Legislation as institutional design : an approach to reallocate responsibilities? : an explorative study into the role of changing legislation on more integrated approaches in planning of the physical environment, by lo

Legislation as institutional design: an approach

to reallocate responsibilities?

An explorative study into the role of changing legislation on more integrated approaches in

planning of the physical environment, by looking at the allocation of responsibilities in the

Crisis and recovery act (Chw) pilot Bad Nieuweschans.

Master thesis

Urban and regional planning

Rixt Bos – 11258357

rixtbos@hotmail.com

Supervisor: Federico Savini

Co-reader: David evers

26

th

of June 2017

Legislation as institutional design:

an approach to reallocate responsibilities?

Rixt Amarens Bos

rixtbos@hotmail.com

26th of June 2017

Master thesis (24ECTS)

University of Amsterdam

Master Urban and regional planning Faculty of social and behavioural sciences

Nieuwe Achtergracht 166 1018 WV Amsterdam

Supervisor: dr. Federico Savini Co-reader: dr. David Evers

Graduate internship

Rho adviseurs voor leefruimte

Delfseplein 27b

Abstract

In order to be able to deal effectively with the developments in society, which make planning practice increasingly complex, there appear increasing calls for attention to more integrated approaches in planning literature and practice. It is mentioned in theory that the allocation of responsibilities is important in the achievement of effective local action, also in the light of integrated approaches, however in planning this concept of responsibilities is not widely discussed. In practice legislations are sometimes used in order to obtain these integrated approaches, also by reallocating responsibilities, as the Dutch Omgevingswet does. However, scientific literature makes clear that within the academic debate the effectiveness of legislation in order to achieve changes in local behaviour through institutional design is being questioned. In order to be able to contribute to the scientific gap in planning on the role of responsibilities, and to planning practice by deepening the insights of legislation for the purpose of institutional design. This research is investigating this mechanism of central legislation shaping integrated approaches on the local level of planning governance, by looking at the allocation of responsibilities through local informal and formal institutions. A literature study is conducted in order to be able to describe the mechanism at research. Based on theory, the role of responsibilities appears important in local planning action within the environment of law and institutions. Besides, a link is assumed between the allocation of responsibilities and integrated approaches. An empirical case-study on the civil servant project group of the municipality of Oldambt working on a pilot with new legislation, confirmed these links in practice. Besides, the results from the literature study and the case-study provided the following four main insights into the interplay of law, informal institutions, formal institutions and responsibilities: (1) Formal procedural changes make actors aware of their decisions; (2) Present innovative social norms affect formal choices; (3) Responsibilities go beyond disciplinary expertise; (4) Supporting competences and structures are essential. The results contribute to the understanding of responsibilities in planning, of law as a tool for institutional design, and of achieving integrated approaches in planning practice.

Some words in advance

With this thesis, five great years of studying will come to an end. And I think the topic of this thesis especially reflects my interest and study path. My Bachelor study in human geography and planning at the University of Groningen, provided me with the insight that a societal policy question or problem almost always is shaped by an interplay of several factors, originating in different disciplines. My premaster in spatial and environmental economics made the concepts and implications much more concrete, but also made me realise the importance of a multidisciplinary approach even more. And I am grateful that my current Master program in urban and regional planning at the University of Amsterdam appears to provide me with both. The concreteness I was looking for, by linking concepts to practical issues, and the multidisciplinary approach that intrinsically is important in planning and governance. During my internship last year, I got introduced to the topic of the Omgevingswet and its aim for integrated approaches. These experiences together inspired me to write my thesis on the topic of law and integrated approaches in planning.

This last period of my studies was an intensive period, in which I learned and experienced a lot. Content wise I learned about legislations shaping local action, the Omgevingswet, and the practical outplay of both through responsibilities. Furthermore, I dare to say that I expanded my research skills, by organising and conducting this academic qualitative research from the beginning till the end. And due to the great opportunity to write my thesis at Rho adviseurs voor leefruimte, in the middle of an office where so much is happening every day, I saw how the topics and concepts I was studying and had studied in the past actually work out in practice. I am convinced that without the help of several people these experiences and learnings, and definitely the shape and content of this thesis, would not have been as they are now.

First of all, I would like to thank my supervisor Federico Savini for helping me specifying the research topic, finding the gaps in literature, and providing me with readings at the beginning of the process. And thank you for the advices and feedback during the whole process of doing this research, this helped me a lot in guiding and finalising this thesis. Besides, the repeatedly expressed confidence in a well completion of this research, was a great support. Thank you for that.

Then I would like to thank all the people, at Rho and beyond, that were willing to share and discuss their experiences, opinions, expertise, and network with me during this process of writing my thesis. This helped me a lot in understanding the practical implementation and outplay of legislation and integrated approaches, and in reflecting the theoretical understandings. In particular I would like to thank Derk-Jan for his advice and feedback during the process, and for taking me to the Omgevingswet meetings. Adjacent, I would like to thank the members of the project group of the municipality of Oldambt. Without their willingness to share their experiences and views on the process of the pilot project, I would not have been able to study this case as thoroughly as I could now. Special thanks go to the project leaders, who organised the contacts, and to Joske for introducing me to this case and putting me in contact with them in the first place. I sincerely hope that this thesis will also be beneficial in some way for all those people that helped me.

Finally, I would like to thank my family and friends who had to listen to my stories on this thesis, for their support during this process, and for distracting me by from writing this thesis. My parents deserve a special thanks, because they were always there for me, and supported me in the choices I made during all these years of studying. Lastly I would like to thank Peter for his infinite encouragement and believe in me.

