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.
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 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, sises, 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 prevention||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 prevention||Extensive land use minimises spaces, where plants could grow and flourish, which could help reduce carbon dioxide levels in the area. Therefore it is necessary to include natural heritage prevention 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, settlements, industry, 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.
Related risks incurred may be counteracted by man-made structures like dikes, levees, or storm drain systems. Earthquakes hazards, for example may be mitigated by limiting building heights, or not constructing high structures. || 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 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 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.||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:
- 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.
Footnotes and references
- Cf. McAuslan P.: Bringing the law back in: essays in land, law and development. Hampshire: Ashgate, 2003, 139. Retrieved from: http://books.google.at/books?id=D7yVg-fJVzEC&printsec=frontcover&hl=de#v=onepage&q&f=false [last access: 2011-11-28].
- United Nations Human Settlements Programme (UN-HABITAT): Enhancing urban safety and security. London: Earthscan, 2007, 207. Retrieved from: http://www.unhabitat.org/pmss/listItemDetails.aspx?publicationID=2432 [last access: 2012-05-23].
- Fernandes E.: The City Statute and the Legal-Urban Order, in: Cities Alliance and Ministries of Cities (eds.): The City Statute of Brazil: A Commentary. São Paulo, 2010, 55-70. Retrieved from: http://www.citiesalliance.org/ca/sites/citiesalliance.org/files/CA_Images/CityStatuteofBrazil_English_Ch4.pdf [last access: 2011-12-06].