Introduction and the legal context for land-use planning

• Author: Howard Epstein
• Pages: 1-34

1

INTRODUCTION AND

THE LEGAL CONTEXT

FOR LAND-USE

PL A NNI NG

Where do we live our lives? For everyone there is some sense of place.

There is a network of contacts, a community. That community might well

be online. Indeed, the interconnectedness of people through electronic

means is an amazing, powerful phenomenon that is likely to intensify

its inf‌luence on our lives and world events. Yet no matter how much this

evolves or grows in inf‌luence, we do all live in a local, physical world as

well. This too is a place of interconnectedness. Land use and land-use

planning law has as its core preoccupation this interconnectedness.

Land use is a topic tightly related to property law where, however,

it tends to attract only peripheral attention. In property law texts it has

been termed “social control.” Thus in Megarry and Wade, it is said that

the rise of socia l control has been due to the view that “it is again st the in-

terests of the public at large for landowners to have an un fettered power

to develop their land as they wish.”1 This is not a new phenomenon.

However much traditional ideas of the law of property2 may emphasize

bundles of rights of owners that seem to be strongly associated with

1 Sir Robert Edwa rd Megarry & Willi am Wade, The Law of Real Property, 6th ed

by Charles Ha rpum (London: Sweet & Maxwell, 20 00) at 1336; see also Alan M

Sinclair & Ma rgaret E McCallum, An Introduction t o Real Property Law, 6th ed

(Markham, ON: Lex isNexis Butterwort hs, 2012) at 47–48; Bruce Ziff, Pr inciples of

Proper ty Law, 4th ed (Toronto: Carswell, 2006); and, gene rally, Mary Jane Moss-

man & Philip Gir ard, Propert y Law, 3d ed (Toronto: Emond Montgomery, 2014).

2 Our focus is on rea l property rather than p ersonal property; th at is, land rather

than “moveable s” or intangibles such as intel lectual property or copyr ight.

LAND-USE PLANNING2

immunity, privacy, independence, and perhaps even a notion of per-

sonhood3 (a right to exclude others, a right to build, a right to grow and

harvest crops, a right to hunt, a right to dig and extract from the earth,

a right to use water if present, a right to manufacture or set up shop, a

right to devise or sell in whole or in part, etc.), it is an integral part of

the law of property that there are limits on such rights. Those limits

f‌low from common law recognition that everyone has a neighbour, that

their rights in the enjoyment and use of their property ought not to be

unreasonably interfered with by someone else’s exercise of rights, and

that there is always some sort of physical interconnectedness. Hence

the communal enterprise of planning.4

It is perhaps, though, too hasty at this point to assert “hence the

communal enterprise of planning” without some additional history. In

this case, the history is of limitations on unfettered property rights. Oc-

cupation of land appears to be an ind ividual matter — a question of land

as a commodity — but quickly proves to be a collective matter, and land

becomes understood as a social resource. Indeed, even to speak of prop-

erty rights at all implies a focus on the ownership of land — control of

land by private persons — that does not accord with all cultures or per-

iods of history. Often that focus excludes non-owner residents such as

tenants. But for many cultures, la nd is not seen as something fungible. It

is seen as a setting for human l ife, as a life-support system, as a resource

held in trust for future generations, as sacred. Nor are these views lim-

ited to non-European First Nations or peoples occupying large and w ild

continents. In Europe, land known a s “the common” or equivalent term

existed along with private enclosures. Such places were for grazing,

hunting, and recreation. Their waters were for f‌ishing and were a com-

mon source of water for crops, animals, and milling. Land being used

in common already implies a sense of communal interconnectedness.5

Modern property law sees itself as being concerned with “legal rela-

tions among people regarding control and disposition of valued resour-

ces.”6 The point Joseph Singer, a Harvard University professor of law,

3 For a discussion of some t heories of property, see Margaret Jane R adin, Reinter-

preting Property (Chicago: University of Ch icago Press, 1993); Charles Geisler &

Gail Daneker, eds , Property and Values (Washington, DC: Isla nd Press, 2000).

4 This text is wr itten for non-legal readers as much as for l awyers, but terms used

frequently in l aw will appear. For example, the te rms “nuisance” and “tort” are

used in thi s chapter. Elsewhere, Latin m axims or other phrase s typical of the

law are used. Ther e is a glossary at the end of t he book.

5 At the same time, ther e may be questions regardi ng the nature of communal

rights. See Z iff, above note 1 at 6–8.

6 Joseph William Singer, Introduction to Property (New York: Aspen Law & Busi-

ness, 2001) at 2.

Introduction and t he Legal Context for Land-Use Pla nning3

makes is that the law of property is not so much about the control

exercisable by owners over their property as it is about the social con-

text in which those rights interact with the rights of others. “Property

is a system, as well as individual entitlement. Individuals do not live

alone and the allocation and exercise of property rights affects others.

Because this is so, property law rules have been developed to ensure

that the system of property rights functions fairly and eff‌iciently.”7

While unfettered property rights is a myth, planning is a reality,

inherent in even the earliest human endeavours from hunting to agri-

culture to the f‌irst forms of governance. In a major series of volumes

collecting leading articles on planning, the series editor notes that “if

one looks at education programmes and at much of the academic and

political debate that takes place regarding planning, the question of

the validity of planning per se is very much secondary to interest in

its nature and extent.”8 Any debate over the validity of planning tends

to be associated with the diff‌iculty of developing robust plans for an

unknown future, a diff‌iculty widely acknowledged.9 Planning theor-

ists offer a variety of explanations for the struggle to agree on what

planning is, including, for example, “the impossibility of talking about

planning disconnected from actual institutional and political contexts;

the several modes of doing planning theory and the dilemma of choos-

ing among them; and the diff‌iculty of incorporating power relations

into planning discourse.”10 Diff‌icult or not, planning is a major part

of modern life. And as with all endeavours, there is a legal dimension.

This text sets out to explore the various aspects of the law’s interaction

with land use and land-use planning.

The perspective I have come to may be set out in a few propositions,

ideas that recur in this text: that land use is just as important as owner-

ship; that it is more of a convention than anything else that land is

treated as a separate topic, since modern s cience continues to show how

connected are the elements of our life-support systems; that the plan-

ning of communities is preferable to resorting to litigation after the fact

to sort out different claims; and that good planning is better than bad

planning, and bad planning often arises from treating the undertaking

as something better suited for the experts than as a public activity.

7 Ibid at 3.

8 Kenneth Button & Peter Nijkamp, “Se ries Preface” in Tüzin Bayc an Levent et al,

eds, Urban Planning (Northa mpton, MA: Edward Elgar, 2008) vol 9 at xi.

9 See, for example, Peter Ha ll, Great Planning Disasters (Berkeley, CA: Univers ity

of Californi a Press, 1980) ch 13.

10Joh n Friedmann, “Planni ng Theory Revisited” (1998) 6:3 European Planning

Studies 245, reprinte d in Urban Planning, above note 8 at 33.