By Zhang Tianhui, Editor of King & Wood’s Publication Group
The Urban and Rural Planning Law of the People’s Republic of China ("Urban and Rural Planning Law") was adopted at the 30th Meeting of the Standing Committee of the 10th National People’s Congress on October 28, 2007, and became effective on January 1, 2008. The City Planning Law of the People’s Republic of China is abolished simultaneously. Previously, urban and rural plans were governed by different laws, namely, the City Planning Law governed urban areas and the Administrative Regulations on the Country and Township Construction Plans governed rural areas.(1) This division of governance was commonly referred to as "one law and one regulation". As separate systems of plans, the one law and one regulation contained their own respective principles. The Urban and Rural Planning Law, addressing both urban and rural planning, ends an era of one law and one regulation and starts an era of uniform urban and rural planning.
I. Background: "One Law and One Regulation" Planning System Does Not Adapt to Social Development
As a basic national policy, China’s legislature aims to build a harmonious society. The government is making efforts to hasten urbanization, to encourage new countryside construction, and to narrow the gap between urban and rural areas. Governed by different laws, the former dual urban and rural planning system does not adapt to current situations, and certain detrimental factors emerged during the planning procedure. The detrimental factors include:
1. Local governments lack foresight and stability in urban and rural planning. Routine planning is often interrupted by arbitrary dismemberment and wanton interference. Some cities, blindly pursuing urban development without considering local environmental and economic capacity factors, have made changes to the existing plans. Governors developed their own plans that may not be consistent with national unity and harmony, and some even propose to construct an international city.
2. Some plans are developed without sufficient expert panel discussions and public hearings. In practice, plans should be more architecture-oriented and professional. Due to the lack of required planning knowledge, interested parties’ greed, competent organs’ abuse of power and the pursuit of short-term benefits, resources are over exploited. As a result, the non-renewable history, culture and tourist resources suffer serious damage;
3. Rural planning is not strong enough. Rural plans that do not consider needs of the countryside can not satisfy villagers’ production and daily life need. As a result, disordered construction projects and lavish land use create significant problems in rural areas. Further, the livelihood of landless peasants is threatened by conversion of agricultural areas that provide such peasants jobs into urban zones.
4. Unplanned layout of infrastructure causes the overflow of "image projects" (e. g.: large squares, large lawns, wide roads and super-standard buildings) and a shortage of public utility infrastructure (e. g.: water, drainage and sewage treatment system). For example, a city could have more than 200 water plants, but it might not have corresponding sewage treatment facilities(2). A coordinated approach is necessary in the rapidly developing areas, such as Yangtze River Delta, Pearl River Delta, and Bohai Region, to avoid unwanted infrastructure construction and waste of resources;
5. With the land-use mechanism reform and the investment mechanism reform, the existing planning system should be adjusted accordingly. Disordered land use turns city suburbs into "every one’s land". These "city villages" cause severe social problems like heavy pollution and environmental degradation;
6. More stringent legal liability should be imposed on the newly emerged unlawful activities in urban and rural planning. Illegal buildings in some cities have reached one-third of the total construction area. Arbitrary changes of cubage, height and use of the buildings are common unlawful activities, and these bold law-breaking activities are obstacles to administration.
II. Highlights of Urban and Rural Planning Law
- A. New Era of Integrated Urban and Rural Planning
- China’s urban population has grown from 170 million to 577 million(3) since China’s economic reform and opening over the past 30 years, and the level of urbanization has increased from less than 18% to nearly 44%. Compared to rapid urbanization, growth of China’s urban and rural planning legal system has been immutable. During the urbanization process, many townships and villages were converted into towns(4), and accordingly, different planning laws became applicable. It is difficult to resolve the inconsistency between urban and rural planning. The parallel system of urban and rural planning can no longer keep pace with the rapid economy and social development in China.
Aiming at balancing the country’s development, the Urban and Rural Planning Law promotes coordinated planning for both areas，and provides detailed rules for the establishment and modification of rural planning in Chapter II and Chapter III(5).
