Town and Country Planning

• Author: Winston Anderson
• Pages: 171-205

Page 171

9. Town and Country Planning

Planning law constituted an essential building

block in the early development of environ-

mental law. Although physical planning was

originally instituted specically to provide for the

orderly development of land, there has always been

a close relationship between planning and environ-

mental law.1 e reasons for this are practical, his-

torical, and juridical.

Land sustains life and lifestyles through agricul-

tural production, the provision of space for indus-

trial and residential purposes, and the provision of

aesthetics of landscapes. e advent of planning

laws was based on the acknowledgment of land as

a social resource that had to be regulated to ensure

the continuation of society. Physical pla nning is

intimately linked to policy implementation; it is

built on government policies that seek social and

economic development.

With the growth of environmental conscious-

ness, the initial absence of eective environmental

legislation created a legal vacuum that came to be

lled by planning laws working to “preserve and

improve amenities” in the planning of develop-

ment. In this way, planning authorities increasingly

took environmental considerations into account in

various aspects of their decisionmaking. Today,

environmental legislation makes clear that plan-

ning and environmental authorities must act in

conjunction to protect natural resources.2

Use of planning law as an adjunct for eecting

broad environmental objectives is consistent with

1. e two disciplines are often taught together in university courses

as “Planning and Environmental Law,” and there are several

journals that publish under a similar rubric.

2. See Physical Planning and Development Act (PPDA St. Lucia),

No. 29, Ch. 5.12 (2001) (St. Lucia); PPDA St. Lucia, No. 3,

Ch. 5.12 (2005); Physical Planning Act (PPA Ant. & Barb.),

No. 6 (2003) (Ant. & Barb.).

Agenda 21’s3 call to overcome fragmentation in

decisionmaking and to integrate environment and

development at the planning level. Small wonder

then that improvement in land use, planning, and

coordination was identied as rst of the 14 prior-

ity areas in the Port of Spain Accord on the Carib-

bean Environment of 1989. Planning law is the

closest that traditional regulation comes to in the

embodiment of the precautionary principle.

In this chapter we consider the continuing rel-

evance of planning law to the prevention, reduc-

tion, and control of environmental pollution and

to the sound management of natural resources.

e notion of “development” of land, the central

importance of the development plan, the regime

governing application for planning permission, and

the circumstances in which compensation becomes

payable must be examined. e overlap between

planning law and pollution control, common law

of property and torts, and preservation of cultural

heritage is also worthy of attention. Finally a word

is in order regarding how government applies plan-

ning law to development. But rst a few comments

are required concerning the historical antecedents

of Caribbean planning law.

The Relationship to English Planning

Law

Caribbean planning law tracks closely the equiva-

lent developments in England. A s in the United

Kingdom, Caribbean centralized control of land

development is a twentieth-century phenomenon.

Under common law, landowners were free to

develop and use their land how they wished, sub-

ject only to the grant under which they held the

3. A : E’ A(Nicholas A. Robinson ed., 1993).

Page 172 Principles of Caribbean Environmental Law

land and the obligation not to commit a nuisance

or a trespass against their neighbor’s property.

Landowners could erect any building they wished,

however unsightly and however injurious to health

or amenities. Similarly, landowners could start

industrial works in agricultural areas. ere was no

obligation to protect the environment, per se, and

no obligation to plan development in a way that

minimized environmental impacts.

English Nationalization of Right to Develop

Land

e right to develop land was eectively nation-

alized with the advent of the town and country

planning legislation under which landowners were

required to obtain planning permission before they

could develop their land. e beginnings of plan-

ning law may be traced back to the enactment in

England of the Housing and Town Planning Act in

1909 intended to deal with general land-use prob-

lems, such as the separation of incompatible uses or

lack of amenity.

A number of problems were identied with

the early planning law.4 First, §54 of the 1909 act

did not oblige but rather gave discretion to loca l

authorities to prepare schemes in respect of any

land with the general object of securing proper

sanitary conditions, amenities, and convenience

with the laying out anduse of t he landand of

any neighboring land. is oversight was reme-

died by an amendment in 1919 that required the

council of every borough or urban district with a

population of more than 20,000 to prepare such

schemes.

Second, the 1909 act did not provide an oppor-

tunity for members of the public to object to the

scheme for land development, given the concern

that democracy and speed do not always go hand

in hand. ird, the ea rly legislation dealt with the

fact that planning control aected property values,

for better or worse, by empowering local authorities

to recover 50% of any increase in the value of the

land. is was due to the making of a scheme and

granting to landowners a right to compensation

from the authority for any decrease in the value

of the land. e Town and Country Planning Act

of 1932 sought to reform this regime, but from all

4. V M, A P A  P L

1-10 (1987).

accounts the operation of the compensation/better-

ment provisions proved disastrous.5

e Second World War presented an opportu-

nity to reconsider and devise a more eective sys-

tem of land-use control. A number of bodies were

charged with considering particular facets of the

land-use system. e landmark Town and Country

Planning Act of 1947 conta ins many of the essential

features of modern planning law: the requirement

of local authorities to prepare a development plan

for their area, the subjecting of all land whether

or not within a scheme to express planning per-

mission, powers to deal with development carried

out without planning permission; powers to secure

preservation of trees and buildings of historical

or architectural interest and to control advertise-

ments, and provisions relating to compensation.

A series of subsequent acts completed the modern

system, of which the Town and Country Planning

Acts of 1962 and 1971 are of greatest importance

for present purposes.

