On urban planning in Syria: an overview with suggestions for reform

This publication has been produced with the assistance of the European Union. The contents of the publication are the sole responsibility of the authors and can in no way to be taken to reflect the views of the European Union (nor those of the Government of Syria).

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Table of ContentsExecutive summary iii

1. Introduction 1

2. A brief overview of land law in Syria 2

3. Law on Urban Planning No. 5 of 1982: an overview 3

4. Law Partitioning, Organisation and Construction of Cities: 9 of 1974;Law 60 of 1979 and Law 26 of 2000 as applied in the 13 major cities 5

4.1 Law 9 54.2 Law 60 as amended by Law 26 6

5. Law on Expropriation No. 20 of 1983 as amended 7

6. Measure of compensation and its deficiencies 8

7. Expropriation and its effect on the planning system 10

8. Towards market value as the basic measure of compensation 11

9. Paragraph 2 of Instruction No. 1 for Law 5/82: Control of development 12

10. Law No. 1 of 2003: unauthorised developments, illegal buildings 13

11. The laws considered ‘in the round’: the case of Homs 1311.1 Introduction 1311.2 Law 9 1411.3 Changes to process and procedure in Law 9 1711.4 Law 60 and Law 26 1811.5 Law 20 1911.6 Changes to process and procedure in Law 20 21

12. Summary of the argument on the current laws 23

13. A statement of objectives for urban planning 23

14. Five principles for urban planning 24

15. General reforms to Law 9 and Law 26 26

16. Towards a revision of Law 5 2816.1 The planning process 2816.2 Development and its control 2916.3 Who decides 31

17. Regional planning 31

18. Conclusions 32

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Executive summary

This report has been prepared by Patrick McAuslan, International Urban Planning Legal Expert with Eng. Housam Safadi, Urban Planning Consultant in Action Plan 9 of the MAM project during a mission to Syria between 25 August and 19 September. A high priority task in our terms of reference is to review the current Syrian urban planning legal and regulatory framework. The review concentrates on the current laws and their operation but there is a history of urban planning and planning laws in Syria. The existing laws build on the past and the explanation of how the current laws fit together is to be found in the past. The review concentrates on the relevance of the existing laws in the light of the circumstances of urban Syria at the start of the 21st century. To conclude that some of the existing laws need changing is not necessarily a criticism of them; they may well have been effective in the past but are now out-dated.

The argument advanced in the report is that present systems of planning, development and control of development are inefficient in following ways:

first, they represent a waste of public and private human and financial resources undertaking activities which

second, are very time-consuming and almost designed to inhibit action; third, inhibit legal private development and encourage illegal and unauthorised

private development; fourth, lead to over-consumption of land and misuse of resources for public

development; fifth, contribute unavoidably to informal development; sixth, render much master planning otiose and downplay the importance of

o Syrian architectural identity and urban form; ando environmental and health conditions in land development.

The first step towards a revised approach to urban planning is to set out the aims and principles which should inform any such approach and provide a justification for them. It is suggested:

An urban planning system should be equitable, flexible, positive, environmentally aware and efficient and have as its main objective the informed guidance, facilitation and regulation of sustainable private sector-led urban development.

This report starts from a position that the current system has many strengths but also many weaknesses. Its strengths are a strong legal framework; rules which pay a good deal of attention to the rights of the landowner; a sensible and realistic approach to informal settlements; and commitment on the part of local administrations to make it work. Its weaknesses are an outdated form of plans which operate to inhibit development; over-complicated rules on land development which also inhibit legal and so encourage informal development; the over-use of expropriation as a tool of planning and the unfair and inefficient levels of compensation payable on expropriation. The thrust of the report suggests that there is a strong case for a more flexible and positive approach to urban planning and that the legal framework of urban planning can be adjusted and revised to enable such an approach to planning to be introduced and made operational.

Just as planning is too important to be left solely to professional planners, so drafting laws is too important to be left solely to professional lawyers. This report is aimed to encourage all involved in urban planning to understand something of the law’s role in the process of urban planning and development at present and so be equipped to participate in discussions on the most appropriate input of law into urban planning in the future.

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1. Introduction

This report has been prepared by Patrick McAuslan, International Urban Planning Legal Expert with Eng. Housam Safadi, Urban Planning Consultant in Action Plan 9 of the Municipal Administration Modernisation (MAM) project during a mission to Syria between 25 August and 19 September. First drafts of the report were prepared by myself and Eng. Safadi read and commented on each successive draft which were accordingly changed (and improved) as a result of his input.

A high priority task within our terms of reference is to assess and review the current Syrian urban planning legal and regulatory framework and to initiate the revision of the urban planning legal and regulatory framework. The two other high priority tasks are the lead and participate in the preparation of a draft decree enabling an experimental approach for the pilot projects and obtain approval for it (italics added) and lead and participate in the drafting of the legal framework required for the implementation of the pilot project plans.

Logically and practically, the review of the total legal and regulatory system must precede any preparation and drafting of any decrees and legal framework for pilot projects for it could well be that a review of the whole would indicate that within the present system there are the necessary powers to do what needs to be done to enable the pilot projects to proceed. It must also be pointed out that it is not within the province of a consultant to obtain approval for any of his or her work from the government and this applies particularly to any proposals for draft laws which a consultant may be required to prepare. All governments have their own procedures for the preparation and promulgation of laws and their own rules about drafting laws – language, form, style etc – and public comment on proposed changes. All a consultant can (or indeed should) do is to propose changes to existing laws, with reasons, in the form and style, as near as may be, of a draft law, leaving it to the government’s drafting personnel to take the draft further if the content is approved by the appropriate authorities in government.

A substantial list of legal instruments “directly or indirectly relevant to urban planning” is set out in the document Planning and Informal Settlements. Not all of these laws seem to be directly related to urban planning although most of them may be relevant to urban management. It would seem to be better to limit the scope of any review to urban planning narrowly defined rather than try and take on all the laws relating to urban management, particularly as one of the aims of the review is to come up with new law(s) on urban planning within a relatively short time. For purposes of this review, therefore, the following laws were considered:

Law on Urban Planning No. 5 of 1982 as amended by Law 41 of 2002; Law on Partitioning, Organisation and Construction of Cities No. 9 of 1974; Law on Expropriation, No. 20 of 1983; Law on Expropriation of Urban Extension Regions except in the City of Damascus,

No.60 of 1979 as amended by Law 26 of 2000; Law on Illegal Buildings No. 1 of 2003; Law on Building on Plots No. 14 of 1974 as amended by Law 59 of 1979; Decree on imposition of improvement charge on real estates No. 98 of 1965

In each case, associated legal documents – regulations, guidance, decisions – associated with these laws were considered alongside them. Laws will generally be referred to by their number and year of enactment. The review will concentrate on the overall thrust and purpose of the specific laws rather than attempt a detailed analysis of all the texts of each law. The latter is not

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thought to be necessary in order to achieve the aims of the review. Where reference to a specific text is required, it will be discussed.

Although the review will concentrate on the current laws and their operation, it is important to be aware that there is a history of urban planning and planning laws in Syria. Some of the existing laws, as is to be expected, are 25 or more years old. The existing laws build on the past and the explanation of how the current laws fit together is to be found in the past. The review is concentrating on the relevance of the existing laws in the light of the circumstances of urban Syria at the start of the 21st century. To conclude that some of the existing laws need changing is not necessarily a criticism of them; they may well have been effective in the past but are now out-dated. To buy a new edition of a book on medicine or law is not to criticise the old edition; it is to recognise that the new edition contains information and ideas which will enable doctors and lawyers to provide a better service to clients. So it is with law itself: a new or revised law will facilitate better urban development and management.

2. A brief overview of land law in Syria

A major gap in this review will be any consideration of the land law of Syria; that is the law governing the tenure and transactions of land held privately and the tenure and transactions of land held by the state and or state agencies. It is difficult to discuss urban planning law in such a vacuum as in practice there is an inevitable overlap between tenure, transactions and use – the subject of urban planning. It is for instance worth noting that Instruction No.1 on the Law 5/82 requires that the Regional Technical Committees which play a major role in plan making have on them “an expert of real estate…Such person must have experience in the laws and regulations pertaining to real estate.” However, such an approach is mandated by the MAM project. Private land law seems to be outside the scope of the project and public land law – the land law applying to public authorities is part of MAM Action Plan 5. There will be one inevitable overlap: this review will discuss expropriation which is a key tool used to implement master plans, even though it is allocated for consideration to MAM Action Plan 5.

Notwithstanding this division of responsibilities, it will be helpful to set out the basic provisions of the Constitution on ownership and its use and protection and then provide a brief overview of the basics of the land law of Syria as this is the context of land within which the urban planning law operates. First the Constitution:

Article 14 [Ownership]The law regulates ownership, which is of three kinds:(1) Public ownership includes natural resources, public utilities, and nationalized installations and establishments, as well as installations and establishments set up by the state. The state undertakes to exploit and to supervise the administration of this property in the interest of the entire people. It is the duty of the citizens to protect this property.(2) Collective ownership includes the property belonging to popular and professional organizations and to production units, cooperatives, and other social establishments. The law guarantees its protection and support.(3) Individual ownership includes property belonging to individuals. The law defines its social task in serving the national economy within the framework of the development plan. This property should not be used in ways contrary to the people's interests.

Article 15 [Expropriation]

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(1) Individual ownership may not be expropriated except for public interest and in return for just compensation in accordance with the law.

The basics of the land law is a summary of the relevant parts of Ziadeh (1979), chapter 2:

Article 86 of the Civil Code of 1949 enumerates five categories of land: (i) mulk; (ii) miri; (iii) matrūkah murfaqah, i.e. lands owned by the state but subject to use by specific groups of people…; (iv) matrūkah mahmỉyah, i.e. lands belonging to the state or municipalities that are part of the public domain like roads… and (v) empty and free lands (mawăt)….Mulk is defined by article 86 as “real properties that are capable of being absolutely owned and are situate inside the building zones that are administratively defined.” …it has been held by the courts that only one condition is required for a real property to be considered mulk, namely that it be situated inside the building zones by defined by administrative regulations…Conversely all real properties outside such zones…are by virtue of this provision, miri… [state-owned land whose possession or usufruct (taşarruf) is in the hands of individuals upon determined terms]Real properties that are matrūkah murfaqah…are really owned by the state as the raqabah is said to vest in the state. They are part of the private-domain of the state……The other category of state-domain, the matrūkah mahmỉyah…cannot be subject to the use of a specific person or group and their ownership cannot be acquired by prescription…[It] is part of the public-domain.The fifth category, the empty and free land (mawăt) is also part of the private-domain of the state. It should be noted that any wrongful act committed against private-domain is treated as an act committed against private property not public property.

