Research On The Issues About The Right Of Public Participation In Spatial Planning

In the legalization process of spatial planning,it has been a problem how to enhance public participation in spatial planning in order to effectively restrict the administrative power of planning.In recent years,public participation has been emphasized in the reform of "Replace multiple plans with one master plan",and in the construction of national land space planning system,which has endowed this issue with a brand-new era significance.Based on right paradigm,the possible pathway to fit the democratization concept and the legalization trend of spatial planning is to further incorporate public participation in spatial planning into the legal track.The right of public participation in spatial planning(hereinafter referred to as the rights)can be defined as the compound right of units and individuals,who do not exercise public power in specific spatial planning affairs,to intervene in spatial planning affairs as the right subject and to exert direct influence,so as to safeguard their legitimate rights or public interests.In order to resolve the realistic predicament of public participation in spatial planning based on the rights,we first need to solve several theoretical problems for the rights.According to Alexy’s three-tier model of rights analysis,these problems involve three aspects: the grounds for the rights to be called rights,the specification of the components of the rights,and the legal safeguard model for the realization of the rights.These three aspects are logically progressive.There are three reasons for the rights to be established: first,from the perspective of participatory democracy and participatory planning theory,the right can be regarded as the intrinsic requirement of the planning democratization concept,and has the legitimacy to be protected;second,based on the theory of administrative power control,the rights can compensate for the deficiencies of "conveyor belt model" and "expert rational model";strengthen the control over planning administrative power;and has the necessity to be recognized;third,it is sustained by the legal principles of international human rights act and norms of constitutional political rights.The right are extension of political rights in spatial planning,and possess the inclusiveness of the legal system.As to the nature,the right indicate the partial revival of people’s sovereignty in spatial planning affairs,and have the characteristics of power.In addition,the right can be enjoyed not only by people with affected substantive right,but also by the general public.They are procedural rights independent of substantive right.Besides,the right have the functions of declaration,restriction and enhancement.The declaration function is to endow the public participation in spatial planning with legal legitimacy and normative effect.The function of restriction is to cope with the historic effect of spatial planning,to restrict the broad discretion of spatial planning,and to prevent and control the political imbalance of spatial planning.The function of enhancement is to activate the subject consciousness of public participation,to promote the comprehensive realization of spatial justice,and to enhance the public trust in planning decision-making.The components of the rights should cover three aspects: right subject,competence content and obligation subject.Therein,the subject of the right can be divided into stakeholder and non-stakeholder.The participation of stakeholder can obtain the qualification basis based on their own entity legitimate right,while the participation of non-stakeholder shall be based on the inseparable public interest.so unless the participation right of non-stakeholder can be converted into individually exercised private right in a reasonable legal pathway,they need to be realized in an organized way by principle.In terms of competence content,the right should include three competences: to obtain spatial planning information,to participate in spatial planning decision-making,and to intervene in supervision on spatial planning.These three competences can be regarded as independent sub-rights with more micro competences.Correspondingly,the safeguard obligations of the right include three levels: planning administrative disclosure,democracy and accountability.In this regard,in addition to planning administrative subjects,the obligation subject of the right also include the supervisors of planning administrative subject,such as judicial organs and the administrative review organ.The connotation of the above essential factors should be reflected in the legislation of the right.The transformation of the right from obligatory right to legal right and actual right shall be based on thorough legislative guarantee.We investigated the multi-link hearing mode in the US,the two-stage participation mode in Germany,and the motion-public discussion-opinion collection mode in Poland,and found that the above countries have provided guarantees for the three sub rights of the right.This is embodied in the active guidance of planning information disclosure,the multi-stage participation in planning decision-making,the rigorous setting of participation procedures for planning decision-making,and the effective supervision on planning decision-making.These institutional experiences can act as references in China.In contrast,the legislative guarantee for the rights in China has the following problems:the positive disclosure mechanism of spatial planning information is defective;the decision-making stage of public participation in spatial planning is lagging,and the procedures are generalized;and the pathways for public participation in supervision on spatial planning are limited.In this regard,the previous implementations of the rights in China have proved the authenticity and negative impacts of the above legislative issues.In empirical analysis,these negative impacts are reflected as the negative response to positive disclosure of spatial planning information,the shallow phenomena and low efficiency of public participation in spatial planning decision-making,and the lack of effectiveness of public intervention in supervision on spatial planning.Based on the above analysis of the legislation and implementations of the right,we can further clarify the theoretical paths for normative construction of the right in China.As for legislative pathways,future legislation in spatial planning such as the National Land Spatial Planning Act should confirm the right,and detail the guarantee for the right.The normative construction of the rights shall obey the principles of limited democracy,benign interaction,fair participation and right limitation.The legal guarantee of the public right to obtain spatial planning information needs to be service-oriented,to expand the positive disclosure scope of spatial planning information,and to ensure the availability and intelligibility of spatial planning information.Besides,the legal guarantee for the public participation right in spatial planning decision-making should be procedure-centered;the system design should be based on the division of the public;the presetting of public participation in decision-making should be standardized;the mechanism of public participation in decision-making should be improved based on competence;the publicity of the organizational structure of spatial planning decision-making should be enhanced;and the evaluation on public participation in spatial planning decision-making should be included.The legal guarantee for the public right to intervene in the supervision on spatial planning should adhere to the tenet of effectiveness;strengthen the procedural guarantee for the right to complain and report in the planning field;clarify the incidental review mechanism of spatial planning;explore the supervision mode through administrative public interest litigation;and expand the participatory spatial planning supervision mechanism.