Urban and Environmental Law - Essay Example

Name: Tutor: Title: Urban and environmental law Institution: Date: Introduction Urban areas are located within natural environment. There development has several impacts on environment. Industries, factories, buildings and urban infrastructure do always consume resources, change landscapes and cause both air and water pollution. Waterways, trees and waterfronts in urban areas do serve as habitat and ecosystems for many species. Therefore, there destruction, through urbanization, can greatly impact the life of species that depends on these natural resources. These effects have made many governments to implement various development control systems that ensure effective development of urban areas. The development control systems do always aim at preventing or minimizing negative externalities such as pollution. The systems do also ensure that the community gets what it deserves, desires or needs. Many governments normally use various strategies in implementing development control systems. The most commonly used strategy is regulation. Regulation entails the introduction of controls over development via zoning and development standards. This paper therefore seeks to evaluate the need for regulation of development via planning laws and determine whether or not land use zoning is essential to planning. Regulation is an intervention strategy that is common to urban planners in Australia. Urban planners in Australia do always use regulatory-based statutory planning system to control development in urban areas. In order to effectively develop urban areas, urban planners do always regulate development via planning laws. The use of planning laws to regulate developments in urban areas is very essential. Regulation of development through planning laws is essential since it ensures proper urban development. It is believed that development of urban areas is not possible if the environment is not regulated (MILLER, 2005). For example, the dominance of piracy in urban areas can derail trade development. Therefore, there is need for urban planners to regulate business environment via planning laws so as to promote trade development. This can be done by formulation of laws that prohibit piracy. The planning laws do also provide urban developers and conservationists with the information about the kind of development that are allowed in a certain areas and the ones that are not allowed, without the need for development consent. In Australia, the most common planning law that is normally employed to regulate development in urban areas is the environmental law. The environmental law assists developers and environmentalists to precisely know what should and should not be done on the surrounding physical environment. For example, the marine pollution act 1987, highlights that the master and the owner of a ship discharging oil into the waters are guilty of the offence unless they are able to prove that their action falls within the law. Environmental law therefore assists developers and environmentalists to set out procedures and make decisions on matters pertaining urban development. Developers and environmentalists’ decisions can assume a form of plans, permissions, orders, notices or directions (Williams, 2011). In planning, developers and environmentalists do always operate within environmental planning and assessment act. The act provides the procedures that environmental plans need to follow. It does not highlight the duties and rights of developers in relation to development of a certain piece of land, but rather it states clearly the kind of developments that are prohibited and the ones that are not prohibited on a particular piece of land. Apart from provision of plans, environmental law also provides procedures through which permissions, such as approvals, consents and licenses can be obtained. The law provides the steps that should be followed when securing permissions and determines decision-maker’s powers (THOMPSON, 2007). Regulation of development should be done through planning laws so as to effectively manage externalities. Externalities in this context refer to the total value of an urban area. They do not refer to market failure’s externalities. Externalities incorporate all the effects of the neighborhood. They can be managed effectively through land use regulation. It is obvious that the market values of an area normally vary with its uses. Each of these prices therefore can be taken as a sum of various set of externalities since they apply to a particular use. The highway’s proximity can be positive for certain uses and negative for others. Similarly, the proximity of parks, shops and public transport can be positive for certain uses and negative for others. The value of an area will be indeterminate if its use is not constrained (Williams, 2011). Land use should be regulated so as to assist in forecasting future patterns of externalities impacting the land. The land’s development potential should be defined very well so as to have a market value. The development potential of a land can be defined well by planning laws. The laws stipulate that nobody should own any piece of land unless the boundaries are well defined and enforced by the government. The planning laws do also specify that nobody should involve in development of urban sites unless the windfalls and wipeouts are restrained within acceptable limits by either zoning or other regulations pertaining land use. The environmental law clearly illustrates how land should be used. This normally assists when making decisions about land use in both rural and urban sites. However, the decisions on proper land use do always go beyond the traditional allegations of town and national planning law or environmental law. For example, when deciding on industry’s siting in relation to road networks’ structure and residential places, it is important to create decisions and options on issues such as effects of mining, agriculture and forestry (NEWTON, 2008). It is also important to create decisions and options on issues such as preservation of land for national parks, pollution management, animals and plants protection, protection of heritage and the rights of aboriginal to acquire land and other resources. Therefore, planning laws do always aim at ensuring that development is ecologically sustainable, that is, development needs attains the current requirements without compromising the capabilities of the coming generations to attain their demands (Williams, 2011). In New South Wales, planning and development of major projects normally follows part 3A of environmental and planning and assessment act 1979. Clause 8B of Environmental Planning and Assessment Regulation 2000 (NSW) illustrates that the report of Director General should incorporate an evaluation of the project’s environmental effects. By considering the Telstra Corporation v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133 (Telstra v Hornsby) decision , acknowledgement of public interest in Pt 4, s 79C of the Act implies that ecologically sustainable development’s principles should be taken into account by decision maker. However, clause 8B