3. Law on Urban Planning No. 5 of 1982: an overview

This is the basic law on urban planning in Syria around which all other planning and land development activities of public, mainly local, authorities and the private sector revolve. The law is based on the fundamental principle that there are objective and universal scientific principles of urban planning which must be followed in the preparation of “general organisational plans” and “detailed organisational plans”, the former of which sets out the future look of cities, towns etc being planned for, the latter of which specifies the planning details of roads and the construction details of building plots. The Ministry of Housing and Utilities “creates the fundamentals of construction planning” i.e. what the plans must contain and these are set out in Instruction No. 1 of the Law 5/82:

Such report must contain current and future planning needs for complex buildings [the term means cities, towns etc] for a period of twenty years. The report must also contain the population, its distribution and the suggested density for such distribution among the different facilities of the complex, such as industrial facilities, public facilities, and dwellings. The area of each facility in the complex, with respect to the complex's total area, must be known. Also the ratio between the facilities and each person in the proposed population of the complex must be noted. The report must also contain the number of all facilities and the network of all major roads, the width of such roads, and road classifications. The report must also include the direction in which the

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population should grow, with a scientific explanation for choosing such direction.

This is a pretty fair summary of the content of standard Master Plans, a style of planning based on the belief that it is possible, by gathering together all the ‘facts’ about a city, town or other urban area, not merely to predict what the future trajectory of that city or town would be but to ensure that such a trajectory will come about. Furthermore, master planning is based on the belief that not merely is it possible to undertake such a planning exercise but that it was both necessary and desirable to do so as only in this way could urban development proceed in an orderly and progressive manner. Note too that the master plan is concerned with the physical development of the planned area: it is not concerned about social, economic, and environmental aspects of development. Nor is it concerned about the views of the people being planned for as to how they see the future of their city: if planning is scientific and objective, there is by definition, no room for unscientific and subjective views about the future.

In line with this approach to urban planning it is no surprise that most of Law 5/82 and of the Instructions consist of very detailed instructions on how to make plans, how to give publicity to plans, how to deal with objections to plans and which authorities finally approve plans and issue them to other authorities and the public. It is not necessary to go through these provisions other than to note that considerable effort is clearly made to provide opportunities for landowner comments on and objections to draft plans and give very careful and detailed consideration to all such objections and comments. This aspect of the plan making process is commendable and whatever changes may be made to the substance of planning, the principle and practice of public involvement must be retained and indeed enhanced both to involve people as citizens and not just as landowners and to involve them at an earlier stage in the process, when plans are being formulated.

Master planning was born in an age of optimism and self-confidence about urban planning, indeed planning in general. ‘Objective planning’ was scientific and by definition apolitical. By setting out clear boundaries on the ground where development were going to take place, they were assumed too to provide certainty for private landowners and developers. While such a system might work where all or most development is public sector development or there is a very strong and effective enforcement or incentive process or both in place to ensure that private development complies with a master plan, it doesn’t work so well where either or both of those preconditions are not met.

First, where a private land market operates and the private sector plays a significant role in land development as is the case in Syrian cities, master planning can operate as a straitjacket on initiative rather than provide a guide for future development. Second, a major deficiency of master plans is that they are out of date before they come into effect partly because they take so long to prepare but more because, with rapid urban growth, it is necessary to provide facilities – housing, jobs, infrastructure – to meet the needs of the newcomers to the cities, whether a plan exists or not. So master planning contributes to unauthorised and informal development.

Third, if we refer back to the required content of the master plans, what is conspicuously missing is any concern for the preservation, maintenance, continuity or development of Syrian and Arab urban form and style – the distinctive contribution that Arab and Islamic architecture and urban form has made to the world. ‘Objective planning’ it seems has no room for such ‘subjective’ considerations. So paradoxically, master plans in a age of rapid urban growth lead to confusion and lack of certainty – plans pulling one way on one time-scale, and consumer needs and the market pulling another in another and more urgent time-scale.

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4. Law Partitioning, Organisation and Construction of Cities: 9 of 1974 and Law 60 of 1979 and Law 26 of 2000 as applied in the 13 major cities

4.1 Law 9

It was realised that the predecessor to Law 5/82 could not of itself provide an appropriate basis for urban development. It needed to be supplemented by laws focusing on getting development under way. One such law is Law 9/74. This law in some respects has great potential for the kind of planning that is needed now and which it is the aim of MAM to advance.

Section One of the law deals with private sector sub-division and land development. Landowners may apply to their local authority to sub-divide their land with a view to its development. A sub-division must comply with the master plan and allocate up to 50% of the land for public purposes – roads, gardens and public buildings. Public utilities must produce an estimate of the costs of putting in infrastructure and these costs will be allocated to each sub-divided plot and be a debt owed by the ultimate owner of the plot to the local authority. A local authority must decide a sub-division application within three months of its being submitted.

Section Two of the law provides for the establishment of what are called organisational areas by municipalities and a process of land pooling and readjustment carried out by municipalities. As drafted in 1974 such powers were only to be exercised in areas affected by natural disasters or in areas where the municipality wished to implement a master plan. In this latter case, the land is either undeveloped, presumably rural, land with some minimal development or an area of land which is considered to be badly developed and in need of redevelopment. Examples of the use of such powers in Damascus show that it can work and produce urban development providing public open space and public buildings. The development which the consultant saw was clearly an up-market one but there is no reason why similar developments could not in theory have been provided for lower income groups as well. This matter will be returned to below.

The area is established on the basis of a scheme which sets out the line of future roads, areas to be built on and the location of public facilities. The municipality takes possession of the land which must be set aside under a Section One private development scheme. All those claiming to have rights in the land in the organisation area must make a claim for these rights to be recognised. Recognised rights have their values estimated (with opportunities to challenge the estimate and have it reconsidered). After the estimation process is complete, a redistribution of land is then carried out by a committee chaired by a judge and having two representatives of both the municipality and of the residents of the area. Residents are reallocated plots of land as near as possible to their old plots and either receive compensation if the value of the new plot is less than the estimated value of the old plot or are required to pay compensation (to the municipality presumably) if the reverse is the case. Here too there is an opportunity for residents to “make their remarks” on the scheme of distribution. Although the law and the Implementation Instructions are silent on the matter, the assumption seems to be that the residents would then be expected to construct new houses on their new plots in accordance with the requirements of the master plan.

4.2 Law 60/79 amended by Law 26/00

This law could have been used as the basis for what would have been in effect a public/private partnership for the development of new urban areas with the private sector taking the lead. It has however been more or less superseded by Law 60 of 1979. This law was amended by Law 26 of

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2000 and it is the amended version which is discussed here. This law applies to urban expansion areas, areas “which are not organised, divided or located” in the ratified overall master plan. (article 1) By way of further elaboration, urban expansion areas are by Law 26/00 defined to mean housing expansion areas which include the land needed for public buildings as defined in Law 9/74 and which are to be “added to the overall master plan”. So if an area which is to become an urban expansion area is not covered by an existing master plan of a municipality, the declaration that it is an urban expansion area brings it within the scope of that plan.

Law 60/79 expressly ruled out Law 9 of 1974 as applying to the urban expansion areas of Damascus and the other major cities in Syria. Law 26/00 however provides that a municipality may apply Section Two of Law 9/74 (public sector driven land pooling and readjustment) to expansion areas within six months of the master plan being ratified. If however, the municipality does not determine to apply section Two within that time frame, the owners of land within the expansion areas have the right to sub-divide their lands in accordance with section One of Law 9/74 within three years from the end of the six month period. So the possibility both of private development and public/private partnerships for development have been reinstated.

Where Law 9/74 is not applied, the municipalities are to take possession of all the land in the expansion areas (less certain real estates exempted by article 2 of Instructions No.1 of Law 60 and estates owned by different religious sects) via the Expropriation Law on the basis that the project is a public benefit and per Law 26/00 is to be considered as an “urgent case”. An “urgent case” under article 28 of Law 20/83 permits the expropriating body to take possession of the “non-built real estate”, i.e. rural or agricultural land as soon as the expropriating decree is issued and before compensation is paid. The real estates (built up plots) within the expansion areas which are to be acquired are deemed to be agricultural areas and compensation is payable only on that basis. Once the municipalities have acquired the lands, they plan and divide up the land in plots and then sell them “by costs value” to people willing to construct buildings on them and also to individuals whose properties were taken. The cost value is the total costs of acquisition and clearing the land, the estimated costs of the provision of public utilities and administrative expenses.

People (other than those whose real estates were expropriated) who buy plots may not thereafter sell “or do anything” with their property until they have built all the floor area admissible according to the housing regulations for the area or use the land for the purpose for which it was allocated. Furthermore, Law 26/00 grants the municipalities the right to collect advance payments from the plot buyers to meet the costs referred to above. The restriction on dealings with the land is clearly designed to prevent speculation but if the phrase “not…do anything” includes not mortgaging the plots (and a mortgage on which default is made can result in the sale of the mortgaged property) it is difficult to see how many individuals would be able both to make advance payments and develop their plot to the requisite standard. If the plot buyers are property developers however, they would presumably have the resources to finance advance payments and construction in a staged way with each successive stage of development being sold off to pay for the development of the next stage. The restriction does not however apply to those whose real estate was expropriated. They may receive back 40% of their expropriated plot as compensation – with the addition of infrastructure the plots are now more valuable – with 60% going to the municipality which may sell the newly created plots at cost price to help defray the costs of putting in infrastructure, roads, public buildings etc.

A final article in Law 26/00 is highly significant with respect to unauthorised settlements and any plan which might be made to regularise and upgrade them. Article 7 provides that governorate centres may apply the 1st and 2nd sections of Law 9/74 to “mass contravention buildings” which

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may be found in urban expansion areas or in the ratified master plan and also take possession of land needed for public works and buildings under Law 20/83 or apply the law to them if they are considered expansion areas. The article seems to give governorate centres a discretion whether to apply Law 9/74, Law 20/83 or Law 26/00 but it seems highly unlikely that one of these laws would not be applied. Clearly, where there is already a developed urban area in existence, it would be preferable to work through Law 9/74 as in Damascus rather than expropriating all the land and real estate but even working through Law 26/00 would not rule out the application of Law 9/74. The problems in doing this are discussed further below.

5. Law on Expropriation No. 20 of 1983 as amended

The current law on expropriation is at present being reviewed and revised. The commentary which follows will discuss both Law 20/83 and its proposed revision (the proposed text). The proposed text starts off by more or less repeating the first sentence of article 15 of the Constitution (quoted above) but the existing law does not mention that article. By article 3, it launches straight into spelling out in some detail what projects of public benefit are. They are what may be called the ‘usual list’: roads, public buildings and constructions for public works or utilities, agricultural works and constructions, irrigation works and dams, works for defence and security purposes. In addition to these however are tourism constructions, constructions and projects implementing properly defined development and investment plans and “all projects implemented within the public bodies’ and public sector’s specialisation and their tasks…” The proposed text adds a further paragraph; the “expropriation of real estates in historical sites…”.