Translations and abbreviations

Legislations

English translation Dutch aspect Otherwise referred to

than English translation

Crisis and recovery act Crisis- en Herstelwet Chw

Dutch Environment and Planning Act Omgevingswet Omgevingswet

Environmental Permitting Act (general provisions)

Wet algemene bepalingen omgevingsrecht

Wabo

General Means of Administrative Order Algemene Maatregelen van Bestuur AMvB

Interim-law City and Environment approach Interimwet Stad-en-Milieubenadering

Spatial Planning Act (1965) Wet Ruimtelijke Orderning WRO

Spatial Planning Act (current / 2008) Wet ruimtelijke ordening Wro

Transitional legislation Invoeringswet / overgangsrecht

Legislative instruments

English translation Dutch aspect Otherwise referred to

than English translation

Environmental permit Omgevingsvergunning

Environmental vision Omgevingsvisie

General government regulations Algemene rijksregels

Land-use plan Bestemmingsplan

Land-use plan extended scope Bestemmingsplan verbrede reikweidte

Municipal environmental plan Omgevingsplan Environmental plan

Programme Programma

Project decision Projectbesluit

Province environmental regulation Omgevingsverordening

Structural vision Structuurvisie

Tables and figures

List with tables

Table 1 - Example of a possible operationalisation of institutions 9

Table 2 - Overview of principles for the allocation of responsibilities 14

Table 3 - Key-instruments of the Omgevingswet 37

Table 4 - Municipal organisation of Oldambt 43

Table 5 - Involved actors and their role/responsibility in the project 46

Table 6 - Current project group of the municipality of Oldambt for the Chw pilot Bad Nieuweschans 48 Table 7 - Overview of when and how the actors of the project group are usually involved in land-use plan making 49

Table 8 - Summary findings on formal and informal responsibilities and roles 53

Table 9 - Summary expected important aspects for the implementation and outplay of responsibilities and roles 56

List with figures

Figure 1 - Framework for analysing governance cultures 8

Figure 2 - Conceptual framework of planning law, institutions, actors and behaviour 11

Figure 3 - Adapted model with responsibilities 13

Figure 4 - Hypothesis represented in the conceptual model 22

Figure 5 - Relations between societal developments, bottlenecks, and improvement goals 34

Figure 6 - Phases of policy-making and the instruments of the Omgevingswet 38

Figure 7 - Location of the province of Groningen, municipality of Oldambt, and the village of Bad Nieuweschans 44

Figure 8 - Timeline Chw pilot Bad Nieuweschans 47

Table of content

Chapter 1 Introduction to the research 1

Chapter 2 Integrated governance: reallocation of responsibilities through culture and legislation 5

2.1 - Governance through institutions 5

2.2 - Sectoral integration of governance 16

Chapter 3 Research design, approach and methods 21

3.1 - Hypothesis and specification of the research design 21

3.2 - A qualitative research approach 23

3.3 - Methods of data collection and analysis 28

Chapter 4 The case of the Dutch Omgevingswet 31

4.1 - Omgevingswet and responsibilities 31

4.2 - Omgevingswet context: formal and informal planning in the Netherlands 32

4.3 - Omgevingswet as tool for institutional design? 35

Chapter 5 Responsibilities and roles in the Chw pilot Bad Nieuweschans 41

5.1 - The Chw pilot Bad Nieuweschans 41

5.2 - Formal responsibilities and roles 46

5.3 - Informal responsibilities and roles 50

5.4 - Responsibilities: the interplay of law, formal, and informal institutions 57

Chapter 6 How does law shape a reallocation of responsibilities? 59

6.1 - Summarising towards an answer 59

6.2 - Limitations of this research and recommendations for future research 61

6.3 - Implications for the Omgevingswet and practical recommendations 62

Appendices 71

Appendix 1 - Participants 72

Appendix 2 - Interview topic-list project leaders 73

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Chapter 1

Introduction to the research

“Planning laws are usually made with good intentions, but do not always lead to good results – at least not when measured against their own goals.” (Buitelaar et al., 2011, p.928).

This is an important quote in the light of the upcoming new Dutch Environment and Planning Act (Omgevingswet). This new code aims to achieve improvements on four main goals in the governance of the physical environment, and increasing integrated approaches to policy, decision-making and regulations is one of them (see Omgevingswet, 2016)1. By formulating one integrative law on all issues touching the physical environment, it can be argued that the Omgevingswet is reallocating responsibilities; from sectoral legislations and responsibilities, towards more integrated legislations and co-responsibilities. However, it is the question how legislations will play out (Needham, 2005), and therefore, as the quoted quote illustrates, whether or not changing legislations will achieve their own set goals.

This call for more integrative approaches towards planning is caused by the changing context of spatial planning. Increasing neoliberal forces behind urban planning, change the role of the governments and increase the actors in spatial management (Healey, 1998; Healey et al., 2002a). Besides, it is increasingly recognised that planning issues are often crossing domains, which increases the notion of interrelatedness of the economic, social, spatial, and environmental domain (Healey, 1998). These matters, among others, are increasing the complexity of place-making. Adjacent, the sectoral organised structure of policy-making creates serious problems for place-making (Healey, 1998), and effective practices of spatial planning (Kalliomäki, 2015), in various countries in Europe (Healey et al., 2002a). Therefore, the call for integrated approaches to planning are present in academic literature (Albrechts et al., 2003; Harris & Hooper, 2004; Healey, 1998; Healey et al., 2002a; Stead & Meijers, 2009) and in practice (De Boon & Van der Velde, 2016; Ministerie van Infrastructuur & Milieu, 2016a; Tasan-Kok & Vranken, 2011), especially in the light of sustainability and effective policy-making (Geerlings & Stead, 2003; Kalliomäki, 2015; Yigitcanlar & Teriman, 2015).

However, these calls on more integrated approaches are by no means new, especially not in spatial planning and its policies (Healey et al., 2002a; Stead & Meijers, 2009); but also in several other policy fields emerge increasingly, for example, spatial considerations in policy development (Harris & Hooper, 2004). In order to effectively integrate the sectoral-policy development of these sectoral domains, the increasingly occurring although often understated and implicit, spatial aspects hold potential to do so (Albrechts et al., 2003; Harris & Hooper, 2004). Because they affect localities (Albrechts et al., 2003), are able to address inconsistencies in spatial implementation of sectoral policies, and contribute to resolve them (Harris & Hooper, 2004). As a result, planning as a discipline is, shifting its focus from regulatory land use towards more holistic spatial planning (Vigar, 2009). According to Vigar (2009, p.1572) spatial planning is about “…co-ordinating different policy concerns around a place agenda.”, through which it becomes involved in meta-governance; the governance of

1

The Dutch Ministry of Infrastructure and the Environment published an unofficial translated version of the Omgevingswet in English: Environment and Planning Act (2017). This version is additionally used for the translations and some citations in this paper.

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governance (Jessop, 2011). However, despite these potentials, increasing calls, and references in sectoral policies, are effective definitions and clarifications on policy integration still scarce (Smith, 2014; Stead & Meijers, 2009). And subsequently are the effective and durable transformations towards these more integrated strategies in practice (Healey, 1998). As the Omgevingswet illustrates, an used attempt to achieve these integrated approaches in planning practice is through legislation.

