Introduction to Land Use Planning

This introduction sets the foundation for analysing the case studies.  We introduce learners to the tenets of planning, land use planning, and the planning profession.  We focus on the unique combination of being oriented to the future, to knowing what we want a better future to look like, and of translating this better future into decisions about how land should be used today.

Today’s issues.  Your future.

We all want to make the world a better place.  But how do we get there?  This question requires us to think about what we want the future to look like.  We must then determine what decisions we need to make today to achieve the future we want for tomorrow.  This way of thinking defines the field of professional planning, setting it apart from all other professions.  No other professional practice has an explicit focus on the future and the steps necessary to get there.  Among the many things to consider within the field of planning, we must plan for how we use our lands because, in the end, everything people do has an impact on the land.  Hence, land use planning.

This way of thinking also shapes the responsibilities of a professional planner.  As illustrated in Figure 1, we can see planners as a critical link between the field of community development and the practice of law.  On the one hand, the practice of professional planning draws from community development, which embodies the future orientation of what a better community should be.  The primary concern of community planning is to facilitate a collective vision of this desirable future.  The primary concern of professional planning is translating this vision into a land use plan supported by zoning bylaws.  This aspect of planning deals with property rights law, working with lawyers to draft bylaws, and implementing these bylaws.  These primary concerns of planning are discussed in more detail below.

Most professional planners work for local governments, which include municipalities and regional districts.  Professional planners also work in the provincial government, usually in ministries that have some jurisdiction over the use of land, and for consulting firms that serve local governments and development corporations.  Within a local government, the responsibilities of a planning department cover the essential, day-to-day aspects of land use planning and long-term aspects of community planning.  Collectively, the work of planners covers different areas of expertise, such as community planning, zoning, economic development, climate change and adaptation, public spaces, housing, affordable housing, and transportation, among others.

Orientation to the future

We plan when thinking about what we need to prepare for tonight’s dinner, when we organise for a trip, or when we start thinking about a career after graduating.  There are people who sell their services as a financial planner or a wedding planner.  However, for all the ways that we engage in planning, there is something different about the profession of planning.

We can highlight specific aspects of the profession by looking, in a playful way, at differences between planning, planning, and Planning.

In a casual way, we plan when thinking about what we need to prepare for tonight’s dinner, when we organise for a trip, or when we start thinking about a career after graduating.  There are people who sell their services as a financial planner or wedding planner. However, for all of the ways that we engage in planning, there is something different about land use planning.

We can highlight specific aspects of land use planning by looking, in a playful way, at differences between planning, planning, and Planning.

• planning

Think of this small-p version as an informal use of planning, such as the way that we plan our day in order to get things done.  In this sense, planning is something we do in a causal way, and without reflecting on what the term means or about our limits to knowing the future.

• planning

This italicised version of planning reflects a more deliberate use of the term. Think of planning as the way a company does planning.  A company gathers as much information as it can in order to figure out what its customers want, the strengths and weaknesses of their competitors, and steps they must take in order to maximise their market share and profits.  In this way, planning refers to a deliberate, systematic approach to knowing as much as possible about the future in order to determine the best steps to achieve a positive outcome.

• Planning

The capital-p version of planning gets us to the profession of land use planning, which this textbook is about.  Not only are land use planners oriented to the future and gather information in a systematic way, they are also people who are trained in the practice of land use and registered by a professional association (see text box).

These three ways of thinking about planning are not used in a formal way anywhere outside of this textbook.  Our purpose of thinking about planning this way is to emphasise that planning, when used in relation to professional planning, is different from how it is used in other, more familiar contexts.

To gain further insights about planning, we must account for the following two conditions of planning:

• Planning is oriented to the future.
• We cannot fully know the future.

Thinking about the future is entrenched in human nature.  Typically, we want ‘the future’ to work out in our favour.  For this to happen, we try to gain some control of what lies ahead, to see what the future has in store for us.  In Greek and Roman mythology, many of the gods had powers of prophecy, the ability to foresee the future, including Apollo, Phoebe, and Themis.  Greek society relied on its oracles to “know” the future and bring it into the present.  Of these oracles, the Oracle of Delphi is the most well-known.  It was common for Greek society’s leaders to consult with the Oracles before making important decisions about politics and economics.

During the fifteenth century, Western society began a remarkable transformation into its modern form.  Over a short period, generations of people witnessed navigation of the globe, separation of state and religion, revelation of the cosmos, emergence of science as a major centre of authority, evolution of agricultural practices, revolution of industrial manufacturing—and a new orientation to the future.

