People’s participation in land use planning

1. Legal basis for the involvement of people in the development of land use planning

The participation of people in the formulation of land use planning is not only regulated in the 2013 Land Law but also in other legal documents, such as the Law on Urban Planning 2009, Ordinance on implementation of democracy at communes, wards, and townships in 2007 since it is a problem related to many different activities of social life. In fact, land use planning have a great impact on land use rights of local individuals and organizations, acquisition activities, changing use purposes, and transferring the right to land use or construction on land, etc. are based on the local land use planning. Therefore, when their interests are affected, people have the right to comment and contribute to the content of local land planning.

In Article 43 of the 2013 Land Law, on collecting comments on land use planning, there is a provision stating that the agency that organizes the land use planning is responsible for consultations with people on land use planning. The law also stipulates the form, content, and timing of such activities. Accordingly, the consultations with people on national and provincial land use planning are carried out publicly on the website of the Ministry of Natural Resources and Environment, Municipal People’s Committees; meanwhile, the consultations with people on district-level land use planning are carried out in the form of organizing conferences, collecting direct opinions and disclosing information on the master plan of land use on websites of the People’s Committees of provinces and districts.

The contents of consultations with people on land use planning include the planning targets, allocation, and projects being implemented in the land use planning periods. The time for consultations is 30 days from the date that a competent State agency decides to organize the consultations.

Besides, to ensure the execution of consultations with people on planning and allocation, the Law also stipulates that: The agency that organizes the consultations on land use planning and plans are responsible to prepare reports to consolidate, understand, explain people’s opinions, and finalize land use planning before submitting to the Appraisal Council on land use master plan and allocation.

Thus, in the process of planning land use, State agencies need to consult with local people. However, it should be noted that people’s opinion is only one of the related parties, not the people’s right to decide.

In addition to the 2013 Land Law, the Construction Law 2014, and the 2017 Urban Planning Law, there are also provisions related to the consultations with people on the urban construction planning process. According to Article 16 of the 2014 Construction Law: Agencies and investors that organize construction planning are responsible for consulting with related agencies, organizations, individuals, and communities on tasks and planning projects. Relevant People’s Committees are responsible for cooperating with agencies that organize construction planning, investors of construction investment projects in collecting comments. Provincial-level People’s Committees are responsible for consulting relevant local agencies, organizations, individuals, and communities on construction planning tasks and plans under the approving competence of the Prime Minister. The law also specifies that comments must be fully consolidated, explained, understood, and reported to competent State agencies for consideration and decision.

The above regulations show that individuals and communities in the planning area are one of the important subjects to be consulted in the urban construction planning process.

Communities and individuals are one of the subjects to be consulted according to the 2017 Planning Law. Specifically, Article 19 of this Law stipulates that: the planning agency is responsible for collecting opinions from involved organizations and individuals. The consultations with agencies, organizations, and individuals are carried out by sending and posting documents on the website of the planning agency, at public places, distributing questionnaires, interviews, organizing conferences, seminars, etc. in accordance with the law on the implementation of democracy in communes, wards, and townships. The consulting agency or organization shall have to reply in written documents.

The law also stipulates that comments must be collected, understood, explained, and reported to competent authorities for consideration before evaluating, deciding, or approving the plan. The planning agency is responsible for announcing and publicizing comments, receiving, and explaining comments.

Hence, according to the 2017 Planning Law, people are one of the key stakeholders in the urban construction planning process. Their contributions will influence the decision to implement strategies, policies, and plans of a country, or a particular locality. At the same time, people are also one of the subjects directly affected by the planning or investment projects, so their comments will be practical and objective.

Besides the above provisions, the 2007 Ordinance on the implementation of democracy in communes, wards, and townships of the National Assembly Standing Committee also stipulates several contents that must be publicized by the Government for people to know, and the contents that people can comment on before decision by the competent authorities.

Among the contents publicly available to the people, detailed land use planning and plans and adjustment plans, residential area planning at the commune level are important contents.

It can be said that ensuring the right of people to participate in the planning and allocating the use of land are stipulated clearly in the current legal documents.

2. Situation of community consultation in working out land use planning

Though the law clarifies the right of people to participate in land use planning as mentioned above, there are issues in the participation of people that needed to be studied thoroughly. Complaints about land are still common in many localities, showing that this is a complex subject, requiring a change in policy. The data analysis of UNDP in Vietnam in the survey of the effectiveness of the Public Administration Performance Index in Vietnam (PAPI) partly reflects the current situation of consultation of the community in developing land-use planning and allocation in localities.

Since 2011 (the year UNDP began surveying PAPI nationwide) up to now, the proportion of households whose residential land has been acquired has continuously decreased. In 2011, 10.71% of respondents answered that their residential land had been acquired, by 2019 this rate was only 2.31%. Meanwhile, data for the years 2018-2019 shows an increasing trend in the number of households whose agricultural land is acquired by the State for the main purpose of urbanization and industrialization(1). These processes have increased the need to convert land from residential and agricultural use to land for industrial development or construction of public works, infrastructure.

Articles 5 and 6 of the Ordinance on the implementation of democracy in communes, wards, and townships require local authorities to be responsible for providing information regarding the plans to use land. This is an indicator of the extent to which the land use planning is made public, and whether the information is available to the people. However, just a few people know about the plan to use their residential land. In the year with highest figure, there is only about 1/5 of the respondents know about this information, while in the lowest-figure year, less than 12% of the respondents know(2). When people do not know what the government is doing, it is understandable for them to ask questions and make complaints. This is one of the reasons for the high rate of land complaints in recent years, accounting for two-third of the total number of complaints in the country.