However, in literature the role of law in governance and planning is not extensively discussed (Salet, 2002). Van Assche et al. (2015) argue that the function of law is generally about stabilising expectations. Their basic argument lies in the idea that formal institutions are a coordinating mechanism embedded within informal institutions, which is agreed upon in social system theory and legal and political anthropology (Van Assche et al., 2015). However, in the light of institutional design and organising purposive actions Van Rijswick & Salet (2012) argue that purposive actions need certain degrees of differentiation and flexibility, which current institutions of law and legislations cannot accurately offer. In other words, centrally set legislations do not necessary represent the present informal institutions on the local level at which the legislation is applied. And since institutionalisation is often not direct transferable to other levels of governance (Buitelaar et al., 2011), using law for the sake of institutional design seems not always to be effective in terms of sought to achieved goals, as the starting quote illustrated.

In light of governance it is widely acknowledged, also in planning, that institutions are of great importance, because they embrace the context in which governance takes place (e.g. Alexander, 2005; Moroni, 2010; Salet, 2002). What institutions basically do, is arranging and coordinating individual actions (Moroni, 2010), by reflecting general applicable values (Salet, 2002), based on accumulated knowledge that is generally available for everyone (Moroni, 2010). Among the different theories on institutions, it is clear that institutions are formed either through social codes (informal institutions) or through law (formal institutions) (Buitelaar et al., 2011; Healey et al., 2002a; Healey et al., 2002b; Salet, 2002). These formal and informal institutions are mutual dependent; their presence within the same context makes them influence each other (Van Assche et al., 2015; Buitelaar et al., 2011; Healey et al., 2002b; Smith, 2014).

Even though the importance on the interplay and mutual dependence of formal and informal institutions is widely acknowledged in the academic debate, in practice law is often still used for the sake of institutional design (Evers, 2015). Of which the above mentioned Omgevingswet is a recent example. Aiming for institutional design, by reallocating responsibilities and roles of the actors in planning of the physical environment. Based on the literature it is expected that it is hard to achieve the goals, and effective action, solely by changing legislation. And even though this is often recognised by the legislator, they argue that a cultural shift has to take place. If and how governance bodies and actors are going to achieve this, and subsequently if the Omgevingswet will be effective in terms of its own goals, remains unsure.

Therefore, it seems important to link this issue to the allocation of responsibilities and roles in governance of the physical environment, a concept that is less often been discussed in planning literature. However, in sociology a relation between responsibilities and governance has been developed. Giddens (1999) elaborates that the importance of responsibility links to the notion of risk. Risk appears when decisions have to be taken, and subsequently responsibilities come into play when someone takes a decision with discernable consequences. This puts the management of risk and subsequently responsibilities on the core of decision and policy-making in current societies (Giddens, 1999). Strydom (1999) distinguishes three types of responsibilities: traditional individual responsibilities, post-traditional individual responsibilities, and co-responsibilities (Strydom, 1999).

The current more sectoral approaches in planning seem to align with the post-traditional individual allocation of responsibilities. On the other hand more integrated approaches seem to need a certain degree of co-responsibility. It becomes clear that the link between the allocation of responsibilities and actions and

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behaviour is important in the light of governance, also in the light of achieving integrated approaches in policy-development (Andersen & Van Kempen, 2003; Charnley et al., 2011; Geerlings & Stead, 2003). This shows that the reallocation of responsibilities on the local level, which depend on informal and formal institutions at this level, seem crucial in achieving more integrated approaches in urban planning and management, which seems in line with the argument of Mostert (2015). This ability to change the institutions depends on the municipal capacity to change (Healey et al., 2002a), which in turn depends for a large extent on the quality of local policy cultures (Healey, 1998), the informal institutions (Buitelaar et al., 2011; Evers, 2015; Healey et al., 2002b; Vigar, 2009).

However, as mentioned, planning literature on the role of responsibilities in planning and management of the physical environment is scarce. Nevertheless the contribution of Mostert (2015) on principles in the allocation of responsibilities in environmental management has been the point of departure to specify the topic of integrated approaches in planning, to focus on the role of responsibilities. In his article Mostert (2015) argues that in order to actually achieve effective action and behaviour in environmental management, a clear allocation of responsibilities and roles is crucial in order to know who is, or are, in charge. Subsequently it seems thus important to deepen the understanding of this mechanism.

This research aims to explorative contribute to these insight and understanding about this mechanism, by looking at the allocation of responsibilities in the process of central set legislations aiming at local achievement of sectoral-integrated approaches to planning. The purpose to research this unit of analysis is twofold, first to fill parts of the scientific gap of knowledge on responsibilities in planning, and second to contribute to the practice of effective policy-development and the role of legislation in the domain of the physical environment. The following research question is formulated in order to guide this research:

How do legislations shape changes towards integrated approaches to spatial planning and management at the municipal level of governance by reallocating responsibilities through informal and formal institutions?

In order to answer this research question, a literature study is carried out in order to be able to describe the mechanism of law shaping local action in chapter 2. By means of an analysis of existing literature the researched mechanism is identified. Therefore, this research is first positioned within the academic debate. It has become clear by now that institutional theory is used to approach this research in general, and the concepts of law and integrated approaches in specific. Subsequently, the initial mentioned assumption, that on the local level of governance informal institutions, formal institutions interplay in the allocation of responsibilities, which is in turn important in the way the physical environment is managed, will be built from theory. So the elaborations based on institutional theory are linked to sociological theories on responsibilities, which form together a theoretical understanding of how the process at research might work. Subsequently the concept of responsibilities is linked to sectoral integration in governance of the physical environment.

However, since this research question goes further than the what question of this mechanism, an empirical case-study on a local plan making process applying different legislations was conducted in order to be able to answer the more explorative how question. With this, the empirical case-study serves two purposes. First, verifying the theoretical based assumed linkages of the concepts at play in this mechanism, especially on the concept of responsibilities. And second, obtaining a deeper insight into the interplay between law, informal and formal institutions, and the allocation of responsibilities and roles. Chapter 3 links the theoretical based expectations, to the approaches and methods that are used to study the case-study of the Dutch Omgevingswet, by focussing on the allocation of formal and informal responsibilities and roles in the Crisis and recovery act (Crisis- en herstelwet – Chw) pilot Bad Nieuweschans. In order to identify the formal responsibilities and roles documentation on this case is used. The informal responsibilities and roles were identified by means of a set of conducted interviews with members of the project group of this pilot.

