Amelia Thorpe, ‘Property and Planning’

ABSTRACT
The connection between property and planning is intimate, but also uneasy. Literature linking the two is largely critical, highlighting the undesirable influence of private property on planning and its public goals. While planning tends to be presented as weaker – a process too often co-opted by powerful proprietors, exacerbating the social and ecological injustices it purports to prevent – in this chapter I argue that planning plays a fundamental role in sustaining property as an institution. Drawing together relational and performative theory with a discussion of two cases – one decided by the High Court of Australia in 1937, the other by the English Court of Appeal in 2020 – I argue that planning works not only to extend the power and wealth of property owners, but to enable property to be understood as fixed and finite. Conceptualising and regulating something so essentially relational as land as an object of private law is possible only because of the role played by planning. A fuller examination of the interconnection between property and planning is necessary to understand and address their ‘darker’ sides, perhaps most urgently their ongoing implication in settler-colonial practices, and also to identify and amplify more hopeful possibilities.

Thorpe, Amelia, Property and Planning (January 1, 2022). Forthcoming in Nicole Graham, Margaret Davies and Lee Godden (eds), Routledge Handbook of Property, Law and Society, UNSW Law Research Paper No 22-1.

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