Paper delivered at the launch of 'Principles of Planning Law' by Mr Les Stein
Launch of “Principles of Planning Law” by Les Stein
The Hon Justice D A Ipp AO
On its face, the title - “Principles of Planning Law” - might be thought to be mundane. On closer thought, however, the title – which is an entirely accurate description of the work – reveals its uniqueness. The book does not focus on the detail of particular statutory planning regimes, save to the extent necessary to illustrate planning law principle, and to exemplify each particular principle that is discussed. The same applies to the citation of case authority. The unique aspect of the book is that it extracts, isolates, and gathers together the underlying legal principles of planning law so that they form a coherent whole. As the author says in the introduction, “this is not a book whose purpose is to analyse decisions of the courts in individual cases to deduce the law. Instead it is a work designed to find the principles or thinking at the bottom of planning law, and therefore it uses legal decisions as illustrations”.
There are many textbooks on the law of town planning. Generally, they commence by setting out and then discussing section 1 of some town planning Act and follow through by examining the succeeding legislative provisions of the statute concerned. The unique concept underlying Les Stein’s work is that it formulates universal legal principles covering all aspects of town planning. The book establishes a legal framework of planning law. It creates a jurisprudential corpus that is of universal application. It is my understanding that this has not been done before, and Justice Brian Preston, Chief Judge of the Land and Environment Court, has confirmed to me that this is, indeed, the case.
The book transforms the pragmatic, idiosyncratic collections of statutory rules that differ from State to State and from country to country into a comprehensive set of legal principles. The principles are articulated, analysed and closely examined. The principles so formulated are intended to apply to the understanding, construction and application of town planning legislation and legal problems, generally, irrespective of the particular statute that applies. For this reason, the work will be relevant and of assistance throughout Australia and, indeed, internationally. Therein lies its extraordinary originality and functionality.
The book contains a striking foreword by Patrick McAuslan, Professor of Law at the University of London, an acknowledged international authority in the field of planning. Professor McAuslan has worked in over 25 countries as policy adviser to governments on land and environmental matters and as draftsman of new laws and statutes on land, natural resources and the environment. He has published many articles and books on planning law. He has pioneered courses in planning law and environmental law at universities in United Kingdom. He was the founder of the Modern Legal Study Series published by Sweet and Maxwell, of which he served as the general editor from 1972 to 1997. He is extraordinarily well qualified to comment on the merits of this book. Professor McAuslan says, “Hereto, there has been no single work that has brought together the significant body of law that has been developed in a comprehensive, coherent and scholarly manner in the way that Professor Stein has now done in his book. The book will not only be of inestimable benefit to practising planners and lawyers, planning and law students, and others working and studying in the area of urban management, bit also, I believe, will prove to be one of those books that will be of great benefit to society at large..”
The principles articulated in Principles of Planning Law are discussed in detail and in depth in simple and direct language. The author explains the social, cultural, economic and historic factors that have created planning law doctrines. His examination reveals the structure of these doctrines and makes them comprehensible within the larger context. This explains and justifies Prof McAuslan’s view that the book will be of great value to all involved in planning law, at every possible level.
It is often said that the law of each nation reflects the inherent general characteristics of that nation. Thus, the English common law is known for its pragmatism, flexibility, respect for fairness, impatience with metaphysics and regard for commonsense. The laws of other developed western European countries, such as France, Germany, Holland and Italy, are characterised on the other hand by the importance attached to certainty, to principle, to logic, to schematic coherence and intellectualism. If civilian law, as the laws of these countries is peculiarly known, were to be described in terms of colour, it would be pictured as a stark contrast in black and white, whereas the English common law would be a tonal sequence of differently shaded greys.
In the same way, the planning decisions taken in different cities reflect the personalities and characteristics of the societies in those cities. Examples are the neo-classical imperialism of Washington, the epitome of commercial, technical and industrial power represented by the sky scrapers of New York, the decadent elegance of Venice, the grace, style and charm of Paris, and the post—modern, democratically similar suburbs of fast growing Australian cities. The list is endless.
Despite this extraordinary diversity, there are common historical threads that are of application wherever humans gather together in urban configuration. The history of some five thousand years of living in cities is now known. It is thought that the first streets in urban construction followed the paths of cows. Cows tend to walk in curved lines. The first city streets, therefore, were curved. The notion of town planning incorporating curvilinear streets is a tradition that stems from the time that humans first grouped together to live in one place. Small houses found in a city in the Indus valley, dating from the third millennium BC, were two storeys high and about 10 metres long by 9 metres wide. Their size was the same as a modest house in Athens in 200 BC; they would not be out of place in parts of Redfern today. The living space provided for poorer people 5000 years ago is virtually identical to that provided in model subsidised housing estates in the 21st century.
