focus, beyond the exigencies of individual cases or narrow outcomes of economic efficiency.\u0000\u0000\u0000Originality/value\u0000While there is existing literature on the “just and equitable” phrase within strata law, the paper is the first, to the best of the authors’ knowledge, to provide an analysis focused on how suspending the statutory hendiadys normally inherent in “just and equitable” provides insight into the kind of justice that emerges from the application of this test within a single strata jurisdiction. As such, the paper provides lessons for other jurisdictions on how to improve relevant statute and case law outcomes.\u0000","PeriodicalId":41184,"journal":{"name":"Journal of Property Planning and Environmental Law","volume":"34 1","pages":""},"PeriodicalIF":2.3,"publicationDate":"2023-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73854188","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 : 2023-07-10DOI: 10.1108/jppel-04-2023-0015
H. Tang
Purpose This paper aims to adopt a comparative method using case law, statutes and secondary literature across both jurisdictions. This paper also draws on various theories of property ownership. Design/methodology/approach This paper conceptualises the legal relations embedded within condominium housing and the various theories of property ownership to ascertain how children’s interest fit within this framework. The laws of two jurisdictions, New South Wales and Singapore, are examined to determine how their strata law responds when children’s safety is at stake. Findings Drawing on pluralist moral theories of property law, the thesis advanced is that children’s issues within condominiums should not be subject to majoritarian rule especially when their safety is at stake. The paramount guiding value should be ensuring their safety within multi-owned housing communities. Using the law of two jurisdictions, New South Wales and Singapore, the central argument of this paper is that the law in these jurisdictions has rightfully adopted a protective approach towards children in multi-owned properties where their safety is at stake. Originality/value The literature on the law of multi-owned housing has largely focused on governance issues such as mediating between the majority owners’ interest with that of the minority owners’ interest. Children in multi-owned developments remain an under investigated area as children’s interests do not fit within the paradigm of majority versus minority interests. The paper advances the argument that children’s interest should be viewed through either a rights-based theory or pluralists’ theories of property law. Lessons from the New South Wales and Singapore experience are also drawn which might prove useful to other jurisdictions.
{"title":"Conceptualizing condominium law and children: comparing the state of strata titles law in New South Wales and Singapore","authors":"H. Tang","doi":"10.1108/jppel-04-2023-0015","DOIUrl":"https://doi.org/10.1108/jppel-04-2023-0015","url":null,"abstract":"\u0000Purpose\u0000This paper aims to adopt a comparative method using case law, statutes and secondary literature across both jurisdictions. This paper also draws on various theories of property ownership.\u0000\u0000\u0000Design/methodology/approach\u0000This paper conceptualises the legal relations embedded within condominium housing and the various theories of property ownership to ascertain how children’s interest fit within this framework. The laws of two jurisdictions, New South Wales and Singapore, are examined to determine how their strata law responds when children’s safety is at stake.\u0000\u0000\u0000Findings\u0000Drawing on pluralist moral theories of property law, the thesis advanced is that children’s issues within condominiums should not be subject to majoritarian rule especially when their safety is at stake. The paramount guiding value should be ensuring their safety within multi-owned housing communities. Using the law of two jurisdictions, New South Wales and Singapore, the central argument of this paper is that the law in these jurisdictions has rightfully adopted a protective approach towards children in multi-owned properties where their safety is at stake.\u0000\u0000\u0000Originality/value\u0000The literature on the law of multi-owned housing has largely focused on governance issues such as mediating between the majority owners’ interest with that of the minority owners’ interest. Children in multi-owned developments remain an under investigated area as children’s interests do not fit within the paradigm of majority versus minority interests. The paper advances the argument that children’s interest should be viewed through either a rights-based theory or pluralists’ theories of property law. Lessons from the New South Wales and Singapore experience are also drawn which might prove useful to other jurisdictions.\u0000","PeriodicalId":41184,"journal":{"name":"Journal of Property Planning and Environmental Law","volume":"152 1","pages":""},"PeriodicalIF":2.3,"publicationDate":"2023-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86039871","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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