While most people know about modern developments of the scientific method and industrial revolution, few people are aware that how we thought about the future also changed.  As our understanding of how the world works increased, society’s confidence in knowing the future also grew.  Rather than have the future revealed to us through prophecy, myth, and ritual, our future was open to unknown possibilities; it was an “open” or “discernible” future.  It was a future open to unknown possibilities yet also open to human inquiry.  As our knowledge of all aspects of nature, society, and the cosmos increased so, too, did our ability to discern probable futures—and then to plan for these probabilities.

In fact, the word “planning” appears in the English language only during the modern era.  The need to plan arises only in direct relation with the realisation that humans have some control of our future.

Coping with a future we cannot know

Inevitably, we have to come to terms with our limits of knowing.  As Albert Einstein stated, “As our circle of knowledge expands, so does the circumference of darkness surrounding it.”  This statement reveals a point of reconciliation:  the more we know, the more we become aware of what we do not know.  Inevitably, confidence must be reconciled with uncertainty.

Welcome to the world of planning:  a way for society to cope with a future that we must know—yet cannot know completely.

This reality makes planning a very curious thing:  people are captivated by something we can never fully know, yet we try to know as much as we can about the future to control it.  By planning, we strive to maximise what we can know about the future.  By the same act, we come to recognise and accept what we cannot know.  Planning, in this sense, can be viewed as a functional equivalent of religion, myths, and ritual; in different ways, each perspective helps people deal with an unknowable future in socially acceptable terms.

We must accept that planning is not about controlling or predicting the future or about providing absolute certainty.  Rather, we plan because it helps to increase stability and security.  Stability has both positive and positivist elements.  It is positive in that there is a sense of being able to achieve future prospects of progress and development.  It is positivist in the sense that (scientific) control and prediction are predicated on an objectively knowable reality.  Security helps increase our sense of comfort with the unknown, by addressing danger, fear, anxiety that comes with uncertainty.

Planning is akin to risk.  Specifically, risk is “a matter of a decision that, as can be foreseen, will be subsequently regretted if a loss that one had hoped to avert occurs.”^[1]  Thus, planning and risk re-inforce each other: planning is about making decisions based on what we know of the future; risk is the consequence of such decisions.  We can also think of this relation this way:  risk re-inforces the need to plan, which is intended to reduce risk.  Both are ways to cope with an unknowable future.

These insights help to define planning as follows:  the function of planning is to make the future a visible part of today’s decision-making process.  If this definition seems too abstract, think of it this way.  You want to ensure that you have a good time while camping this upcoming long weekend.  To minimise the risk of having a bad time, you envision what you want to do during the camping trip, as well as the food and equipment you will need.  In other words, you will plan.  By this act, you make your future activities a part of the decisions you need to make today in order to have a positive trip.

Through this definition, we can also appreciate subtle distinctions between planning, management, and design.  While these words are often used interchangeably there are important distinctions to be made between them.  Whereas planning is oriented to the future, both designing and managing are oriented to the present.  To design is to make decisions in the present, and only after future decisions have been made.  From the designer’s perspective, planning decisions provide criteria for completing a design.  To manage is to make decisions about decisions that need to be made in the present (among present options).  That is, managing is knowing who makes what present decisions and how present decisions should be made.  Thus, cities of early civilizations were not planned but designed; the designs were based on myth, tradition, and fate; not in a way that we think about the future today.

An orientation to the future is what makes the profession of planning unique among all professions.  Importantly, there is another aspect of professional planning that must be considered before getting into the details of land use planning.  We must also consider how the professional planner serves the public interest.

Serving the public interest

To begin a discussion about ‘public interest,’ we must clarify the term.  We can begin by separating “what is in the public interest from those things members of the public are interested in; they are not necessarily the same.”^[2]  To say that something is “in the public interest” infers that we are not just taking a poll to determine the interest of the majority.  Rather, to say that something is “in the public interest” presumes that there is a greater good or common good that transcends individual interests—even if some members of the public do not agree.

The list of elements of public interest related to planning is extensive, as described in Box 1.

In the late nineteenth century, the future public interest in the well-being of cities became eminent.  Conflicts among uses of land, especially livestock within cities^[3], the need for better sanitation, poor water quality, and worsening public health conditions, all contributing to a decline in the quality of life within urban areas.^[4]  The worsening problem of urban centres made clear that the broad interest of the public interest was at stake.  The profession of planning took shape in and from this context.  Thus, in addition to planning’s function of binding the future in decision-making, the practice of professional planning fills the additional, specific function of binding the future public interest to present decisions.