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Subsequently chapter 4 contextualises and introduces the subject of the Omgevingswet, and will specifically address the issue of responsibilities in this law. It is found that the Omgevingswet is reallocating responsibilities at the local level of governance. Beside, clarifying the contextual embeddedness of the subject of study, these elaborations on the Omgevingswet further specify and justify the focus and context of this research.

Chapter 5 introduces more specifically the case-study of the Chw pilot Bad Nieuweschans, and subsequently the results on this case-study are elaborated and interpreted. The results show that the theoretical based assumed links between the allocation of responsibilities and local action within an institutional environment, and with integrated approaches are confirmed in practice. Besides, the results on the mechanism provide four main insights into the interplay of law, informal institutions, formal institutions, and responsibilities: (1) Formal procedural changes make actors aware of their decisions; (2) Present innovative social norms affect formal choices; (3) Responsibilities go beyond disciplinary expertise; (4) Supporting competences and structures are essential.

Based on these findings on the literature study and the case-study discussed in chapter 5, chapter 6 provides an answer to the research question. At the same time it is elaborated that this research contributes to the understanding of responsibilities in planning research, of law as a tool for institutional design, and of achieving integrated approaches in planning practice. Subsequently limitations of the research are discussed and linked to recommendations for future research. In order to conclude this paper, the Omgevingswet is discussed in the light of these results, which leads to the following three recommendations for Dutch planning practice. The national government and local government should (1) Communicate the need for and benefits of co-responsibility and integrated approaches; (2) Facilitate obtaining supportive structures and competences; (3) Facilitate cross-learning, in order to achieve a shift towards a sense of co-responsibility, and subsequent integrated approaches in planning.

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Chapter 2

Integrated governance: reallocation of

responsibilities through culture and legislation

“Governing is about making decisions, and institutions define the ways in which those decisions are made.” (Peters, 2011, p.81).

This quote highlights the functioning of institutions in governance. This is important when one wants to create a theoretical framework to understand the unit of analysis of this research. Therefore, the next part (2.1) elaborates how institutions and governance relate. First, a short, and certainly not complete, elaboration on institutional theories will be provided. Subsequently, the issue of how institutions work will be addressed, mainly applied to the planning context. Then, the role of law within this framework of institutions of planning will be discussed and linked to the allocation of responsibilities.

However, in the light of governance a certain challenge seems increasingly important to deal with:

“The challenge for governing and managing action becomes that of co-production, of the pursuit of joint results from the activity and initiative of multiple social actors.” (Gualini, 2002, p.33).

As this quote illustrates, it is widely recognised that there is a trend moving governance strategies from strictly public and sectoral towards governance in co-production, in which multiple different actors are getting involved. Subsequently, part 2.2 will therefore discuss the issue of integrated approaches to spatial planning and management. It will be argued where the need for integration comes from. Following, it will be elaborated what is meant by integrated approaches to urban planning and management in this research. And lastly, the role of the allocation of responsibilities within this context will be explained.

2.1 - Governance through institutions

Different institutionalisms

In different strands of science on public governance, such as economics, sociology, and political sciences it is commonly acknowledged that institutions are of great importance because they embrace the context in which governance takes place (e.g. Alexander, 2005; Moroni, 2010; Salet, 2002). Institutions seem important in the light of design, but also in the light of transformation. Due to the different origins of these theories on institutions, there appears a variety of approaches to governance, all with its own definitions, implications, focus, and analytical choices (e.g. Alexander, 2005; Dembski & Salet, 2010; Peters, 2011; Salet, 2002).

Hall & Taylor (1996) distinguish three main schools of thought on institutionalism. These are: historical institutionalism, rational choice institutionalism, and sociological institutionalism. These approaches appear to be the most important analytical approaches to institutionalism, distinguished in the institutional theories of various disciplines (Peters, 2011). Although sometimes the approaches are referred to differently; for example Peters (2011) refers to the sociological approach as normative institutionalism.

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Alexander (2005) provides short descriptions of the three different approaches:

 Historical institutionalism - “…defines institutions as systems of formal and informal rules, norms and practices in polities or political economies. This is the traditional approach to institutions, tending to see institutions associated with formal organizations. It offers a broad long-range perspective, focussed on path-dependency and a heightened awareness of unintended consequences.” (Alexander, 2005, p.212).

 Rational choice institutionalism - “…is associated with institutional economics […] its behavioural assumptions premise rational actors with fixed preferences and values. Emphasizing the role of strategic information and behaviour in institutional emergence and change, this school of thought attributes the origin of institutions to deliberate design and voluntary agreement among actors.” (Alexander, 2005, p.212, based on Hall & Taylor, 1998).

 Sociological institutionalism - “…began as a subfield of organization theory, focussed on institutional forms and procedures in organizations […] institutional forms and practices are adopted for legitimacy, in a ‘logic of social appropriateness’ rather than ‘a logic of instrumentality’. Institutionalization is a historic accretion of culturally specific forms and practices […] with their origins and diffusions related to their specific contexts: sectors, societies and structures.” (Alexander, 2005, p.212).

The approaches all developed independently within or close to their own original discipline (Hall & Taylor, 1996), and therefore they all have different analytical approaches towards institutions (Peters, 2011). Alongside the significant differences, the institutional approaches have a similar interest, they “…all seek to elucidate the role that institutions play in the determination of social and political outcomes.” (Hall & Taylor, 1996, p.936). Dembski & Salet (2010, p.615) specify this common interest of the different approaches as that “…they aim to explain how social rules enable collective action in a world of individual choices.”, and adjacent Peters (2011) argues that this tends to be through routinisation, uniformity, and stability.

Spatial planning, as the coordination of policies and practices affecting the spatial organisation (Van Assche et al., 2005), also takes place in a context of institutions (e.g. Alexander, 2005; Buitelaar et al., 2011; Healey et al., 2002a, 2002b). This means that spatial planning can be seen as a subcategory in governance, namely the governance of the physical environment. Therefore, planning theory is increasingly adapting an institutional approach (Alexander, 2005; Moroni, 2010). This institutional turn in planning results from the increased return of normative questions in planning practice (Salet, 2002). Adjacent, in planning the sociological approach is most often used, because of its normative character (Alexander, 2005).

