Compendium of Land Use Laws for Sustainable Development (IUCN Academy of Environmental Law Research Studies)

IUCN ACADEMY OF ENVIRONMENTAL LAW RESEARCH STUDIES

Compendium of Land Use Laws for Sustainable Development This book collects land use laws from countries on each continent that attempt to achieve sustainable development. Since 1992, when one hundred seventy-two nations met in Rio de Janerio, Brazil, and adopted a 300-page plan for sustainable development (Agenda 21), the need for effective legal reform has become more and more evident. In the laws collected in this volume, many adopted since 1992, the reader can witness the evolution of national legal systems as they respond to these powerful influences. These laws illuminate the great flexibility and power of the law as a vehicle for effecting needed change. Laws contained in this compendium are mechanisms competent to address these challenges; they provide strategies that are appropriate to the culture and place of their origin. This book provides evidence that laws and law reform are being used to create strategies that address the global need to effectively use and preserve land and its natural resources. John R. Nolon received his JD degree from the University of Michigan Law School, where he was a member of the Barrister’s Academic Honor Society. His undergraduate degree is from the University of Nebraska, where he was President of the Senior Honor Society. He has served as a consultant to President Carter’s Council on Development Choices for the 1980s, President Clinton’s Council on Sustainable Development, New York Governor George Pataki’s Transition Team, and the statewide Quality Communities Advisory Board directed by Lieutenant Governor Mary Donohue. Professor Nolon has been appointed Visiting Professor of Environmental Law at the Yale School of Forestry and Environmental Studies and named the Director of the Joint Center of Land Use Studies formed by Yale and Pace Law School. He served on the Editorial Advisory Board of the National Housing and Development Reporter and is a member of the Editorial Board of The Land Use and Environmental Law Review, published by Thompson-West. He has worked extensively on sustainable development in South America as a Fulbright scholar.

IUCN ACADEMY OF ENVIRONMENTAL LAW RESEARCH STUDIES

Compendium of Land Use Laws for Sustainable Development Edited by JOHN R. NOLON Pace University School of Law

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, S˜ao Paulo Cambridge University Press 40 West 20th Street, New York, NY 10011-4211, USA www.cambridge.org Information on this title: www.cambridge.org/9780521862172
c John R. Nolon 2006

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2006 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Compendium of land use laws for sustainable development / edited by John R. Nolon. p. cm. – (IUCN Academy of Environmental Law research studies) Includes index. ISBN 0-521-86217-5 (hardback) 1. Land use – Law and legislation. 2. Sustainable development – Law and legislation. I. Nolon, John R. II. Title. III. Series. K3534.A48 2006 346.04 5–dc22 2005027086 ISBN-13 978-0-521-86217-2 hardback ISBN-10 0-521-86217-5 hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate. Due to the evolving nature of legislative texts, portions of the extracted text may not match current text. To consult the latest version please check the Web site referred to at the beginning of each section.

Contents

Acknowledgments Introduction

page ix xi

i. international United Nations Convention on the Law of the Sea (1982) African Convention on the Conservation of Nature and Natural Resources (1969) European Landscape Convention (2000) European Landscape Convention Explanatory Report (2000) Agenda 21 – United Nations Conference on Environment and Development (1992) Rio Declaration on Environment and Development – United Nations Conference on Environment and Development (1992) Istanbul Declaration on Human Settlements – United Nations Conference on Human Settlements (Habitat II) (1996) The Johannesburg Declaration on Sustainable Development – World Summit on Sustainable Development (2002)

1 5 10 15 24 49 52 55

ii. africa cape verde Order No. 86/IV/93 (1993)

59

ghana Forests Ordinance (Cap. 157) (1927)

62

south africa Conservation of Agricultural Resources Act No. 43 (1983)

67

Constitution of the Republic of South Africa (1996) National Environmental Management Act 107 (1998) National Forests Act (1998)

73 76 82

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tanzania The Village Land Act (1999)

89

iii. asia malaysia Town and Country Planning Act 1976 (Act 172) (June 2003) Federal Territory (Planning) Act 1982 (Act 267)

97 111

people’s republic of china Law of Land Administration of the People’s Republic of China (1999) Law of the People’s Republic of China on Water and Soil Conservation (1991) Environmental Protection Law of the People’s Republic of China (1989)

122 126 131

singapore Planning Act (1998) Land Acquisition Act (1985)

135 140

iv. australia Australian Capital Territory (Planning and Land Management) Act (1988) Land (Planning and Environment) Act (1991)

145 148

south australia Development Act of 1993 Development Regulations of 1993

160 176

v. europe denmark Planning Act (2002)

183

england Town and Country Planning Act of 1990

190

estonia Planning Act (2003)

206

germany Federal Building Code (1997)

211

lithuania Law on Territorial Planning (1995)

223

malta Special Development Areas Act (1956; and amended 1983) Administration of Lands Act (2002)

