Public versus private land controls in England and the US

Purpose - This paper aims to compare the law with regard to private property rights and restrictions and public controls in England and the US, and the theoretical debates that surround them, in order to understand whether the private land use controls of nuisance and restrictive covenants could have a greater role to play, or whether the public law system of planning is the best way to manage the land.

Design/methodology/approach - This paper starts by summarising and comparing; firstly, the private laws of nuisance and restrictive covenants and then laws relating public planning, zoning and takings in England and the US. It then reviews theoretical approaches taken in both jurisdictions to land use restrictions.

Findings - The paper concludes that private land use restrictions can only play a limited role in land management in England. Scarcity and cost of available housing necessitate a mechanism by which the state can intervene in certain circumstances to remove or modify restrictions to enable alteration and development. The structure of freehold ownership in England, and the low take up of Commonhold as an alternative tenure, mean that expansion in the use of private land use restrictions to control the use of land is unfeasible.

Originality/Value - The value of this paper is that it seeks to provide insight into the contested relationship between private and public law and the relationship between property law and planning.