Reactive and proactive legal instruments for government driven urban development

Abstract

Governments would be fairly powerless to implement their urban development plans and regulations if they were solely dependant on the voluntary compliance of citizens and companies. Public interest, which after all constitutes the foundation of regulation, would be poorly served as a consequence. Governments must be able to require compliance from citizens and companies. However, landowners and initiators of building plans cannot be forced to comply with governmental plans and building regulations just like that. This is interrelated with the operation of a crucial cornerstone within a constitutional state: the principle of legality. Following the principle of legality, many powers have been given to governments. Powers in the field of urban development, which are attributed to the government by law, fall into two categories: reactive powers and proactive powers. The Netherlands allows governmental bodies to use a broad range of reactive and proactive powers. It is very interesting to note that in the Netherlands these powers are not restricted to public law. Unlike most Anglo-Saxon countries, Dutch governments are allowed to engage in public private partnerships on a risk-taking basis. This is brought about through contracts between the public and private sectors and through the establishment of PPP joint venture companies.This paper elaborates on the mix of public and private law instruments that underlie reactive and proactive governmental powers. These powers indeed are vital for government driven urban development, as opposed against market driven urban development.