Property, Planning & Protest Chapter 4

The Inclusive Rights of Property

Here are some extracts from Chapter Four

Protest and property rights 

On 24 February 1998 over a thousand people met in Hawthorn Town Hall, Melbourne, Australia, to launch Save our Suburbs, one of the largest mobilisations of residents ever engaged in contention over housing supply. This well-connected organisation, with its barrister president and professional class activists, epitomised for some the stereotype of affluent suburban homeowners acting in defence of property values. The property values Save Our Suburbs professed to represent were not, however, about the price of their homes. The deregulation of Victoria’s planning and zoning policies had given near carte blanche to property developers to demolish suburban homes under the guise of urban consolidation, with scant protection for heritage, neighbourhood character or environmental conservation. With planning decisions made by appointed commissioners and municipal authorities deprived of regulatory powers, Edwardian era homes were demolished with no assessment of their heritage value, mature trees and shrubberies were bulldozed in once leafy suburbs, and high-price apartment blocks erected that required no permit or approval. The new design code for medium density housing contained no provision for parks, playgrounds, or environmental protection; it was impervious to any sense of place and allowed detached lots to be built up to their boundary line, providing no safeguard against overlooking (Huxley, 2002). Against this unregulated property development bonanza, Save Our Suburbs upheld the planning policies of amenity to maintain the quality of the built and natural environment. They explicitly campaigned to retain an interventionist planning system in Victoria that prioritised environmental sustainability, conservation, and heritage. In a series of planning charters and policy statements they clarified their opposition, not to development, but to the unregulated destruction of amenity. They called on the state government to require planning permits for all developments, including demolition, and to return to a plan-led system in which apartments would be built in sustainable locations agreed by local democratic representatives. Higher density development should be planned, they said, “in a coordinated fashion, rather than upon an unplanned and sporadic basis,” and situated near public transport infrastructure and local services (SOS Policy Statement, quoted in Lewis, 1999: 273). In their charter they asserted that the primary goal of urban planning should be ecological sustainability and a concern for amenity and quality of life, the conservation of nature and the protection of cultural significance. As policies of urban consolidation spread across Australian states, accompanied by the award of permitted development rights, and enabled by the diminution of democratic oversight, the spirited defence of amenity planning by Save our Suburbs in Victoria was mirrored in the formation of the Better Planning Network in Sydney in 2012, a broad alliance mobilised around the threat to habitat and environmental protection. Planning academics who studied these movements expecting to evidence the assertion of privileged homeowner property values, found a far more complex set of claims extended over land use and housing development (Ruming, Houston and Amati, 2012). In promoting a planning system that championed the concept of amenity, this suburban planning movement aimed to renegotiate the concepts of property value and property rights.

Exclusion and inclusion

The rights of exclusive and exclusionary property ownership frame the terms of all planning and zoning decisions. It is the owners’ application for a change of use – for the right to improve and profit from land – that defines planning’s remit and governs the decision-making process in land use regulation. The concept of property applied in planning and in environmental law and upheld by the judiciary in zoning decisions acknowledges that rights of ownership may be infringed to protect public interests. In these judgements the courts depart from the traditional definition of property in which exclusive ownership insulates the landowner from any responsibilities to other members of the community. Writing in 1766, the jurist William Blackstone claimed the rights of property entailed the “total exclusion of the right of any other individual”. Exclusive property ownership granted rights to “sole and despotic dominion…over the external things of the world,” as he so quaintly put it (Davy, 2009: 236). Planning law does not accept that property ownership excludes the rights of any other person. It recognises the potential for a public interest in the use of privately owned land. In zoning and planning decisions, however, the only individual rights recognised are those of the owner, and “individual” is here a legal term for what is often a corporate interest. All those others adversely impacted by an owner’s lawful use of their land have no rights; they can only represent their concerns to the planning authority. It is the planning authority and the courts that decide whether the other individual interests at stake are matters of public interest. Third party rights to representation are not rights to property nor do they constitute any formal acknowledgement that any interests in land exist other than those of ownership (Van Wagner, 2013). Planning is “an indispensable, but always restrained” instrument for overcoming the contradictions of a society structured on individual property rights, as Marxist planning theorists remind us. Any transgression of the sanctity of private property is robustly resisted (Dear and Scott, 1981: 14).

