by Dr. Fang Ye
This article, written by a partner at a Shanghai, China, law firm, covers the conflicts between land zoning power and land development rights in China. It discusses the structure and legal attributes of the land zoning power in China, whether development rights in China are public or private, the scope of development rights in China, and the conflict between zoning power and development rights and attempts being made to ease this conflict.
Introduction Land is either owned by the State or by rural collectives in the People's Republic of China. However, ownership by the rural collectives is only in name, as a rural collective cannot decide the purposes for which its land will be used and must obey the planning regulations of the government without receiving compensation. This inability by the collectives to decide the use of their own land may be seen as an infringement upon land development rights by the State's land zoning power. The power of land zoning is an administrative power in China and can be divided into urban-rural planning power and land planning power. These powers become abused because the two planning powers tend to overlap, and there is no opportunity for public participation or due process. Presently, the land development right is separated from land ownership. Land development rights include utilization of space on the surface of or above or under the land and are of great economic value in modern society. What is the land zoning power in China? What is the land development right? How are farmers' land development rights being infringed upon? What attempts have been made by the Chinese government to address this situation? This article answers those four questions. I. The Structure and Legal Attributes of the Land Zoning Power The land zoning power can be divided into two categories: urban-rural planning power and land planning power. On one hand, urban-rural planning power is a comprehensive planning power that addresses the utilization of space, dealing with the arrangement and layout of urban-rural land. Land planning power, on the other hand, controls the arrangement of how land is used. It can be divided into national territorial planning and the overall planning for land utilization. National territorial planning is done according to economic and social development strategies focused on, for example, nature, the economy, and society; this type of planning looks at the larger picture of development in China and the layout of land space by the State. The other type of land planning, overall planning for land utilization, is conducted in two steps. First, the State makes a general arrangement to be implemented nationwide. Then, a more specific corresponding plan is made by each lower level of government in accordance with larger, state-created arrangement. Urban-rural planning power and land planning power are separate powers with different functions. The main function of land planning power is to protect cultivated land, and that of urban-rural planning power is to efficiently arrange land and space resources to foster coordinated urban economic development. Land use planning is conducted by the land and resource department, and urban-rural planning is conducted by the planning department which is a different government agency. Since both urban-rural planning and land planning include utilization rights, however, there are aspects of the two powers that must overlap; these overlaps in authority, particularly those dealing with parties with separate goals, cause conflicts that are difficult to resolve. Unfortunately, urban-rural planning and land use planning work differently—ideally versus practically. Theoretically, urban-rural planning and land use planning could harmoniously coexist. This could happen if the government was to create a land use plan in a manner that divides the land into developed areas, restricted development areas, and banned development areas; the government could then impose restrictions and conditions accordingly on these areas to control the scope and pace of development. The urban-rural plan could then be set in accordance with this land use plan to carry out urban-rural development construction. In reality, however, this process is conducted in the opposite sequence.. In China, there are regulations on urban planning much earlier than land use zoning regulations. That is why land use zoning always compromises pre-existing urban planning. In 1956, the National Construction Committee enacted Interim Regulations on Urban Planning Constitution under which more than 150 cities constituted their general urban planning. In 1982, in order to instruct the detail urban planning, the National Construction Committee enacted Interim Regulations on Examining and Approving Urban Planning and Interim Regulations on Urban Planning Parameters. The State Council enacted the Urban Planning statute in1984 when there were more than 339 cities that had finished constituting their general urban planning and 80% of them had been approved. In 1989, the Urban Planning Law came into force. the amended new law, Urban and Rural Planning Law, passed in 2007 and came into force in 2008. But as for the land use zoning regulations, in 1986, the Land Management Law was enacted and the National Department of Land Management was established. In the amendment of 1997, article 17, Land Management Law, required that all level governments should constitute land use general planning. In 1999, the State council approved All Country Land Use Planning Outline. In 2001, 93% of cities had their land use planning approved.
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Dr. Fang Ye is a partner of ALLBRIGHT LAW OFFICES, the largest PRC law firm headquarted in Shanghai China. Her practice area includes real estates and finance, land taking, corporate law and litigation. Dr. Ye got her S.J.D and LL.B. from East China University of Politices and Law, and her doctoral degree dissertation is about land taking. She got her LL.M. from both William S. Richardson School of Law, University of Hawaii, and Tsing Hua University.