Journal of Law and Social Policy

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English Abstract

The theme of this special volume is “Challenging Traditional Notions of Property in Land Use Planning.” Property in the common law tradition is conceived as a right to something, whether physical or not, that is disconnected from the object or idea itself. Property interests are almost always hierarchical and exclusionary. An emerging body of property law scholarship is challenging the basic tenets of the discipline. For example, Nicole Graham argues that property law must be rooted in a time and place, and Sarah Keenan suggests that property law is a form of spatial and temporal order that can function as a tool of governance. Representing the “progressive school,”, Gregory Alexander disputes that the right to exclude is or should be the core of private ownership, preferring instead a “governance” model of property that sees rights as fragmented, multiple, and regulated through a framework of governance norms. Interdisciplinary legal geographies projects similarly challenge the hierarchical and exclusionary notions of property law and instead embrace a plurality of legal orders and a messy collection of interests.

One key application of this scholarship, both empirically and theoretically, concerns land use planning. Land use planning conflicts about how privately-owned land can be used reveal the complexity of contemporary property relations. There is tremendous conflict over urban land use for certain types of land in specific locations. A critical challenge is confronting complex property rights that exist in built environments, triggering responses from multiple actors, such as local and provincial governments, First Nations, developers, neighbourhood associations and the public. At the same time, legal systems acknowledge that persons are entitled to equal treatment within the applicable administrative and political bodies that shape and resolve planning disputes. To effectively resolve conflicts related to spatial development, a deeper understanding of the complex interactions between land use planning, legislative decisions, and resulting property rights is required.

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