Mapping and analysis of laws influencing built environments for walking and cycling in Australia

The preamble to the constitution of the World Health Organization (WHO) stipulates that governments of Member States have a responsibility for the health of their peoples, which can only be fulfilled by the provision of adequate health and social measures [1]. Governments may use law and other policy as the strategic and implementing tools for providing the conditions that people need to be healthy [2, 3]. Policy makers may be more inclined to use law when addressing long term goals, when voluntary regimes fail to achieve strategic objectives, and when effective implementation requires the weight of enforcement that comes with law [2]. While some governments have been reluctant to use the law for public health issues such as obesity [4], others are increasingly turning to law as a necessary and powerful tool for making progress on these issues and creating a level playing field for reform [5‐7]. Such an approach aligns with recommendations from the World Health Organization (WHO) Independent High-level Commission on Noncommunicable Diseases, that governments employ their full legal powers to achieve public health goals and protect their populations [8]. Perhaps the most salient example of the use of laws in support of health is in the WHO Framework Convention on Tobacco Control (WHOFCTC) – a legally binding treaty [9]. Despite calls for a global framework for public health [10], such a framework has not been established, nor is there a framework convention for physical activity (PA). However, this does not prevent us from analysing the potential role of legal approaches to advance public health through increased PA in populations.

Physical inactivity is an important public health concern that is a significant contributor towards the global burden of noncommunicable disease [11]. Minimal signs of improvement in the prevalence of population PA have been observed for decades [12, 13]. The WHO has a recommended target of a 15% reduction in physical inactivity by 2030 [14], which was adopted by Members States of the WHO [14]. The WHO Global Action Plan on Physical Activity (GAPPA) provides an evidence and practice-based framework for countries to achieve this, using a systems-based approach to address the social and environmental determinants of physical inactivity [15].

In 2021, the WHO released an advocacy brief titled ‘Fair Play’, identifying three interconnected barriers that are limiting progress on an effective, efficient, and sustainable PA system at scale. These were insufficient, unequal, and ineffective investment; inadequate and misaligned policy, laws, regulatory frameworks and standards; and uneven and fragmented partnerships and program delivery [16]. Its recommendations included prioritising the development of coherent policy, laws, regulatory frameworks, and standards that reduce barriers to PA and encourage people to be more active [16]. This stipulated that mandates should be put in place to bring about improvements to environments; however, there has been limited monitoring of whether this is taking place.

Law has some important advantages compared with other policy tools. For example, laws (particularly legislation enacted through a parliamentary process) are generally more enduring than other policy tools as they are more difficult to be dismantled at the whim of a change in government [2]. Policy that is embedded in law, conveys the importance of that policy and the seriousness with which the government intends to deliver it, which helps to encourage compliance and realign industry behaviours with the public’s interest [2]. Laws also carry the weight of enforcement as there are court processes through which regulated subjects can be held to account [2], although the costs of legal action and limits on standing (which generally prevents third parties from initiating proceedings), may act as practical constraints on the enforcement of laws.

Previously, we published a framework that aligns legal strategies with the WHO GAPPA policy objectives – the Regulatory Approaches to Movement, Physical Activity, Recreation, Transport and Sport (RAMPARTS) [17]. The RAMPARTS framework aims to focus researcher and policymaker attention on the broad range of legal strategies that could potentially address the WHO GAPPA objectives, not least of which is strategic objective 2 to ‘create active environments’. Legal strategies to address this objective could include: setting quality standards for the provision of footpath infrastructure; establishing funding mechanisms to support the creation and maintenance of public open spaces; setting a mandate or authority that requires decision makers to exercise their functions with regard to health (or complementary goals such as climate change and liveability); and developing administrative or procedural mechanisms that enable greater cross-agency or government coordination to achieve integrated land use and transport planning.

Surveys of built environment practitioners working in the UK and Australia have shown their support for stronger statutory mechanisms as well as detailed requirements and standards. These are expected to reduce ambiguity and scope for sidestepping recommendations, and improve the delivery of health-promoting places [18, 19]. In the Australian context, there is evidence of public support for such interventions, as revealed by recent population surveys which showed that citizens highly value supportive environments for PA [20] and believe there should be greater prioritisation of wellbeing in policy making and investment [21]. However, there is limited research describing the specific features of laws that regulate the built environment and how they may support or hinder PA. To improve such understanding within the Australian context, we conducted an audit to identify how laws in each state and territory address built environment design considerations with a specific focus on the walkability of environments [22]. Our aim in that study was to describe the legal framework that may influence the walkability of built environments in Australia, in order to understand whether walkability considerations are addressed in law at a state and territory level, the main types of legal instruments used, and the type of approaches used by the different jurisdictions to address those considerations (e.g. through setting legal objectives, principles and standards). Our audit revealed considerable variability in the coverage, level of detail, and approaches used, raising uncertainty about the scope and strength of legal support for creating walkable environments at the national level. We therefore recommended the use of scientific legal mapping as a more systematic and rigorous method for identifying relevant laws and analysing the features and variations of these laws.

