Alan March teaches at RMIT university in town planning and particularly statutory planning, a field which he worked in for many years, and it is from this experience, knowledge and academic viewpoint that the work appears to be written. In addition to experience and knowledge of statutory planning, March draws upon and examines concepts of property rights that have developed over time, and after mentioning briefly mentioning issues of views in modern planning, uses in depth discussion of these concepts as a starting point for the piece.

Utilitarian and rights based approaches to property rights are put forward as two contradicting and dominant approaches. Rights based approaches generally seek to allocate minimum or standard rights to individuals in all cases, while utilitarian approaches hold up only the aim of achieving the maximum utility overall, and hence most benefitting the public interest in the view of this approach. A problem is that in achieving maximum utility, it may mean that completely ignoring or inflicting poverty on an individual could be justified under this ideal if it meant that overall more people would be more benefitted as a result. The fact that the ‘public interest’ can be defined in different ways then becomes important, as the public interest may be thought to be maximum utility at any cost, or to make sure all people have a reasonable share of utility.

The concept of rights based approaches is shown as coming with origins in ideas such as those of John Locke with property rights seen as originating from people’s labour on the land and the legitimacy of government endorsement, and as something derived from nature and somewhat untouchable, or even given by god. Utilitarianism is shown with the ideas of Jeremy Bentham being very prominent, and the influence on the industrial revolution and use of land ownership for wealth creation is shown as leading utilitarianism to be quite at odds with rights based systems, and became more market oriented and divergent from classical utilitarianism. Rawl’s ‘A theory of Justice’ (1971) and Dworkin’s ‘Taking Rights Seriously’ (1977) are both noted as having strong conceptual mechanisms for reconciling utilitarianism and rights, although March then dismisses them as being unfortunately too abstract for use in everyday planning or legal practice.

Old legal cases are prominent and are used effectively to demonstrate legal approaches to the same issues at different points in time and different cases.

For example older cases where views were excluded as an object of “delight” are shown, with progress including the eventual consideration of property rights in regards to actions on other land, whereby others should not impact upon the right of someone to enjoy and use their property. The nature of secondary rights to ‘intangible’ things such as views and their vague and difficult to define nature evolving in law over time is a continuing theme that emerges out of the background of discussion of property rights systems to the forefront of the modern planning discussion later in the piece.

Finally, in the modern era various VCAT (Victorian Civil Administrative Tribunal) planning decisions and quotations are used as case studies. This includes a quote that while there is no right to a view as long earlier held in Victorian planning, that rights to views are a legitimate consideration in planning matters, and this is particularly of importance if further supported by the planning scheme. Case studies are also used to show where rights to views have been ignored by planners due to no specific support in the planning scheme, where compromises have been arranged at VCAT, and where compromise has unfortunately not been possible and only the new development has ultimately taken the views. The issue of planning disputes having to go to VCAT for any detailed resolution is also noted. Ultimately, detailed consideration of views and the more modern and place-based approaches of some VCAT cases are promoted by the piece over older and more basic planning decisions.

One point that was raised but not sufficiently I believe, was that if a new development takes away views from an existing development, and views are as mentioned valuable in real estate, then the loss of value and amenity to the existing development should possibly be equally weighed against the new development in terms of overall utility.

Questions for consideration

• Is a utilitarian or rights based system better?
• how can these approaches be reconciled?
• How can planning for views and other 'intangible' extended property rights be best managed?

Reference
March, A. 2004, ‘Outward Views: Rights and Utility in Victorian State Planning’,
Urban Policy and Research, v.21, i.3, p.263.

2. Property Rights 11th March, 2008 03:38:52   [#] [2 comments] 

Coase’s article discusses the complexities of liability, particularly in regard to neighbouring properties, challenging existing concepts of Pigou. The cost of being liable of damage and what is realistic compensation and under what grounds such compensation should be granted, if at all are also discussed. What warrants compensation and can some other form of arrangement be met (say purchasing the potentially effected land) or that a certain degree of discomfort or annoyance should be tolerated. The concept of which is commonly known as “risk management”.

An example given is that of a factory and effect caused due to the smoke it releases. Pigou would suggest that the factory be liable for damages, potentially in payment to the individuals or in terms of introducing a variable tax in relation to the potential or proven damage caused by the smoke. Further, the concept of removing the potential conflict ie disallowing the factory to operate in areas where it would cause damage could be seen as an acceptable solution.

Coase alternatively argues that that this more “traditional” approach limits choice and that variable options should be developed, dependent on the matter in question.