Article 4 is also relevant: it permits administrative bodies and bodies specialising in housing to expropriate real estates so as to sub-divide them and sell the plots on to parties ready to build on them, i.e. land developers. The plots are to be sold at cost price but there is no legal restriction on the price at which developers can sell what they have built. Where under article 34E of Law 20/83, popular housing is to be built on expropriated land, the regulative decision of the minister of housing and utilities prescribing the modalities of developing and selling such housing may effect the price at which it is sold but it is significant that even in that paragraph there is specific limitation on price.

The effect of these provisions is that one person’s private property may be expropriated and sold at cost price to another private person who is at liberty to make a profit from developing the land. Until quite recently this would have been regarded as an abuse of the power of expropriation since “public purpose” would not have been thought to include private profit but with the advent of public/private partnerships in infrastructure and urban development, and the acceptance that “development” including economic development generally is a public purpose, this has changed.

An example may be given. The country most usually associated with the protection of private property and the curbing of the powers of government – the USA – in 2005 in a 5 – 4 decision in its Supreme Court – Kelo v City of New London – accepted the legality of an act of expropriation by a non-profit local authority-owned company to acquire land from persons who were refusing to sell their homes to the company which wished to build a shopping mall in an area of run-down homes. Using the land for a more productive purpose was considered a valid public purpose even though that productive purpose involved private sector entities who would make profits from their use of the land. The compensation that the expropriated owners of homes received was market value. This is a fundamental difference from the Syrian situation. Since the issue of market value compensation is at the heart of criticisms of the current system of expropriation in Syria, it may be discussed at this point.

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6. Measure of compensation and its deficiencies

It is now accepted as axiomatic in much of the world that where expropriation takes place, fair compensation should be paid promptly and ‘fair compensation’ means market value – the value the land to be expropriated would fetch if it were offered for sale on the open market. This has more or less become the international standard: the World Bank has adopted it and requires countries to which it is to make loans to adopt it as a condition of a loan for some development which is likely to involve expropriation. Other IFIs have also adopted it and it is this international acceptance of market value which has pushed countries to review their laws and if necessary adjust their measures of compensation.

Not all countries however have adopted the market value of land approach. Some countries pay for ‘improvements’ to the land or rights in the land but nothing for the value of the land itself. This is particularly likely to be the case where the state owns all the land. In practice, if the state’s ownership is passive and nominal, there is not much difference between the value of the land as such and the value of a right of e.g. perpetual possession and use of the land. If however the land-holder can only possess land under a 99 year lease, then the amount of compensation will likely reflect the length of the lease remaining to the leaseholder; acquiring a 79 year lease will usually cost more than acquiring a 19 year lease. Some countries, like Syria, pay fair compensation which is less than market value.

It should not be assumed that ‘market value’ is self-evident and uncontestable. Most countries that adopt market value as the standard have a plethora of rules to determine how market value is to be assessed and no two sets of rules are the same. At one end are countries that pay market value plus – an extra payment is made in recognition that the acquisition is against the will of the owner and the owner should receive some compensation for the subjective value of the land to her in addition to the market value of the land. At the other end, are countries that basically pay the value of the land as it is being used at the time of acquisition totally disregarding both subjective value to the owner and any potential value the land might have if it were to be used for its highest and best use or the value it will have when used for the public purpose. So agricultural land is valued as such, disregarding the fact that it might be used quite lawfully for housing development or is to be used for same by the acquiring authority. It is a mistake to assume that market value as it is generally interpreted and used will result in unjustified windfalls for landowners.

So it would be possible to adopt market value as the basic standard of compensation in Syria without necessarily finding that the amounts to be paid suddenly become very high. Market value could be defined narrowly and it could differentiate between urban and rural land, so as to ensure that urban land owners do not receive undeserved or unpaid for benefits. In particular, where as is the case in expropriation under Laws 60/79 and 26/00, expropriation is for the benefit of private persons, usually property developers, the law could and should be changed to provide that the property developers must contribute to the compensation paid to bring it up to market value.

The present situation is quite simply not fair: one private person is receiving less than market value for his or her land and another private person is, as a consequence, able to make higher profits from his or her development of that land. Nor are the provisions dealing with the rights of expropriated owners to buy a plot within the expropriated land for their housing any fairer: such persons are given a priority to buy a plot but they must pay its basic or cost value. (See article 7 of Decision 1556/84 a amended by article 2 of Decision 1712/88). So they finish up with a plot of land near where they formerly lived, having paid more for it than they received by way of

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compensation. This would seem to act as an incentive to move to an informal settlement where the land is ‘free’.

An important factor to bear in mind is that there are inefficiency costs in keeping to the present system. First, as Law 20/83 shows, large numbers of officials spend large amounts of time handling complaints and appeals about compensation: that costs money. It is highly commendable that so much effort is put into valuation and hearing and settling disputes about rights to land and compensation and amounts of compensation, but some at least of that money could be saved if higher compensation were paid and appeals were, consequently, less frequent. In addition to appeals within the administrative system, many cases go on to the Land Administration Court further delaying finality of acquisition and increasing costs – that court takes about one to one and a half years to dispose of a case. Second, delays cost money which could be avoided if higher compensation were paid. So being fairer makes good economic and financial sense.

An equally important factor is that under-compensation leads to inefficiency not wealth enhancement in land development. The basic reason for paying market value compensation is to reduce government’s propensity to overuse the power of expropriation. Market value compensation forces government to consider whether the value to be created by the development to be facilitated by expropriation will exceed the value to be paid for the expropriated property. It acts as a check on government power and forces it to internalise the full costs of an expropriation; it prevents abuse of power and over-consumption of property. Under-compensation on the other hand allows the government to avoid internalising the full costs of the taking and maintain an illusion that costs are less than they are. It inhibits private investment in property since private investors are much less likely to invest in land if they are likely to have their property taken away without just compensation.

The main problem with the present system of compensation is in relation to the expropriation of urban land. Those whose land is expropriated suffer a detriment; those whose land is not expropriated may well gain a considerable benefit; they get to keep their land and the value of that land may well rise as a result of the public investment put into the area. Yet the mechanism in existence to make those who benefit pay over some of that ‘betterment’ to the expropriating authority where it could be used to increase the compensation paid or to contribute to the costs of infrastructure etc which is the principal factor in creating the betterment does not seem to be used although it has been in existence for over 40 years – Law 98/65 providing for an improvement charge payable in the event of public works increasing the value of land or on the coming into effect of a master plan.

There are two problems however in trying to address the issue of betterment. First, betterment is in a sense, notional. It does not put money into the pockets of those whose land is bettered. It is concerned with the value of land and that value might not be realised until the land is sold. How is one to obtain betterment from a person who is not planning to sell his land? In Law 98, the payment of the improvement charge can be postponed until land is sold or an application to develop it is made but generally it is payable when it has been assessed – and assessment is a long-drawn out process of judgement by committees – either in one payment or in instalments if investigation shows that the payer cannot afford to pay otherwise by instalments. The bureaucratic procedures of the Law have clearly played a part in its de facto demise.

The second problem is this. If the notion of betterment is accepted, then the converse – ‘worsement’ – should also be accepted. The construction of infrastructure, public works public and social facilities may well reduce the value of adjoining land: not everyone appreciates finding

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themselves living next door to a bus station or alongside a widened and so heavily increased trafficked road. The value of their property goes down. Should not they be compensated?

In many systems of expropriation, both betterment and ‘worsement’ are provided for. One difficulty is that it may not become clear for some time how much betterment or worsement has occurred. If a road has been widened, at what point in time does one assess how much worsement the additional traffic has caused. Alternatively land taxation can be used: taxes are increased for those whose properties have increased in value as a result of expropriation; reduced for those who have suffered loss of value.

Some form of land taxation is the obvious answer. Unfortunately, the fate of Law 98 suggests that it will probably not work in Syria and in any event, it does not meet the needs of the expropriating authorities who would like cash up front to help with the costs of compensation and infrastructure.

7. Expropriation and its effect on the planning system

The inefficiencies brought about by the present system spill over into the planning system as a whole. At the moment, the whole thrust of urban planning in practice in the major cities is to use expropriation as the principal tool of planning. Expansion areas are acquired at agricultural use prices via Laws 60/79 and 26/00 whether the land is being used for agriculture or not. The public sector as we have seen then sells the land off for individual private development with certain restrictions on the new private owners: i.e. no selling until the land is developed. The inevitable effect of this approach is that once private landowners get wind of a possible designation of their land as an expansion area, they sell off the land for informal development as they can get a better price from would-be house owners who will build their own houses than they will ever get from the State via Laws 60/79 and 26/00. The administrative authorities are then left with the problem of dealing with the informal settlements. So over-use of expropriation as a tool of planning coupled with over-consumption of land facilitated by the compensation provisions of the laws permitting expropriation contributes to a lack of co-operation between the planners and the public: the advent of a master plan or the beginning of the process of developing a master plan is not seen as providing guidance to existing landowners as they plan their future but as a distinct threat to their future.

This point leads naturally on to a second issue: the present use of the power of expropriation by government. Its over-use, the approach of government that rather than being the weapon of last resort, it should be the most usual means of acquiring land for development completely bears out the point made above: under-compensation leads to over-use of the power and inefficient use of the land so acquired. Inefficiency in public land development might not matter if (a) resources were infinite and (b) the patience of people wanting somewhere to live and work was equally infinite but they are not. So the inefficiency of public land development is an additional contributory factor to informal and ‘illegal’ private land development.

A further issue of a planning nature which may also be seen as affecting the efficiency of land use is this. The over-use of expropriation tends to result in land development being expropriation-led rather than planning-led which raises a question-mark over the whole enterprise of master plans. Master plans are not so much blueprints for the future development of the city, as land expropriation plans. Development takes place where land can be most easily and cheaply acquired and, given the outlay on land acquisition and the length of time it will usually take to gain possession of land, corners might be cut on other aspects of land development which affect

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the ambience of a development. Green spaces, parking spaces for cars, quality of architectural design may all be sacrificed to speed up development once the land is actually acquired.

8. Towards market value as the basic measure of compensation

The proposed text of a new expropriation law provides a set of principles and rules for valuing land to be acquired which are clearly designed to move towards market value as the measure of compensation. The rules seem a little complicated and an alternative way of setting them out to is to state the fundamental principle and then attach a set of sub-rules of what must and must not be taken into account in giving effect to that fundamental principle.