Scientific legal mapping can be conducted at a single point in time (‘legal assessment’) or longitudinally (‘policy surveillance’) [23]. Potential benefits include facilitating the diffusion of legal innovations across jurisdictions, improving the navigability of laws for non-legal professionals, identifying potential policy targets for improvement, and generating new data that can in turn inform future policy making [24]. Policy surveillance is one of the key methods employed in legal epidemiology, which has been defined as the ‘study and deployment of law as a factor in the cause, distribution, and prevention of disease and injury in a population’ [25]. Because of its scientific approach, policy surveillance creates usable data that enables the impact of law to be empirically evaluated [25]. In other public health domains such as alcohol and tobacco control, there is a long history of scientific evaluation of laws, which has led to widespread implementation of evidence-based public health law interventions [25].

Prior analyses of laws impacting PA have mainly occurred in the United States in relation to environmental trail legislation [26], Complete Streets statutes [27] and comprehensive planning state statutes for rural communities [28]. To our knowledge, scientific legal mapping has not been used in Australia or to analyse, in a comprehensive and integrated way, the laws regulating the built environment for PA. This study aimed to employ scientific legal mapping to characterise the extent to which primary legislation (specifically for planning, transport, climate change and public health) addresses objectives within an integrated approach to delivering PA-promoting places, and to examine whether planning law embraces measurable standards that align with criteria known to promote active living. We chose to limit our focus to criteria that promote walking and cycling specifically, as these are known to be policy priorities in multiple jurisdictions and can be readily adopted across the lifespan and socioeconomic contexts, thereby making important contributions towards physical activity at the population level [29, 30]. We also sought to understand how planning laws in Australia address implementation and monitoring because inadequate enforcement or monitoring (including as a result of ambiguity about responsibility for these functions) can undermine the effectiveness of otherwise well-written laws [23]. Previous research has highlighted the need for monitoring of implementation, as policy ‘leakages’ have been shown to occur at various stages [31] leading to disparities in urban planning outcomes. For example, it has been found in one Australian jurisdiction, that higher levels of implementation and compliance with a policy to enhance neighbourhood liveability was associated with better on-the-ground urban design and walking outcomes [31].

Our aim in this study was to establish a baseline assessment of how laws currently address walking and cycling, and how they compare across Australian states and territories. Detailed coding of attributes in laws makes it easier to identify differences across jurisdictions. The systematic methods stated in our protocol (see Supplementary Material) will also enable replication at future timepoints, which will allow changes in law to be tracked over time, and generate longitudinal data that can be used in the future evaluation of these laws, including their impact upon built environment and PA outcomes.

A detailed description of the methods used is set out in our protocol (see Supplementary Material). A summary is provided below.

PA is a systems issue, requiring action across multiple sectors. The WHO has identified inadequate laws and regulatory frameworks as a major barrier connected with and compounded by insufficient investment and fragmented partnerships [16], which needs to be addressed to achieve the global commitment to a 15% reduction in physical inactivity by 2030. This study reports on a comprehensive assessment of the laws that influence the built environment for PA (with a focus on walking and to some extent, cycling) in each of the states and territories of Australia. It provides insight into the coverage and adequacy of these laws, the specificity of their requirements, alignment to evidence-based recommendations, and their support for implementation and monitoring.

While PA policy research has a long history, with well-developed analytical methods and tools [41, 42], analysis of laws for PA is a nascent field [17]. Understanding the legal environment is an important component of understanding the existing system for PA, why it may not be generating the desired outcomes for PA, and potential opportunities for improvement. In order to achieve maximum system impact, the ‘rules’ of the system (which includes laws), must be addressed as one of the levers for systems change [43]. Legislative objectives provide a powerful signal about what issues should be prioritised and considered by decision makers, thus playing a role in shifting the ‘goals’ of a system, a key leverage point for systems impact [36]. While the enabling legislation does not usually set out detailed specifications, they generally enable the creation of regulations and other statutory instruments to operationalise and support the achievement of the legislative objectives [22]. Legislative objectives therefore play an important role for supporting the alignment, integration and coherence of policy across different sectors and levels of government, and stronger partnerships for systems efforts [44].

