D.A. Groetelaers

The Importance of the Fundamental Right to Property for the Practice of Planning: An Introduction to the Case Law of the European Court of Human Rights on Article 1, Protocol 1

Abstract Article 1 Protocol No. 1 of the European Convention on Human Rights guarantees the “peaceful enjoyment” of ones possessions. The use of land development tools and planning tools therefore will necessarily find a boundary in the protection of the fundamental right to property by Article 1. This contribution gives a general survey of the interpretation and application of Article 1, and discusses the general testing scheme adopted by the European Court. This contribution focuses on case law of the Court involving town and land planning instruments and aims to define general principles in this field.

Juritecture of the built environment: a different view on legal design for multiple use of land

Purpose – This paper aims to introduce a new view on the role of the lawyer in the process of development and maintenance of the built environment.Design/methodology/approach – For this paper the research consists of listing and analysing legal questions raised by multiple use of land. A multidisciplinary approach is used from a legal point of view and from a planning development point of view.Findings – It is argued that law is not only a way of setting boundaries, but also should be stimulating to the development and maintenance of the built environment. This is what we call “juritecture”. The juritect is a designing lawyer; the legal construction is his responsibility. The juritect should have a role in the design process as early as possible, and he should work together with planners and architects. On the one hand, the work of the juritect seems to be that of a legal craftsman. His toolbox consists of instruments of both property law and contract law. On the other hand, the juritect is a legal schola...

Managing multi-owned, mixed-use developments in The Netherlands: The opinion of professional managing agents

Purpose – This purpose of this paper is to analyses the management difficulties experienced in multi-owned, mixed-use developments and possible solutions, based on the opinions of professional management agencies in The Netherlands. Design/methodology/approach – We performed a survey among professional management agencies that take care of the day-to-day management of many multi-owned, mixed-use developments. The survey focused on aspects such as the influence of the developer on the deed of division and the appointment of the professional manager, and the role of legal advisors. Findings – The outcomes support the assumption that mixed-use developments have more problems, and problems of a different nature, than homogeneous complexes. We conclude that a custom-made deed of division, or at least one that is appropriate to the mixed-use situation, is preferable. The legal expert involved (a civil law notary) should therefore consult the owners and – if applicable – the professional management agency. They have the practical knowledge to identify management difficulties. Drawing up the deed of division should never be the final piece of the process, but it should be an analogous development to the design and development process. However, our hypothesis that developers should consult the notary during the planning phase of new projects was not confirmed by the survey. Originality/value – Most legal research focuses on the law and the legality of instruments, sometimes including the practical implications by performing case law research. We stress the importance of including day-to-day practice and practitioners in legal research. Professional management agencies have the requisite knowledge – both practical and legal – of how the system of “apartment ownership” works. This makes them a very useful source of information.

Privacy versus national security: The impact of privacy law on the use of location technology for national security purposes

Location technology allows for the continuous tracking of individuals. Knowledge about the person’s whereabouts also allows for the development of location based services at a very detailed levels. However, there is a potential danger that the further development of the appealing technologies will be blocked by privacy regulations. This paper assesses the legal framework on balancing privacy and national security at the European level. Although the privacy restrictions may limit the use within the consumer market, for purposes of national security they appear to be almost non-existent. The European Court of Human Rights’ judgments confirm that privacy invading technologies can be used to increase national security. A discussion on the need for far-reaching surveillance mandates for national intelligence services concludes this paper.

Regional governance and public accountability in planning for new housing: A new approach in South Holland, the Netherlands:

Regional governance is coming to play an increasingly pivotal role in the planning of housing development. It has been argued that an absence of formal accountability lines in regional governance is beneficial because it makes inter-municipal coordination more flexible, without the need for territorial adjustments in local authorities. However, this view is based on a narrow interpretation of public accountability. In fact, regional governance becomes effective when hierarchical accountability arrangements are structured to reinforce horizontal accountability that strengthens self-organising capacity. This paper is based on a study of regional housing planning in the province of South Holland, the Netherlands, and analyses three types of governance modes (hierarchical, horizontal and market-oriented) and public accountability relationships. The measures undertaken in the case under review to ensure effective regional housing planning under changing market circumstances highlight the need to modify accountability arrangements when policy-makers choose a new set of governance modes in order to shape relational dynamics appropriately.