What follows is based on an expropriation law drafted by the consultant in 2003 for the Kingdom of Lesotho (not yet enacted) which drew extensively on a draft FAO paper on land acquisition and compensation of which the consultant was a co-author. This alternative approach is offered as a contribution to the discussions surrounding the proposed new text of an expropriation law.

The fundamental principle of market value was stated thus:

The market value of land shall be taken to be the amount which the land might be expected to realise if, in the condition and tenure in which it was at the date of the service of the notice to expropriate the land, it was sold in the open market by a willing seller to a willing buyer on that date.

The rules for determining compensation were as follows:

Matters to be considered in determining compensationIn determining the amount of compensation to be awarded for any land expropriated under this Law, the following matters and no other shall be taken into account – (a) the compensation that is payable to claimants shall be based on the

principle that all persons suffering losses and inconvenience arising out of and as a consequence of being required to leave their land and to be relocated elsewhere shall have their property, livelihoods, income, and living standards restored so that within a reasonable time from when they suffered losses and inconveniences, they are no worse off than they were before they were relocated;

(b) the market value of land;(c) any increase in the value of other land of the claimant likely to accrue

from the use to which the acquired land will be put;(d) the damage, if any, likely to be sustained by the claimant at the time of

the taking possession of the land by reason of the severance of such land from his other land;

(e) the damage, if any, sustained or likely to be sustained by the claimant at the time of the taking possession of the land by reason of the expropriation injuriously affecting his other property in any manner or his actual earnings;

(f) if, in consequence of the expropriation, he will be compelled to change his residence or place of business, the reasonable expenses, if any, incurred in the disturbance and relocation involved in any such change.

Matters to be ignored in determining compensation

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In determining the amount of compensation to be awarded for any land expropriated under this Law, the following matters shall not be taken into account –(a) the degree of urgency which has led to the expropriation;(b) the disinclination of any claimant to part with the expropriated land;(c) any damage sustained by any claimant which, if caused by a private

person, would not be a good cause of action;(d) any depreciation in the value of the expropriated land likely to result

from the use to which it will be put;(e) any increase in the value of the expropriated land likely to accrue from

the use to which it will be put;(f) any outlay on additions and improvements to the expropriated land

which were incurred after the date of the publication of a declaration that the land was to be expropriated, unless such additions or improvements were necessary for the maintenance of any building in a proper state of repair or unless, in the case of agricultural land, it is money expended for the continuing cultivation of crops.

The rules embrace the important principles of paying for severance, injurious affection and disturbance; reducing compensation where the effect of the new development will be to increase the value of the land left to the landowner, discounting attempts to increase the value of the land to be taken by developing it after the notice to acquire it is issued to the landowner and disregarding the use to which the expropriated land may be put as a factor in determining compensation, or the urgency of the expropriation. No allowance is to be made for the fact that the loss of the land is involuntary; i.e. no payment for subjective value is included.

9. Paragraph 2 of Instruction No. 1 for Law 5/82: Control of development

The assumptions behind the master plan, outlined above, are well brought out by the provisions dealing with what, in many planning systems, are referred to as permits or permissions for development. Because the master plan is considered to set the parameters of development in a fixed and settled way, there is no reason to seek a development licence insofar as that implies some discretionary decision on the part of an official about whether to allow the proposed development to go ahead. With the master plan, development is either permitted, that is, it is clearly sanctioned by the detailed master plan and how detailed can be seen by paragraph 2 of Instruction No.1 of Law 5/82 or it is not permitted by the plan. There is no discretion involved. So what has to be sought is a building licence which permits the building of what the plan has decreed shall be built in the form that the plan has decreed it.

The operation of the system of granting building licences does not, according to information contained in the paper by Max van den Berg and Peter Ross Urban Planning and Informal Settlements (2005) work in accordance with the law. Where there is no ratified master plan or the plan is out of date or there is a need to react to pressure for development not provided for in a master plan, an inevitable element of discretion enters into the decision-making process on building licences. In the absence of any clear and published legally required criteria for determining what should or should not be permitted, different towns and cities go their own way and or use criteria that are not always plan related. So here too, master planning contributes to the inefficiencies and uncertainties of the development process.

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10. Law No. 1/2003: unauthorised developments and illegal buildings

Informal settlements in Syria have developed on two types of land: miri; and matrūkah murfaqah. In the case of miri, the existing right holders, who are using the land for agricultural purposes sell off plots to individual families who then proceed to construct their own houses or use contractors to do the job for them. The new occupiers do not have formal legal titles but they have evidence in the form of a document of sale that they bought the land from someone who had the legal power to sell it although not for the purpose for which it was to be used. In the second case, the occupiers are what might be called ‘true’ or ‘genuine’ squatters; they just moved on to the land and began living there and have no evidentiary record to show that they have some kind of ‘title’.

The approach to informal and illegal private land development is at the moment twofold. Existing large scale informal settlements are being regularised and legalised. This has recently been given legal backing by Law 46/2004 which facilitates the granting of title as part of programmes of land readjustment under Law 9/74. This national policy recognises that although informal and strictly ‘illegal’, enormous amounts of private capital investment have gone into these settlements and it would be neither just nor economically efficient to destroy them. Furthermore, the law requires that public utility bodies supply water and electricity to these developments for which people are expected to and do in fact pay. The buildings in these developments are for the most part solidly built – often three storeys or more – many of the roads have been paved by the local administration and basic systems of sewerage exist. These developments disprove the ‘received wisdom’ about informal settlements; that investment depends upon a secure title. Clearly, the reverse applies in Syria: investment leads to a secure title as Law 46 demonstrates.

The alternative policy is enshrined in Law 1 of 2003 on Illegal Building which provides a draconian set of penalties for illegal building and which is aimed principally at illegal building in existing planned areas of legal formal buildings and extension areas. Once an extension area is announced or it becomes known that some land on the outskirts of a town or city is likely to be declared an extension area, people move in and buy from the existing miri landowners: as has been explained above, existing landowners get a much better price from an ‘illegal’ sale than they will compensation from an expropriation. As will be shown below too, the process of a local administration actually getting hold of the land to begin developing it is so time-consuming, that it is almost inevitable that informal development will begin to ‘fill the gap’ between the declaration of an extension area and public development in that area. This law is not being extensively enforced at the moment largely because of the resources, human and financial, needed to do so.

11. The laws considered ‘in the round’: the case of Homs

11.1 Introduction

The laws have hitherto been discussed seriatim but in practice they are considered together as a package: the issue for those planners and other officials concerned with developing some land is: what’s the best way, using the available legal resources at our disposal, to achieve the ends we want to achieve; what blockages are there in the laws and what’s the best way round these blockages? If the existing laws aren’t adequate, what alternatives are there? These questions and a discussion of the existing laws ‘in the round’ can be considered in the context of the proposed development of an urban expansion area in Homs, part of which is to be the subject of an urban development plan under Action Plan 9.

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A Master Plan for Homs was approved in 2000. This indicated the urban expansion areas which the city planned to develop during the course of the life of the plan. The process of the planning of the expansion has commenced with a six month phase of assessing the physical, social, economic and environmental situation in the expansion areas. The area which covers the specific part to be the subject of the AP9 plan is a large one some way out of Homs which at the moment has some agricultural use. There do not appear to be many people living in the area but given the size of the area, there are many persons who own the land there.

The question facing the planning department in Homs was: what law giving us what powers should we use to obtain the land we will need to turn our plans into action? There were three possibilities: Law 20/83; Law 9/74 or Law 60/79 as modified by Law 26/00. All the laws are considered to have problems from a practical perspective. Section Two of Law 9/74 which is the applicable part of the Law is excessively complicated to apply. (The following comments on Law 9 do not take account of the amendments introduced by Law 46/2004 as there is not as yet an English translation of that Law but the amendments do not affect the substance of what follows).

11.2 Law 9

Fifteen steps have to be taken. They are as follows (with added comments in italics):

Step 1: the organisational area – the area in which Section 2 of Law 9/74 is to apply – must be established by a decree containing the following:o a recent detailed scheme issued by the Land Registry and the Real Estate

Enhancement Office (the Office) specifying the borders of the area as well as its sections, and the constructed buildings within the area. This office is part of the Ministry of Agriculture and the requirement that it provide a recent detailed scheme means that it is likely to have to visit the proposed area to update its records on the buildings in the area. This will take some time.

o a scheme prepared by the municipality and endorsed by the Office setting out the borders of the created sections and the roads to be built and the public facilities to be created.

o a separate head in the Law but clearly a part of the scheme to be prepared by the municipality is details of the zoning, planning and building requirements to be applied to the area.Now, in the nature of things, even if the municipality’s planning department go ahead and prepare their scheme without waiting for the detailed scheme from the Office (as they probably will since they are in a position to visit the area and find out for themselves what the area consists of and what buildings it has), it is unlikely that their scheme will be endorsed by the Office unless and until it is clearly based on the information supplied by the Office. This too will take some time.

o the council’s proposals regarding the establishment of the area.This must be the justification for the establishment of the area and its production should not pose any problems for the municipality. However, this justification will in practice have to be agreed to by the Office, for the Office is unlikely to undertake any work for a scheme with which it disagrees.

Step 2: the decree must be published in the official newspaper and one local daily newspaper circulating in the area or if there isn’t one, a Damascus daily newspaper.

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The only comment that may be made on this is that the decree is likely to be a very long document and take many pages of a newspaper.

Step 3: once the decree is issued, the municipality requests the Office to prepare a list of all owners or those with power and authority to dispose of plots (e.g. lawyers with a power of attorney over property) and all those who have in-kind rights within the area.Although this is listed in the Law as a separate step, the municipality will request the list of names when it makes a request for the scheme in Step 1. However, in-kind rights may include rights not recorded in the Registry so this list may be incomplete.

Step 4: the municipality sets up a Committee of First Instance (CFI) to estimate the value of the plots within the expansion area in their current condition, the buildings on the plots, the in-kind rights and independent claims in preparation of allocating them to the persons of ultimate rights, i.e.No time limit is set for this Committee to do its work. It could take some time in the light of Step 6 below. It is not clear whether the Committee works solely off the list supplied by the Office under Step 3 or whether it holds hearings.

Step 5: announce via a notice in the municipality offices or in a local newspaper that the Committee has finished its work. The notice must contain a reference to an Arbitration Committee (to be created under Step 6A) which will review the initial estimates of the CFI and to the DRC (Step 6B) The law is silent on where the details of the estimates are published or how the parties concerned get to know of the estimates made for their properties.

Step 6A: the chairman of the municipality establishes an Arbitration Committee to handle challenges to initial estimates. While persons coming under article 9(a) (natural disaster situations) must submit their challenge within 30 days, persons coming under 9(b) – the usual cases – can apparently submit their claims without any time limit.It has to be said that not having a time limit for the submission of claims from article 9(b) challengers is very big defect in the law since given Step 8 below, aggrieved challengers could indefinitely postpone any action being taken under Section Two.