Coase challenges the notion that the one seen as inflicting something upon another, need not be singled out, but that what could be termed “burden” should be shared. Acting in the interest of the inflicted will ultimately not be in the interest of the inflictor. Both parties should be treated equally, ultimately with the most minimal damage/loss to occur for either party. This notion is in place to establish what is the minimal harm outcome overall and that that option should be favoured.

An example given is that of the contamination of a stream. What damage had the contamination caused to the stream, what value did the stream represent (the fish were once caught and sold, but have since died because of the contamination) and what the cost of the decontaminating of the stream would amount to. Decontaminating the stream may account to be far greater than the market value of the fish and thus would prove to be financially unviable.

Coase suggests that if a pricing system can be developed that allows an agreed amount be payable (in this case, the issue of roaming cattle into neighbouring lots, eating the neighbours produce) that allows the loss to be covered at market value, as the gain in meat production warrants, thus costs are covered and more meat can be gained than could be previously. The agricultural farmer is at no loss and the cattle raiser has gained from the increased meat production. This could be suggested as a win win scenario.

I felt the scenario employed for the concept of no liability for the purpose of the article to be a situation that did not warrant this arrangement, as the cattle raiser is in the wrong. Could the cattle raisers actions be considered theft?

Amongst many other things, the article discusses the roll of the government in these transactions and how they can play a pivotal part on many levels, from creating specific zoning and formatting laws.

To draw it all back to planning, consider the scenario of a live music venue, with a new apartment block being built next door. The live music venue has been operating for years in a largely non residential area. More recently, that area has undergone significant socio-economic changes and as such the area is being gentrified and the neighbouring buildings being converted to apartments. Residents of these apartments soon start complaining about the noise generated by the venue. Now, is it the responsibility of the live music venue to insulate their building and then hire extra security to make sure patrons leave quietly? The neighbouring residents may say yes, but the cost of these changes may be so great that the venue may have to permanently close. Should the responsibility fall on the apartments developer, who knew of the venue and the potential disruptive effects it would have on their developments future tenants, but did little to insulate their building nor orientate the apartments in a manor as to minimise the potential disruption that could be caused to them. Could this not be argued as to being a matter of existing use rights, that should be covered under planning and building controls?

Questions for the above scenario:

• What kind of controls should potentially be introduced, as to avoid the conflict to begin with?
• Could some kind of tax back be established, to entice the venue to soundproof itself?
• What other options are there to consider?

Questions:

• How does one chose which form of liability is appropriate?
• Is there ever reason to question liability?

Reference
Coase, R. 1962, The Problem of Social Cost, http://www.sfu.ca/~allen/CoaseJLE1960.pdf

2. Property Rights 10th March, 2008 03:03:10   [#] [7 comments] 

This chapter begins through an anecdote of a hotel owner evicting his tenants due to an increase in rental prices. This leads into a discussion of the term “property” and discourses this into its social meanings, with one description of it as a “right” – something that gives us power over the use of the land. Blomley reiterates this definition by stating the rights of the tenants living in the hotel were secondary to those of the owner. He refers to this as the “ownership model” of property; where there is one single definable owner who’s priorities are superior to others on that land.

Based on this model, he notes there are two types of ownerships when it comes to property; private and state/government. Private ownership is central to this model. The rights of an owner are restricted within the boundaries of individual properties, separating them from non-owners. This creates a spatial, yet metaphorical definition, as these boundaries may be hard to define. Through this model, Blomley believes property may be considered as the relationship between the owner and the land, making it seemingly impersonal. He also states that space is socially constructed, so may transform over time.

In the second half of this chapter, Blomley presents examples between different people and their uses of land, such as Indigenous cultures and their relationships with areas they upon. These cases exemplify how other cultures’ property systems do not fall under the private or state ownership models. Thus, leads Blomley into his main argument of the ownership model being flawed. He believes this model to be too presumptuous, inaccurate and “overly-simplified”. The definition of a landowner may be quite complex, and not just bound to a single person once one considers mortgage lenders, neighbours, spouses or even easements. An owner’s right to his land is also governed by zoning laws, overlays and covenants. Blomley then asks, what makes this model so persuasive albeit these flaws? He believes it may due to the perceived clarity of property. This creates a secure and complete relationship with the land, which offers a value to ownership.

In his final part, Blomley discusses other forms of land with undefinable owners. He notes a case in Vancouver where private landowners were encouraged to extend their gardens over the boundary of their lots. Thus, granting them semi-private use over shared public space. Yet, he notes, this type of area could not be classified as either private or public. Community gardens were another type of undefinable space. Squatters also don’t fall under either of these categories. The ownership model overlooks the diversity of these spaces and has immense implications in terms of social equality.

