Urban Planning Law Reform Conference concept note

Transcription

1 Cities Alliance Project Output Urban Planning Law Reform Conference concept note Urban Planning Education and Applied Research in Sub-Saharan Africa P This project output was created with Cities Alliance grant funding.

2 Building a platform for Urban Planning Law Reform in Sub-Saharan Africa Bellagio meeting, July 2012 Discussion notes 1. Outputs The ACC has undertaken to the Rockefeller Foundation to come up with three outputs after the meeting: A Strategy for Taking Forward Urban Planning Law Reform in Africa; A generally supported position paper on Planning Law Reform; and A network of experts and interested parties These are ambitious targets but we have a good set of participants from a diverse set of backgrounds. We have three days and a fine setting we should make some very solid progress! Obviously we can t write complete documents (the Strategy and Position Paper) during the meeting, but hopefully the discussion and debate will provide their essential elements. These discussion notes are merely to stimulate thinking and to raise some of the issues which we must confront in our discussions. There are doubtless other issues and these need to be raised and incorporated into our deliberations to ensure that we come up with useful and valuable outputs. 2. Programme for the three days The first day s discussion will focus on the identification of the problem facing urban planning law reform processes in African countries. This is a problem made up of many dimensions, and these dimensions change depending on the perspective of the observer. The range of participants at our meeting will help us explore the implications of these many dimensions and many perspectives. The second day s discussion will look at what would make for better law as well as better law reform processes. Here we will look at which legislative theories, which planning systems, which legal tools and which law-making methods among others will better meet the needs of African countries. The big challenge here is to take into account the continuum of planning and legal contexts, from formal to informal, from legislation to customary law, from urban to peri-urban and from rapid economic growth to economic stagnation and decline. Running as a thread through all of this is the need to design a legal framework that is capable a) of being implemented and b) with the minimum of perverse, unanticipated outcomes. This requires a very realistic understanding of professional capacity in the legal, planning and other professions and among both state officials and private practitioners as well as of the political context within which the laws will have to be implemented. By the end of the second day we will hopefully have the building blocks of an agenda for better planning law, although there will doubtless remain many gaps and areas needing further attention. But ideally we will have identified those elements that are essential to thinking of urban planning law differently, of approaching the field from a new angle.

3 So on the third day we will turn to the question of how both to promote and develop such an agenda. What strategy will further and strengthen such an agenda? This will require us to interrogate the potential roles of the international agencies at a global level, but also to look at the different actors at country level, particularly the state, civil society, the professions and academia. We must also consider the possible institutional homes of such an initiative. 3. Some initial thoughts on topics for debate Momentum For those of us in the business of law reform it is always tempting to think that there is a historic moment that presents unique opportunities for dramatic change. Realistically such moments emerge all the time, but few are exploited successfully. There is however currently a momentum that we should support and on which we could perhaps ride. Past experience also shows that such initiatives need all the support and strengthening they can get if they are to succeed and we, collectively and individually, could play a role in that process. Elements of the current momentum include: The African Land Policy Initiative, which is trying to drive land law reform, including urban land law reform, at a continental scale; UN-Habitat s new branch Urban Land, Legislation & Governance has a sharply defined focus on improving urban legal frameworks in the countries of sub-sahara Africa; The World Bank s Global Forum on Law, Justice and Development is prioritising the importance of law reform for economic development as well as social and economic justice; The meetings of the African Ministers Conference on Housing & Urban Development ( AMCHUD ) regularly highlights the importance of regulatory reform. None of these initiatives alone is likely to change the course of legal history, but they do present an opportunity for synchronisation of efforts and for promoting a new agenda both in terms of the contents of new laws but also the ways in which the new laws are designed, drafted and implemented. Diversity We are a diverse continent. We have a wide range of different planning challenges, different governance and economic systems and different legal traditions and cultures: and that is only talking about sub-saharan Africa! Just as it is now increasingly acknowledged that borrowing a planning law from a developed country and transplanting it to an African country will not work, so too it is equally foolish to think that there is a model planning law that can be used across the continent. Nevertheless there is a common set of experiences and challenges that all our countries face. There are no obvious examples of urban planning laws in African countries that have worked effectively, at scale and unsupported for more than a very short time. We must focus on the principles and themes that need to be more robustly developed and more clearly communicated in order for individual countries, with or without donor support, to build their own urban planning laws in order to meet their individual needs. 2