Caribbean Reliance on English Planning Law

Caribbean planning law is largely based on these

English enactments. Apart from the general con-

siderations relating to the reception of colonia l law,

reliance was placed on the English models for addi-

tional reasons.6 After the war, from 1945 onward,

the Colonial Oce took on board a measure of

concern for social welfare issues in the colonies—

namely, health, education, housing, and above all

local government—that para lleled the new stance

of governments in the United Kingdom.

As part of this new focus on social welfare

issues, town and country planning was thought to

be necessary both in the metropolitan country and

in the colonies. According to Professor McAuslan,

the Colonial Oce produced a model law on town

and country planning based on an amalgam of the

English 1932 and 1947 acts with minor variations

to suit local circumstances. is model was the

basis of the early planning legislation in Jamaica

5. “A local authority wishing to control development of land in its

area might nd itself faced with a heavy liability for compensa-

tion which it would have diculty in meeting unless they were

prepared to allow some development in the area. On the other

hand, a local authority not wishing to restrict development in

their area might hope to obtain a considerable sum by way of bet-

terment from owners, without any liability to pay compensation.

As it turned out, however, the collection of betterment proved

almost impossible, mainly because of the lapsing provisions” in

the legislation. M, supra note 4, at 3.

6. J.P. McAuslan, Planning Law in the Commonwealth Caribbean

(1988) (unpublished paper, Univ. of West Indies, Barbados).

Town and Country Planning Page 173

and Trinidad and Tobago, and subsequently other

Caribbean territories too.7

Strict adherence to the English models can

result in thorny problems, particularly in relation

to the protection of the constitutional right to

private property. e view has been oered8 that

acceptance of the policy function of planning law

means that the planning legislation of every Carib-

bean state ought to be continuously examined and

assessed not for its compatibility with the current

English law but for its aptness in providing an

appropriate framework for grappling with the exis-

tence and likely future planning and development

problem of land in each specic state. Caribbean

planning law also ought to harness, rather than

repel, the political dimensions in planning. Adop-

tion of the English approach to planning as “ideo-

logically completely neutral technically value-free

statements” will “result in an increasing divorce

between the ocial planning system provided for

by the law and the real world of planning oper-

ated by politicians and this in turn will increas-

ingly aect the legitimacy of the whole planning

system.”9

At this stage it may be useful to outline some

basic features in the planning law in some Carib-

bean jurisdictions. e linkages with and inuence

of English law will become apparent.

Trinidad and Tobago

e inuence of the English planning precedent is

most clearly documented in Trinidad and Tobago

planning legislation.10 e Town and Country

Planning Act11 illustrates the extent to which the

English model was followed and the very limited

concessions made to local circumstances. Although

passed in 1960, the act was composed between

1959 and 1960. e whole country was regarded

as the area in respect of which a development plan

was to be made.

e minister, as in the United Kingdom, was

responsible for approving planning applications,

from which there wa s no right of appeal. In intro-

7. Id.. Trinidad and Tobago’s rst planning legislation, namely, the

Town and Regional Planning Ordinance, No. 3, Ch. 37 (No.

42-1938), was based on the 1932 Act, but subsequent planning

legislation was inuenced by the model produced by the Co-

lonial Oce.

8. Id.

9. Id.

10. Id.

11. Town and Country Planning Act (TCPA Trin. & Tobago), No.

29, Ch. 35:01 (1960) (Trin. & Tobago).

ducing the Town and Country Planning Bill into

the legislature in July 1960, the then prime minis-

ter of Trinidad and Tobago defended the no-appeal

provision on the ground that the minister was

responsible to parliament for the administration of

the law and one could not have a situation where

the minister was responsible but could not take the

decision on compensation for refusal of planning

permission. e relevant and crucial sections of

the Trinidad and Tobago Act were copied word for

word from the English Town and Countr y Plan-

ning Act of 1954, which could only be understood

or eectively implemented in that special context.

In particular, the amount of compensation that

could be claimed was geared toward a xed and

ever diminishing sum of money; market value had

nothing to do with compensation under English

law.

Subsequent amendments have addressed the

most egregious misapplication of English law

and, in particular, the compensation provisions.12

However, the atypical concentration of planning

responsibility in the hands of the minister remains.

In addition to the generally commonplace obliga-

tion to secure consistency and continuity in the

framing and execution of a comprehensive policy

with respect to the use and development of all

land in Trinidad and Tobago, the minister has the

actual responsibility of administering the planning

regime. e commonplace Advisory Town Plan-

ning Panel is charged, with a view to the proper

carrying out of the provisions and objects of the

act, to advise the minister on any matter within

its knowledge or on which the minister may seek

its advice.

e Environmental Management Act of 2000

regulates land development by requiring a certi-

cate of environmental clearance (CEC), in addition

to the grant of permission under the Town and

Country Planning Act. e developer must deal

directly with the entity responsible for town and

country planning with respect to the application

for a CEC and any environmental impact assess-

ments that may be required.13 If the approval of the

planning authority is required, the issua nce of the

certicate does not aect in any way the require-

ment to obtain such approval before the proposed

12. Compensation is now assessed in accordance with the provisions

of the Land Acquisition Act, No. 28, Ch. 58:01 (1994) (Trin.

& Tobago).

13. Environmental Management Act, No. 3, Ch. 35:05, §3 (2000)

(Trin. & Tobago).