228 231

CONTENTS

vii

netherlands Spatial Planning Act (1999)

233

scotland Town and Country Planning (Scotland) Act 1997

237

slovakia Slovakia Act No. 237 (2000) Land Use Planning and Building Order Act (1976)

254 261

vi. latin america lands conquered by spain The Laws of the Indies, Spanish Decree of 1573

267

argentina Argentine Constitution (1994) General Environmental Law

273 274

City of Buenos Aires City Constitution (1996)

276

brazil Constitution of the Federative Republic of Brazil (1988) ´ No. 2.220 (2001) Medida Provisoria

278 281

Federal Law No. 10.257, “City Statute” of July 10, 2001 Brazil Decree No. 3,179 of September 21, 1999 Law No. 9605 of February 12, 1998

283 289 292

mexico Article 27 National Constitution (1917) General Law of Social Development (2004)

297 302

vii. north america united states Coastal Zone Management Act (1972; reauthorized and amended 1990) New York State Land Use Enabling Act [Town Law §§ 261, 262, 263, 272-a; Constitution art. IX §§ 1, 2, 3; Statute of Local Governments art. I § 2, art. II §§ 10, 11, 12; Municipal Home Rule Law art. II §§ 10(1)(a)(11), (12), (14)] New York State Coastal Erosion Hazard Areas Act (1981) Babylon, New York, Coastal Erosion Hazard Areas Ordinance (1989) New Hampshire State Land Use Enabling Act [Master Plan; Grant of Power; Innovative Land Use Controls] (1983–2004) Dover, New Hampshire, Overriding Districts Ordinance (1979–2004) Wisconsin’s Smart Growth Act (1999) River Falls, Wisconsin, Traditional Neighborhood Development Ordinance (2002)

307

324 332 340 347 353 359 364

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Washington State Growth Management Act (1990) Thurston County, Washington, Olympia Urban Growth Area Zoning Ordinance (1996)

CONTENTS

369 378

canada Crown Forest Sustainability Act (1994) Muskwa-Kechika Management Area Act (British Columbia) (1998) The Manitoba Sustainable Development Act (1994)

386 397 401

Oceans Act (1996) Ontario’s Sustainable Water and Sewage Systems Act (2002) Ontario Planning Act (1990)

407 413 417

Index

431

Acknowledgments

As editor, I have been ably assisted in the preparation of this volume – the first of its kind, we believe, on comparative land use law. Susan Moritz, the research consultant for the Land Use Law Center at Pace University School of Law, provided advice and assistance during the book’s gestation, helping particularly with materials needed for the editor’s Introduction and with the production of the sections on United States and international laws. Sarah Samp, a Pace University School of Law student, headed an energetic and able group of student researchers who dug deep to find land use laws from countries on every continent; she organized their efforts and directed the early stages of evaluating and abridging the laws they discovered. Three Pace Law School students carefully read and then wrote abstracts of the laws from Africa, Asia, Australia, Europe, Latin America, and Canada; Michelle Greenbaum, Sergio Spaziano, and Natalie Walker spent much of the summer of 2005 working with me to make the laws accessible and understandable. Juan Rodrigo Walsh, an Argentine environmental lawyer and author who held office in the environmental administration of the City of Buenos Aires, provided translations of portions of the Argentine Constitution and General Environmental Law. Nathalie Chalifour and her colleagues on the Faculty of Law at the University of Ottawa, Canada, contributed the Canadian laws contained in the North American section. Gabriella Pavon, who holds an LL.M. degree from Pace University School of Law, found provisions of the Mexican Constitution, translated them for us, and assisted Michelle Greenbaum in her translation of the Mexican Law of Social Development. Other Pace Law School students who contributed to this volume include Matthew Bennet, Jennifer Bria, Nicole Feit, Jody Frampton, Jason Insdorf, Jurgita Karobkaite, Nina Shapirshyeyn, and Sarah Wilson. I acknowledge the contribution of my colleague at Pace Law School Nicholas Robinson, chair of the International Union for the Conservation of Nature and Natural Resources (IUCN) Commission on Environmental Law, who coaxed me into this project, introduced me to his associates in the IUCN Academy of Environmental Law, and encouraged me in the early stages when it appeared that we would have very little to contribute. Through the members of the Academy, who responded to our call for documents, and the research efforts of our excellent students,

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ACKNOWLEDGMENTS

the material for this compendium slowly but steadily appeared. Special thanks go to Cambridge University Press and John Berger for their outstanding professional support. I am grateful to these many dedicated colleagues and students who made the production of these research materials and our commentary on them possible. John R. Nolon