B. Emphasizing Professional, Architecture-oriented and Procedural Requirements
Article 26 of the Urban and Rural Planning Law articulately provides that organs organizing the establishment of urban and rural planning shall authorize entities with corresponding qualification grades(6) to undertake the specific establishment work, and it further provides that before filing an urban or rural plan for examination and approval, the organ establishing it shall announce the draft of the plan for comments from experts and the general public by deliberation, hearing or other methods. The draft shall be publicly available for at least 30 days. The organ establishing the plan shall fully consider the comments of experts and the general public, and an explanation on which opinions have been adopted and the reasons for such adoption shall be attached to the materials filed for examination and approval. The Law emphasizes that "[a]n urban and rural plan which has been approved according to law shall be a basis for urban and rural construction as well as administration of the plan, and shall not be altered without compliance with the legal procedure"(7) , and Chapter IV of the Law provides specific procedures for modification of urban and rural planning. These provisions will effectively prevent certain government cadres’ or construction units’ arbitrary interference with the existing planning. These procedural provisions will ensure the plan with long-term prospective and strategic visions, so that urban and rural areas can be developed in a stable and sustainable progress.
C. Tightening Environmental Protection, Natural and Cultural Heritage Protection
- According to the Urban and Rural Planning Law, urban and rural plans shall be developed and implemented with the purpose of protecting natural resources as well as cultural heritages, and maintaining local features and traditions. Natural and Cultural Heritage protection is a necessary consideration when establishing a city, town, township and country plan. "[T]o improve ecological environment, enhance the conservation and comprehensive utilization of resources and energy, protect farmland and other natural resource as well as cultural heritages, maintain local features, ethnic features and traditions" constitutes some of the basic principles(8) for urban and rural planning, and this principle is also adopted in the implementation procedures. Articles 30-32 clearly reiterate that when performing city construction, it is necessary to protect historic and cultural heritage and traditional style. Also, famous scenery and resources should be incorporated into urban and rural plans.
D. Strengthening Rural Planning
The Urban and Rural Planning Law stipulates detailed principles and procedures for township and village planning in addition to city and town planning system. The Urban and Rural Planning Law provides that the people’s government of a township or town shall take charge of establishing the township or village planning. A township or village plan shall include the coverage of the planned area, the layout of the land used and the construction requirements for dwelling houses, road, water supply, drainage, power supply, garbage collection, livestock and poultry feeding plants, service facilities for the production and livelihood in rural areas, and public welfare establishments, and the specific arrangements on protecting farmland as well as other natural resources and historical cultural heritages and preventing and alleviating disasters. As for the construction and development of townships and villages, it is necessary to adjust measures to local conditions, use land in an effective way, provide necessary authority to villagers’ autonomous organizations and guide villagers to make reasonable constructions to improve the production and livelihood conditions in rural areas. Further, to protect the legitimate rights of villagers, the Urban and Rural Planning Law provides that when building premises needed by township and village enterprises, rural common facilities or public interest establishments within a township or village planning area, no farm land can be used.
E. Giving Full Play to Public Participation and Strengthening Supervision and Inspection
To ensure the implementation of urban and rural plans, the Urban and Rural Planning Law includes Chapter V, Supervision and Inspection. Chapter V emphasizes supervision over planning organs, public supervision, and administrative supervision. Specific supervision and inspection rules are provided in this chapter. The Urban and Rural Planning Law provides that the plan shall be submitted to the people’s government at the next higher level for examination and approval, be deliberated by the standing committee of the People’s Congress at the same level(9) . When submitting the plan for approval, the organ establishing the plan shall file the deliberation opinions of the members of the standing committee of the people’s congress at the same level or the people’s congress of the town and the changes in the plan, made in accordance with the opinions, shall be filed together with the planning. This stipulation, requiring establishment of a more transparent planning process, can facilitate local people’s congress’ supervision over the implementation of urban and rural planning.
F. Strengthening Land Use Supervision Echoing the general reform and development process of other laws in China, the Urban and Rural Planning Law improves existing systems and procedures. Addressing organs’ abuse of review and approval power for land use and impractical, short-sighted plans，the Urban and Rural Planning Law, in addition to refineing land-use approval procedures, imposes punishment on persons directly responsible for implementation of plans and other responsible persons.(10)
G. Providing Relevant Legal Liabilities)
The Urban and Rural Planning Law provides relevant legal liabilities, and also, imposes severe punishment on violations committed by local governments and their administration departments. The Law provides that if a construction project is begun without obtaining the building permit or by violating the provisions of the building permit, the competent department can impose a fine up to 10% of the building cost.
