Planning Rights in Theory and Practice: The Case of Israel

Abstract

Planning rights in theory means the abstract concept of planning rights (PRs): here this concept is defined and the status of real PRs–positive or potential–is explained. Real PRs are always related to a particular context; thus any discussion must be context-specific. A pilot study researched the Israeli planning system: this paper presents the resulting inventory and status of PRs in Israel. A selective review details positive and potential PRs under participation, non-discrimination, human dignity and social justice, and evaluates their effectuation in Israel, compared to some other planning systems. The conclusions summarize the pilot study's findings and recommendations, and develop its implications for research methodology, planning theory and practice.

Notes

1. An earlier report on this project was presented in Alexander (2005).

2. This project has two parts; the first is the study that is the basis for this paper, the second presents empirical research on the implementation status (conformance, enforcement, or violation) of selected PRs in the Israeli planning system.

3. This is a condensed version of Alexander (2002a).

4. Such acknowledgement is of course implicit but it is no less significant for that; this refutes property rights advocates' claims that planning is opposed to property rights (Alexander, 2007a).

5. An example is the PR giving designated beneficiaries a right to public housing, derived from the (unrecognized) general social right to shelter, but acknowledged through the authority of the Public Housing Law; see discussion under ‘Social justice’ later in this paper.

6. The comparison was limited to normative principles closely linked to planning practices: fairness/due-process, public participation (including freedom of information–the right to be notified and the right to know), and reasonableness. It was omitted for those principles and PRs (human dignity, equality/non-discrimination and social justice) that mainly required comparative legal research, which is outside the author's primary area of competence.

7. These countries' planning systems were chosen based on two considerations: (1) As relatively well respected and documented planning systems they are suitable as a normative basis of comparison; (2) The author is familiar with them and had easy access to needed sources of additional information.

8. In particular, in British-derived land-use law (Fairlie, 2000; Upton, 2006).

9. Examples include devolution in Scotland (Miers, 2006), privatization of planning rights (Pennington, 2000), ‘sovereign planning rights’ in the EU (EMS, 2000), and Australian state-local and Canadian province-municipal conflicts (Verity & Davies, 2003; Gillespie, 2002).

10. In the context of the UK planning system such PRs are called ‘third party rights’ (Ellis, 2000); the term PRs has been used to raise public awareness in England (Friends of the Earth, 2004) and to advocate third-party appeal rights in Scotland and Ireland (Scottish Environment Link, 2003; Friends of the Irish Environment, 2003). Other users of PRs in this sense include Kasaegae et al. (2000), Nederveen (2001) on Netherlands infrastructure planning and Garcia-Zamor (2001) on Frankfurt airport planning

11. In Israel non-discrimination is a positive PR enforced by the courts; in the US it is a constitutional right and its PR impacts range from court-enforced ‘fair share’ housing in New Jersey to EPA-adjudicated ‘environmental justice’ (Alexander, 2007b).

12. See also below under ‘Public participation’; for more cases and detailed analysis, see Bimkom (2007).

13. See under ‘Human dignity’ and ‘Social justice’ later in this paper.

14. This is part of a constant and ongoing dynamic process involving political engagement and legal action–see e.g. ‘Human dignity’ and ‘Social justice’.

15. For a more detailed comparison, see Alterman (2001).

16. See also Alexander (2004a) for a more detailed description and critical analysis of the Israeli planning system.

17. The full report of the pilot study (Bimkom, 2007) contains a detailed review and analysis of each of the PRs inventoried in Table 1. This section is a condensed extract from that report, which is limited to the selected PRs to respect the space constraints of a journal article.

18. These include the municipally-sponsored ‘quarter administrations’ in Jerusalem, and city-supported neighbourhood associations in Tel-Aviv and Haifa.

19. The Netherlands' cooperative housing associations, which are powerful actors and planning participants in the housing market, are an exception to this generalization.

20. In Israel the role of residents' associations and special interest (e.g. environmental) citizens' groups is usually oppositional and takes the form of objecting to deposited plans and proposed projects (see later in this paper). A recent exception is the planning establishment encouraged public participation in planning Issawyya, an East Jerusalem neighbourhood, with the engagement of Bimkom as advocacy planner-facilitator.

21. Our informal information sources did not cover this aspect of participation in planning in the UK.

22. Some High Court of Justice (HCJ) decisions related to standing before courts and administrative bodies, and the recent HCJ decision on Ain Karem Residents' Association vs. Jerusalem District Planning & Building Commission (Bimkom, 2007).

23. An example of the former is the current detailed town planning scheme for the village of Issawiyya (see note 19 above). A case of the latter is the Bedouin ‘counterplan’ for Bedouin settlement in the Negev, in opposition to Israel government plans for the region (Alexander, 2004b).

24. In the Netherlands, objections are raised at hearings, and the appropriate planning body considers objections and appeals; in Israel for large or complex statutory plans the law enables appointment of an ad hoc examiner to hear objections and recommend their disposition; the UK has a standing institution, the Planning Inspectorate, for this purpose, and the inspector's recommendations are binding on the planning authority unless it provides a reasoned dissent.

25. This impression is anecdotal and unsupported by any systematic research or scientific evidence; it is based solely on the shared experiences of the author and others familiar with the three countries' planning systems.

26. The ‘takings issue’ (Strong et al., 1996) is a case in point, where court decisions have determined planning processes and decisions in areas ranging from development control to coastal zone management.

27. For example, the New Jersey Supreme Court's role in the long-running fair-share housing allocation issue (Coyle, 1993: 65–83).

28. ‘Israel 2020’, a major national development plan that served as the platform for the most recent statutory National Outline Plan 35, is an example of the former; the National Infrastructure Commission, which was set up in 2002 to review and approve major strategic infrastructure projects and pre-empts the statutory planning system, is a case of the latter.

29. This was addressed in several court decisions, but has still not been remedied.

30. Popularly known as the problem of ‘the unrecognized Bedouin villages’, this has been the subject of a decades-long conflict (partly over land property rights) which has played itself out in the planning system and the courts; see Bimkom (2007), Swirsky & Hasson (2006) and Alexander (2004b).

31. The Kadan decision, and the Keshet Hamizrachi decision (Bimkom, 2007).

32. The uncertain status of these PRs is a matter of generalization from specific cases, e.g. under infrastructure the basic right to water supply has been upheld, while (under minimal services) the courts have affirmed the obligation to provide accessible basic health services (Bimkom, 2007).

33. The inspiration for this status report on PRs in Israel was Amnesty International's human rights reports.

34. For a more extended exposition of these issues, see Alexander (2007b).