Introduction

1. OVERVIEW

This compendium collects land use laws from countries on each continent that attempt to achieve sustainable development; it accompanies the publication of Comparative Land Use Laws: Achieving Sustainable Development, which contains the papers delivered at the Second Annual Colloquium of the Academy of International Environmental Law, sponsored by the International Union for the Conservation of Nature and Natural Resources (IUCN) and conducted in Nairobi, Kenya.1 These books provide evidence that laws and law reform are being used to create strategies that address a worldwide priority: the clear need to effectively use and preserve the land and its natural resources. The Johannesburg Declaration on Sustainable Development set the stage for these books:2 Thirty years ago, in Stockholm, we agreed on the urgent need to respond to the problem of environmental deterioration. Ten years ago, at the United Nations Conference on Environment and Development, held in Rio de Janeiro, we agreed that the protection of the environment and social and economic development are fundamental to sustainable development, based on the Rio Principles. To achieve such development, we adopted the global programme entitled Agenda 21 and the Rio Declaration on Environment and Development, to which we reaffirm our commitment. The Rio Conference was a significant milestone that set a new agenda for sustainable development. The global environment continues to suffer. Loss of biodiversity continues, fish stocks continue to be depleted, desertification claims more and more fertile land, the adverse effects of climate change are already evident, natural disasters are more frequent and more devastating, and developing countries more vulnerable, and air, water and marine pollution continue to rob millions of a decent life. We are determined to ensure that our rich diversity, which is our collective strength, will be used for constructive partnership for change and for the achievement of the common goal of sustainable development.

The Johannesburg Declaration on Sustainable Development was signed in 2002 and was a response to startling evidence that the long-term trends in land use demand world attention. 1

2

For a description of the relevance of land use law to environmental protection in the United States, see John Turner and Jason Rylander, “Land Use: The Forgotten Agenda,” in M. Chertow and D. Esty (eds.), Thinking Ecologically (Yale, 1997) at 61: “Land use is the forgotten agenda of the environmental movement. In the past twenty-five years, the nation’s many environmental laws addressed one problem at a time – air or water pollution, endangered species, waste disposal – and they have done it primarily through prohibitive policies that restrict private behavior. Although their achievements have been significant, such policies seem to offer diminishing returns. Environmental progress in the next generation will increasingly depend on stemming the environmental costs of current land use patterns.” Adopted at the seventeenth plenary meeting of the World Summit on Sustainable Development, September 4, 2002. U.N. Doc. A/CONF. 199/20 (2002).

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The United Nations’ Millennium Ecosystem Assessment (March 2005),3 for example, reports that

r the function of the world’s ecosystems changed more rapidly in the second half of the twentieth century than in previous recorded history; r more land was converted from its natural state to cultivation in the thirty years after 1950 than between 1700 and 1850;

r water withdrawals from rivers and lakes doubled since 1960; r the number of species is declining (up to 30 percent of mammal, bird, and amphibian species are currently threatened, particularly in freshwater ecosystems);

r some 1.1 billion people lack access to improved water supply; r more than 2.6 billion people lack access to improved sanitation; r since 1960, the ratio of water use to accessible supply has grown by 20 percent per decade; r approximately 1.7 million people die annually as a result of inadequate water, sanitation, and hygiene; and

r much of this adverse impact is the direct result of demands made by increasing global populations and the land development – urbanization – needed to serve them.4 In an effort to direct world leaders’ attention to solutions to these alarming facts, the Millennium Assessment points out that a number of institutional changes may have to be made. These include changes in institutional and environmental governance frameworks, addressing ecosystem management issues within broader development planning frameworks,5 increased coordination between environmental agreements and economic and social institutions,6 and increased transparency of government and private sector performance regarding policies that impact ecosystems, including greater involvement of concerned stakeholders in decision making.7 One remarkable positive trend that accords with these Millennial recommendations is the increased participation of municipal governments and their citizens in decision making regarding sustainable land use patterns. Because local governments operate at ground level, they are 3

4 5

6

7

Millennium Ecosystem Assessment, Ecosystems and Human Well-being: Synthesis (Island Press/World Resources Institute, 2005) [hereinafter MEA] available at: http://www.millenniumassessment.org/en/ Products.Synthesis.aspx. “Nearly all our present and future environmental concerns ultimately return to questions of land use.” John F. Richards (ed.), Land, Property, and the Environment (Institute for Contemporary Studies, 2002) at 1. “For example, the Poverty Reduction Strategies prepared by developing-country governments for the World Bank and other institutions strongly shape national development priorities, but in general these have not taken into account the importance of ecosystems to improving the basic human capabilities of the poorest.” MEA, supranote 3 at 20. “International agreements are indispensable for addressing ecosystem-related concerns that span national boundaries, but numerous obstacles weaken their current effectiveness. Steps are now being taken to increase the coordination among these mechanisms, and this could help to broaden the focus of the array of instruments. However, coordination is also needed between the multilateral environmental agreements and more politically powerful international institutions, such as economic and trade agreements, to ensure that they are not acting at cross-purposes. And implementation of these agreements needs to be coordinated among relevant institutions and sectors at the national level.” Id. “Laws, policies, institutions, and markets that have been shaped through public participation in decisionmaking are more likely to be effective and perceived as just. Stakeholder participation also contributes to the decision-making process because it allows a better understanding of impacts and vulnerability, the distribution of costs and benefits associated with trade-offs, and the identification of a broader range of response options that are available in a specific context. And stakeholder involvement and transparency of decision making can increase accountability and reduce corruption.” Id.