Step 6B: the municipality establishes a competent committee to examine all ownership claims and disputes on properties within the organisational area. All cases previously referred to the courts without being settled by a final ruling are to be referred to the committee as well. This competent committee will usually be a Dispute Resolution Committee (DRC) which will be set up by the Minister of Justice and where it is a DRC, it has all the powers of the court which was originally examining the cases referred to it.This is clearly a major exercise but its not clear why it takes place as Step 6. Logically, disputes about ownership claims and on properties should precede a consideration of the estimate of the values of plots undertaken in Step 4 based on lists provided by the Office in Step 3 since the lists might be incomplete so the estimates will be incomplete. How will people who were missed out in Step 4 know that they were missed out and so exercise their rights to use the DRC to lay the basis for a claim?Step 5 makes it plain that an application to the DRC is different and separate to an application to challenge the initial estimate of value. It will be inevitable that there

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will be challenges and they will take time to settle. Nor is there any provision in the law to deal with the situation that may arise where as a result of a successful claim to the DRC, a new interest comes into being which has to be valued which may in turn result in re-valuation of existing estimates which will spark off fresh challenges

Step 7: DRC decisions may be appealed to a Governorate Appeal Court. This could take some time.

Step 8: if the works to be undertaken under the scheme have not been so undertaken within five years of the issuing of the decree under Step 2, the Arbitration Committee established under Step 6A may re-estimate the values first estimated under Step 4 by the CFI.Given the likely length of time that the process takes, it is perfectly possible that this Step will be reached before any action is taken under the scheme. This does in fact happen. So the procedures are almost designed to ensure that nothing positive happens.

Step 9: the municipality as the legal person representing the whole organisational

area prepares two rosters for purposes of compulsory distribution of new plots:o A roster of right holders of the area’s plots which includes their share of the

realty and the realty’s worth and in kind rights;o An alphabetical roster of right holders that includes the total worth of rights of

each in the area.The first roster includes only the value of the rights in the land; the second roster includes the value of buildings on the land as well. There seems no reason why the two rosters could not be combined.

Step 10: a Compulsory Distribution Committee (CDC) is established to re-distribute plots. The Minister of Justice appoints a judge, the municipality appoints two experts and the owners elect two experts to represent them. The CDC estimates the value of each section marked on its distributive chart. If the total value of the sections is over or under that of the area’s overall realties, the Committee adjusts the share of each right holder accordingly.No comment is required.

Step 11: the CDC prepares the distribution scheme and forwards it to the municipality.There is no time-limit put on the CDC’s work. Since it is fairly mechanical work, there is no reason why a time-limit should not be imposed.

Step 12: the municipality announces the distribution scheme and invites all landowners and others involved to make representations about the scheme in writing within 30 days to the municipality for transmission to the CDC.No comment is required.

Step 13: The CDC reconsiders any of its decisions on which representations have been made and issues its final decision.Since the size and value of plots cannot be altered at this stage of the exercise, an appeal will usually only be successful by the appellant being allocated a plot in another place, which may in turn spark off objections both from the appellant and

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his/her new neighbours which cannot in practice be taken into account. In practice to avoid this happening, it is only in the most exceptional cases that the CDC makes any alterations to its first allocations but there will be an inevitable period of delay as it will have to consider any representations that are made.

Step 14: once the CDC’s distribution becomes final, the municipality informs the Office to finalise the titles to the new plots.No comment is required.

Step 15: if the Office discovers any errors so serious that it cannot register a new ownership, the municipality refers the problem to the CDC to rectify the errors. The CDC must reach a decision within 60 days. A decision of the CDC is final.The only comment worth making is that this is the only place in the Law that a time limit is imposed on a committee to reach a decision. But there is no time-limit on the work to be done by the Office and that could drag on.

Taken individually, a case can be made for each step in the process. It must be right that publicity be given to the declaration of an organisational area, that committees rather than individuals make decisions about persons’ rights to their property and that these decisions can be challenged either before another committee (the preferable option) or by being reviewed by the same committee. If the details of persons’ registered titles are held by another body, then these details must be released to the municipality which is reorganising these titles and these details must be up to date. If a decision has to be made about whether a person has an ownership right at all in the organisational land, then it would be remiss if that person were not allowed to appeal to an appellate court for a final decision on that issue. The problem is that the whole adds up to a time-consuming bureaucratic nightmare in which there is every possibility that the municipality will never get past Step 8 but will have to go back to Step 4 and so on ad infinitum.

11.3 Changes to process and procedures in Law 9

What can be done to try and streamline the process without reducing the rights of landowners. the first and most important and perfectly reasonable change that could and should be

made is the introduction of time limits for things to be done. o All persons wishing to

challenge estimates of value made by the CFI should be required to submit their appeal to the Arbitration Committee within 30 days and not just those persons coming under article 9(a);

appeal against a decision of the DRC to the Governorate Appeal Court must be required to do so within 30 days of the DRC handing down its decision;

o All committees hearing appeals should be required to finalise their hearings within a stated time. The time could be related to the number of appeals made: so many days for so many appeals: i.e. 5 days for every 20 appeals submitted.

o The CDC should be required to arrive at its preliminary re-distribution of plots within a stated time limit.

o The Office should be under a time limit to produce its information and to endorse the scheme prepared by the municipality under Step 1 and to go through the distribution list forwarded to it under Step 14.

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Second, the Law as it stands requires the CDC to re-distribute plots for the whole of the organisational area and only after dealing with challenges to any part of the area can the whole be handed over to the municipality. If the CDC or the municipality were enabled or required to divide the area up into blocks and prepare and finalise a distribution scheme on a block by block basis, then the municipality could get started on e.g. Block A while the CDC was dealing with Block B and so on. The very slight possibility that a challenge to a distribution scheme could only be settled by reorganising plots across blocks can be taken care of by appropriate legal arrangements.

Third, even within a block, there are steps that can be taken to speed up the time at which a municipality can get on to the land to start work on infrastructural etc development. In the nature of things, work has to start in one place; it cannot start everywhere at once. Let it be announced at a public meeting of residents in the block that work will start first where residents agree first to the distribution scheme. Residents will realise that there are considerable benefits to the future development of their new plots, whether they want to develop the plots or sell them to a developer, if the infrastructure can be put in quickly.

Fourth, new computer generated valuation tables should be developed and tried out on an experimental basis for valuing properties under Step 4. This may reduce the number of appeals as ‘objective’ valuation will replace the inevitable subjectivity of a committee of human beings. There should still however be a right of appeal: computers can make mistakes.

Fifth, the whole system is very formal with committees meeting and appeals being submitted. Procedures should allow or indeed encourage, the use of alternative dispute resolution (ADR) techniques – negotiation, arbitration, etc – to resolve differences over valuation, redistribution of plots and even, if the parties are willing, over rights to property. These are techniques now increasingly used in commercial cases in place of formal and lengthy judicial hearings and they are provided for in Law 20/83; they could be used in this area too.

Sixth, moving beyond streamlining procedures and processes, the most obvious reform of substance to introduce is to increase the compensation payable for loss of property. The issues of inefficiency and justice with respect to compensation have already been discussed so the need not be rehearsed again here. Increased compensation however will almost certainly contribute to reduced numbers of appeals and as a general speeding up of action on the ground.

Seventh, there are a variety of alternative planning techniques and tools which municipalities could use – some may need amendments to the laws – which will be discussed below in the third part of this report.

11.4 Law 60 and Law 26

Not surprisingly, Homs decided against using Law 9/74. It opted for Law 60/79 as amended by Law 26/00. What are the procedures which the municipality has to follow with these laws before it can begin to take possession of the land and get to work? The law is not entirely clear on this. The position is as follows:

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Under article 2 Law 60/79 as amended, expansion areas are to be added to the overall Master Plan and these expansion areas are to be expropriated.

The expropriation is to be considered as projects with public benefits and can be considered as urgent cases.

Under articles 29 and 30 of Law 20/83 urgent cases of expropriation permit the expropriating body to possess the “non-built real estates” as soon as the expropriating decree is issues and before evaluating the value of the land and what is on it. However,

Under article 2 of Law 60/79 as amended, the bodies stated in article 2 of Law 20/83 are not allowed to take possession directly for their utilisation. What does this cover? Article 2 of Law 20 empowers a variety of bodies to expropriate in order to implement projects of public benefit and these include municipalities. Since Law 26/00 came after Law 20, is it the case that article 30 Law 20 does not apply to expropriation under Laws 60 and 26?

11.5 Law 20

If the latter position is the case, then before possession of any land can be taken, the whole process of expropriation must be completed. The steps involved in an expropriation under Law 20 must now be considered:

Step 1: the Prime Minister issues an expropriation decree according to o a proposal from the competent Minister containing a statement showing public

use. The decree shall refer to: a plan showing the plots of land to be expropriated a statement of their estimated value the opinion (justification?)of the expropriating municipality.

o The expropriation decree is final and cannot be challenged.This Step clearly indicates that the municipality has to make the running in getting the information together for a decree to be issued. Estimating the value of all the plots to be expropriated could take some time.

Step 2: the expropriation decree must be published in the official Gazette and either a

local newspaper or in one of the Capital newspapers.no comment.

Step 3: the municipality sends a copy of the decree to the Office to note on the register of the relevant plots that they have been expropriated. o Once the decree is made, no sub-division, merging, changing or development of

the expropriated plots are allowed.o If part only of a plot is expropriated, the owner may within three years require

that the expropriating authority acquire the whole. In such a case, a new decree is not necessary; the local council take the decision.

These steps are fairly standard in any expropriation process. Step 4: the municipality

o appoints a committee of three persons to value the expropriated plots. Valuation is determined in accordance with the principles set out in articles 14 – 16 of the Law but the date of valuation is just before the issuing of the expropriation decree; and

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o the Office at the request of the municipality will prepare a list of all the expropriated owners, containing their names, the shares in the land of each, the type of property, the rights in rem and the servitudes with which the plots are burdened.

These steps are fairly standard in any expropriation process.

Step 5: the committee values the plots.No time limit is set for the committee to do its work.

Step 6: within 15 days of the completion of the primary valuation being completed, the municipality o shall publish that information in a newspaper; and o invite all owners and right holders to examine the relevant files on the valuation

of their plot. o All such persons then have up to 30 days

to object to the primary valuation; and or to claim their ownership or any other rights relating to the expropriated

land by a separate application to the Settling Disputes Committee (SDC).This Step has sensible time limits attached to it. What is in this Law could be introduced into Law 9/74. However there is the problem, noted with respect to Step 6B of Law 9/74 that it is not at all clear how people can exercise their right to claim ownership before the SDC when this body only comes into existence after primary valuation has taken place. If persons miss out on primary valuation, how are they to know they should claim before the SDC?