further illustrates that it is the mandate of Director General to decide the public interest’s aspects that are applicable to Part 3A project (Carr, 2007). Even though the Australian government has primarily relied on regulatory strategies such as land use zoning, the mechanism is however not essential in planning. Williams (2004) argues that even though the possession of legal powers to enforce healthy zoning management may be desired by many foreign planners, there is a persistent concern that planning is still one-dimensional since it greatly depends on a single tool. The New South Wales (NSW), in its plan making system that was carried out by NSW Department of Urban Affairs and Planning (DUAP), greatly recognized this dependency. DUAP, in its white paper on planning reform, noted that majority of the plans only concerns with control and regulation of development. The planning reform, named Plan First, highlighted the desire to consider planning tool box that is very useful, that is, the one that can promote application of measures that are proactive and helpful. Therefore there is a need for alternative package that combines the targeted regulatory and non-regulatory actions. The alternative package that can be used to implement government planning policies is the transferable development rights (TDR). Williams (2004) claims that even though transferable development rights have been greatly ignored in Australia, it needs to be considered in implementing government planning policies so as to assist in growth management. Growth management is an open program that aims at shaping and controlling growth via several combinations of intervention policies or techniques. A common goal for management growth is land protection due to its values and attributes. It is important to note that all TDR’s considerations should occur within property rights’ context and the context of several environmental and natural resource management approaches. These approaches are control and command regulation, voluntarism, self-regulation, economic tools and free market environmentalism, education and information disclosure. The transferable development rights (TDR) can be described as a mechanism that relies on property rights. This is because a development right can be observed as a right that accrues from ownership or other property’s interest. However, essential variations can be outlined in real application and consequences of property rights’ concept. Property rights have particularly been recognized as having an economic tool’s example. They have also been considered as being demonstration of open market environmentalism. In laissez faire land management, development rights are believed to be reward-able if constrained through regulation of land use. However, in a moderate market-based or economic tools view point, property rights can be obtained and transferred according to regulatory-mandated scheme. In this view point, several forms of economic tools such as market development and property rights have been visualized as hybrid among direct regulation and market environmentalism. It is in this combination of economic regulation and tools that TDR should be theorized. The need for TDR to entail regulators to work makes it fall within the context of market-based or economic tools, rather than open market environmentalism, in spite of its theoretical foundation in property rights (William, 2004). Another mechanism that can be employed to implement government planning policies is the tradeable offsets. In Australia, the hybrid method of policy-based economic tools and regulatory is greatly applied in areas of environmental conservation and resource management. The mechanisms that are included in these economic tools are trading mechanisms such as tradeable offsets and TDR. TDRs are quite different from tradeable offsets. TDR is typically a voluntary mechanism, that is, it can be supported by a policy or legislation. Offsets on the other hand are compulsory in nature and do always function via regulatory mechanism such as provision of permits or approvals. Examples of offsets in New South Wales incorporate the Green Development Offset Scheme and the application of offsets in relation to salinity and natural vegetation. Illustrations of Offsets utilization are regional vegetation management plans (RVMPs), which are prepared under NSW Native Vegetation Conservation Act 1997 (NVC Act). RVMPs consider offsets as an instrument to promote re-vegetation and minimize the effects of salinity (GLEESON & LOW, 2000). The aim of RVMPS is usually to make sure that the negative effects of clearing natural vegetation are counterbalanced by different actions that have positive effect. Offset actions entail improvement of the prevailing natural vegetation management, restoration and redevelopment of degraded vegetation area. The actions can occur on similar property as the clearing. They can also be alternatively tradeable by permitting the effects of clearing on one property to be counterbalanced by the action on another property. The supporter, who needs to clear, will purchase the needed offset credits from land manger or owner, who had carried out the beneficial action (William, 2004). Conclusion From the discussion, it is clear that regulation of development via planning laws is required for various reasons. There is a need to regulate development through planning laws so as to ensure proper urban development. Development of urban areas is not possible if the environment is not regulated. Regulation of development should also be done through planning laws so as to effectively manage externalities. Externalities can be managed effectively through land use regulation. Land use regulation assist in forecasting future patterns of externalities impacting the land. It is also clear from the discussion that zoning is not essential for planning. A number of alternative mechanisms have been suggested, which include TDR and Tradeable Offsets. TDR and Tradeable Offsets are viewed as mechanisms that can be used to effectively implement government planning policies. TDRs are quite different from tradeable offsets. TDR is typically a voluntary mechanism, that is, it can be supported by a policy or legislation. Offsets on the other hand are compulsory in nature and do always function via regulatory mechanism such as provision of permits or approvals. References Carr, Y., (2007), Does Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) undermine the objects of that Act? GLEESON, B., & LOW, N. (2000). Australian urban planning: new challenges, new agendas. St Leonards, N.S.W., Allen & Unwin. NEWTON, P. W. (2008). Transitions: pathways towards sustainable urban development in Australia. Dordrecht, The Netherlands, Springer Science. MILLER, D. (2005). Urban environmental planning: policies, instruments and methods in an international perspective. Aldershot [etc.], Ashgate. THOMPSON, S. (2007). Planning Australia: an overview of urban and regional planning. Cambridge, Cambridge University Press. Williams, P., (2004), Use of transferable development rights as a growth management tool. Williams, P., (2011), Planning and Urban development. Read More