Our findings reveal disparity across Australian state and territory jurisdictions, with varying levels of legal support for promoting walking and cycling. With a few exceptions, jurisdictions showed very limited coverage of PA-promoting objectives, suggesting a lack of integrated thinking or prioritisation of this. More jurisdictions addressed broader PA-relevant objectives in their Planning Act than under their Transport Act, with health being the most common one. This may suggest greater awareness and recognition within the planning sector about the importance and relevance of health, and possibly the strength of public health advocacy in this area, compared to the transport sector. It may also demonstrate the possible influence of ‘early adopter’ jurisdictions that may be seen as inspiring other jurisdictions to follow. ACT for example, which is reforming its planning system, has put forward a Planning Bill [45] that would broaden the object of their Planning Act to address health, liveability and integrated land use and transport, aspects that are not currently covered by their existing Act [46]. The fact that the proposed wording mirrors some of the language that already exists in the SA and QLD Planning Acts, and the accompanying consultation materials specifically acknowledge that inspiration was drawn from the QLD Planning Act [46], lends support for this point. It also reinforces the potential value of scientific legal mapping, in enabling the creation of an accessible repository of systematically collected features of laws linked to relevant citations [47], that could make it easier for jurisdictions to locate and consider innovative examples of where law is being used by other jurisdictions to promote PA. This is one way of targeting ‘information flows’, one of the significant leverage points for intervening to create systems change in public health, which has been defined as the ‘movement of vital information to shift power dynamics that opens decision-making processes to more (and the right) people’ [43].

Two out of the three jurisdictions which addressed the majority of high-level factors for walking and cycling in their legislation (VIC and SA) were also the jurisdictions which addressed the most standards and demonstrated strong legal support for the greatest number of other categories. This suggests a possible relationship between greater prioritisation of PA-promoting objectives at the legislative level, and a greater commitment to achieving those objectives through the provision of specific standards. It has been suggested that being more specific and mandating health-promoting actions and procedures could assist in the achievement of related legislative objectives, as has been demonstrated in tobacco control [44]. A recent global study has shown that Australian cities are performing poorly compared to other cities throughout the world, both in terms of policies to create healthy and sustainable cities and outcomes on-the-ground in neighbourhoods [48, 49]. This suggests that policy frameworks must be strengthened through measurable standards and targets that are embedded in law, and effective mechanisms to monitor their implementation. Doing so is consistent with the WHO’s call to harness legal tools to accelerate progress on physical inactivity [16], and the recent call by the UN General Assembly for countries to ‘scale up efforts’ to ensure a clean, healthy and sustainable environment as a newly recognised human right [50].

An argument that is frequently raised against more prescriptive measures is the need to provide flexibility and discretion for innovation [4]. However, even those jurisdictions which purport to be performance-based (i.e. emphasising discretion in how planning objectives can be achieved) still recognise there is a role for prescriptive provisions (including mandatory ones), where this is required to achieve consistent and predictable results and avoid unacceptable outcomes [51].

Flexibility and certainty are by no means binary approaches. For example, in performance-based systems such as in VIC and SA, measurable criteria (which offer certainty) are sometimes provided alongside qualitative criteria (which provide flexibility), as examples of ways in which the qualitative criteria could be met to achieve the required objectives [52, 53]. They may be made mandatory where there is a sound strategic basis for that, for example, to avoid the risk of adverse outcomes where there is likely to be constant pressure for development inconsistent with planning policy [51]. Where measurable criteria are evidence-based, they can promote the widespread achievement of intended outcomes [51, 54].

There are now evidence-based criteria for numerous built environment characteristics to promote walkability [34, 35], which are likely to be generalisable to the promotion of cycling [55] although the evidence base for standards specific to cycling is less developed compared to walking. Our findings reveal a number of gaps where jurisdictions either do not provide measurable criteria addressing these characteristics in their laws, or do not fully meet the evidence-based recommendations. This calls into question the genuine commitment of governments to creating walkable, healthy, and ecologically sustainable environments. Importantly, the adoption of measurable criteria enables the implementation of laws to be monitored, such as through spatial geographic information system (GIS) measures [54]. Where laws are solely outcomes or principles-based, it is not possible to use spatial and other data to assess the strength of implementation, and progress towards supportive built environments for walking and cycling [54]. Expressing planning principles in ways that can be operationalised and tested, is also valuable for developing the evidence base about the effectiveness of laws for different outcomes. This is important to ensure that laws actually achieve their intended outcomes for PA, and if not, are refined or recalibrated accordingly [25].