Salet (2002) elaborates further on the theory building on institutionalism in planning and its contribution to the academic debate. He highlights that theory development on institutionalism in planning is based on the insights of the existing approaches, especially from sociology and policy sciences. The contribution of the planning discipline to these theories is based in the empirical or practical roots and approaches to theory building, which is especially relevant when one wants to understand the outplay of institutions. Such an approach to theory building, in which theory is rooted in practice, is completely different from, for example, the sociological argumentation on institutional theory which is solely based on theory (Salet, 2002). According to Salet (2002), planning and law are the two main disciplines for which practice and theory are inherently connected, and therefore important for the understanding of the normative meaning of institutions. However, the notion of Evers (2015) is important in this respect, as he states that there is a cultural rift between academia and practitioners. Where practitioners seem believers of institutional design, are academia commonly acknowledging the importance of path dependency and the resilient nature of institutions in attempts to design (Evers, 2015).

The preceding paragraphs constructed the foundation of the theoretical framework that will be build. What became clear is that institutions enable and contextualise action, and therefore governance (e.g. Dembski & Salet, 2010; Peters, 2011). Besides, the elaborations position this research within the academic debate on

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institutionalism. The next paragraph will deal more in depth with the functioning of institutions in the context of planning and changing governance.

Functioning of institutions in planning

Salet (2002) derives from works in sociology and policy sciences the following definition on institutions that is useful for this context of research, and generally seems to align with the previous mentioned general interests and functioning of institutions:

“An institution is a general cultural rule of conduct. Institutions are reproduced […] and their meaning evolves because they are reproduced in continually changing environments.” (Salet, 2002, p.29).

What institutions basically do, is arranging and coordinating individual actions (Moroni, 2010), by reflecting general applicable values (Salet, 2002), based on accumulated knowledge that is generally available for everyone (Moroni, 2010). These characteristics make institutions inherent different to organisations (Moroni, 2010; Salet, 2002). Moroni (2010) clarifies this difference as follows:

“…institutions are sets of basic rules of conduct, acknowledged by a community, and usually enforced through some form of sanction while organisations are systematic arrangements of resources for achieving explicit shared goals.” (Moroni, 2010, p.277).

Even though the municipality as an organisation is at research2, within this organisation the unit of analysis are the formal and informal institutions that shape the ‘rules of conduct’ within and between different parts of this local organisation in the light of policy-making and governance. The analysis of this research focusses on the ‘rules of the game’, the institutions that provide the structure for interactions. Instead of a focus on the ‘players of the game’, the organisations (North, 1990 in Moroni, 2010). However, this does not mean that the ‘players’ or actors do not matter when institutions are studied, as the following sections will make clear.

The governance capacity of the ability to mobilise and organise collective action is embedded in complex relations between the formal government and the co-existing social networks and niches (Healey et al., 2002a). Among the different theories on institutions, it became evident that institutions are formed either through social codes or through law (Healey et al., 2002a; Salet, 2002). This division is also known as a distinction between formal institutions and informal institutions (Buitelaar et al., 2011; Healey et al., 2002b). Within a certain context, these institutions cannot be seen as freestanding. Formal institutions and informal institutions are mutual dependent; their presence within the same context makes that they influence each other (Buitelaar et al., 2011; Healey et al., 2002b; Smith, 2014; Van Assche et al., 2015).

Academic literature refers differently to informal and formal institutions, while targeting different relationships (Healey et al., 2002b). For this research the following definition will be used, because it targets the dimension of governance structures and practices (Healey et al., 2002b), which is also the dimension at stake in this research:

“Formal institutions’ are government rules which are enforced by the legal system, such as laws, constitutions, ordinances, and local land-use plans. ‘Informal institutions’ are less explicit rules which emerge as a result of repetition and solidification of behaviour. [...] Examples of informal institutions are conventions, codes of behaviour, taboos, traditions, religious beliefs, and moral values.” (Buitelaar et al., 2011, p.930).

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In planning, the informal institutions are also referred to as planning cultures, which affect the attitude, role, and actions of actors on the ends and means of planning (Buitelaar et al., 2011). Knieling & Othengrafen (2015, p.2137) argue that “…culture offers us the opportunity to explain the invisible and unconscious routines and

practices that affect or structure the manifested or visible behaviour of members of a group or community.” For

planners and other professionals in the spatial domain, this means that it is about the collective modes of ‘thinking’ and ‘acting’ (Knieling & Othengrafen, 2015). This coincides with Healey (1998, p.1535), who defines culture as “…the ways of thinking and ways of acting which were considered ‘normal’ and ‘routine’ by an organisation”. These definitions on planning culture also make the role of ‘repetition’ or habits in this process explicit (Buitelaar et al., 2011; Healey et al., 2002b).

There are several methods to analyse the concept of culture. Othengrafen (2010; Knieling & Othengrafen, 2015) introduces a model to analyse culture in processes, mainly based on the degree of visibility of cultural aspects determined by Schein (2004). The first level of culture, and the most visible one, is planning artefacts, which includes visible structures and processes. The second level is the planning environment and about espoused beliefs and values, an operationalisation of these in behaviour in strategies, goals and philosophies. And the third level is the societal environment, and is about the underlying assumptions, the unconscious, un-debatable, taken-for-granted beliefs, perceptions, and feelings (Knieling & Othengrafen, 2015; Othengrafen, 2010; Schein, 2004). These determined levels by Schein (2004) inherently interrelate with each other, and can differ in different organisations, departments, and sectors (Schein, 2004; Smith, 2014). Hohn (2002 in Hohn & Neuer, 2006), developed a likewise model, only with two layers of governance culture, which is presented in figure 1. He adds that different levels of culture are, besides influenced by formal institutions and actors, also influenced by exogenous transformations and changes in values (Hohn, 2002 in Hohn & Neuer, 2006).

Figure 1 - Framework for analysing governance cultures (Hohn & Neuer, 2006, p.294).

These distinctions of different levels of culture, is useful for this research because it aims to understand a process of interacting factors, and therefore also the less-visible, more difficult to target, factors are important (Hohn & Neuer, 2006; Knieling & Othengrafen, 2014). This combination of models, and the clarification of formal institutions, make it possible to conceptualise this distinction in institutions (see table 1 for a not exhaustive example). However, as becomes clear there are multiple, not always corresponding, distinction of indicators between formal and informal institutions. And, as Van Assche et al. (2014) make clear, formal institutions can all potentially also be informal institutions. Therefore, a clear definition on what is meant necessary. For this research the conceptualisation will be elaborated in chapter 3.