In theoretical terms, planning can be defined as making decisions on what decisions need to be made in the future, thus binding the future to the present by fixing finite future possibilities through the structures of decision-making processes.  In simpler terms, to plan is to make the future a visible, and discernible, part of modern decision-making processes.  Professional planners make a future public interest a visible, and discernible, part of public decision-making processes in the present.  Hence, the function of planning is only relevant to a future-oriented society and a future-oriented society requires planning to function.  Furthermore, while not all practices of professional planners are aimed at the future, the function of planning always is.

Land use planning

In this text we view land use planning through a lens of Canadian law, but not exclusively.  Through the cases and applications, we also examine land use planning in relation to Indigenous peoples and law, including Indigenous title and rights (see below), government-to-government (or joint) land use planning, and Indigenous protected and conserved areas (IPCAs).

People usually associate land use planning with cities, and we focus here on these urban environments to introduce land use planning.  Urban land use planning is most easily recognised by maps that show different land use zones.  Figure 2 is an example of a land use zone map for the City of Vancouver’s downtown area.  Each colour on this zoning map represents a different type of land use known as a zoning district, designated as residential, industrial, commercial, parks, etc.  That is, the colours show which areas of the downtown Vancouver are designated for what purposes.

Figure 1. City of Vancouver, land use zones, downtown area.

More specifically, and technically, a zoning bylaw is the legal way to regulate the types of land uses allowed for areas of a city, as well as where a building can be located on a site, the maximum height and size of a building, and other provisions.  Zoning regulations for a city like Vancouver are extensive and very detailed.  For example, Vancouver has more than 50 zoning districts just for residential uses.  There are dozens more zoning districts that cover industrial, commercial, historic, comprehensive, and agricultural uses.  These regulations, which cover every property in a city, are set according to city-wide goals and priorities.

The relation between area-wide goals and zoning is very important, as it reveals the core areas of responsibility of a professional planner.  These responsibilities range from creating a long-term vision of what a city should look like in, say, thirty years to what decisions we must make today to achieve that vision.  At the broad end of the scale, planning is about envisioning what a city should look like in the future so that it is the best possible place to live, work, and play.  It is a vision of a desirable future for a city as a whole.  This aspect of planning is often referred to as long-range community planning.  At the other end of the scale, zoning represents the outcome of land use planning processes, in which the broader priorities are translated into detailed regulations that dictate how land should be used. This aspect of land use planning is often referred to as current planning.  In sum, as reflected in the definition of planning by the Canadian Institute of Planners (CIP):  “Planning addresses the use of land, resources, facilities, and services in ways that secure the physical, economic, and social efficiency, health and well-being of urban and rural communities.”^[5]

What, then, is a land use plan?  According to Hok Lin Leung, a land use plan is a “conception about the spatial arrangement of land uses, with a set of proposed actions to make that a reality.”^[6]  This definition emphasises the spatial aspect of land use plans.  In different terms, a land use plan is “The official statement of a…legislative body which sets forth its major policies concerning desirable future physical environment.”^[7]  This view of land use planning highlights the legal foundation of land use plans.

The purpose of this book is to engage learners in different contexts and explore different legislative frameworks that govern the uses of land.  Each case and application is an example of a type of land use planning in British Columbia, including urban, rural, regional, First Nations reserves, agricultural, and protected areas.  In each context, one must examine the corresponding legislative framework, which includes legislative acts and regulations of the provincial government and bylaws of local governments.

Depending on the type of land use, under common law, a legislative framework may be focussed on one or all levels of government, whether municipal, regional, or provincial, and sometimes federal.  Legislation, including laws, regulations, statutory plans, and implementing bylaws, is the most important element of a framework, which is complemented by policies and governance mechanisms.

A framework is based on the “enabling” legislation; that is, the legislative act (i.e., law) that enables a government or agency to govern land uses.  For example, the Local Government Act (RSBC 2015 Ch. 1 Part 14) enables local governments to complete Official Community Plans (OCPs) and zoning regulations; the Park Act (RSBC 1996 Ch. 344) enables the provincial government to establish parks and protected areas; the Agricultural Land Commission Act (SBC 2002 Ch. 36) enables the provincial government to establish the Agricultural Land Reserve and the Agricultural Land Commission.  Regulations that are adopted pursuant to the act usually set out details for creating and implementing the land use plan.  Policies can be either enforceable or aspirational.  Governance mechanisms include tribunals, such as the Agricultural Land Commission (ALC) and Oil and Gas Commission (OGC) at the provincial level, and planning advisory committee at the local level.  Table 1 shows common elements of legislative frameworks that learners will encounter in the land use cases and applications covered in this text.