The notion that the centre of a city must be occupied by places of power, such as government edifices, temples, citadels, monuments, towers or skyscrapers, stems from the beginning of recorded human history. Buildings of this kind, in the centres of cities, have always been constructed with the most up to date and costly building materials, decorated by all the resources of art.
The idea that huge public places of entertainment must be built away from where the elite live, and must encompass areas of open space through which sated crowds can make a quick exit without trampling on each other, stems from at least Roman times. The notion that town planning must ensure that the swarming masses should not disturb the noble, the rich and the important, is universal. One sees it in constructions that range from the Colosseum in Rome, to the Hippodrome in Constantinople, to Wembley Stadium in London, to Olympic Park in Sydney. You may be interested to know that in Rome the public open space for mass assembly and movement was known as the vomitarium. Privately, in Roman times, this was a special room adjoining the dining room, where gluttonous eaters would get rid of their food so that they could enjoy more. The business of the hasty emptying out of food was transferred to the great passages and openings that enabled a quick exit to be made from amphitheatres.
The decentralisation of the essential social functions of the city first occurred in medieval times. Suburbs are now a familiar and universal phenomenon. So is the idea, quite novel in pre-medieval times, that front doors of houses should face the street. What is sometimes described as the authoritarian aestheticism of a single uniform style set within a rigid town plan came later. But do not think that the gridiron model of town planning that one sees in Washington and New York is a recent idea. The chief point of origin of this system is Miletus, in ancient Greece, which was laid out, in a strictly controlled way, on a checkerboard plan. Greek colonists from the time of Alexander the Great followed this model in building their cities as did the Romans, in constructing their colonial empire. The gridiron city plan has been used for 2000 years in Western Europe and became the basis of North American town planning. Visitors to New York and Washington, take the gridiron plan for granted, and many believe that it is typical of American modernity and efficiency, but the concept has been known to humans, and applied, for thousands of years.
By the 16th century, functional zoning, based on use, was fairly strictly applied in Venice. Each of the small islands constituting the city was set aside for a particular industrial use; for example, one island was set aside for glassware, another for the production of weapons, another for shipbuilding and one for the burial of citizens. The canals served as the boundaries of these neighbourhoods as well as connecting links, functioning like the greenbelts and motorways of a well-designed modern town.
Thus, although urban planning as an organised profession has existed for less than a century, since time immemorial most cities have displayed various degrees of forethought and conscious design in their layout and functioning. As I have attempted to demonstrate, despite the infinitely diverse nature of cities there have always been common threads dictated by basic human aspirations, desires and needs. These ancient common threads of organised human habitation are a reflection of the commonality of humanity, from which a pattern of common laws can be extracted.
By “common laws” I do not mean a common law system adopted by a particular nation, but a set of laws that are common to all or most nations. In recent times there has been much writing by academics who have attempted to draw together common legal norms and principles in different fields of law. This has particularly been the case in Europe and the European Union has been a fruitful field of research in this area. The notion of common laws (rather than common law) has been described as “the essential legal tradition, allowing unity to be preserved amongst diversity”. But, to the best of my knowledge, Les Stein’s Principles of Planning Law is the first work that has carried out this exercise in planning law.
In some ways, this is surprising, as planning law, by its very nature, lends itself to the notion of a set of legal principles of universal application. In modern times we have experienced conditions that have led to the development of general planning principles that are of general application today. These include a greater understanding of common human needs, the homogenisation of building and engineering techniques and materials, and the overwhelming growth of world-wide communication - resulting in a growing uniformity in human tastes and aspirations.
While, in theory, the legal principles governing town planning should be capable of definition, the degree and depth of knowledge, analysis and thought required to fulfil such a task would be formidable. The demands of such an arduous task perhaps explain why it has not previously been undertaken. But what I have said underlies the uniqueness of Les Stein’s Principles of Planning Law. It is, in the words of Professor McAuslan, “a triumph of scholarship”.