Step 7: the municipality requests the Minister of Justice to set up the SDC. The members are a judge nominated by the Minister; a representative of the real estates department of the Ministry of Agriculture, and a representative of the municipality. Both members must be lawyers. Cases before the courts on similar matters but not yet settled are transferred to the SDC which has all the powers of a court to deal with all cases.No comment necessary

Step 8: The SDC must reach decisions on the cases before it in four months from the date

of its formation may try to arbitrate and promote compromise between the parties if they

agree.o appeals lie to the Governorate Appeal Court (GAC) according to the time and

rules followed in appealing decisions of summary proceedings.o decisions of the SDC or the GAC are forwarded for implementation to the

municipality after collecting fees payable by an applicant to the SDC; and court fees payable to the GAC (where relevant).

This is a very sensible provision: stiff time-limits are laid down for decisions to be reached; fees must be paid by litigants; and ADR is encouraged.

Step 9: the governorate executive bureau (GEB) must appoint a reconsideration

committee consisting of a judge nominated by the Minister of Justice; a representative of the municipality nominated by the Minister; a representative of the

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expropriated owners elected by them; and a representative of the Union of Peasants nominated by the GEB.No comment

Step 10: the reconsideration committee reviews the primary valuations using the same rules as were followed in the primary valuations. Its decisions are final and uncontestable. The compensation must be paid to the ‘beneficiaries’ i.e. the expropriated landowners and others within five years from the date of the expropriation decree.The uncontestability of a final decision does not prevent an aggrieved person from applying to the Land Administrative Court for the decision to be reviewed on legal grounds, i.e. that the reconsideration committee incorrectly applied the law including the principles of compensation. If the LAC find that to be the case, the matter is referred back to the committee for its re-reconsideration.There is no time limit for the reconsideration committee to do its work.The five year rule is a bit odd. It does not seem to follow any principle. If a person accepts the primary valuation, and that comes, say one year after the making of the expropriation decree, why should he or she have to wait another four years before getting compensation which will inevitably have lost some of its real value? Surely, it would be an incentive not to challenge the valuation if you got paid within two or three months of acceptance of the primary decision. As the rule stands it is an incentive to appeal; you lose nothing by appealing as you are not going to get your compensation anyway even if you don’t and you get 6% interest on your compensation if its delayed.

Step 11: the municipality may take possession of the expropriated land when their estimated value is final and complete. So a challenge to the decision of the reconsideration committee made to the LAC does not delay the taking of possession.

It is very clear that using 60/79 and 26/00 allied to 20/83 is much quicker that using 9/74. There are fewer steps to take; the procedures are not so cumbersome; time limits in some cases are in place and possession can ultimately be taken, even if compensation is still being argued over. It is no surprise that Homs preferred to take this route.

11.6 Changes to process and procedures in Law 20

There are however some areas where process and procedures could be improved and speeded up (these suggestions could be in addition to market value compensation):

First, there seems no reason why the primary consideration committee and the reconsideration committee shouldn’t be required to finish their work within a specified period. Provision could be made for an extension in certain defined circumstances (although no such provision exists for the SDC).

Second, the payment of compensation should be speeded up to payment within six

months of acceptance of the valuation for reasons given above.

Third, consideration could be given to paying a small addition to the compensation to those who do not object to the primary valuation. Doing this would probably save money: the expropriating authority has to pay the expenses of the reconsideration

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committee; it has to pay interest of 6% on the delayed payment of compensation even when the delay is caused by the expropriated landowner objecting to the compensation and appealing to the LAC.

Fourth, the power of using ADR, if the parties are agreeable, could be given both to the primary and the reconsideration committee.

It was suggested by authorities in Homs that procedures would be greatly speeded up if they could take possession of the land once the expropriation decree had been issued, leaving compensation to be sorted out later. But if article 2 of Law 60/79 as amended trumps articles 28 and 29 of Law 20/83, there must be a reason for this. What is it? Could it be that if the expropriating authority could take possession of land it needed for its work before it settled compensation, it might not see the same urgency about settling it than is the case now where the speedier the settlement the quicker the taking of possession. The ‘urgency’ provision in Law 20/83 is of questionable fairness.

A better alternative would be to provide for the payment of a percentage of the compensation before the process is complete. As part of Step 1, the expropriating authority has to produce a preliminary estimate of the value of the plots being expropriated. That has to be published as part of the expropriation decree. As the ‘price’ for entering the land early, the law could provide that the expropriating authority must pay 80% of the its estimated value of the compensation to the landowner before entry. And payment would mean payment: the compensation would have to paid to the landowner or deposited at the bank of the landowner before entry on to the land could be made. This will not stop the primary and the reconsideration committees doing their work nor would it in any way stop the expropriated landowner from objecting to the decisions of the committees right up to and including going to the LAC. The contest however would be about the remaining 20% or so of compensation. Here too, the proposed small addition would be payable if the primary valuation were accepted.

Another more far-reaching suggestion concerns both efficiency and equity. At the moment, municipalities and others can expropriate land in an expansion area irrespective of whether they intend to use it in 1, 5, 10 years or even a longer time in the future. They are not under an obligation to pay compensation for at least five years and in many cases people have to wait even longer for their compensation. So land lies idle (inefficiency) and the dispossessed lack money to rebuild their lives (inequity). Both deficiencies could be met by a provision that if the expropriating authority did not begin to use the expropriated land for the purpose for which it was expropriated in ‘n’ years – say, five with a possible extension for another five for good cause shown – then, if compensation had not been paid to the expropriated landowner, the land would automatically by operation of law revert back to that landowner. Expropriation would act in a sense as a conditional transfer of title which would only be finalised by the payment of compensation or use of the land within a specified time.

Expropriation is never popular with the ‘victims’, will always be challenged and so will always take longer than its protagonists would like. It is important not to tip the balance too far in favour of ‘getting things done quickly’ at the expense of the rights of landowners. There is already a major difference between Law 20/83 and the laws in many other countries and what may be regarded as international best practice: the act of expropriation cannot be challenged, only such matters as compensation and the procedures used to exercise the powers. In countries where the act itself can be challenged, delays can stretch into many years. In the US case noted above – Kelo v City of New London – the initial decision to expropriate the contested land was taken in April 1998; the decision of the US Supreme Court allowing the expropriation came some seven

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years later. The proposals made here coupled with a reconsideration of the market value question should help speed up the process while not unduly prejudicing the rights of landowners.

12. Summary of the argument on the current laws

The argument being advanced here is this: present systems of planning, development and control of development are inefficient in following ways;

first, they represent a waste of public and private human and financial resources undertaking activities which

second, are very time-consuming and almost designed to inhibit action; third, inhibit legal private development and encourage illegal and unauthorised

private development; fourth, lead to over-consumption of land and misuse of resources for public

development; fifth, contribute unavoidably to informal development; sixth, render much master planning otiose and downplay the importance of

o Syrian architectural identity and urban form; ando environmental and health conditions in land development.

The conclusion which will form the basis for suggestions for changes in the current system is that the principles of efficiency and justice applied to informal settlements which are going to have the practical effect of using public resources to improve the environment of the land development created by private resources should be applied in the same way to formal systems of land planning and development.

13. A statement of objectives for urban planning

The first step towards a revised approach to planning and land development is to set out the principles which should inform any such approach and provide a justification for them. It is suggested that:

An urban planning system should be equitable, flexible, positive, environmentally aware and efficient and have as its main objective the informed guidance, facilitation and regulation of sustainable private sector-led urban development.

The proposed objective of a planning system may be discussed first. Inevitably, the suggestion that development should be private sector-led will be seen as in part an ideological position. It will be contrasted with and seen to be opposed to state-led development. But this is not just a statement of or support for a particular economic philosophy. Private sector is used deliberately as opposed to market. Private sector refers not just to private capital but private or citizen needs, interests and input, both individually and via citizen organisations. It is a trite phrase but one which still worth making; planning is for people and this applies whether the motor for development is public or private capital.

To say that urban development should be private sector-led is however to recognise that private capital will play the major role in urban development but this is only to recognise reality: the informal or unauthorised sector of development within Syria’s cities consists wholly of private capital and when this is added on to the input of private capital in the formal sector, there can be no doubt that private capital is the driving force of development. It is the recognition of this fact

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rather than the fact itself which is being emphasised in the objective of the planning system. To that extent, the objective is not an ideological one.

Private sector-led development and market-led development are to a large extent two sides of the same coin. So it is important to emphasise that the planning system is not just to facilitate private development which standing on its own could be construed as ‘not getting in the way of development’ but is to guide and regulate it. Guidance involves planning – the framing of possible scenarios for future development which is much more than just master planning – as well as a whole range of other instruments – design guides, planning briefs, joint venture and public/private partnership agreements, planning agreements, land pooling and re-adjustment programmes – which between them give a planning agency a wide range of flexible tools to manage and guide development.

Regulation is an inescapable part of a planning system. There are some aspects of development that cannot be left to the market, formal or informal, or to chance. The Old Cities of Syrian cities are the obvious example here. Their conservation will involve the prevention of some sorts of development and use of land and buildings both within and outwith the Old Cities which market forces or the individual choices of people left to themselves would not achieve. Protection of the environment is another example. Some industrial developments may need to be prevented altogether or at least rigorously policed to ensure that any conditions to which their development was permitted are strictly adhered to. More generally, regulation is necessary to ensure that the private sector does not take all the benefits of development, leaving all the disadvantages – the externalities of development – to be sorted out and paid for by the public sector. Note too that the aim is to facilitate sustainable development: regulation of a positive kind will be needed to achieve that.

14. Five principles for urban planning

Five principles are suggested for an urban planning system: it must be equitable, flexible, positive, environmentally aware, and efficient. Each may briefly be discussed.

Equitable and socially responsive. The system should aim to ensure that all sections of the community derive equal benefits from a planning system. It should be made easier to acquire land and lawful title to land, or lawful occupation of a home, to acquire funds to build a home, to comply with any regulatory provisions governing the development or construction process and to obtain basic services and facilities such as water and power. The system should contain within itself a philosophical framework that balances rights and obligations. This is present in article 14(3) of the Constitution and should be applied to the planning system. Many of the precepts contained in the Habitat Agenda and the Global Plan of Action – the outcomes of the UN City Summit in Istanbul in June 1996 – concern equity in urban planning and these precepts are at least morally and quasi-legally binding on states that signed up to the Agenda as Syria did.