INTRODUCTION

both aware of and, often, motivated to rectify land use crises; their citizens are there to urge them into action. Their lack of capacity to deal effectively with such serious matters calls on provincial and national governments to help by providing technical assistance, data, financial resources, infrastructure, and development and conservation guidelines. Many of the laws in this compendium empower local governments to either act or show an awareness of their critical role in achieving sustainable development. The level of involvement of localities in sustainable development problem-solving has increased dramatically in recent years.8 In the laws collected in this volume, the reader can witness the evolution of national legal systems as they respond to the challenge of sustainable development. These laws range in aspiration, ambition, and complexity.

r Some of them simply initiate discussions to bring society to consensus that a formal strategy for proper land use is required. r Others are aspirational in nature; they establish goals and objectives that reflect some consensus as to what should be accomplished.

r Still others are framework laws. They put in place agencies and strategies intended to address problems, assigning roles to various levels of government and their agencies, and explain how the roles of the public and private sector are coordinated. r Other laws achieve success on the ground by providing economic incentives or establishing market-based mechanisms that change behaviors and improve land use practices.

r A final group of laws set land use standards and insist on compliance, employing penalties and other disincentives to achieve their goals. Describing land use laws in this way illuminates the great flexibility and power of the law as a vehicle for change. Laws such as those contained in this compendium are mechanisms competent to address society’s problems; they provide strategies that are appropriate to the culture and place of their origin. Some countries are not ready for command-and-control, standard-based legal regimes complemented with enforcement mechanisms. Each country that is ready to take action, however, can find appropriate legal strategies and fit them to its circumstances. The law provides them a ready solution, allowing lawmakers to, for example, conduct inventories of the land and its resources; create processes that promote dialogue and consensus; articulate that consensus in policy statements; identify and properly employ the relative competencies of various levels of governments and various sectors; create standards; and use incentives, markets, and law enforcement to accomplish them, or invent some combination of these. Many of the compendium’s laws were provided by the participants in the Second Annual Colloquium of the Academy of International Environmental Law, sponsored by the IUCN. At that forum, we issued a call for documents and many responded. Where they did not, students at Pace University School of Law filled the gaps, using their extraordinary research and Internet skills to comb the globe for evidence of legal strategies that respond to the Stockholm, Rio, and Johannesburg accords. This evidence of the world attempting to order itself in response to intense pressure on the land and its resources could not have been collected a decade, or, perhaps, even 8

Robert R. M. Verchick, “Lessons from the Johannesburg Summit,” Urban Lawyer, 25, no. 3 (2003): 471– 473: “. . . the initiatives of local government that followed the Rio summit make up ‘perhaps the single most important’ effort toward sustainable development. This assessment finds support in a 2001 survey showing that since Rio, 6,416 local authorities in 113 countries have become involved in so-called ‘Local Agenda 21’ activities. . . . The number of local authorities involved in such activities has more than tripled in the last five years.”

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five years, ago. Advances in technology, research, and communication made this volume, and the analysis of its contents, possible. The laws and materials presented in this compendium have been abridged and abstracted. To fit a large number of laws into a single volume, we had to cut material that was not essential to understanding what the law aspires to do and how it accomplishes its objectives. Where we could find sources for the full law, such as an Internet address, we have made that information available. We have not attempted to change the format or the language of the laws as we received them. Some of them were translated from their country’s native language and some of the translations are rough but readable. The gathered evidence and analysis of lawmaking in the interest of sustainable development found in this book are just a beginning. We have assembled pieces of a complex puzzle and present to the reader and researcher a floating opera like those performed on riverboats navigating up and down short stretches of the Mississippi River during frontier days in the United States.9 The audience on the river’s edge caught glimpses of the developing plot. They could not quite understand it all, but they knew that the action was dramatic and their appetite to learn more was whetted. We hold the same hope for this volume. 2. HISTORICAL REVIEW