Questions:

• What makes property ownership rights so attractive?
• Are we incorrect in striving for the “great Australian dream” of owning our own homes?
• Is the definition of property as socially subjective and constructed as Blomley argues?

Reference
Blomley, N. 2004, “Welcome to the Hotel California.” In Unsettling the City: Urban Land and the Politics of Property, pp. 1-28. New York: Routledge

2. Property Rights 8th March, 2008 12:45:21   [#] [8 comments] 

‘Melbourne is an exceptionally liveable city and the suburbs provide an environment almost unmatched on any scale in other cities of the world’ (Lewis, p.20, 1999). This is a badge of honour politicians; academics and residents of Melbourne have worn with pride over the last decade or so. How do we keep this liveability in an ever-growing metropolis, and how does a sustainable planned environment affect the free property development market and individual property owner’s rights?

This is the question that M, Lewis is attempting to answer in Chapter One of ‘Resident Versus the State’. The main points covered in this chapter are political motivations and objectives in planning, state intervention, planning obligations, values, thinking etc, the greater good versus local interests in planning, zoning, compensation and just planning.

‘When you buy a piece of land or a house you expect to do as you will’ (Lewis, p.2, 1999). This statement from the author suggests that Australian property owners and developers think that once they have a piece of terra firma that they can do anything with it and bugger the rest. This seems to be the context the chapter was written in.

Lewis argues that with State intervention in the property and development market, the free market is distorted and limited, and that this will lead to claims of compensation from developers and individuals alike. Using the Commission of Inquiry into Land Tenures 1976, the author states that regulation is necessary ‘those limitations (of the free market), have arisen because of the unique nature of land – it’s finite extent, it’s intrinsic community importance and it’s propensity in use to affect the utility or enjoyment of the land’ (Lewis, p.4, 1999). The state therefore acts as a facilitator for the individual or the company to protect the land, as it is a resource that can be improperly used. The state must attempt to regulate for the greater good of all citizens.

With regulation comes the possibility of impacting on the economic potential of individuals or developers property holdings. This is particularly the case in 2008. Melbourne is sprawling rapidly. The state wants to regulate and plan this sprawl. Urban consolidation is the one of the tools by which they are doing this. This is where developers and owner residents clash, particularly when it comes to urban consolidation developments. Lewis believes there is a problem when property is not ‘allowed to attain its highest and best economic use’ (Lewis, p.10, 1999). In leafy suburban back streets the best economic use must fit with local character. Just because a five-storey block of flats may be best economic use, should not mean it can be developed around single storey homes. Sensible municipal zoning should avoid these situations and the need for compensation.

Local interest though should not jeopardise Melbourne’s overall amenity. Inner and Middle ring suburbs have to increase population density and provide more housing stock, so as to limit the pressure on outer urban sprawl. High-density development needs to be restricted to very strict zones, close to infrastructure (transport, retail, employment), and in already built up and busy areas such as suburban activity centres. These zones should be limited at 300-400 metres from the centre of such activity centres so as not to impinge on suburban amenity and run the risk of compensation claims.

Resident rights as outlined by the Save our Suburbs group’s Resident’s Bill of Rights, are also discussed by Lewis. Such rights are very important because the Bill ‘shifts the onus of proof (responsible development), from residents to developers’ (Lewis, p.18, 1999). The author states that such a Bill ‘should be a starting point for any negotiation’ (Lewis, p.18, 1999). Municipalities and the State should enshrine such rights for owner residents in legislation as they invariably are in a weaker economic and legal position to that of development companies.
Lewis’s chapter argues for a more market / economic approach to regulating development within Melbourne’s inner and middle ring suburbs. As a more utopian and paternalistic planner I would like to see tighter and more sensible planning zones in relation to urban consolidation development. The cynic in myself doesn’t trust the free market.

Reference
Lewis, M. 1999, ‘The Resident Versus the State’, Suburban Backlash, Blooming Books, Hawthorn, ch. 1, (21p)

Questions for Consideration

• Should there be tighter control of free market property development or are the current controls adequate to protect the suburban environment and amenity?
• Are local interests jeopardising the development potential for urban consolidation of inner and middle ring suburbs?
• Does a Residential Bill of Rights need to be enshrined in State Government legislation?

2. Property Rights 7th March, 2008 19:07:20   [#] [2 comments]