Article 58 of the Urban and Rural Planning Law provides that if any organ is required by law to establish urban and rural plans but fails to do so, or fails to establish, examine and approve or modify urban and rural plans in accordance with the prescribed procedure, the higher people’s government shall order it to be corrected, circulate a notice of criticism and impose punishments on the principal of the related people’s government as well as other responsible personnel. The Urban and Rural Planning Law further provides in Article 59 that if an organ establishing urban and rural planning entrusts an unqualified entity to establish urban and rural planning, the higher people’s government shall order it to be corrected, circulate a notice of criticism and impose punishments on the principal of the related people’s government as well as other responsible personnel.
III. Hot Issues: New Land-Use Approval Requirements and Rural Planning
The Urban and Rural Planning Law stipulates more stringent approval procedures for building premises required by township and village enterprises, rural common facilities or public interest establishments within a township or village planning area. The Urban and Rural Planning Law provides that no farm land can be used for such buildings. If use of farm land is necessary, the competent department of urban and rural planning under the people’s government of the city or county may issue a rural building permit after the construction entity or individual completes the examining and approving formalities for converting the land use zoning. Meanwhile, taking regional features into consideration (such as inconvenient rural traffic, individual-based small construction scales), the Urban and Rural Planning Law provides that the rural building permit is a prerequisite for construction in rural areas, stating that the construction entity or individual shall not handle the examining and approving formalities for land use until the rural building permit is issued.
In Chapter III of Implementation of Urban and Rural Planning, it provides more complicated construction land-use right approval procedures than that provided in the Land Administration Law and former City Planning Law. Procedures for changing land use purpose are more stringent to curb disorganized allocation, transfer and use of construction land.
Although the Land Administration Law and the Urban and Rural Planning Law all stipulate that after a construction project approved by competent department, the construction unit can file an application with land administrative department of the people’s government at and above the county level with the power of approval for land use right obtained from transfer. Article 37 of the Urban and Rural Planning Law further provides that the construction entity can only apply with the competent department of land under the local people’s government at or above the county level for land after obtaining the land use permit. The construction entity shall, after concluding the contract for assignment of the right to use state-owned land, obtain the land use permit from the competent department of urban and rural planning of the people’s government of the city or county upon the strength of the approval and archive-filing documents of the project as well as the contract for assignment of the right to use state-owned land. In addition, it provides that if the right to use state-owned land within a city or town planning area is assigned, the competent department of urban and rural planning under the people’s government of the city or county shall, before the assignment, address such planning requirements including the location of the land to be assigned, nature of its use and development intensity as a component of the contract for assignment of the right to use state-owned land. As for any state-owned land, if the planning requirements are not specified yet, the right to use land cannot be assigned. If the planning requirements are not incorporated into a contract for assignment of the right to use start-owned land, this contract is invalid. Where a construction entity without the land use permit is approved to use land, the people’s government at or above the county level shall cancel the approval document, if any land has been occupied, such land shall be vacated promptly.
These provisions, specific materials should be submitted when applying for a construction land use permit, and impose higher standard for land-use transfer contract. Together with project approval, assignment of the right to use state-owned land is also the prerequisite for obtaining a construction land use permit.
The right to legally recover State-owned land is addressed in Article 58 of the Land Administration Law, which provides that "proper compensation should be given to land use right owners", but the Urban and Rural Planning Law, in line with the legislative spirit of the Property Rights Law(11) , provides that "compensations shall be made according to law". This provision denotes inclination towards property right holders. However, to prevent illegal behavior in urban and rural planning, the Urban and Rural Planning Law offers more stringent land-use examination and approval procedures, strengthens the supervision over illegal constructions. It is believed that construction land-use right is more difficult to obtain after the implementation of the Law, and this will impose great impact on the real estate industry.
The following areas of rural planning should be addressed for improvement: (1) some local government planners do not know the importance of rural planning, and (2) rural planning has not been sufficiently addressed by the law, (3) there is no competent planning mechanism, and (4) there is a lack of public participation. Athough the Urban and Rural Planning Law changes the dual planning system to an integrated one, the administrative features at the township level is unlikely to prevent the cadres’ arbitrary interference into the plans. Township cadres, most dwelling in countryside, may abuse their power to benefit their relatives and some township governments consider land-use right as their gaining source. The key consideration in our national governance and planning is to establish a good system and a clean and efficient civil service network.