Land use planning and regulation are not new on the world stage. In the early Roman period, around 450 b.c., a commission was formed to draft legislation regulating private behavior and public affairs. The result was the Twelve Tables, which include the following site planning provisions: “Whoever sets a hedge around his land shall not exceed the boundary; in the case of a wall, he shall leave one foot; in the case of a house, two feet . . . If a well, a path, an olive or fig tree, nine feet.”10 The Statute of Winchester (1285) contained transportation planning and road regulation requiring specific road widths and the absence of trees, bushes, and vegetation “whereby a man may lurk to do hurt. . . .”11 This same statute reflects an early instance of “cooperative federalism,” requiring the feudal lord to carry out the law’s demands, while giving the king prerogatives to assume duties neglected at the baronial level. Although scholars disagree about how precisely ancient Mayan cities were organized, they do not debate that they were planned and followed a prescribed pattern or arrangement designed to meet that ancient society’s needs.12 Many of the great cities founded in Latin America in the sixteenth century were developed following distinctly Spanish urban planning concepts. Under the Law of the Indies, decreed in 1572 by King Philip II, cities were laid out according to various guidelines that changed depending on the climate, geography, and characteristics of the place. Viceroys completed surveys akin to today’s environmental impact assessments and sent them to Spain, where planners determined which guidelines were to be followed in each location. The Spanish founded new towns – villas – based on models in Spain, with space for homes, public buildings, and croplands. In Mexico, common lands, or ejidos, were used for grazing, wood, fuel, and other community purposes. In Argentina, rural land holdings and development were shaped by the Spanish plantation, or hacienda, system of landholding. The location, design, infrastructure, and commercial functions served by Argentine cities such as Buenos Aires, ´ Mendoza, Cordoba, Santa Fe, Buenos Aires, Salta, Tucum´an, La Rioja, Jujuy, and San Luis (all 9 10 11 12

John Barth, The Floating Opera (Appleton Century Crofts, 1956; revised 1967). Richard Nice (ed.), Treasury of Law (Philosophical Library, 1964) at 71. The Statute of Winchester, 13 Edw. 1, Stat. 2 (1285). New York Times, Science Times, Dec. 19, 2000, at F1.

INTRODUCTION

created between 1536 and 1596) were determined by Spanish conquerors and bureaucrats who conducted land use planning and regulated how the land was developed. The tradition of building regulation in common law countries was catalyzed by a crisis: the catastrophic fire of London in 1666. The Act for the Rebuilding of the City of London13 regulated the materials of buildings to be raised in the devastated center of London, with violators penalized by fines and subject to demolition orders. That act allowed the use of one of four types of buildings, prevented the construction of “irregular buildings,” empowered the common council to create an official street map, regulated building heights along certain streets, and prohibited “noisome trades” from locating in certain areas. At the time of the formation of the American colonies, colonial charter companies and towns allocated private ownership of land to each founding family.14 These grants were often subject to land use restrictions, such as requiring buildings to be perpendicular to the street and not to exceed 35 feet in height. In this early period, land uses were regulated more by conditions imposed on the land titles conveyed by colonial authorities than by governmental regulation. Lands granted to founding families were eventually subdivided by inheritance and transfer, creating lots for private use: agricultural, commercial, and residential. Colonial settlements evolved into cities, townships, and counties that eventually achieved governmental status and the power to legislate. These municipalities were regarded not as sovereign entities but as creatures of the state, authorized by state law to exercise a wide variety of powers affecting the health, safety, and welfare of their citizens. Most were deemed to have only those powers delegated by their state legislatures, and those additional powers fairly implied in that delegation. As early as 1787, the City of New York was granted power to enact laws directing private landowners to arrange buildings uniformly in certain neighborhoods. An early land use planning act of the New York legislature, dated 1807, established a commission to lay out streets in the developing portions of New York City and to condemn title to land within established streets, to demolish buildings located on planned streets, and to compensate owners for the resulting damages.15 In 1784, the Connecticut assembly had granted some cities authority to adopt laws regulating the placement and construction of private buildings. Similar laws were adopted in Virginia and Georgia at about the same time. By the end of the eighteenth century, postcolonial landowners had grown accustomed to governmental regulation of building on the land in the interests of public health, safety, and even aesthetics.16 In the nineteenth and twentieth centuries, many Commonwealth countries and European nations adopted land use planning models that coordinated land use planning and regulation, particularly in cities. References to these efforts are found in the section on urban planning below. Early German law was highly protective of individual property rights. The Prussian Land Law of 1794 liberally authorized all property owners to build upon their property or alter any buildings they owned. In 1871, the law added setback requirements, and in 1876 building in certain undeveloped areas was limited.17 Illustrative of more modern approaches to land use control and environmental protection is Australia’s 1991 Land Act. It establishes a nationwide system of planning and development regulation that focuses on both development and environmental 13 14 15 16 17

19 Car. 2, c.3 (1666). See, generally, John F. Hart, “Land Use Law in the Early Republic and the Original Meaning of the Takings Clause,” Zoning and Planning Law Handbook (2000), Chapter 3; reprinted from 94 Nw. U. L. Rev. 1099. “An Act Relative to Improvements, Touching the Laying Out of Streets and Roads in the City of New York, and for Other Purposes,” N.Y. Laws, c. 115 (1807). Id. Clifford Larsen, “What Should be the Leading Principles of Land Use Planning? German Perspective,” Vanderbilt Journal of Transnational Law 967 (1996) at 975.