A production of such originality requires a deep knowledge of planning law; knowledge from every point of view. Knowledge derived from practical experience in many cities, in many countries and in different continents. And this has been Les Stein’s life. He was brought up in New York. He studied planning law at Osgoode Hall in Toronto. He has maintained planning law as his speciality for almost 40 years. In 1974 he published his first book on planning law called “Urban Legal Problems” while a lecturer at the University of Melbourne. He returned to Canada to be a Professor of Law at the law faculty at the University of Toronto and was also appointed the Professor of Planning at the Planning Faculty in that University. There he published several articles on planning in Canadian journals. During this time he was part of a United Nations team concerned with the drafting of planning schemes in Singapore, Thailand and India. He edited a work on locus standi published by Law Book Company. He emigrated to Western Australia and became a Professor of Law at the University of Western Australia. That I think, at least indirectly, explains why I am standing here this afternoon. While at the University there Les was appointed first as Deputy Chairman of the Town Planning Appeal Tribunal and was then Chairman for a total of 10 years sitting on planning appeals. In this time he published hundreds of judgments, and drafted the Western Australian Model Scheme Text used by all local authorities in that State. He worked with a colleague in the geography department at that University on writing and editing a 12 volume report on environmental issues. He has travelled extensively in India and worked at the Benares Hindi University for six months. He has travelled and lived in the Himalayas. Before writing the “Principles of Planning Law” he published a great deal in the area of town planning. Four years ago he came to Sydney to be Chief Counsel to the Sydney Metropolitan Strategy and was a member of the Planning Reform Committee set up by the then Minister. I have mentioned all aspects of Les’s life in an attempt to demonstrate not only the depth but the breadth of his knowledge of plan
The book is published by Oxford University Press, a publisher of long established high international repute; a publisher that will require a work to be of appropriate standard before lending its name to it. The work was highly refereed, and at different stages, before the publisher agreed to publish it.
The book is divided into eight parts or chapters that are, themselves, divided into further parts. The first chapter concerns the underpinnings of planning law. It discusses the values that underpin planning and the validity of the assumption that regulatory controls can properly result in the implementation of those values. It explores the conflict between the notion that planning should be deployed for the greater good of the community and thus override proper private property rights on the one hand, and on the other hand that property rights should not be interfered with. This of course is one of the great issues, not only of planning but of modern life in a democratic state. We all admire Paris, but the Paris of today could only have been created by an authoritarian regime. It was the virtually absolute powers of Emperor Louis Napoleon that enabled Baron Haussmann to restructure Paris by giving it long straight wide boulevards running through the heart of the city, and imposing regulations governing facades of buildings, public parks, sewers, and water works, city facilities and public monuments. Much of the old Paris of dense and irregular medieval alleyways was destroyed, and the lives of many individuals were irremediably altered and indeed harmed. To varying degrees, issues of this kind remain of fundamental relevance. Importantly, the book identifies and discusses the principles whereby, in these modern times, State power is limited, but nevertheless in certain circumstances overrides private interest for the perceived benefit of others.
The book also examines environmental law and its relationship to planning law. It is trite to say that the preservation of the environment, the protection of natural resources and the conservation of water will determine the future course of humanity. In many ways the approach that courts adopt to these questions will be decisive to the way in which we will live in the future. The principles identified and discussed in the work relating to these issues will govern much of the litigation that is bound to occur in this area.
The book analyses different kinds of regulatory regimes created by planning instruments, such as zoning by-laws, development plans and local environment plans. It focuses on zoning devices and examines a multitude of different aspects of zoning. It discusses reservation of land, injurious affection, restrictive covenants and existing use rights. Uses and developments under planning schemes are examined in detail.
The book contains an in-depth discussion of policy and planning law and the legal principles that are involved in the formulation and application of policy. Here again, questions of fundamental importance are analysed by reference to the applicable legal principles in ways that will assist all involved in planning questions, no matter the part of Australia in which they reside.
Development control is examined in detail and the legal principles that have emerged in regard to development applications are identified and considered. The work discusses with subtlety what the author describes as the foremost consideration in the determination of a development application, namely, amenity, need, and public interest.
The book contains a valuable chapter dealing with conditions applicable to use, development and subdivision. Detailed attention is given to the nature of conditions and their validity.
The question that arises so often relating to whether a planning authority has failed to take into account all relevant considerations and not considered irrelevant material is examined by reference to the leading authorities. Considerations that are relevant and those that are not are analysed and the reasoning behind the applicable principles is explained. A full chapter is devoted to appeals and judicial review.
This brief overview of the work in itself gives no proper indication of the skill and lucidity with which the principles are extracted, examined and placed in context. I have merely attempted to give you a general idea of its subject matter.
Professor McAuslan says that Les Stein’s book “is clearly destined to become one of the great books on planning law”. He says “it combines an equal measure a clear and comprehensive analysis of the planning law of Australia, a critical comment on the law and its underlying ideology, and a deep contextual understanding and discussion of what the corpus of the law is trying to do: provide a legal framework for and the legal tools to manage the city, the social and economic driving force in virtually all countries and societies now”. He says that he believes that the book will prove to be of great benefit to society at large”. He describes the book as “this magisterial work”. I do not think that I can add more to the subject than that.
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