The legal theorist Laura Underkuffler (2003) argues that the public interest in planning protects the property interests of identifiable individuals, those whose interest in land use is affected by the exercise of another’s development rights. Planning and zoning disputes often pit the interests of a landowner against the claims of others to an interest in the same land. Underkuffler maintains that property rights extend beyond those of ownership and that third parties may have legitimate claims on the use of property they do not own. “Protectable property interests in physical resources go far beyond the narrow concern of simple freedom to use one’s land,” she said. “It is apparent that the claimed right and the competing public interest … are not entirely different and unrelated entities; rather, they are deeply and equally rooted in property-based concerns” (Underkuffler, 2003: 100). What one property owner does with their property may affect neighbouring property and have much wider repercussions. Planning law invokes the idea of the public interest in response, but the public interest may refer to the property interests of specific individuals. These individuals have an interest in the exercise of another’s property rights because they are immediately affected by the use of neighbouring land. The rights of landowners to the use and development of their property are therefore dependent on the claims of others who are affected by that use. Property rights are inherently relational. The protection granted to the rights of owners often conflicts with the interests of others, but both sides can be understood to have legitimate property rights. 

The planning concept that most effectively conveys a public interest in the use of privately owned land is that of amenity. The concept of amenity addresses the use value characteristics of land, the relationship of land to its immediate environment, and the effect of a change of land use on the character of the surrounding area. It describes specific land uses that bring environmental benefits, that are available to all as common goods, and that have more than human beneficiaries. Visual amenity assigns value to built design, the protection of cultural heritage, and the expression of a sense of place. It regulates the scale and size of development, and the materials used, to ensure it respects the surrounding area and the character of existing properties. Residential amenity protects third party property rights to privacy and light, and recognises the impact of development on living conditions in terms of overlooking, overshadowing, and any persistent intrusion that might render neighbouring property an unattractive place to live. In ascribing value to specific land uses, such as gardens, hedges and trees, publicly accessible views, and vistas, and to attributes such as space and light, the planning concept of amenity conveys the benefits that others may obtain from the uses of property they do not own. It assigns third party rights that give weight to both a public and an individual property interest in land use distinct from ownership. These third-party rights intrude on the property rights of registered owners and limit their licence to extract the highest value from their property. 

Amenity was the guiding principle of the early town planning movement from its earliest history. The Regional Planning Association in the United States and the Garden City movement in England and in Australia wereconcerned with the distributive outcomes of housing development. Their goal was to improve overall quality of life through planning policies that brought the countryside into the city and that prioritised aesthetics, the cultural associations of place, and fostered a sense of community belonging. They promoted a design template of light, space, fresh air and greenery, and garden suburbs provided their finest expression (Rutland, 2015). In a residential market where the quality of the built and natural environment is tied to the price paid for housing, the public interest in amenity – in environmental protection, aesthetics, character, and design – is a property interest that can be purchased and individually acquired. Amenity has an exchange value as well as a use value and residential proximity gives preferential access to its benefits, although those benefits cannot be monopolised. It can be argued, therefore, that the public interest in amenity describes a third party property interest that is held in common by specific individuals and that is, in addition, publicly accessible. Amenity planning assigns common property rights that extend across the boundaries of land ownership. It specifies the responsibilities of property owners to others – both specific third parties and an abstract public – to maintain certain land uses and to accept limitations on their exclusive rights to do what they want with their land. Amenity provides a way of thinking about property that stretches “possession outside of possessive logics” (Blatman-Thomas and Porter, 2019: 42). 

The Save Our Suburbs movement in Victoria mobilised a community in defence of a legitimate third-party property interest in the maintenance of specific land uses. Property development without regard to neighbourhood character, that removed gardens, cleared mature woodland, and blocked space and light, intruded on the amenity of others, they argued. In their residents’ Bill of Rights, Save Our Suburbs asserted: “Property rights include the enjoyment of amenity in the form of privacy, daylight, views, accessibility, public and common space, and a compatible environment in terms of both built form and vegetation” (quoted in Lewis, 1999: 266). In the conflict over environmental protection, the conservation of heritage, and sense of place in the garden suburbs of Australia, the public interest was innovatively redefined as the aggregated property rights of a residential community assigned a protectable interest in the use of land they did not own. The role of statutory planning in regulating property development was interpreted as the power to assign land use rights, not just to the property owner or to the statutory authorities, but to identifiable individuals and communities recognised as asserting public interests. In the ensuing conflict, the developer-owner’s private property rights were confronted by the common property interests of the suburban communities whose amenity was threatened (Blomley, 2008). 

The idea that planning and zoning policies assign land use rights that are communal as well as public, and inclusive rather than individual, gives us a radically different definition of property from that of exclusive private ownership. It reminds us that the cause of land reform was the motivating force of the early town planning movement, and it directs us to the violent history of dispossession and racial domination through which property was first rendered an exclusive possession (Harris, 1993).