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values, including the preservation of cultural heritage and requiring environmental assessments in advance of development. The modern era of lawmaking to achieve sustainable development centers on the United Nations Conference on Environment and Development (UNCED) in 1992. One hundred seventy-two nations met that year in Rio de Janeiro, Brazil, for the Earth Summit, which was attended by nearly 100 heads of state. All the participating nations endorsed the Rio Declaration on Environment and Development and adopted Agenda 21, a 300-page plan for achieving sustainable development in the twenty-first century.18 The core of the declaration, and its twenty-seven principles, is a commitment to economic efficiency, environmental protection, and equity, the three pillars of sustainability. It contains an entitlement running to present and future populations: “Human beings . . . are entitled to a healthy and productive life in harmony with nature.”19 The Rio Declaration is a study of connectivity: the importance of concentrating on all relevant aspects of sustainable development in making policies and adopting laws that implement them. Principles 3 and 4 of the Declaration demonstrate this imperative: Principle 3: The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. Principle 4: In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

The eradication of poverty is an indispensable ingredient of sustainable development.20 Environmental issues are to be addressed with the participation of concerned citizens who must have an opportunity to participate in the decision-making process and have full information on relevant matters that shall be broadly available. Effective access to judicial and administrative proceedings shall be provided.21 The Declaration recognizes the central place of law in achieving its aspirations. Constitutions and statutes create rights and policies, such as those articulated in the twenty-seven principles. The declaration refers to conforming national policies to “international consensus,” which is given effect by international laws: conventions and treaties. It refers to the creation and enforcement of environmental and development standards that, to be effective, must be found in law. It is the law enacted by national, state, and local governments that creates administrative and judicial processes, establishes access to them, and requires information to be available. Agenda 21 is even more explicit on the topic: “Laws and regulations suited to country-specific conditions are among the most important instruments for transforming environment and development policies into action.”22 It is in Agenda 21, the report of the UN Commission on Environment and Development, that the relevance of land use law to achieving sustainable development is dramatically set forth. Agenda 21 is analogous to a comprehensive plan for the planet of the type adopted by nations, states, and local governments: a plan that defines where the community has come from, where it wishes to go, its demographic trends, how and where new populations will be settled and how they will be housed, new infrastructure and services needed (such as schools, parks, roads, water and sewer systems, and public buildings), and valuable natural and cultural resources that 18 19 20 21 22

Report of the United Nations Conference on Environment and Development, U.N. GAOR, 46th Sess., Annex II, Agenda Item 21, U.N. Doc. A/CONF. 151/26 (1992). Rio Declaration, Principle 1. Id., Principle 5. Id., Principle 11. Agenda 21, supranote 18, §8.13.

INTRODUCTION

must be preserved. The functions of the UN and its affiliated institutions that provide technical assistance and financial assistance are similar, on the global scale, to the roles played by national and state governments in establishing priorities, articulating policies, involving stakeholders, defining their roles, and making resources available that are sufficient to realize the objectives of the comprehensive plan. Agenda 21 establishes land use goals: encouraging sustainable human settlements and integrating environmental considerations into development decisions. Urban and regional planning and regulation are at the core of land use law and are the means by which governments influence the private sector to create human settlements. If current settlement patterns are not sustainable, law reform is called for. The sine qua non of land use regulation is to determine where development should go, how much of it – and what type of it – is needed, what interests should be served by it, and how affordable and environmentally friendly it should be. Land use regulations empower land use agencies to review development proposals and to approve them if they meet established standards such as energy conservation and site planning that ameliorate environmental damage on site, next door, down river, and to the landscape. Agenda 21 is replete with references to matters attainable through land use planning and regulations. Section 7.5 refers to the provision of adequate shelter for all; promoting sustainable land use planning and management; promoting water, sanitation, drainage, and solid waste management; and ensuring sustainable construction industry activities. Section 7.3 contains a planning strategy; it adopts the “enabling approach” through which governmental resources (money, data, and technical assistance) are used to influence private behavior and leverage private investment. Section 7.18 posits that “intermediate cities” should be encouraged in rural areas as a means of relieving the devastating pressures of migration to megacities. The objective of section 7.28 is “to provide for the land requirements of human settlement development through environmentally sound physical planning and land use so as to ensure access to land to all households.” Section 7.68 aims to ensure that the construction industry builds and locates buildings so that they avoid “harmful side-effects on human health and on the biosphere.” Evidence that the Rio accords (the Declaration and Agenda 21) are affecting lawmaking in other countries is found throughout this compendium. A constitutional amendment in Argentina in 1994, two years after the UN Conference on Environment and Development in Rio, recognizes the right of all citizens “to a healthy, balanced environment fit for human development and for productive activities which can satisfy present needs without compromising those of future generations.”23 The Law of Social Development adopted by the Mexican Congress in 2004 covers most of the bases of sustainable development. It is an aspirational law, containing ambitious and comprehensive goals: promoting respect for natural resources, encouraging economic growth, addressing poverty through the distribution of resources, and creating educational and job opportunities. A quick glance at the table of contents of this volume reveals that many of the laws included were adopted after the Rio accords in 1992. While the framers of the Rio Declaration and Agenda 21 built a three-legged stool (supported by equity, environmental quality, and economic efficiency), many of the laws contained in this compendium are works in progress, reflections that conditions are not yet ripe to fully comply with the vision. For example, where water shortages are extreme, a constitutional commitment to ensure adequate water supplies for all in the present generation – resting on the equity principle – can be understood as a needed response to a reigning crisis. It is good to regard it, however, as part of the sustainable development agenda – a reminder that there is more to be done. 23

Const. Arg. Pt. I, art. 41.