The implementation of the Urban and Rural Planning Law will bid farewell to the "leadership planning", and initiate the new era of architecture-oriented and coordinated urban and rural planning. This change is a cornerstone for China’s attempt to coordinate urban and rural development, eliminate geographical gap and to achieve social harmony and stability.
The article was originally written in Chinese, the English version is a translation. This article was first published in the firm’s periodical China Bulletin January Issue, 2008, Vol.31)
(1) The City Planning Law adopted by the 7th Standing Committee of the National Congress in December 1989 and the Administrative Regulations on the Country and Township Construction Planning promulgated by the State Council in June 1993.
(2) Qiu Baoxing (Vice Premier of the Construction Ministry): Pay Close Supervision over the Implementation of the Urban and Rural Planning – Abstract Speech at the Urban and Rural Planning Meeting, Township Construction, 2002-10, 1 – 7.
(3) China News Website, Telegraph September 27, 2007: China’s Urbanization Raising: Urban Population Reached 577 Million, http://www.cnfstar.com/data/2007/20070927/20070927536135.shtml (Last visit on December 17, 2007).
(4) Designated towns are grass-root political organizations established through approval of governments of provinces, autonomous regions, and municipalities directly under the central government. Designated towns are where the township governments are located.
(5) Chapter II Establishment of Urban and Rural Planning; Chapter III Implementation of Urban and Rural Planning.
(6) Article 24 Paragraph 2 of Urban and Rural Planning Law:
An entity may undertake urban and rural planning establishment work within the scope authorized by its qualification grade after satisfying the following requirements, passing the examination conducted by the competent department of urban and rural planning under the State Council or under the people’s government of the concerned province, autonomous region or municipality directly under the Central Government, and obtaining the qualification certificate of the corresponding grade:
1. having the corporate capacity;
2. having the prescribed number of planners who have been legally registered at the competent department of urban and rural planning under the State Council;
3. having the prescribed number of related technical personnel;
4. having corresponding technical equipment; and
5. having a sound technique management system, a sound quality management system and a sound financial management system.
(7) Article 7 of Urban and Rural Planning Law:
An urban and rural plan which has been approved according to law shall be the basis for urban and rural construction as well as administration of the plan, and may not be altered without going through the legal procedure.
(8) Article 4 Paragraph 1 of the Urban and Rural Planning Law:
Urban and rural plans shall be developed and implemented by following the principles of planning urban and rural areas as a whole, reasonable layout, land preservation, intensive growth accommodation and planning before constructing so as to improve the ecological environment, enhance the conservation and comprehensive utilization of resources and energy, protect farmland and other natural resource as well as cultural heritages, maintain local features, ethnic features and traditions, prevent pollution and other public nuisance, and satisfy the needs of regional population development, national defense construction, disaster prevention and alleviation, public health and public safety.
(9) Article 15 of the Urban and Rural Planning Law:
The county people’s government shall organize the establishment of the overall planning of the town where the county people’s government is located, and shall file the planning with the people’s government at the next higher level for examination and approval. The overall planning of any other town shall be established by the people’s government of the town and filed with the people’s government at the next higher level for examination and approval.
(10) Article 61 of the Urban and Rural Planning Law:
The people’s government at the same level or the related department of the higher people’s government shall order it to correct, circulate a notice of criticism, and impose punishments upon the directly liable person in charge and other directly liable persons:
1. issuing an approval document to a construction project for which the written proposal of location hasn’t been obtained according to law;
2. failing to specify the planning requirements in the contract for the assignment of the right to use state-owned land, or changing the planning requirements legally determined in the contract for the assignment of the right to use state-owned land; or
3. appropriating the right to use state-owned land to a construction entity which fails to obtain the land use permit according to law.
(11) Article 44 of the Property Rights Law:
For meeting needs of emergent dangers or disasters, it is allowed for one to use the realties or chattels owned by entities and individuals according to the statutory power limit and procedures. Such realties or chattels shall, after the emergent use, be returned to the owners. In case any realty or chattel owned by any entity or individual is used or damaged or lost after being used, corresponding compensation shall be made.