4 Agreeing on these common principles and themes will be a valuable outcome from this meeting, provided that we can illustrate clearly how they will have impacts in practical terms and on a sustainable basis. Capacity Perhaps the most frequent constraint that is raised to the implementation of effective planning law in African countries is that there is no or weak capacity. We have good laws, but no implementation is a common complaint. It would be useful to analyse this argument carefully. Perhaps if the law had been designed in a way that more realistically appreciated the country s capacity then it would be able to be implemented? The counter argument to this is that the planning challenges in our cities are so serious that we need the best legislation. Yet, a law that has no prospect of implementation in the foreseeable future is not of any value and indeed probably imposes further burdens and costs on a system that is already starved of resources. A key difficulty we have to confront is the gap in terms of professional, administrative and governance capacity between what many of our planning visions demand of the system and what the system can provide. Standards Implicit in almost all planning exercises is the assumption that at the culmination of the process, at the point at which there is a set of ideas that can be implemented, there will be norms and standards prescribed for the development and use of land. These standards represent the barriers between formal and informal development. If a structure complies with these standards (as well, crucially, as land tenure requirements) then it becomes part of the formal, the modern, town or city. For as long as it remains on the wrong side of that barrier it is not only excluded from many of the benefits of recognition by the state (central or local) but it also remains fundamentally vulnerable to eviction and demolition. These norms and standards also represent the valve that controls formal land supply. Buildings and land uses that comply enter into the formal supply chain. The more restrictive these standards are, the more constrained the supply of developable land will be and so the higher the price of that land will be. Thus, unstoppably, the barrier between the formal and the informal only becomes higher. The segregation of the town or city is deepened and the prospects of an integrated and fair management of development become even fainter. Here is a fundamental disjuncture between what the one end of the planning system wants and what the other end is achieving. The ways in which planning laws are designed and drafted plays a profound role in perpetuating the divided, unequal and unsustainable cities that the planning process is intended to improve and integrate. Planning vision By definition planning is a visionary exercise. It is premised on a vision of a better future. A positive, optimistic vision is a good thing. But when it acquires the force of law, in a context where attaining that vision is not realistic, it fuels dangerous tendencies. Coupled with planning and building standards that reflect an unrealistic vision, that vision effectively makes compliance with the law impossible for most citizens. Planning officials become increasingly frustrated with the inability of people to comply, citizens become cynical of planning exercises and the possibility of widespread eviction and demolition of unlawful, non-compliant structures becomes very real. Examples abound. 3

5 Looking at a planning exercise from the viewpoint of the lawyer that has to translate a planning vision into hard regulations introduces a very different perspective to that of the planner. Where planners do not appreciate the implications of the planning and building regulations that they propose they run the risk of undermining the entire purpose of planning. Similarly, where lawyers do not understand the nuance and complexity of planning processes and planning ideas they create laws that negate the developmental objectives that should be underpinning planning efforts. It is increasingly clear that the model for creating a planning law of passing a planning document to a lawyer with the instruction that she or he simply draft the regulations needed to implement the plan is a model that does not work. What are the alternatives to this model that we can start to develop and propose? Control v. facilitation It is a widespread anomaly that while most people agree that the priority for all African countries is the facilitation of economic development and investment in buildings and infrastructure, and they also agree that good planning is needed to achieve this, when it comes to realizing a planning vision in the form of a planning law the result is a set of prohibitions on building and investment. Planning and planning law in particular swiftly become targets for criticism from the advocates of economic development. It is red tape strangling investment. It may well be that legal hurdles set up by the planning system impede investment, but in reality there are almost certainly other, more important obstacles facing investors. Where there really is a prospect of a good return on their investment then planning laws seldom provide any impediment in practice, with investors following tried and tested paths to get around them. At the heart of the problem is an inadequate understanding of the relationship between a planning system, a system built on a set of planning laws, and the forces of a marketbased economy. This relationship is universally tense and difficult. Perhaps it is the confluence of emerging and often still unformed (and informal) economies with histories of strong central state planning powers that gives this universal tension a particularly difficult dimension in African countries? Identifying future probable impacts We have to become much better at the identification of future probable impacts of different legislative options. What will they demand of the different levels of government, and especially local government? What will they require of households wishing to change their land use status? Are there sufficient planners to implement a particular legal tool at scale? Are the existing operational budgets of various organs of state sufficient to cover the costs of contracting planning work from the private sector? Many of these questions lead to common sense answers, but others can require cost modelling and other techniques that need specialist skills to be employed. Identifying a method for carrying out relatively efficient regulatory impact assessments for urban planning laws in contexts of inadequate data and institutional uncertainty should be a priority for African countries working on the development of new legislation. Accommodating informal/unlawful development Philosophically this represents a major challenge for the development of effective planning law. Each layer of land use regulation that applies to a particular piece of land deepens the formal status of that land within the legal system. It is in many ways a principle that lies at the heart of traditional planning law: the layering of regulation 4

