Property and Administration

• Published date: 01 March 2015
• Date: 01 March 2015
• Author: Paul van der Molen
• DOI: 10.1177/0095399713508848
• Subject Matter: Articles

Administration & Society

2015, Vol. 47(2) 171 –196

© The Author(s) 2013

DOI: 10.1177/0095399713508848

aas.sagepub.com

Article

Property and

Administration:

Comparative

Observations on

Property Rights and

Spatial Planning With

Some Cases From the

Netherlands

Paul van der Molen1

Abstract

This article addresses the role of private property rights in the process of

spatial planning. The article considers this process from the viewpoint of the

dichotomy of power between the private property rights and public policy.

On one hand, there is the private owner, who has the right to decide how to

use the land based on the right to dispose. On the other hand, there is the

government, which has the right to aim at realizing socially desirable land use

based on its role as custodian of the public good. The article investigates which

mechanisms are available to settle these interests, such as the binding zoning

plan with its regulations and the options for government land acquisition.

The article in short presents the integrated approach that is in force in the

Netherlands. As this settlement process concerns the relationship between

citizen and State, attention is paid to human rights aspects of property. The

article addresses briefly the issue of land administration systems; adjusting

1University of Twente, Enschede, The Netherlands

Corresponding Author:

Paul van der Molen, Professor Cadastre and Land Administration, Faculty Geoinformation

Science and Earth Observation (ITC), UNU School for Land Administration Studies,

University of Twente, Hengelosestrat 99, Enschede, NL-7514 AE, The Netherlands.

Email: molen@itc.nl

508848AAS47210.1177/0095399713508848Van der MolenAdministration & Society

research-article2013

Van der Molen

172 Administration & Society 47(2)

public powers and private rights at least requires good knowledge of who

owns what and how. Without such knowledge, it appears to be difficult for

any government to operate effectively, efficiently, and fairly.

Keywords

property rights, spatial planning, public land acquisition

Introduction

The title of this article hardly presents a novelty. The relation between prop-

erty rights, land use spatial planning, and public land acquisition sometimes

is said to be “common knowledge.” Why then publish this article? Because

practice shows that planners and public land purchasers sometimes lack

awareness of this “common knowledge,” this goes for the developed world

(Needham, 2006) and the developing world (e.g., about the failure of conven-

tional master planning: UN/Habitat, 2009; about forced eviction: Centre of

Housing Rights and Evictions, 2006; about slum formation: Cities Alliance,

1999; about land grabbing: High Level Panel of Experts on Food Security

and Nutrition [HLPE], 2011). In the international scientific literature, the

subject appears to be underexposed. It is likely that the “common knowl-

edge” mainly exists at country level, given the strong link with the national

legal context. This article aims at synthesizing existing literature in an attempt

to present logical arguments clarifying the relation.

Spatial planning and the public acquisition of land are activities that are

strongly related to private property rights. Imposing a certain land use on

private owners and acquiring property rights from them interferes in the

nature of private property rights. These characteristics are also referred to as

the “bundle of rights.” Together, they constitute a private property right. The

bundle contains the “sticks” (Rowton Simpson, 1976), each of them repre-

senting a “right,” such as the right to dispose, to sell, to lease, to reap fruits,

to mortgage, or not to do so. The bundle defines the nature of legitimate land

uses and the benefits to be derived from doing so. Legitimacy, however, does

neither mean that land is being used in an efficient and equitable manner, nor

that the land use is socially desirable. Therefore, governments have a role to

play in providing a legal and institutional framework. Such a framework pro-

vides incentives for land use that maximizes social welfare and internalizes

“externalities” (Deininger, 2003). Government measures comprise, for

example, land use regulation, land use zoning, and public acquisition of land.

Moreover, land administration systems have a role to play. They are a neces-

sary source of property information for managers involved in planning and