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Table 1 - Example of a possible operationalisation of institutions.

Concepts Categories Indicators

Formal institutions

Governance rules  Tools, instruments (Buitelaar et al., 2011; Van Assche et al., 2014)

 Laws, constitutions (Buitelaar et al., 2011; Van Assche et al., 2014) Informal

institutions

Planning artefacts (visible)

 Tools (Hohn & Neuer, 2006)

 Organisational structure (Hohn & Neuer, 2006; Othengrafen, 2010)

 Organisational processes and procedures (Hohn & Neuer, 2006; Othengrafen, 2010)

 Actors and networks (Hohn & Neuer, 2006)

 Products (plans/visions): language, representation, scope, bindingness (Othengrafen, 2010)

Planning environment

 Shared assumptions, perception on planning (Othengrafen, 2010)

 Mission: values, principles, rules, norms, beliefs (Hohn & Neuer, 2006; Othengrafen, 2010)

 Frames: orientation, guidelines, philosophies, goals (Hohn & Neuer, 2006; Othengrafen, 2010)

 Strategy, patterns, understandings: communication, behaviour, action, decision-making (Hohn & Neuer, 2006; Othengrafen, 2010)

 Assignment of roles (Hohn & Neuer, 2006; Othengrafen, 2010)

 Assignment of power (Hohn & Neuer, 2006) Societal

environment

 Orientation towards time (Othengrafen, 2010)

 Qualities of nature (Hohn & Neuer, 2006; Othengrafen, 2010)

 Properties of state (socio-economic/political models, concepts of justice) (Hohn & Neuer, 2006; Othengrafen, 2010)

 Characteristics of society (Hohn & Neuer, 2006; Othengrafen, 2010)

Concerning the constitution of institutions, Healey et al. (2002a) argue that institutions are not static entities, but that they are dynamic and evolving all the time. They change through exogenous and endogenous events, as in figure 1. For example technological developments might shift or change missions and beliefs. The continual reproduction of institutions through human interaction and social construction within a certain context validate institutions (Dembski & Salet, 2010; Gualini, 2002; Peters, 2011; Salet, 2002). Within this process, social norms are often more effective compared with legal rules (Salet, 2002).

This last notion lies probably in the validation and interpretation of legislations, which shapes through interactions and social processes (Van Assche et al., 2014). In general, the interpretation of the meaning of institutions can differ, and depend on the context; therefore it is generally difficult to grasp the nature of institutions, especially when norms keep being implicit (Salet, 2002). Within this arguing, different sectors, disciplines, organisations all develop their own values, meanings, languages, tools and traditions (Smith, 2014), their code of conduct is based on different norms. These norms become visible when diverging norms meet, or, if current institutions are no longer appropriate (Salet, 2002). When either of these two events occur, planning demands for institutional design (Alexander, 2005).

However, in the light of institutional design and organising purposive actions Van Rijswick & Salet (2012) argue that purposive actions need certain degrees of differentiation and flexibility, which current institutions of law and legislations cannot accurately offer. The importance of informal institutions also becomes evident in the notion that the capacity to change towards more appropriate place-making strategies seems for a large extent to depend on the quality of local policy cultures (Healey, 1998; Healey et al., 2002b). Buitelaar et al. (2011) and

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Evers (2015) also found this by studying formal institutional change with the current Dutch Spatial Planning Act (Wet ruimtelijke orderning - Wro). Although they both studied another level of governance, respectively the local level and the provincial level, both found that the occurrence of practice change on another level of governance through central set formal institutional changes, depends largely on the informal institutions at place. Which can obstruct or enhance changes towards the centrally aimed goals (Buitelaar et al., 2011; Evers, 2015). However, this does not mean that formal institutions are not important at all, because of their inherent interrelationship.

The above shows that actors still play a certain role, and are of importance, also when institutions are studied instead of organisations. The interrelationship between informal and formal institutions is not the only connection within a certain context. Actors, and subsequent their actions, are also interrelated to the different institutions; e.g. actors are influenced by, and at the same time influencing, the formal institutions and informal institutions (Buitelaar et al., 2011; Healey et al., 2002b; Gualini, 2002). And the capacity of governments to adapt to contextual changes, depends largely on its interaction with its (institutional) environment (Peters, 2011).

Adjacent, it seems indispensable that people within a certain society, community, or unit need to change in order to achieve lasting and effective social change (Alexander, 2005). Subsequently, “…there are only two ways of changing people: changing individuals, and changing institutions.” (Alexander, 2005, p.210). As previously mentioned, the focus in this research is on the changing institutions.

Alexander (2005) defines and elaborates on institutional design the following:

“Institutional design means designing institutions: the devising and realization of rules procedures, and organizational structures that will enable and constrain behaviour and action so as to accord with held values, achieve desired objectives, or execute given tasks. By this definition institutional design is pervasive at all levels of social deliberation and action, including legislation, policymaking, planning and program design and implementation.” (Alexander, 2005, p.213).

This means that Institutional design can be performed in two different approaches: objective and subjective. Objective institutional design occurs when the structures or practices that have to be changed are outside institutional design agents own institutional context. Subjective-dialogic institutional design occurs when the subject of change falls within the own context of the designer (Alexander, 2005).

The institutional capacity is constituted through these processes of institutional design and institutional building (Gualini, 2002). These two processes co-evolve and interplay, which makes each trajectory of institutional capacity building, and institutional change, in a certain context unique (Healey et al., 2002a). The interplay of informal and formal institutions and the actors, make institutions and their processes inherently path- and context-dependent. This makes change and institutionalisation of a process generally not direct transferable to other groups, levels, or contexts (Buitelaar et al., 2011; Dembski & Salet, 2010; Gualini, 2002; Healey et al., 2002a; Peters, 2011).

Until this point, it is addressed what institutions are, where they come from, and how they develop and evolve. It became clear that informal institutions, concerning social norms and values, are most important in processes around institutions. However, it also becomes clear that these informal institutions are inherently interdependent of formal institutions. Therefore, understanding this role of formal institutions within this process is important. Especially when one wants to understand what external obliged legislation implies for integrated policy-making and governance at the municipal level. Following Van Rijswick & Salet (2012), who argue that in order to obtain effective collective action, adjacent to informal relationships, the rule of law and legal certainty are needed. This topic of legislation will be discussed in the next section.