The impact of adopted laws on PA outcomes is subject to whether they are implemented and enforced. Our research examined these considerations to some degree, however future research into the mechanisms and importance of implementation and enforcement of laws for PA would further identify factors that increase the beneficial impact of laws to promote PA, and generate information that could help policy makers incorporate mechanisms that have the greatest potential for success [56]. One possible approach for improving accountability and driving improvements in the planning system, may involve embedding agreed policy indicators for PA into an independent regulatory reporting framework. That framework could give an independent commissioner the functions of benchmarking laws, and monitoring and reporting on their implementation over time. Future research could use the legal data we have generated in this project, for evaluation against spatial and PA outcomes. Generating longitudinal data by updating this study over time, would support more rigorous evaluation designs [25].

A key strength of this study is that it was conducted in accordance with established and rigorous legal mapping methods [23, 57] which incorporates quality control procedures such as independent coding by two coders. It was also conducted with an interdisciplinary team with expertise in urban planning, public health, law and physical activity, thus deriving legal variables of relevance to these intersecting issues. Scientific legal mapping studies such as this one, help to address the lack of readily accessible information about the planning laws in different jurisdictions, and how they compare with each other and to evidence-based standards for promoting walking and cycling [47]. Providing accessible legal data helps to strengthen accountability within the planning system by enabling potential issues regarding the development, implementation or enforcement of relevant laws to be identified, and support evaluation and reform, as well as diffusion of innovation as jurisdictions are able to more easily learn about what others are doing [47].

However, there are some limitations with our research. As it was a cross-sectional analysis, the data only reflects the state of the law at the time of assessment. The policy context for planning is dynamic, for example, ACT is reforming its planning system [58], and WA is finalising new State Planning Policies as part of its Design WA initiative [59]. The future legal landscape can also shift unexpectedly, for example the NSW Design and Place SEPP and accompanying Urban Design Guide (excluded from the assessment as they were due to come into effect at the end of 2022 [60]), will now no longer be introduced despite being well-progressed, due to a change in the Planning Minister and approach [61]. Our assessment may be useful for providing a baseline picture of how laws currently address PA, but would need to be updated to remain current. The frequency of update and the value derived from maintaining currency would need to be considered and balanced against the resources required to complete these updates. Updating the dataset will enable changes in law to be tracked over time and support the evaluation of laws in respect of built environment and behavioural outcomes.

We also limited our analysis to state or territory-level laws; however, it is possible that local laws (or policies outside of law) address standards that were not found in the state or territory-level laws. It may be argued that local governments are better placed than state or territory governments to develop laws for certain matters due to their detailed knowledge of the local context. We chose to limit our focus to state or territory-level laws as this is consistent with calls by the UN General Assembly for countries to scale up their efforts to uphold the universal human right to a clean, healthy and sustainable environment [50], which is necessary for enabling active and sustainable lifestyles [62]. Failure to set consistent basic standards at a state or territory level will invariably lead to some local areas falling short of these expectations and exacerbating inequality [63, 64].

Our analysis was also based on selected criteria and is not exhaustive of all criteria for which there may be evidence-based recommendations for walking or cycling, for example street connectivity [34, 54]. New recommendations may also be developed for cycling as cycling-specific standards and infrastructure are implemented and evaluated around the world in line with the increasing recognition among policy makers that cycling is an important mode of sustainable transport. Any expansion of evidence-based standards relevant to walking and cycling could be captured with an update to the coding framework. Finally, our analysis only captures ‘law on the books’ (i.e. as written) and may not reflect actual practice or implementation of the law, a limitation which is generally associated with all legal mapping studies.

Examination of the legal framework within and across jurisdictions is a significant and emerging area of PA policy research. Legal research can shed light on why established systems for PA may not be generating desired outcomes. Our findings reveal many opportunities for improving the goals and rules of the systems in Australian states and territories, by amending primary legislation to promote a more integrated approach to promoting active living, incorporating evidence-based standards into planning law, realigning existing standards to meet recommendations, and stronger obligations to monitor the performance of planning law. Through the creation of accessible legal data, our study contributes to improvements in information flows, enabling jurisdictions to locate relevant provisions more readily for walking and cycling, identify gaps and opportunities in their legal frameworks, and enhance cross-agency engagement between health and planning sectors.