Role 2: Bureaucrat & Lawyer Flashcards
What is the mindset of the bureaucrat & Lawyer?
They working in or with a defined administrative context (in urban and rural).
Different rights and demands meet on limited available land. Change needs to be administered.
They do vertical and horizontal coordination, consultation with stakeholder, and public participation (proactive and reactive)
What is the difference between the bureaucrat and the lawyer?
Bureaucrat:
- follows public tasks
- uses clear procedures
- political and legal mandates
- planning accountably
Lawyer:
- follows legal foundations
- does planning legally ‘right’
- uses (and develops) planning laws
- solves disputes
The bureaucrat provides a frame of reference for the lawyer. The lawyer controls the bureaucrat.
What are the principles of good governance?
- duty of care: zorgvuldigheidsbeginsel (art 3:2 Awb)
- obligation of state reasons: motiveringsbeginsel (art. 3:46 Awb)
- fair play: onafhankelijk en onpartijdig (art. 2:4 Awb)
- prohibition of misuse of powers: detournement de pouvoir (art. 3:3 Awb)
- prohibition of arbitrary action: verbod van willekeur
- equality: gelijkheidsbeginsel (art. 1 Gw)
- protection of legitimate expectations: vertrouwensbeginsel
How can bureaucrats and lawyers provide legal certainty?
Legal certainty is very important (rechtszekerheid). Since Napoleon it’s a constitutional provision that the state should protect a person’s property and interests from damage caused by authorities and other citizens.
Trias politica:
- Executive: bureaucrats aim to provide security in state-citizen relationships.
- Judiciary: lawyers develop foundations and control their execution.
- Legislature: bureaucrats and lawyers relate to politics
What are different levels of government?
International: EU
National: State
- legislative: States-General
- executive: Cabinet
- judiciary: HR
Provincial: 12 provinces
- legislative: Provincial council
- executive: Commissaris van de Koning en Gedeputeerde Staten
- judiciary: Rechtbank
Municipal: 355 municipalities
- legislative: Municipal council
- Executive: College van B&W
- judiciary: Rechtbank
Each level has its own tools and products. There’s a difference between pre- and post-omgevingswet. There’s coordination between regulations to have a permit.
What were important policy documents in planning?
1958: Policy document on development of the West (free the Randstad from congestion).
1960: First Policy Document on Spatial Planning (Pursue a dispersal strategy)
1966: Second Policy Document on Spatial Planning (Dutch population will grow so we have to prevent urbanisation)
1974: Third Policy Document on Spatial Planning (Minimise the impact of human activities on the environment)
1988: Fourth Policy Document on Spatial Planning (Regions need to find their own strength, Randstand needs an international position, mainport function vital)
1992: Fourth Policy Document on Spatial Planning Extra (VINEX: large scale green field housing sites at the edges of big cities)
2001: Fifth Policy Document on Spatial Planning (urbanisation needs to be restrained by contours)
2004: Nota Ruimte (State needs to delegate control to lower tiers and only secure national key structures)
What are important tools and products of the bureaucrat and lawyer?
- Local Zoning Plans (Wro): binding to citizens, by municipality, updates every 10 years
- Strategic vision: by central government, province, municipality, about main policy points and where power is expected to be exercised, also for specific aspects such as green space, pipelines, or energy supply.
- Permits: for works and non-works that change the land-use function, uniform legal basis (WABO, omgevingswet)
What is the procedure to make a zoning plan made?
- preparation notice: voorbereidingsbesluit
- public notice draft plan: openbare kennisgeving (municipal website and staatscourant)
- public inspection draft plan: ter inzagelegging
- submission of objections: bezwaar (within 6 weeks)
- Plan becomes official: vaststelling (without bezwaar 8 weeks, with bezwaar 12 weeks)
- public notification: bekendmaking (within 2 weeks)
- legal appeal procedure: beroep (within 6 weeks)
- zoning takes effect
What is the institutional design relevant in spatial planning?
- Wet voorkeursrecht gemeente
- Ruilverkaveling
- Grondexploitatiewet
- Tracéwet
What are public-private partnerships?
- Mutual dependence between public and private (bring public and private resources together)
- Concession model (tendering, contracts)
- Alliance model (partnerships, joint companies)
You need:
- relational conditions (contacts, trust)
- administrative political conditions (council consent)
- legal conditions (rights/obligations of parties)
- organisational conditions (clarity)
- financial-economic conditions (contributions, profit-sharing)
What are the principles for institutional processes?
- Efficacy: ability to produce the desired or intended result
- Accountability: willingness to take responsibility
- Legitimacy: conformance to the law or to institutional rules
- Transparency
- Fairness
- Openness
- Inclusiveness
- Constructive interactions
What is the difference between the common law system and the civil law system?
- Common law is not always written down or codified, so civil law is more prescriptive
- Civil law is also more predictable because it’s written down, only legislative enactments are binding for all, and less freedom to act. In common law judicial decisions are binding.
- Common law is more flexible, because more freedom to contract and everything not expressively prohibited by law is permitted.
What is the legal framework in which planners work?
- international treaties
- constitution
- laws
- orders in council
- ministerial regulations
- provincial regulations
- municipal regulations
What are the four sources of law?
- Acts of parliament (formal and material)
- Convenants (monism: international law is part of the same law system and works immediately after ratification. dualism: international law is not the same legal system and needs to be implemented or approved by the national government)
- Jurisprudence
- Customary law
What changes with the omgevingswet?
- Combines 26 existing acts
- Faster and cheaper decision-making
- Better solutions to social challenges
- More transparent decision-making for initiators and beneficiaries
- Simplification of the rules: follows European directives on the environment and unnecessary legislation is scrapped
- More flexibility to better fit the actual situation