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Law and legislation within this context

Law and legislation are formal institutions (e.g. Buitelaar et al., 2011; Van Assche et al., 2015) which can be established at different levels of governance. Because this thesis researches the mechanism of shaping local public action through legislation set on the national level, this is also the only relation between law and governance elaborated in this paragraph.

It has become clear that law and legislations can be used to a certain extend to design the institutional context, but that local informal institutions as policy-making culture, and local formal institutions are as important in the outplay of central legislations (Buitelaar et al., 2011). This make the exact applications and outcomes of new introduced legislations and rules uncertain and hard to predict (Needham, 2005). Or as Needham (2005) simply but rightly states: “[t]he practice depends on how those rules are interpreted and followed.” (Needham, 2005, p.328).

There appear two different kind of law systems, a statutory system and a common system. As becomes clear in the following descriptions, the role of law in local action might differ in between the systems:

 Statutory law systems - Laws are constructed before they are implemented (Newman & Thornley, 1996, in Buitelaar et al., 2011). Subsequently there might appear a lack of congruence between the institutionalisation on the central level of the law constitution, and the local level of the practicing of the law (Buitelaar et al., 2011).

 Common law systems - Law construction follows institutionalised practices at the local level (Newman & Thornley, 1996, in Buitelaar et al., 2011).

Buitelaar et al. (2011) created an appropriate framework about the relations between legislation, institutions and actions in planning, see figure 2. Following the elaborations on law systems, this represents a statutory law system. This model will form the basis of the conceptual model for this research, and will be expanded in the remainder of this chapter.

Figure 2 - Conceptual framework of planning law, institutions, actors and behaviour (Buitelaar et al., 2011, p.932). This framework does not frame the exact function of legislation in planning. While this relation is not often addressed in academic literature (Salet, 2002), there appear different views on the function and evolution of law in planning and governance. Van Assche et al (2015) address this issue, and argue that the function of law is generally about stabilising expectations. Their basic argument lies in the idea that formal institutions are a

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coordinating mechanism embedded within informal institutions, which is agreed upon in social system theory and legal and political anthropology (Van Assche et al., 2015).

However, the forms and role of law are not static entities, but dynamically interplaying with the political environment (Van Assche et al., 2015). Van Rijswick & Salet (2012) argue that currently the role of public law and legislation within the process of governance is changing from the more traditional and intended role of public law, value and principle driven, towards the more instrumental and responsive form: “[w]hile public law used to have the autonomous role of preventing the misuse of state power via principles of state and law, it gradually became stronger in its other role of being politically responsive to social problems and political objectives.” (Van Rijswick & Salet, 2012, p.3).

While Van Assche et al. (2015) do not explicitly indicate this as a change, they do distinguish between offensive and defensive tools in governance and planning. This difference in stance seems to appear in the difference in scale on which the authors research the relation between planning and law. Where Van Rijswick & Salet (2012) mainly seem to address this issue from a legislative stance, seem Van Assche et al. (2015) mainly to address the local outplay. However, insights from both stances are important for this research. Besides it makes clear that understanding the role of law “…is about understanding the dialectics between formal and informal institutions.” (Van Assche et al., 2015, p.40).

Concerning planning, there appear three main underlying roles of law (Van Assche et al., 2015). These are applicable to the general relation between law and planning. Van Assche et al. (2015) argue that law might function as an enabler of planning, it can delimit planning, and it is also able to codify planning:

 Enabling planning - occurs because “[i]n democracies, planning needs to be legal to be carried out by a state that is simultaneously law giving. The powers to coordinate spatial organization, for example by making plans and enforcing their implementation or compliance, need to be vested somewhere by law.” (Van Assche et al., 2015, p.40).

 Delimitating planning - happens when planning negatively affects societal values, encapsulated in other laws, or when common good visions are not commonly shared, then the “…different goods and values are often protected by laws which in turn delimit planning.” (Van Assche et al., 2015, p.3).

 Legal codificating planning - measures are perceived to be a necessary tool for the implementation of plans. Which is in practice not the case, because of the interplay with informal forces (Van Assche et al., 2015).

For this research the role of enabler is most relevant. As Van Assche et al. (2015) make clear, a legal framework is necessary in order to come to justified action. However, in the light of institutional design and organising purposive actions, the current institutions of law and legislations seem less suitable. Because purposive actions need certain degrees of differentiation and flexibility which institutional law and legislation cannot accurately offer (Van Rijswick & Salet, 2012). Van Rijswick & Salet (2012) argue that a more principal and normative nature of law and legislation would be more suitable in this sense; law in a more conditioning role.

Besides, it should be mentioned again that planning is context and path-dependent, and therefore, law also holds diverse roles in different societies and perspectives (Van Assche et al., 2015). This difference in outcomes originates from the experience that legislations often represent the present values and norms in society (Salet, 2002). In this sense, the actors’ “…interaction with institutions does not mean resignedly following the rules etched in time, but rather implies […] active and dynamic interpretation, an activity that leaves much room for innovation.” (Salet, 2002, p.29). This interpretation of the law depends highly on the (governance) culture of the interpreter (Booth, 2009).

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Subsequently, when these conditioning and more general norms are applied in practice, this might lead to “…different application by several actors [...], to uncertainties in what to do, and to unequal treatment, and –in the end- they have to be contextualized by judges in their jurisprudence.” (Van Rijswick & Salet, 2012, p.4). Van Rijswick & Salet (2012) argue that a solution for these general norms might be found in the liability principle, which is about accountability and responsibility. They explain that solutions to allocate the responsibilities to certain actors under more general norms are sought in procedures (Van Rijswick & Salet, 2012). And even though their research is on environmental legislation in which the principle is explained as ‘the polluter pays’, there might be something in this issue of liability and responsibility for planning as well. Therefore, some elaborations on responsibilities and their allocation in relation to planning will be provided in the next paragraph, in order to complete a conceptual understanding of the process at research.