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INTRODUCTION 3. “URBAN” PLANNING: SHAPING LAND USE PATTERNS

Many nations have adopted legal regimes for the purpose of creating and implementing city, town, and regional planning. Master plans, sometimes called comprehensive plans, can be local or regional in scope, consistent with or ignorant of regional plans and needs, and concern themselves with a truly impressive list of critical subjects that affect the public’s well-being and private property rights: City planning is a science and an art concerned primarily with the city’s ever-changing pattern. As a pure science it examines causes (history, etiology) and reciprocal influences of man and environment, (urban geography and ecology). As applied science it synthesizes these findings with those of the economic, sociological, and political sciences, as well as the technological branches of statistics, civil and sanitary engineering, architecture, landscape architecture and other pertinent branches of human knowledge, in an attempt thoroughly to understand conditions and their contexts and trends. As an art it utilizes these materials, instructs or organizes citizens, molds events, and thwarts or guides trends to bring about the changes in city design which it contemplates.24

“City planning,” of course, is a misnomer. Land use planning laws and policies must concern themselves with the entire landscape comprising urban, suburban, exurban, and rural areas. What emerged as a body of law focused on human settlements in urban places has become the “law of the land” more comprehensively. From a global perspective, in fact, “land use planning” now reaches to include “ocean planning”; the relationship between land-based activities and the health of marine environments is clearly understood and must be similarly linked in law. This point is easily illustrated. The UN Convention on the Law of the Sea has been ratified by one hundred forty-seven nations. In describing the need for this global convention to protect oceans, the UN points to the concerns of scientists that “the ocean’s regenerative capacity will be overwhelmed by the amount of pollution it is subjected to by man.”25 The UN also notes that signs of catastrophic effects on oceans and marine life are clearly observable, particularly along heavily populated coasts. One of the major sources of pollution is, of course, land-based activities. The convention obliges signatory nations to protect the marine environment. Coastal nations are “empowered to enforce their national standards and anti-pollution measures within their territorial sea.”26 The UN describes this convention as “possibly the most significant legal instrument of this century.” It declares that states have an obligation to protect the marine environment and calls on them to take all measures necessary to prevent marine pollution from any source. This, of course, requires states to adopt legislation to prevent the type of land-based pollution that can be so harmful to the marine environment, a process that implicates federal, state, and local law. The convention assumes that national governments have legal power to regulate land-based activities in coastal states. Legal competence regarding environmental and land use matters generally is assumed by other critical international agreements as well.27 As a result the land use planning 24 25

26 27

James Ford, Slums and Housing (Harvard, 1936) at 490. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1261 (entered into force Nov. 16, 1994), available at: http://www.un.org/Depts/los/index.htm; see also Oceans and Law of the Seas, Division for Ocean Affairs and the Law of the Sea, The United Nations Convention on the Law of the Sea (a Historical Perspective), available at: http://www.un.org/Depts/los/convention agreements/ convention historical perspective.htm#Setting%20Limits. Oceans and Law of the Sea, supranote 25. Agenda 21, supranote 18: “Preamble: Humanity stands at a defining moment in history. We are confronted with . . . the continuing deterioration of the ecosystems on which we depend for our well being. However,

INTRODUCTION

regimes of nations, states, and municipal governments must be concerned with and collectively competent to control the use of all the planet’s resources: land, water, and air. 1. Brazil

Under Brazil’s Federal Constitution, the basis for urban development is the master plan. Master plans must be adopted by cities with populations greater than 20,000 and are optional for smaller cities.28 The Constitution contains a novel requirement that urban property must serve a social function, which means that it is used as provided for in the city’s master plan.29 The Constitution enables cities to compel the appropriate use of underused property through mechanisms such as compulsory subdivision, increased property taxes, and expropriation.30 The federal statute that sets out the guiding principles of Brazil’s national urban policy – the Statute of the City31 – was enacted in 2001 to carry out the provisions of Articles 182 and 183 of the Federal Constitution.32 These articles put the formulation of urban policy squarely in the hands of municipalities and create a nexus between the proper “social” function of property and the municipal master plan. The statute’s goal is to regulate the use of urban property for the good of the community, to protect the safety and well-being of the citizens, and to achieve environmental equilibrium.33 The statute’s guiding principles for national urban policy34 include the following:

r A citizen’s right to sustainable cities;35 r Public participation in the discussion and execution of plans, programs, and projects of urban development;36

r City planning conducted to prevent distortions in urban growth and negative impacts on the environment;37