6 through legislation increases the value of the land (and its surrounding areas), which enhances the revenue streams to (local) government and so the management of towns and cities becomes increasingly sustainable. In a context of widespread informality however there are often (but certainly not always) cogent reasons why the residents and businesses choose to be located in those areas: their cost structures are lower, their immigration status (where relevant) is more difficult to detect, access to land and housing is quick and cheap and social networks can help sustain families and businesses. The traditional logic of planning simply does not resonate with many of these people (but again, not all). There is often discussion of imposing a minimum set of basic land use standards as an interim step towards future formalisation. There are examples of such an approach in some countries. In practice however there are few examples of such an approach working, although there are lessons to be learned from other parts of the world in this regard. It takes a municipality with a long-term vision to appreciate that the initial costs of implementing such an approach will only yield wider benefits to the municipality many years into the future. The application of traditional planning laws in a formally planned and developed part of town has built-in and logical appeal to governments. That logic does not follow through though when considering informal settlements, where perceptions of political threat, illegality and foreign intrusion all reinforce a preexisting reluctance to develop a model for regulating land use and development in informal settlements. In understanding the issue of informal development it is also important to remember that there are many reasons why people are living and working in informal settlements. One of the more obvious ones is that the supply of urban land in the formal system is not meeting the demand. If the formal supply of urban land is insufficient, what are the ways in which the formal planning laws can be changed to enhance that supply, especially to people at the lower end of the market? The greater the supply of affordable opportunities for land use and land development the lower the demand for informal settlements will be. Integrating with customary laws Particularly at the edges of many towns and cities, but also in many informal settlements, the prevalence and dominance of customary laws dealing with land use and land development sit uneasily alongside more modern legislation. This mirrors the equally uneasy relationship in most countries between the traditional leadership and the elected (or not) leaders of local or state/provincial government. As with informality it is important to develop a compelling argument for the extension of traditional (or less traditional) planning laws into these areas. If there is not such an argument, at least not one that can resonate both with chiefs and councillors, then it is not likely to be a fruitful exercise to press for this extension. This argument needs to be grounded in questions of infrastructure provision and costing as well as environmental management. The economic benefits of a particular regulatory option, where they can be identified, must be understood and used to justify the promotion of that option. We need to build such an argument or theory, one that can support an approach to the rollout or adaptation of planning law in areas under customary law. Running through any such approach must be a defensible argument for protecting the rights and interests of women and, in some cases, other vulnerable groups, who are not always accorded equality to men in the administration of customary law. 5

7 Changing planning law teaching Core to the development of a new approach to urban planning law in the medium to long term will be the evolution of planning education. All planning schools include modules on Planning Law as part of the planning curriculum. In many cases though this is a largely uncritical examination of the legislation as it stands in a particular country. There is very little attention paid to the controversial and contentious dimensions to planning law, nor is there much encouragement to the future planners to advocate for changes to the legislation. It is not evident yet if any law schools offer courses in planning law. Increasingly law schools offer courses in environmental law as environmental legislation grows in stature and importance and some of these courses include a lecture or two on planning law. There do not seem to be cases of law schools offering courses specifically in urban planning law or indeed even in urban law. The Association of African Planning Schools has committed to changing the way in which planning law is taught. This may well be an important area in which to support change and development. 4. Conclusion Planning law in any context has many uses and many impacts. These have economic and political as well as spatial and environmental implications. It is not surprising that efforts to revise, rationalise and reform these laws become embroiled in both ideological and political contestation. This cannot and should not be changed. It is part of the natural process of a planning system evolving. However, the levels of dysfunction, injustice and inefficiency that we see now in the operation of these laws call for a new approach. In beautiful surroundings, encouraged by bright and experienced colleagues it is tempting to imagine that we can find all the solutions here. Obviously we can t but we can make an important first step towards building a path towards substantial improvements over time. In doing so we must acknowledge and learn from earlier endeavours in this field and also be open to learning from the experiences of other countries, especially other developing countries. At the end though we must be able to reassure ourselves that we have grappled with the difficult issues and come up with ideas and resolutions that will have an impact well beyond this group. These ideas need to be ones that take into account the different ways in which planning laws allocate and influence the costs and benefits of urban development and urban planning, and which lead to a system of planning law which is more just, more efficient and more sustainable. Stephen Berrisford 22 July