Table 1. Common elements of a legislative framework for land use planning.

Property rights

It is easy to assume that land use planning is about land.  However, technically, the purpose of planning is about the use of a land.  Correspondingly, when we consider uses of land, we are dealing with property rights.  As we explore how land use planning relates to property rights, we will also discover how the work of a professional planner is tied to the practice of law.  The relation between land use and property law is covered in detail by Howard Epstein, a lawyer who wrote a book about land use planning in Canada.  As Epstein explains, “Modern property law sees itself as being concerned with ‘legal relations among people regarding control and disposition of valued resources’.”^[8]

As Roy Vogt^[9] explains, property rights refers to a bundle of entitlement, i.e., rights, that governs the use of things.  These things can be an idea, such as intellectual property, or an object, such as personal property.  Property also refers to land, and since land is both sought-after and in limited supply, we use a system of rights to administer its use.

While property has to do with things, modern property theory focusses not on the things themselves but on the kinds of rights required to control their use.  In general terms, property rights of land encompasses a bundle of three rights:  use; control; and disposition.

Use rights entitle one to occupy, derive income from, or extract natural resources from land.

Control (or enjoyment) rights concerns the right to be protected from trespass, nuisance, or expropriation (i.e., control others’ uses).

Disposition rights concern the right to sell, lease, subdivide, or bequeath lands.

Instead of referring to different combinations of rights as “bundles,” the legal term we use is tenure.  Tenure refers to the legal regime in which interests in land are held.  Although the term tenure may not be used often, people are familiar with different types of tenure, which exist in the form of a permit, lease, licence, grant, and other legal regimes.  When a person “owns” a house, this form of tenure is called fee simple, which represents the fullest form of rights to land, including the right to use, control (enjoy), and dispose.

In BC—notwithstanding Indigenous rights and title, which is addressed below—all land is ultimately owned by the Crown.  Correspondingly, all rights to land are held directly or indirectly by some kind of tenure from the Crown.

Indigenous title and rights

The general purpose of land use planning can be adopted by and applied in any societal context.  However, when we consider the legal foundations of land use planning, we must distinguish between rights and title recognised by Canada law and rights and title under the laws of Indigenous Nations.

Indigenous rights derive from elements of distinctive practices, customs, and traditions integral to the culture of an Indigenous Nation.  From a common law perspective, Indigenous rights to land are recognised as unique property rights.  Such rights include the right to access and use land for hunting and trapping.  These rights are sui generis.  That is, they are recognised as existing prior to the European assertion of sovereignty and to the establishment of property rights under common law in Canada.  Indigenous rights are a claim recognisable, protected, and enforceable by Canadian common law.

Indigenous title is a form of property right specific to land; it is a sub-set of Indigenous rights.  Indigenous title, like other Indigenous rights, is a special right recognised as sui generis.  In other words, Indigenous title to land is not derived from Canadian law.  An Indigenous right (to hunt, for example) can exist independently of Indigenous title to land.  Like other property rights under common law (but not the same as), Indigenous rights to land correspond to their occupation, use, and control of ancestral lands.  Although Indigenous laws may not use these specific terms, these laws are premised on property rights, as embedded, for example, in the existence of traditional territories.

Under the Constitution Act, 1982, Indigenous rights to property do not include disposition rights.  Indigenous people cannot sell rights to their land; they can only voluntarily surrender their land to the Crown through agreements (e.g., treaties).  Also, Indigenous rights and title to land are recognised as communal; they are not held by any individual Indigenous person but by Indigenous nations.

Legal recognition, as well as general understanding, of Indigenous title and rights are long-standing issues that have been subject to many cases before the Supreme Court of Canada.  Although the process has been slow, each court decision contributes to an evolutionary relation between Canada law and Indigenous law and, correspondingly, between modern property law and Indigenous rights and title.  For a long time, modern property law was the only legal regime applied to land, including the Indian Act.  The court decisions acknowledged the Crown’s obligation to recognise Indigenous rights and title; however, in practice, recognition still left Indigenous rights and title to be accommodated largely within land use planning processes.  Today, government-to-government land use planning processes are finding ways to work with Canada law and Indigenous law on a side-by-side basis.