Allocation of responsibilities

It is mentioned in literature that a clear allocation of responsibilities and roles is crucial in order to know who is or are in charge, and to achieve effective action (Mostert, 2015). Mostert (2015) argues that the formally arranged allocation of responsibilities structure the collaboration arena of environmental management. Because of this capability to influence the process, the allocation of responsibilities also matter. Responsibilities, in this case, can be divided into responsibility for policy-making, taking measures, and financing measures (Mostert, 2015). Furthermore he argues that the allocation of responsibilities is not always regulated clearly or to satisfaction. This is problematic since the allocation of responsibilities influences actions; responsibilities that are unclear or contested obstruct effective actions (Mostert, 2015). This observation is interesting in combination with the following elaboration, that “[l]aw reflects social values, as well as power relations, and although it is not always observed in practice, it has a special status and usually cannot simply be ignored.” (Mostert, 2015, p.124).

This implicates that if regulations, as being formal structures, not always allocate responsibilities. The action on the allocation of responsibilities should sometimes or at least partly be influenced by informal structures. However, Mostert (2015) does not directly address this issue clearly and also other literature on this relation is not found so far. Applied to the model of Buitelaar et al. (2011) the allocation of responsibilities can be seen as an action conducted by actors, which are influenced by formal and informal structures. Therefore, this relationship between informal institutions, formal institutions and the allocation of responsibilities is assumed for now. This results in the adaptation of the model of Buitelaar et al. (2011) by adding the allocation of responsibilities to this framework, which results in figure 3.

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Figure 3 - Adapted model with responsibilities.

Mostert (2015) identified twelve normative principles for the allocation of responsibilities in environmental management (table 2), from Dutch and European water law, literature and discussions in practice on the allocation of responsibilities, and academic literature on environmental management. However, “[t]he twelve principles cannot be used as a blueprint for the allocation of responsibilities. Although they are more concreate than the principles of “good governance”, they are still too abstract for that purpose. Moreover, they can conflict with each other. But what they can do is to inform discussions over responsibilities.” (Mostert, 2015, p.128).

Table 2 - Overview of principles for the allocation of responsibilities (Mostert, 2015, p.124).

Principle Explanation

Capacity Responsibility for specific tasks should be given to actors that possess or can develop the resources needed to perform these tasks well.

Lowest social costs Total costs for society should be minimised.

Causation Those causing a problem should be financially responsible for its solution.

Interest Those with an interest in a management task should be (financially) responsible for this task.

Scale The management scale should match as much as possible the scale of the management issue.

Subsidiarity Tasks should be performed at the lowest possible level.

Structural integration Responsibilities for closely related tasks should be combined in one hand.

Separation Tasks should be allocated to different actors if a system of “checks and balances” is needed, for instance to prevent that specific interests are overlooked.

Solidarity The risks and burdens that the members of a group have to face or carry should be shared by the group as a whole.

Transparency The allocation of responsibilities should be clear.

Stability (but not standstill)

The allocation of responsibilities should not change too often, but it should be adapted to changing circumstances.

Acquired rights Acquired rights – not acquired wrongs – should be respected and if necessary compensation should be offered.

The previous links the allocation of responsibilities to planning and practice, and makes clear that allocation of responsibility is part of the planning process, and how this might be assessed. However, the elaborations say nothing about why it is important, and about how responsibilities actually work. In the field of planning it is hard to find literature that addresses or discusses this issue for policy-making in a more conceptual manner. On the other hand, in other disciplines there already exist thoughts and arguments on this issue (Strydom, 1999;

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Sena, 2016). Within this literature, a link is developed between the concepts of responsibility and risk in relation to collective actions (Giddens, 1999; Strydom, 1999). Risk in this case can be positive and negative (Strydom, 1999). The combination of these concepts of risk and responsibility “…plays a key role in the societal semantics of our time.” (Strydom, 1999, p.67), because our society is “…increasingly preoccupied with the future (and also with safety)” (Giddens, 1999, p.3).

Giddens (1999) argues that within such a society, managing risks is on the core of decision and policy-making, and that responsibilities are of importance in this sense. This seems the case because risks only appear if decisions are to be taken, however, at the same time decisions are also presumes of responsibilities. And subsequently, this thus “…brings into play the notion of responsibility is that someone takes a decision having discernable consequences.” (Giddens, 1999, p.8). While responsibility is an ambiguous concept which can mean and address various things (Giddens, 1999; Sena, 2016), in this case of risks and consequences, the liability principle is of most interest (Giddens, 1999). Which is also the case when this issue is linked to law, as Van Rijswick & Salet (2012) also included this notion on liability.

Strydom (1999) identifies three different forms of responsibility in literature that developed over time. Together they create an analytical framework “…of the novel actions in which social actors are increasingly engaging today under the conditions of the new reflexive type of institutions and the nascent communicatively mediated institutional order of our time.” (Strydom, 1999, p.69). The different typologies of responsibility, with associated explanation on the type relevant for this research, which Strydom (1999) distinguishes are the following:

 Traditional individual responsibility - Besides some informal and formal duties within the pre-institutional context, this type “…extends to occupational roles in a society characterized by the division of labour. It thus presupposes social institutions underpinned by differentiated functional social systems. In this formal case, we are still dealing with a conventional form of individual responsibility insofar as it remains within the normative confines of a given institutional framework.” (Strydom, 1999, p.68).

 Post-traditional individual responsibility - “…is post-conventional by nature in that it bursts the limits of pre-institutional and institutional conventions. Duties of responsibility accrue to individuals on this level due to their possession of special knowledge, abilities, judgement, power or influence in particular domains of social life. Rather than observing traditional or conventional limits, they take the initiative to shift the boundaries by assuming individual responsibility for the (re)design and (re)organization of institutions and social systems themselves with a view to the constant monitoring and the reduction or avoidance of negative features and effects.” (Strydom, 1999, p.68-69).

 Co-responsibility - “…admits of being articulated and organized discursively in both a social and political sense, and thus allows the participation of individuals, groups, collective agents and the public. Transcending the post-traditional individual type, it is a mobilizable form of responsibility in that the perception of a practical problem, for instance a hitherto unknown risk, is framed and communicated in such a way that it is assumed that all those whose concern is being raised and whose support is being sought equally bear co-responsibility for the observed consequences and side-effects of collective activity.” (Strydom, 1999, p.69).

This framework, and especially the levels of post-traditional individual responsibility and co-responsibility, links back to the previous assumption based on Mostert (2015) that these responsibilities and their relation to risk seem to interplay within the institutional environment. Although this relation is still not explicitly found in the studied literature, it seems to be another justification of the addition of the allocation of responsibilities to the framework as done in figure 3.

The conceptual framework and the previous elaborations also provide other important notions in the light of governance. On the level of legislation construction, the formulation of general norms is important, according