Legal aspects

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 as well as managers in order to regulate the use and exclude abuse of urban environment.

Appreciate the diversity of legal contexts: Legal input into the urban development and planning process is a matter of politics, technicians, and stakeholders. Principles of law at different levels (acts, regulations, building codes, etc.) define the planning code that is often complex: They establish the system of urban planning and regulation of land development, define functional requirements, and delimit the powers of the urban planners. Integrate different legal requirements, including the overall governing framework for EU citizens: Addressing of security-related legal aspects requires integrating urbanist law with other codes and frameworks, including those at European level, such as the European Convention on Human Rights (ECHR). For example, this can be of relevance in addressing surveillance-related aspects. Keep abreast with change and expansion of the legal framework: There are several foreseeable future legal aspects that urban planning should address pre-emptively and can be expected to have an influence on security issues. This, for example, includes aspects of critical infrastructure protection. Emerging European guidelines for common risk assessment can be expected to affect future urban planning as well as require legal adaptation of planning requirements.

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;
• 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 disaster and regional emergency management plans, which relate more to the hierarchy of authority in such instances, etc. (cf. VITRUV 2012).

Summary table of legal aspects in urban planning

The following table summarises legal principles that put restrictions to the freedom of urban planning:

Legal aspect	Application	National level	Regional level	Local level
Aesthetics	Concerns systems and regulations on building heights, styles, sizes, and similar factors which may be established to prevent aesthetic clutter. For example, these may be applied in older towns where there may be potential for new building styles to clash aesthetically with older buildings. In addition to buildings, these systems and regulations may also apply to other elements of the public realm such as signposts, streetlights, and building signs which could cause aesthetic clutter.			X
Allocation of recreational objects and resorts	Planning has always sought to incorporate nature and open space in urban areas and to ensure that the surrounding landscape is protected as far as possible. The motivations for this include health, recreation, amenity and aesthetics. Legal protection of green belts or ‘boundary buffer areas’ between towns, cities and the surrounding countryside has been established in many areas across Europe. Such green belts are often considered an important tool for urban planning to limit the potential for sprawl and to provide local communities with access to recreational and green areas. Requirements for recreational and open space within new developments are typically addressed through development control/management standards. In new developments (including houses, apartments, duplexes etc) it is generally required that all residents have access to private / semi private open space. Public open space is open space which makes a contribution to the public domain and is accessible to the public for the purposes of active and passive recreation, including relaxation and children’s play.			X
Cultural heritage preservation	Special protection clauses (rules of conservation of cultural heritage, monuments, and goods of contemporary culture) on historic monuments and historical areas may restrict changes to the built environment. Structures considered to be of special interest from an architectural, cultural, historical, archaeological, artistic or scientific point of view are often designated as a ‘Protected Structure’ or a ‘Listed Building’. Often any works which may affect the character of a protected structure or element of a protected structure can require planning permission. Conservation areas can also be designated. Development within conservation areas should be designed so as to not constitute a visually obtrusive or dominant form of development			X
Natural heritage preservation	Restricts allowed use of space in concordance with the requirements of local natural resources. In the preparation of a City Development Plan there is often a mandatory obligation on a Planning Authority to include objectives for the conservation and protection of cultural heritage including the protection of European sites such as Natura 2000 sites (Special Protection Areas or SPA sites and Special Areas of Conservation or SAC areas).	X	X	X
Privacy	Restricts the gathering, storage and use of personal information to a minimal required level. Can be relevant in designing security measures using screening and some forms of surveillance.	X	X	X
City development plan / functional zoning	The City Development Plan sets out a vision and overall strategy for the future development of a city, providing a framework through which new development proposals can be regulated and assessed. Such plans generally must be consistent with any national or regional strategic plans and any local plans must be consistent with the objectives of the City Development Plan. Planning must take into account spaces for roads, parking, and mass transport possibilities. Zoning (the regulation of building activity according to use and location) can facilitate this, such as locating high-rise, high-density establishments such as office and commercial buildings near transport centres. Urban density is also often regulated by the city planning authority through development management standards included in the Development Plan.	X	X	X
Safety	Issues of public safety are increasingly considered in planning processes. For example, mechanisms for flood risk identification, assessment and management are often included into the planning process through the preparation of best practice guidelines. City Development Plans and other spatial plans such as Local Area Plans must be consistent with these guidelines. In addition, earthquakes hazards, for example, may be mitigated by limiting building heights, or not constructing high structures in areas where there are known earthquake fault lines.	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. The UNECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (commonly referred to as the Aarhus Convention) is significant in this regard. It sets out a set of basic rules to promote the involvement of citizens in environmental matters and improve enforcement of environmental law. The Convention is legally binding on States that have become Parties to it. As the European Union is a Party, the Convention also applies to the EU institutions.			X
Ownership	Legal measures to control the urban development process by formulating land and land use policies in which individual interests of land and other property owners coexist with other social, cultural and environmental interests of other socio-economic groups, and the inhabitants of cities as a whole.		X	X
Security of tenure	Security of tenure describes an agreement between an individual and another 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. Challenges regarding tenure insecurity can arise for urban planners when addressing informal type developments. The accommodation needs of traveller or gypsy communities, particularly within transient or temporary sites, is one such example. Similarly, there are urban planning challenges relating to displaced communities in the event of a crisis or disaster and informal or slum developments. In recent years concerns have been raised that planning regulations often fail to meet the needs of the urban poor or marginalised, putting formalised development procedures out of their reach and often rendering their homes illegal. Non compliance with planning law can then result in the eviction of long established communities. However some innovative planning regulations exist to address these issues. For example, planning in some cities has to include mixed types of housing, with a minum percentage allocated for social housing.			X
Construction cost	Special clauses to regulate significant differences between initial construction costs and the real construction cost of a building. || || || X
Building codes / building regulations	Urban planners rely on the statutory role of the city development plan which will typically include a section on development management standards. This will be aligned with the relevant building code/building regulations for the design and construction of new buildings, extensions and material alterations to and certain changes of use of existing buildings. Building Regulations provide for, in relation to buildings, the health, safety and welfare of people, conservation of fuel and energy, and access for people with disabilities. The building code/regulations will typically set out minimum standards under the following types of areas: Structure Fire safety Site preparation an resistance to moisture Materials and workmanship Sound Ventilation Hygiene Drainage & waste water disposal Heat producing appliances Stairways, ladders , ramps and guards Conservation of fuel and energy Access for people with disabilities The primary responsibility for compliance rests with designers, builders and building owners. Building control authorities have powers to inspect design documents and buildings, as well as powers of enforcement and prosecution where breaches of regulations occur. There are heavy penalties, including fines and imprisonment, for breaches of regulations. In addition, when it comes to selling your property, you may have difficulties if you cannot satisfy the purchaser's solicitor that the requirements of regulations have been met. Urban planners also assess a proposed development against a suite of good practice guidance and policy documents, which have a statutory backing, including for example Urban Design Manuals (part 1 and part 2) and Design Manuals for Urban Roads and Streets.			X

Security-related aspects

• The challenge in addressing security aspects is that that it is often difficult to assess, and integrate urban law with other relevant 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 infrastructure and implementing security-related concepts such as “designing out”.

• 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.

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

"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 organised, urban reforms can proceed, and urban development processes are guided. These principles could and should be expanded by the social right to security as well as 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.