Legal aspects

Legal aspects

Introduction

The input of legal aspects into the urban development and planning process is both a matter of politics, technicalities and stakeholders. Through its profound implication for urban development, principles of law define the systems of urban government, establish the system of urban planning and regulation of land development, and delimit the powers of the urban planners and managers, in order to regulate the use and exclude abuse of urban environment.

Generic legal aspects

Generic legal aspects are well known to urban planners since they form part of their daily work. This includes the legal framework for urban planning as well as, for example, building regulations and codes that relate to safety, such as fire safety (egress routes and standards), materials, sounds, ventilation, drainage, conservation, access, etc. However, there is little consideration of security aspects currently, apart from natural disasters and regional emergency management plans, which relate more to the hierarchy of authority in such instances, etc. (cf. VITRUV 2012).

Addressing security aspects

The challenge in addressing security aspects is that the relevant legal framework is marked by the often difficult to assess, and address, need to integrate urbanist law with other codes and approaches, such as the European Convention on Human Rights (ECHR). ECHR and its case law sets the framework, extent and limitation of a number of human rights relevant to security such as right to liberty and security, right to respect for life and family life, freedom of expression, etc. Those rights and their preservation may be aspects to consider in planning urban built infrastructure and implementing security-related concepts such as “designing out”.

Another challenge is that the input of legal aspects into the urban development and planning process is not uniform:

Priciples of law

"Principles of law" establish the context for urban planning and regulation of land development. Basic legal and political frameworks determine conditions under which urban management should be organized, urban reforms can proceed and urban development processes are guided (cf. Fernandes 2010: 55-70). These principles could and should be expanded by the social right to security and the functioning and maintenance of the vital societal functions as fundamental principles.

Planning laws limit an owner’s rights in private property in order to secure benefits for the community as a whole. These benefits include: safety and personal health; convenience, amenities and agreeable environments for the public; acceptable standards of private and public living as well as work places; and reasonable burdens of public expenditures that have to be incurred when land is developed.

The legal framework provides compulsory acts (both primary and secondary legislation) for safety in urban planning,  but it lacks (compulsory) guidelines for security. Those guidelines would among other things have to identify limitations for taking security measures, for example due to preceding norms of individual liberty. While in the security debate the establishment and development of legal frameworks around data protection has been a hot topic of discussion and efforts, the legal framing of surveillance aspects might be of greater concern in urban planning and planning of built structures. The legal distinction of facilitating surveillance structures to enhance and ensure public security without violation of individual liberty and the human rights will evoke further controversies and is expected to gain more attention also in planning issues.

United Nations Recommendations

The global report on UN Human Settlements Programme 2007 recommends that the planning codes for buildings should be:

• “realistic, given economic, environmental and technological constrains;
• relevant to current building practice and technology;
• updated regularly in light of developments in knowledge;
• understood fully and accepted by professional interest groups;
• enforced in order to avoid the legislative system being ignored or failing into disrepute;
• adhered to, with laws and controls based more on a system of incentives rather that punishment;
• integrated fully within legal systems that take account of potential conflicts between the different levels of administration and government.”

Summary table of legal aspects in urban planning

The following table summarizes legal principles as fundamental aspects in the urban planning process:

Legal aspect	Application	National level	Regional level	Local level
Aesthetics	Systems and regulations on building heights, styles, sizes and similar factors may be established to prevent aesthetic clutter. This is especially true in older towns where new building styles can clash aesthetically with the old ones. Too much man-made contraptions such as signposts, streetlights and building signs could also cause aesthetic clutter.			X
Allocation of recreational objects and resorts	Planning includes also parks, greenbelts, tree lanes and other recreational-oriented spaces as much for health as for environmental purposes.			X
Cultural heritage preventions	Special protection clauses (rules of conservation of cultural heritage, monuments and goods of contemporary culture) on historic monuments and historical areas are important especially in older towns, where new buildings styles and construction techniques can clash with the old ones.			X
Natural heritage preventions	The extensive land use minimizes spaces where plants could grow and flourish, reducing carbon dioxide levels in the area. Therefore it is necessary to include natural heritage preventions into the legal system of urban planning.	X	X	X
Data protection	General obligations regarding the conduct of data systems in the field	X	X	X
Engineering and transportation infrastructures	Planning must take into account spaces for roads, parking, and mass transport possibilities later. Zoning [the regulation of building activity according to use and location] might be a way, such as limiting high-rise, high-density establishments such as office and commercial buildings near transport centers, and residential areas further into the suburbs. City ordinances can enforce such concepts. But removing residential areas from urban centers will encourage commuting, with its attendant environmental problems.	X	X	X
Environmental conditions	Higher-density areas necessarily generate more trash per area unit in this consumerist society, where almost everything should be disposable.		X	X
Functional zoning	Delimitation of land for different destinations (land categories) as for agriculture, for settlements, for industry, for living and some other special uses; for preserved natural landscapes, forests, waters etc.	X	X	X
Safety	Many communities sprawl on flood-prone low areas and even along earthquake fault lines, more out of development necessity for growth than preference. Such location negatives may be counteracted, though, via man-made structures like dikes, levees, or storm drain systems. Danger from earthquakes may be offset by limiting building heights, for instance, or not constructing high structures. These are actions to prevent extraordinary situations of natural and anthropogenic origins.	X	X	X
Public participation	Because of the different cultural approaches in the common decision-making process, citizen participation represents a very important process in the preparation of an urban plan			X
Ownership	Legal measures recognizing the power and obligations of the public authorities, especially the municipalities, to control the urban development process by formulating land and land use policies in which individual interests of land and other property owners would henceforth be required to coexist with other social, cultural and environmental interests espoused by other socioeconomic groups and inhabitants of cities as a whole.		X	X
Security of tenure	Security of tenure describes an agreement between an individual or group for the rights to use land and residential property, which is governed and regulated by a legal and administrative framework (legal framework includes both customary and statutory systems). The tenure can be affected in a variety of ways, depending on the constitutional and legal framework, social norms, cultural values, and to some extent, individual preferences. A person or household can have secure tenure when they are protected from involuntary removal from their land or residence by the State, except in exceptional circumstances.			X
Construction cost	Special clauses to regulate significant differences between initial construction costs and the real construction cost of a building.			X
Building codes	In relation to the UN International Strategy for Disaster Reduction (ISDR), the global report on UN Human Settlements Programme 2007 recommends that the planning codes for buildings should be : realistic, given economic, environmental and technological constrains; relevant to current building practice and technology; updated regularly in light of developments in knowledge; understood fully and accepted by professional interest groups; enforced in order to avoid the legislative system being ignored or failing into disrepute; adhered to, with laws and controls based more on a system of incentives rather that punishment; integrated fully within legal systems that takes account of potential conflicts between the different levels of administration and government.			X

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