Flexible. The system must be such that it can accommodate change and growth, the twin characteristics of most land development processes. An over rigid planning or zoning system is doomed to failure and merely leads to frustration, ignoring the rules, corruption, and the waste of scarce skilled personnel trying either to prevent departures from the plan or allowing them. A flexible adaptive planning system, and a development control system which concentrates on essentials and allows much small-scale development to take place without any need to obtain permission can act as an encouragement to lawful development where a rigid system discourages lawful and encourages unlawful development. A flexible system can also more easily respond to needs and concerns fed into it from below and facilitate local initiatives.

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Positive. A positive system is one that offers encouragement to development. It is in a sense, the nature step forward from a flexible system. The system should provide a framework for the management of the land development and management process but should not crowd out initiative with over many rules, which will in turn need over many officials to administer them. The system and law should contain a variety of planning tools which can be used to facilitate development: Law 9/74 providing for land readjustment and land pooling is such a tool or rather could be if it were shorn of its bureaucratic excesses. But there are many other tools and arrangements which should form part of a reformed planning system. They centre around public/private partnerships; arrangements where the public sector might put in land and the private sector capital to get a development taking place with an agreement on a fair share of the profits from the development going to each partner. An alternative is an agreement under which a private development gets the go-ahead provided the developer provides the public facilities which its development will make necessary: a shopping mall will involve road widening, more sewerage capacity, an electricity sub-station and whereas once these would have been provided by various public authorities, now the developer itself will be required to provide this public infrastructure. Part of positive planning is a re-orientation of planners, from being the office-bound makers of plans and the regulators, too often blockers, of development to creative thinkers about and actors in development. Any new law should facilitate this re-orientation.

Environmentally aware. It is now widely recognised that development and environmental conservation can and indeed should go hand in hand. To allow or do nothing to prevent development in areas needed for water catchments, or where industrial pollution is likely to blight residential areas, or in ecologically fragile areas, will result in development disasters; cities with inadequate clean water, leading to an epidemic of waterborne illnesses; and the loss of local livelihoods from rural activities. Any urban planning system and law therefore should facilitate the integration of environmental considerations into development processes and require that a proper balance be drawn between conservation and development. It should be said too, that an environmentally conscious planning and development system is more likely to be an equitable one, for urban environmental disasters tend to be visited on the poor rather than on the rich. Principles of environmental justice should be written into the law: equal access to environmental benefits; equal sharing of environmental costs

Efficient. The notion of an efficient system embraces several matters: the costs of the system must not be allowed to grow too large; the costs of control of development and management of land must be related to some reasonably identifiable benefit to be gained from that control and management. Transaction costs must not be so large that they act as a deterrent to using the lawful processes of the land development and so drive people into unauthorised development. Equally, this principle would direct attention to finding the most economically effective way of achieving a particular end; there is no magic in any one particular system of regulation or management and there should be a willingness to experiment and devise a system appropriate to the activity being regulated and the capacity of the regulators. Self-regulation should be considered as a possible alternative to top-down administrative regulation. Efficiency also involves getting a job done expeditiously: whether in the public or the private sector, time is money and all legal and administrative processes need to be assessed to see if they could not be carried out more quickly. Efficiency also embraces simplicity: any legislation or forms to be used in connection with land development should be kept as simple as possible. Complexity can result as much from administrative requirements as from legal drafting.

Efficiency also embraces transparency and administrative justice. These are important procedural values which unless explicitly addressed may become submerged in the concern for speed of

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execution. This aspect of efficiency directs attention to having a system which ensures, as far as possible, that proper consideration is given before action is taken which is likely to have adverse consequences on people, especially where they may lose their land and be forced to relocate; that where hearings are provided for, they are conducted in accordance with recognised principles of administrative justice; that where compensation is due, it is paid promptly and in full; that the criteria to be used by decision-makers are spelt out clearly and in advance so that those seeking some benefit from the administration know the case they have to make; that reasons for decisions are given; that there are proper internal checks on the planners and administrators to ensure that they carry out their duties properly; and that adequate external investigations are made of allegations that they have not. To revert to the first principle, it is much more likely to be the poor who will lose out in a planning system that ignores the principles of administrative justice than the wealthy or well connected. It must be said straightaway that with respect to this aspect of efficiency, with the exception of the payment of compensation, the current system measures has a good deal going for it.

Proposals that are being made for a fundamental reform of Laws 9/74 and 26/00 try to apply these principles in varying degrees to existing laws. They should be read together with the suggested reforms to process and procedure in the existing laws set out above.

15. General reforms to Law 9 and Law 20

The issues of process and procedure in Law 9/74, and Law 26/00 have been treated as separate and distinct issues. But there is a more fundamental issue which must be addressed in the context of a general review of Law 9 and that is whether the two laws should not be combined into one law. If the substance of the matter is considered, both Law 9 and Law 26 are aiming at the same target – the development of land – using to a large extent the same tools – land readjustment and pooling – though with some significant differences. Rather than keeping the laws in two separate boxes and forcing municipalities to choose between them, they could be combined in such a way that municipalities could have a more flexible tool as their disposal to develop land and a more efficient process could be adopted for the application of the law.

Under Law 9, land readjustment by the municipality does not involve any expropriation; the expansion area which is the subject of the readjustment is considered as a whole and 33% of that area is “appropriated free of charge” for public works. In some cases, depending on the master plan, the percentage may go up to 50%. (article 14 and article 3B, 2, 3 and 4). So if 33% of the land is already land owned by a public authority, the landowners will not lose any land; at the least, they will get to keep 50% of their land.

Under Law 26, all the expansion area is expropriated and the landowners get 40% of their land back, 60% going to the municipalities for public developments. Because the land is expropriated, the actual planned development of the area will be in effect public land-driven, that is, the municipality will be in the position to plan and develop the land with public works and buildings etc as they see fit with the landowners’ new plots fitting in accordingly. Development under Law 9 however is likely to be more restrained by the fact that the landowners keep their plots, even if they lose a bit of them.

It is not clear why there are these different percentages. If 33% is thought to be adequate for public developments, why allow it to rise to 50% if the plan says it may (when would a plan ever not?) and if 50% is thought to be adequate for voluntary readjustment in Section One of the Law, why should it rise to 60% when the adjustment is compulsory under Section Two. The oddity of these provisions is further highlighted by the compensation provisions. In a Section One

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readjustment, the landowner loses up to 50% of his or her land without any compensation. In a Section Two readjustment, the landowner is compensated for the loss of his or her 60%. Even odder is that “should the appropriated area exceed 50%” in a Section One readjustment, the landowner only gets paid for the excess over 50%. (article 3B,4 – no indication is given as to when or in what circumstances the appropriation might rise above 50%).

The two laws should be combined and the same percentages of “free appropriation” and to-be-paid-for appropriation, i.e. expropriation, should apply to both voluntary and compulsory sub-division and readjustment. The case for ‘free appropriation’ is a perfectly sound one – the value of land in an expansion area will rise by virtue of the public works which will follow its designation as such and it is right therefore that the landowners who will benefit from the rise in the value of their land by these public works should contribute in the form of ‘free land’ to those public works (and pay no land taxes or improvement charge under Law 98/65 thereafter), the contribution being one of capital and not a cash or annual payment) – but there is a lack of consistency in the provisions.

A better provision would be to have two levels of appropriation for both voluntary and compulsory adjustment: a lower level of say 33% which is ‘free’; an upper level which has to be justified in some plan or scheme of 50% with the difference between the 33% and the 50% being paid for. So in a voluntary scheme, landowners would get to keep at least 50% of their land and get paid for the loss of 17% of it. In a compulsory scheme where all the land is expropriated, the landowners will get back either 67% of the land by value, being paid for the 33% taken, or 50%, being paid for the 50% taken.

Adopting a 50% upper limit rule brings these provisions into line with Law 98/65 which provides for an improvement charge of 50% to be paid by a landowner on assessed improvements brought about by public works or even by the application of a Master Plan to the land in question. Again, the principle of an improvement charge cannot be faulted but the administrative steps involved in: assessing the charge; dealing with appeals; assessing the ability to pay; agreeing to postpone payment; requiring guarantees of payment, provided for in Law 98/65 – all perfectly proper and necessary – show that it will be much better to take the route of appropriation of land allowed by Laws 9 and 26, provided that the route is made fairer and more consistent.

The principal difference then between a voluntary and compulsory readjustment would be who owns the residual land available for future private development: in a voluntary scheme it’s the landowners who continue to own the residue of their plots and are responsible for their readjustment and development; in a compulsory scheme, it’s the municipality which is then responsible, via a CDC, for readjustment. This reform of the laws would enable a municipality to make a more rational planning-based decision on which approach to adopt, or even (and there is no reason why the law should not provide for this) whether to adopt both approaches in different parts of an expansion area where the conditions on the ground are different.

Two further reforms concern voluntary readjustment. The assumption behind Section One of Law 9 is that all land owners in a particular area will voluntarily join together in such a programme. But this is rarely the case and in a well populated area, i.e. an informal settlement, it may be almost impossible to obtain a unanimous decision to proceed to readjustment. And what happens if there is unanimity to proceed but later on, differences emerge and some landowners want to leave the scheme? This may well be a consideration behind a municipality’s decision to use Law 26 as opposed to Law 9.

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There is a case for providing for an element of compulsion even in a voluntary scheme. It could be provided either that if at least 75% of the land owners in an area agree to a scheme, or if 75% of the value of the land in an area agree to a scheme or both (a few landowners may own quite a substantial amount of land so 75% of the value may be a lot less than 75% of the landowners) it can proceed with the remaining 25 % having to comply with the scheme. Since the only alternative would be expropriation and a compulsory readjustment, it could well be that the 25% would, albeit reluctantly, join in the scheme. A variant of this could be just that: expropriation of the land of those who won’t agree to a voluntary scheme with the municipality then joining in the voluntary scheme as one landowner.

The second reform is to the process of readjustment. The position under Section One of Law 9 is that the landowners prepare their scheme following the very detailed provisions of the Implementing Instructions of Law 9 No. 6/2 of July 1974, and apply to the municipality for approval of the scheme. Three suggested changes:

First, the Instructions are too detailed; they leave too little initiative to the professional – engineer or architect – who will be preparing the plans.

Second, there are no provisions for the landowners to be involved in the plans: the whole process is undertaken by the professional with the landowners in the position of just having to accept what is planned for their land. There should be provision for a committee of the landowners to be elected and for that committee to have to agree to the plans to be submitted to the municipality.

Third, there should be provision for the preparation of a joint development plan, a partnership between the landowners and the municipality rather than as at present, a plan made on behalf of landowners that has to be vetted and approved by the municipality. A joint plan will be more easy to implement as it will have the backing of all relevant parties from the outset.

