Introduction and the legal context for land-use planning

AuthorHoward Epstein
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 am azing, 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 ha s 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 propert y 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 wi sh.”1 This is not a ne w phenomenon.
However much traditional ideas of the law of property2 may emphasize
bundles of rights of owners t hat 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.
immunity, privacy, independence, and perhaps even a notion of per-
sonhood 3 (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 ea rth,
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 pa rt of
the law of property that there are limits on such rights. Those li mits
f‌low from common law recognition that everyone has a neighbour, that
their rights in t he enjoyment and use of their property ought not to be
unreasonably interfered w ith by someone else’s exercise of rights, and
that there is always some sort of physica l interconnectedness. Hence
the communal enterpri se of planning.4
It is perhaps, though, too hasty at th is point to assert “hence the
communal enterpris e of planning” without some additional history. In
this case, the history is of limit ations 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 al l 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 pr ivate 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 w ith “legal rela-
tions among people regarding control and disposition of valued resour-
ce s .”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 nning 3
makes is th at the law of property is not so much about the control
exercisable by owners over their propert y as it is about the social con-
text in which those rights interact with the right s of others. “Property
is a system, as well as individual entitlement. Individuals do not live
alone and the allocation and exercise of propert y rights affects others.
Because this is so, property law rules have been developed to ensure
that the system of property r ights functions fairly and ef f‌iciently.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 governa nce. In a major series of volumes
collecting leading art icles on planning, the series editor notes that “if
one looks at education programmes and at much of the academic and
political debate that take s place regarding planning, the question of
the validity of plann ing per se is very much secondar y to interest in
its nature and extent.”8 Any debate over the validity of planni ng tends
to be associated w ith the diff‌iculty of developing robust plans for an
unknown future, a di ff‌iculty widely acknowledged.9 Planning theor-
ists offer a variety of ex planations for the struggle to agree on what
planning is, including, for example, “the impossibility of talking about
planning dis connected from actual institutional and political contexts;
the several modes of doing planni ng theory and the dilemm a of choos-
ing among them; and the diff‌iculty of incorporating power relations
into planning discourse.”10 Diff‌icult or not, plann ing is a major part
of modern life. And as with a ll 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 t his text: that la nd use is just as importa nt as owner-
ship; that it is more of a convention than anything el se that land is
treated as a separate topic, since modern s cience continues to show how
connected are the elements of our life-support system s; that the plan-
ning of communities is preferable to resort ing to litigation after the fact
to sort out different claims; and that good planning is better th an bad
planning, and bad plan ning 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.
10 Joh n Friedmann, “Planni ng Theory Revisited” (1998) 6:3 European Planning
Studies 245, reprinte d in Urban Planning, above note 8 at 33.

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