The Ordinance on the implementation of democracy at communes, wards, and townships, the Planning Law, the Construction Law all require the planning agency to consult with the people. With land, the people must be consulted about the draft plan before it is approved by the competent authority. Figure 1 presents the percentage of respondents who said that they had the opportunity to comment on land use planning in their place of residence. This index reflects the level of facilitation of the planning agency for people to comment. If the planning agency does not collect people’s opinions, nor create conditions for them to comment, there are none or very few people who can comment on the draft plan. On the other hand, this indicator also reflects people’s willingness to participate in general work and social management... The rate is low if the government, or the planning agency is willing to consult but people do not exercise their rights, they are not responsible for the common problems of society. In a conference or meeting, it is not always 100% of the participants expressing their opinions, but the higher the proportion, the more democratic the discussion becomes.

Figure 1 shows that there are still too few comments on local land use planning. In the highest-figure year, only 7% of respondents said that they had given their opinions, while in the lowest-figure year, this rate is 2.8% who had ever commented on this draft. The above situation shows that it is critical to improving the level of participation of people in this subject in the coming years.

Legal documents on land use planning all require the planning agency to understand and explain the reasons for not accepting comments from the people. This index assesses the performance of “people’s discussion”. Figures 1 and 2 show a similar trend over the years in the proportion of people contributing their opinions to local land use planning, and the extent to which the government collects those comments. This shows that the government really listens to the opinions of the people and shows the validity or quality of people’s opinions when giving comments to the government.

Normally, the greatest concern of people is that when their land is acquired, will they be compensated at market prices? Clause 2, Article 74 of the 2013 Land Law stipulates that when the State acquires land from people, compensation must be made by allocating land with the same purpose as the acquired land. In case there is no land for compensation, it shall be compensated in cash according to the specific land price of the type of land to be acquired and decided by the provincial-level People’s Committee at the time of the land acquisition decision. As such, the Law does not stipulate that the government must compensate people at market prices. However, it is not fair for people to have to return the land to the State, but they do not receive adequate compensation at market prices, and their response is understandable. There has been a continuous improvement over the years as more and more people assume that households whose land is acquired are compensated at prices close to market prices. However, in the highest-figure year, only about one-third of the households whose land is acquired is found to be compensated at a price close to the market price(3).

Through the above data analysis, people do not know about land use planning in their place of residence. When their land is acquired, most of them do not receive adequate compensation at market prices. This may be the main reason why land lawsuits are still common in many places in recent years.

3. Some recommendations

From 2011 to 2019, the PAPI research group of the Ho Chi Minh National Academy of Politics organized field researches in nearly 40 provinces throughout Vietnam. The research findings show that PAPI indicators in the field of people’s consultation on land use planning still remain low. The main causes of this condition can be seen as follows:

First, in some localities, gathering people’s opinions is still formalistic, has not come into reality, or has not been organized properly. Usually, the government hires a company to develop a land plan, then collecting people’s opinions on the draft plan. However, inadequate information makes these consultation meetings less commonly known.

Second, land use planning is a specialized subject, not all people understand the jargons in the field. The most recognizable point is the planning map, and land use plan, but they are usually printed on a small scale, making it difficult to match the map with the corresponding area in the field, thus limiting people’s comments.

Third, the publicity and consultation with organizations and individuals are posted on the website of the competent authority but the transmission quality is poor, the file size is large, internet access is limited in some rural and remote areas making this publicity only a formal meaning, not practical.

Fourth, people are not ready to participate in social management. While social life is still difficult, political culture in some localities does not encourage people to participate in social and political activities, preventing them from actively exercising their rights and responsibility in social management.

To overcome these limitations, authorities at all levels and State employees need to really consider serving the people as their main goal. Organizations and individuals responsible for formulating land use planning must not only comply with the law but also depend on the situation and characteristics of the population to take proper measures of information. The same content should be planned to organize information, collect opinions in different ways suitable for each group of population. Digital cadastral mapping is also one of the long-term solutions to help people easily look up land information, which will make them more convenient in giving feedback opinions on land use planning.

Research on the 2013 Land Law and the actual situation of land claims in many localities shows that the regulation of the Provincial People’s Committee to decide on the compensation price upon land acquisition is not reasonable. In fact, the compensation price for land acquired by provinces is often much lower than the market price, causing significant damage to people whose land is acquired. Therefore, people are not willing to hand over their land to the State or protracted lawsuit causes instability in society. To be fair, Vietnam needs to encourage private companies to participate in valuing real estates and land compensation prices. When the State needs to acquire land, the government and people can agree to hire a real estate appraisal company as an intermediary. When this company sets the price of land compensation in the acquired area, both the State and the people are obliged to follow. Regarding the appraisal firms, if they do not appraise the land accurately and objectively, there will be no customers who would hire them, hence, they must do their job properly. Regarding the mechanism, the compensation price will be implemented according to the market price, people will not be disadvantaged when land is acquired, the State can acquire land faster and better for the purpose of socio-economic development.

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Endnote:

(1), (2), (3) UNDP, CECODES, VFF-CRT, and RTA: Vietnam Provincial Governance and Public Administration Performance Index over the years.

References:

1. Land Law, November 29, 2013.

2. Planning Law, November 24, 2017.

3. Construction Law, June 18, 2014.

4. Ordinance No. 34/2007/PL-UBTVQH11 dated April 20, 2007 of the National Assembly Standing Committee on exercise of democracy in communes, wards, and townships.

5. UNDP, CECODES, VFF-CRT, and RTA: Vietnam Provincial Governance and Public Administration Performance Index over the years.

6. UNESCAP (2009) “What is good governance?”, https://www.unescap.org/sites/default/files/good-governance.pdf, accessed on August 8, 2019.

Assoc. Prof., Dr. LE VAN CHIEN

Institute of Leadership and Public Policy,

Ho Chi Minh National Academy of Politics