Law, pliability and the multicultural city: Documenting planning law in action

Abstract

In this paper we focus on the deployment of certain techniques that are central to municipal law's attempt to impose order on the city, namely, development control, zoning, and change of use regulation. Drawing on the notion of inter-legality, we argue that such practices can never be consistent or universal, and instead need to be sufficiently pliable to recognise the diversity of legal norms, assumptions and practices evident in a multicultural city. We demonstrate this with reference to the resolution of urban land-use conflict in Sydney (Australia) showing how planning decisions have need to demonstrate flexibility within the law to achieve outcomes that are sensitive to local contingency and informed by notions of spatial justice. In conclusion we suggest that attempts to make municipal law more consistent or unified are problematic given situated discretion is required to produce cities more open to difference and diversity.

Legal pluralism at the beach: Public access, land use, and the struggle for the “coastal commons”

“…In the context of land use, this concept signals the co‐existence of multiple legal orders by which specific objects/subjects are regulated, including long‐established customary laws and systems of common law privileging land ownership alongside more recent environmental and planning regulations concerning the “best and highest” use of land (Blomley, ). To complicate things further, laws are enacted within jurisdictions that exist at different, overlapping scales – e.g., local, international, global – with rulings made at one level often impinging on, or over‐ruling, decisions made on other spatial scales (Hubbard & Prior, ).…”

“…As will be described, instruments such as development control, conservation zone designation, harbour orders, marine licences, and village green designation have been used to change or challenge the existing use of the beach even though its ownership has not been disputed. This complex inter‐legality suggests that the regulation of land use at the coast remains excessively complex and unable to offer the pliability required to deal with complex land‐use disputes (see also Boyes & Elliott, ; Hubbard & Prior, ).…”

The right to community?

“…Such analyses tend to present the law as an appendage of state power, detailing the distinctive legal practices and apparatus associated with statist institutions (legislatures, international organisations, administrative agencies, courts, the police, and so on). But within legal geography there is also an interest in non-state actors, events, and legal expressions such as forms of 'ordinary' legal consciousness, customary laws and norms (Hubbard and Prior 2017). Lawyers interpret and weigh up these laws in different spatial contexts, sometimes reinforcing spatial norms, at other times altering them (Martin, Scherr, and City 2010).…”

Place‐speaking: Attending to the relational, material and governance messages of Silent Spring

“…The focus on place also does not necessarily reify a certain scale, for places exist at all scales, including all times. Places are almost endlessly dynamic and emergent, as well as diverse [as is formal law (Hubbard & Prior, ; Santos, ); and justice (Kennedy, ; also Zumbansen, )]. The appropriate scale for any issue will vary, as for the subsidiarity principle (Berman, , p. 168), and in hierarchy theory (Warren & Cheney, ); and at the same time will and should be informed by ramifications at other scales, as in polycentric approaches (Griffiths, ; Ostrom, ; Peck & Theodore, ).…”