When enforcement fails: Comparative analysis of the legal and planning responses to non-compliant development in two advanced-economy countries

Abstract

Purpose This paper aims to present a comparative analysis of noncompliance with planning laws in advanced-economy countries. Most research to date has focused on the widespread phenomenon of “informal” construction in developing countries. However, advanced-economy countries also encounter illegal development, though at different scales and attributes. Because planning law is at the foundation of land-use and urban policies, it is time that the “orphan” issue of noncompliance be adopted by more researchers to enable cross-national learning. The two OECD countries selected for in-depth analysis – Portugal and Israel – probably fall mid-way in the extent of noncompliance compared with the range among advanced-economy countries. Like most OECD countries, the selected countries have generally viable planning-law systems. Their experiences can thus offer lessons for many more countries. Recognizing the limitations of enforcement mechanisms as prevention, the paper focuses on how each of these countries responds to illegal development. Design/methodology/approach The method relies on two main sources: analysis of official documents – laws, policies and court decisions in both countries – and field interviews about practice. In both Portugal and Israel, the authors held face-to-face open interviews with lawyers and other professional staff at various government levels. The interviews focused on four issues: the effectiveness of the existing enforcement instruments, the urban consequences of illegal development, the law and policy regarding legalization and the existence of additional deterrent measures. Findings In both countries, there is a significant phenomenon of illegal development though it is somewhat less in Israel than in Portugal. In both countries, efforts to reduce the phenomenon have been partially effective even though in both, extensive demolition is not exercised. Neither country has adopted a general amnesty policy for existing noncompliance, so both resort to reliance on ex-post revision of statutory plans of granting of variances as a way of legalization. The shared tension between local authorities and national bodies indicates that not enough thought has gone into designing the compliance and enforcement systems. In Israel, a recent legislative amendment enables planning authorities, for the first time, to set their own priorities for enforcement and to distinguish between minor and major infringements. This approach is preferable to the Portuguese law, where there is still no distinction between minor and major infringements. By contrast, Portuguese law and policy are more effective in adopting financial or real-estate based deterrence measures which restrict sale or mortgaging of illegal properties. Originality/value There is very little research on noncompliance with planning controls in advanced-economy countries. There is even less research on the legal and institutional responses to this phenomenon. This paper pioneers in creating a framework for looking at alternative types of government responses to illegal construction. The paper is, to the authors’ best knowledge, the first to present a systematic cross-national comparative analysis and critique of such responses. The authors thus hope to expand the view of the possible legal and policy response strategies available to planning authorities in other advanced-economy countries. The comparative perspective will hopefully encourage, expansion of the research to more countries and contribute to the exchange of experiences between jurisdictions.