The overall aim of these suggestions is to introduce a measure of flexibility into the development of expansion areas. By combining two Laws into one, equalising benefits and appropriations in voluntary and compulsory adjustment, providing for a slimmed down and speeded up process of readjustment, combining elements of the voluntary and the compulsory in schemes and their application and introducing a partnership approach to development, a revised law will facilitate better and speedier development with no loss of powers to municipalities or rights to landowners – a win:win situation.

16. Towards a revision of Law 5

16.1 The planning process

The principal law on urban planning as such is Law 5/82. The concept of master planning enshrined in that law has already been commented on as has the plethora of administrative steps that are laid down for the making, viewing and approving of a master plan. It has also been noted that Laws 9, 60 and 26 are to a considerable extent a recognition that Law 5 on its own doesn’t really produce any land development and for the reasons already set out may both inhibit legal and encourage illegal development. So the case for a thorough overhaul of Law 5 is very strong and work has commenced in the Ministry on a review of the Law. Applying the aims and principles set out above, and taking account too of the rapidity of urban growth and development on the ground what should be the structure and content of any revised law?

Applying the principles of flexibility and being positive, there is a strong case for a more policy orientated approach to a city-wide plan content. There should be a move away from trying to set

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out in a plan the precise physical way a city must develop over the next 20 years to, instead, setting out the basic goals of development to which the city should aspire over the next ‘n’ years and the policies and practices of development that will be used to advance towards those goals. The policies and goals would start at a fairly general level but become more specific as they were related to specific areas of the city and specific goals to be achieved.

The policies would be supported by information that embraced not just the details of physical development on the ground but social, demographic, economic and environmental matters affecting the possible trajectory of future developments. Insofar as maps were to be part of the plan, they would indicate areas of likely future development but in a non-prescriptive way: not what shall be developed by a specific year in the future in a specific way but what is planned to be developed over the plan period using certain design criteria and policies. The details of any planned development would be determined closer to the time that the development was planned to commence.

An issue that has been raised is that of public involvement in the making of a plan. At the moment, the public is involved in a rather late stage in the making of a master plan: it is only when the plan has been made that people can put forward objections which are then considered by a committee. This process in practice takes a great deal of time. Here too is a situation when both efficiency and justice would be served if people were involved at an earlier stage in plan-making: their views on the kind of city they want are at least as important as a planner’s view on the kind of city he or she thinks people should have. Involvement in the making of a plan may reduce the number of objections to a plan and should certainly assist the resolution of objections.

16.2 Development and its control

It would follow that since the city development plan would become more policy-orientated and less prescriptive, more a guide to developments by the public and private sectors planned for the future, than a statement of what land was going to be acquired for development in the future, there would be a corresponding need to provide in a revised planning law for mechanisms and tools to be in place to focus on specific development issues and areas. These could include the following:

action area plans which would be plans providing for specific policies and proposals for action in relatively small areas within the whole area covered by the city development plan. The areas chosen would be those requiring urgent action over the next 5 – 8 years and the action might be a mixture of development, redevelopment, conservation, upgrading.

design guides for developers to work to: a more detailed set of policies applicable to land scheduled for development. These would not be mandatory but would aim to ensure that key policies of the municipality were translated into development on the ground while still leaving developers with freedom and initiative to come forward with their own plans

planning agreements which could be made with developers relating to particular developments requiring them to undertake certain developments of a ‘public’ nature as a part of their proposed developments. An example would be that rather than the municipality putting in all the infrastructure in an expansion area, and then selling or letting the land to developers, the developers themselves would have to agreement to put in the infrastructure as a part of their planned development.

conditions attached to a permission to develop. This is a lesser version of the planning agreements noted above. Whereas a planning agreement is a contract

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between the municipality and the developer, a condition is an administrative device which would be enforced under the rules of administrative law.

All these would be part of the process of dealing with what may be called ‘applications for development permission’. These would be applications by private developers to develop land for the purposes indicated in the plan These applications are separate from but could be dealt with alongside what may be called ‘building control’; the licence to build a building in accordance with regulations dealing with building materials, dimensions of rooms, thickness of walls etc. Development permissions are a characteristic of most planning systems but need to comply with the following principles:

First, not all development should need a permit before it can take place; minor changes of use and add-ons to buildings should be able to go ahead without a permit. For instance, a small addition to a building, say up to 15% of its size, should be allowed without the need for a development permit (this is the law in the UK). The change of use of a building or part of a building say from purely residential to part residential, part office for professional services should be allowed. The fact that a development permit is not required does not mean that building regulations and other laws can be ignored. These minor changes are basically developments that don’t make any difference to the urban fabric or urban processes but just clog up both the permit system and the enforcement system.

Second, There will be a need to be more comprehensive systems of control of development in areas of special concern; e.g. heritage areas such as the Old Cities which feature in Action Plan 9 of MAM. But given limited human resources, comprehensive systems of control will only work if there is lighter control elsewhere in cities.

Third, the permit system must be designed to be user-friendly. Forms should be easy to complete and not require masses of irrelevant information. All necessary permits should be obtainable at one place and, as far as possible, on one form (one-stop shop). The whole decision-making process must be so arranged that decisions are arrived at within a relatively short space of time – 6 to 8 weeks maximum for the average application. Large scale applications and applications in heritage areas will need to be dealt with on a special basis and possibly involve the Minister. People will only use the system if its benefits – legal development – outweigh its costs – length of time to get a permit, complexity, expense and (see below) rent-seeking behaviour by officials.

Fourth, the criteria for making decisions on applications, insofar as they go beyond just checking that the application accords with the plan, must be spelt out in the relevant law or in some other public legal form, for instance regulations or an official and binding guide issued by the Ministry. This will reduce the likelihood of abuse of power, which is an inevitable side effect of a more discretionary system of decisions on applications. A corollary of a more discretionary system of decision-making is that there should be a built-in system if appeals provided for.

Fifth, there needs to be an efficient and effective system of compliance in place. If people do not comply with the permit system and develop without a permit or against the law generally, there should be a reasonable expectation that they will be caught and suffer some penalty. This again will work best if some development can proceed without need for permission (but not in disregard of the law) so that compliance resources can be concentrated on major infractions of the law;

Sixth, there must be a review and appeal system in place; any decision to refuse a permission to develop, or to impose conditions considered by the developer to be

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unreasonable or to take compliance action must be appealable to an authority independent of the body that took the first decision.

Any revised urban planning law should also make provision for public/private partnerships for land development. For instance, it should be possible for a local authority of a certain size to establish a wholly-owned company whose function would be to undertake with private sector partners land development (including restoration and conservation work) with the costs, benefits, profits and losses shared between the partners in a ratio which reflected what they had put in. So too a local authority should be empowered to assist landowners to form themselves into a company or some other collective entity to undertake development. (Whether this is provided for in an urban planning or a local administration law is a detail which need not be adumbrated on here).

16.3 Who decides

An important issue is who is to decide upon and approve plans. At the moment it is the Ministry. This involves far too much work for the Ministry. It is certainly necessary for the Ministry to have the final say in the development plans of the 13 major urban centres and of any regional plans (see below) but outside of these, consideration should be given to a reorganisation of the approval of plans. Once regional plans are in place, governorates could be the decision-making body on development plans for all areas apart from those which are dealt with by the Ministry. It might be desirable for the Ministry to retain a ‘call in’ power: the Ministry could call in any development plan for its decision where major issues were involved.

Where the 13 large urban centres are concerned, consideration should be given to their being allowed to approve their own action area plans provided that (a) an independent body considers and reports on all objections to and representations about a draft plan; and (b) the municipality is required to consider and issue a public report on its response to the independent review. Here too the Ministry should be empowered to call in an action area plan for its final decision if a municipality’s response to the independent review is unsatisfactory. The concept of ‘unsatisfactory’ is a little vague but it include

refusal to accept ‘strong’ recommendations for changes by the reviewer a recommendation by the governor complaints from people in the action area about the plan clear conflict with certain national planning policies

17. Regional planning

Policies on city-level urban development have to have some kind of context. Not every city can have an international airport, an international sports complex, or a regional level shopping complex. Cities will benefit from a degree of coordination of their development plans and from a ‘steer’ from a higher level plan. This can be provided by a regional plan which will focus on regional spatial development policies in the context of regional economic and social trends and scenarios. A regional plan can be made at the governorate level but with considerable input from the principal urban authorities below that level and with opportunities for input from the people of the region and the principal employers in the region The planning process needs to be seen as a co-operative one between the governorate and the urban authorities. In many respects, the most appropriate form of plan-making would be for a private sector consultancy to undertake the work reporting to a steering committee consisting of governorate level officials, officials representing local authorities and public utilities and persons from the private sector and civil society.

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18. Conclusion

This report should be seen as a contribution to the current review of urban planning processes under way in the Ministry of Local Administration and Environment. It starts from a position that the current system has many strengths but also many weaknesses. Its strengths are a strong legal framework; rules which pay a good deal of attention to the rights of the landowner; a sensible and realistic approach to informal settlements; and commitment on the part of local administrations to make it work. Its weaknesses are an outdated form of plans which operate to inhibit development; over-complicated rules on land development which also inhibit legal and so encourage informal development; the over-use of expropriation as a tool of planning and the unfair and inefficient levels of compensation payable on expropriation. The thrust of the report is to suggest that there is a strong case for a more flexible and positive approach to urban planning and that the legal framework of urban planning can be adjusted and revised to enable such an approach to planning to be introduced and made operational.

Prior to the preparation of any new or revised laws on urban planning new policies have to be developed and decided upon. Laws should follow policies and not the other way round as happens too often. Even with new and revised laws. they are a necessary but by no means a sufficient contribution to remedying weaknesses and advancing new approaches. A law setting out a new approach to planning has to be followed up by new plans, not just the old plans with a new name. Laws providing for speedier decision-making and simpler systems of land development will only be effective if the administrative instructions on how to implement them are themselves kept simple. No amount of protection of the rights of landowners in expropriation procedures will be accepted as satisfactory by landowners if levels of compensation remain the same. Public/private partnerships can be allowed by law but will only work in practice if both sides are committed to them. Devolution of decision-making power from the Ministry can be set out in the law but again, practice will determine whether it will amount to more than just tokenism.

The law however is the important starting point to new approaches. The detailed content of the law can go a considerable way to enabling a new approach to get off to a promising start or alternatively to breed an element of cynicism: “it’s the same old approach just dressed up in new language.” Law follows policy but laws and making laws are also in a very real sense, policies and policy making but using a rather specialised language. So proceeding from a policy to its implementation via law and the proposed content of that law should ideally involve many actors and not just lawyers. Just as planning is too important to be left solely to professional planners, so drafting laws is too important to be left solely to professional lawyers. This report is aimed to encourage all involved in urban planning to understand something of the law’s role in the process of urban planning and development at present and so be equipped to participate in discussions on the most appropriate input of law into urban planning in the future.

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