Adshead, J., Lees, E. and Sheridan King, F. (2018), "Editorial", Journal of Property, Planning and Environmental Law, Vol. 10 No. 1, pp. 2-4. https://doi.org/10.1108/JPPEL-02-2018-0008Download as .RIS
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I am delighted to be writing this editorial at such an exciting time in the history of this journal. This tenth volume sees a relaunch under a new title, which reflects our new aims and scope. The Journal brings together scholarship from the interrelated areas of property, planning and environment and will continue to accommodate diverse methodological approaches. We remain international in scope and retain a commitment to comparative legal research. These three areas of law are, of course, not new to the Journal and much has been published in these fields over the years, both under the editorship of Dr Paul Chynoweth and more recently myself. We have had Associate Editors for Environmental Law and Property Law for quite a number of years and I continue to lead on Environmental Law along with Dr Francis Sheridan King on Property Law. We have recently been joined by Dr Emma Lees as Associate Editor for Planning Law and we welcome her to the Team. We also welcome new members to our Editorial Advisory Board and we are extremely pleased to be publishing papers from board members (old and new) in this launch issue with more contributions from our board to be published in a follow-up issue later this year.
Professor Elizabeth Fisher et al. in a thought-provoking article of 2009 suggested that “environmental law scholarship can only come of age when scholars face the methodological challenges of environmental law research head on” [Fisher et al. (2009)]. They argue that the development of the subject, along with its worth as an intellectual discipline, is hampered by a lack of explicit and widespread discussion about methodology. The same can, no doubt, be said for the discrete area of planning law. It is fitting, therefore, to have a paper on methodology as the first under our new title. Associate Editor, Dr Emma Lees, and her co-author, Dr Edward Shepherd, present their “manifesto” aimed at stimulating debate on the methodologies used in environmental and planning law. In highly politicised areas such as these, the interpretation of legal norms can vary and the authors argue that ideology can “shape and mould judicial decision-making”. Lees and Shepherd look at the “rule of law” as an ideology that is internal to legal practice. Following Freeden (1998), they identify the “rule of law” as a contested legal concept comprising other specific legal concepts, themselves contested. The authors conclude that this understanding of an ideology that, although a feature of legal culture can be considered separately, can help in the analysis of judgments in areas of high levels of administrative discretion such as planning and environmental law.
The second paper in this launch issue is co-authored by Professor Robert Lee and Dr Radek Stech. This contribution addresses an important area of environmental law – compensation for harm caused by nuclear installations. The harm resulting from a nuclear disaster can be of enormous proportions as we see from the projected costs of the Fukushima disaster, currently at around $188bn. The authors consider some important amendments to the Nuclear Installations Act, 1965 made by an Order of 2016. The focus of the paper is on changes introduced by the 2016 Order to the type of damage for which the compensation can be claimed and the relationship between this and damage as conceived by the common law in England and Wales as well as in the EU law. Lee and Stech conclude that using the EU Environmental Liability Directive as a reference point for the extension of compensation for environmental impairment and its consequences in the 1965 Act may mean that the new categories of nuclear liabilities will be open to doubt. The authors also bemoan the missed opportunity to clarify the existing law on personal injury and property damage, which leaves us dependent on a body of case law that is difficult to interpret and fraught with inconsistency.
These contributions, along with others in the spheres of property and planning law, set the tone for an exciting new era for the Journal and one that we look forward to with great anticipation.
Turning to the third paper, Andrew Harding’s consideration of the five-foot ways in Singapore, we see the complex history which underpins much current planning and property law. In this fascinating piece, Harding explores the historical foundations of this staple of the Singapore cityscape, and the web of public and private law rules which constrain and shape uses of these spaces. The piece is particularly important in exploring the clash of legal cultures which colonial Singapore represented, taking on board, as it did, ideas from the British rule, and also from its South East Asian neighbours. Although those influences are now largely historical with respect to the city plan, their consideration provides an important insight into the value of understanding these different legal cultures and their contribution to accepted practice in a particular state. For this launch of the journal, therefore, this piece provides an excellent example of comparative law at work in practice, and of how planning, broadly understood, shapes such rules.
We follow this with a piece from Barbara Bogusz on the recent reforms in England with respect to neighbourhood planning, and on how the very localised decision-making which this process represents, interacts with, and is shaped by, national needs as expressed in the National Planning Policy Framework. Bogusz examines these reforms in light of their reliance on public participation and stakeholder involvement, and concludes that while local referenda have the potential to mobilise, include and legitimise, the problem of voter turnout will inevitably limit these effects. More importantly, however, as Bogusz highlights, the shift to localised decision-making from the pro-(sustainable) development stance which the NPPF adopts, can, if properly managed, give local people a sense of “ownership” of development within their area, and “benefit the community, not only terms of sustainability but also in terms of resilience”. The extent to which these goals can stand up to the national need for housing, however, remains to be seen.
From a property perspective, Sergio Nasarre-Aznar’s article provides an excellent overview of the contemporary issues facing today’s property lawyers, policymakers and “subjects”. It considers the current value of concepts of ownership against a backdrop of technological advances, as well as economic and housing crises, and contextualises this within broader discussions on property in other “subjects”, such as digital content, animals and robots. Sergio’s piece examines the role of ownership as a property concept and also appraises other forms of property relationships as viable alternatives, including leases and more collaborative or “shared” approaches to property acquisition. The article serves perfectly to encourage us to continue to question and reflect on the relationships between real and personal property, forms of property hold and the dynamic nature of these changing relationships and titles.
From a personal perspective, I believe that the article is the perfect inclusion in this inaugural issue of the Journal of Planning, Property and Environmental Law, as it provides such a comprehensive view on a number of areas that directly impact the contemporary property law. Having previously produced an editorial on “change” for the former journal, I feel it is somewhat trite to write in a similar vein but it seems unavoidable. In our own way, as a journal, we have made changes to the editorial team, the Editorial Advisory Board and the Journal’s aims, scope and title, but Sergio’s article evidences the extensive political, theoretical and practical changes that have effected and continue to face our readers, contributors and the people they work with, advise and support. I am delighted to be a part of the Editorial Team for the launch of the Journal of Planning, Property and Environmental Law and envisage many more examinations of changing property dynamics in our future issues.
The Nuclear Installations (Liability for Damages) Order 2016.
Fisher, E., Lange, B., Scotford, E. and Carlarne, C. (2009), “Maturity and methodology: starting a debate about environmental law scholarship”, Journal of Environmental Law, Vol. 21 No. 2, pp. 213-250.
Freeden, M. (1998), “Ideologies and political theory: a conceptual approach”, Oxford University Press; Freeden, M. ‘The Morphological Analysis of Ideology’, in Freeden, M., Sargeant, L.T. and Strears, M.S. (Eds), The Oxford Handbook of Political Ideologies, Oxford University Press; Freeden, M. The Political Theory of Political Thinking: The Anatomy of a Practice, Oxford University Press.