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32 33 34 35 36 37

integration of environment and development concerns and greater attention to them will lead to the fulfillment of basic needs, improved living standards for all, better protected and managed ecosystems and a safer, more prosperous future. No nation can achieve this on its own; but together we can – in a global partnership for sustainable development.” C.F. art. 182. para. 1: “The master plan, approved by the City Council, which is compulsory for cities of over twenty thousand inhabitants, is the basic tool of the urban development and expansion policy.” The full text of the Brazilian Constitution is available, in English translation at http://www.oefre. unibe.ch/law/icl/br00000 .html. “Urban property performs its social function when it meets the fundamental requirements for the ordainment of the city as set forth in the master plan.” Id. art. 182, para. 2. See also C.F. art. 5: “XXII. the right to own property is guaranteed; XXIII. ownership of property shall attend to its social function.” Id. art. 182, para. 4: “The Municipal Government may, by means of a specific law, in relation to areas included in the master plan, demand, according to federal law, that the owner of unbuilt, underused, or unused urban soil provide for adequate use thereof, subject, successively, to: I. compulsory subdivision or construction; II. rates of urban property and land tax that are progressive in time; III. expropriation with payment in public debt bonds issued with the prior approval of the Federal Senate, redeemable within up to ten years, in equal and successive annual installments, ensuring the real value of the compensation and legal interest.” Law 10,257 of July 10, 2001 [hereinafter Statute of the City]. See UN-HABITAT, The Statute of the City: New Tools for Assuring the Right to the City in Brazil (2002), available at: http://www.polis.org.br/ obras/arquivo l63.pdf. Statute of the City, supranote 31, art. 1. Id. Id. art. 2, I to XVI. Id. art. 2, I. Id. art. 2, II. Id. art. 2, IV.

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r Protection, preservation, and remediation of the natural and built environment;38 and r Participation of municipalities and the public in making decisions about development or activities with potential negative impacts on the natural and built environment.39 2. China

The Environmental Protection Law of China, Chapter III, provides that “the targets and tasks for protecting and improving the environment shall be defined in urban planning.” The chapter requires that all levels of government establish measures to protect “regions representing various types of natural ecological systems, regions with a natural distribution of rare and endangered wild animals and plants, regions where major sources of water are conserved, geological structures of major scientific and cultural value,. . . . Damage to the above shall be strictly forbidden.” Planning in rural areas is provided for by this language: “The people’s governments at various levels shall provide better protection for the agricultural environment by preventing and controlling soil pollution, the desertification and alkalization of land, the impoverishment of soil, the deterioration of land into marshes, earth subsidence, the damage of vegetation, soil erosion, the drying up of sources of water, the extinction of species and the occurrence and development of other ecological imbalances, . . .” 3. Europe

In Europe, Sweden enacted an early comprehensive town planning law in 1874 that provided for some land use planning in all of its towns and cities.40 In Germany, there is a strong tradition of comprehensive planning, directed from the top down, with plans at the state, regional, and local level, and with a tradition of self-government where local authorities adopt plans and zoning to control growth around preserved historic centers, with open space retained at the periphery. Early French city planning, which emphasized infrastructure development, particularly transportation planning, was conducted primarily at the national level until 1982, when the French parliament adopted a law that transferred significant land use planning and project approval authority to the country’s more than 35,000 municipalities.41 Although there are at least four distinct traditions in Europe – Germanic, Napoleonic, Scandinavian, and Eastern European42 – environmental standards and laws have become more homogeneous under the Single European Act, 1987, and the 1993 Treaty on European Union, Article 130.43 The European Union’s European Spatial Development Perspective (ESDP) issued in 1999 is a voluntary strategic plan that guides national, regional, and local authorities in the EU regarding economic development, transportation, and cultural and natural heritage issues. Legal authority and regulatory power remain with the national governments participating in the EU. 38 39 40 41 42 43

Id. art. 2, XII. Id. art. 2, XIII. See, generally, Patrick Abercrombie, “International Contributions to the Study of Town Planning and City Organization,” Town Planning Review 4, no. 2 (July 1913): 98–117. Nicholas N. Patricios (ed.), International Handbook on Land Use Planning (Greenwood, 1986) at 283–294. Peter Newman and Andy Thornley, Urban Planning in Europe: International Competition, National Systems and Planning Projects (Routledge, 1996). Thomas H. Reynolds and Aururo A. Flores, Foreign Law, Current Sources of Codes and Legislation in Jurisdictions of the World (William S. Hein, 1991); see also Gerd Winter; European Environmental Law, A Comparative Perspective (Dartmouth, 1996).

INTRODUCTION 4. Germany

When the Federal Republic of Germany was founded in 1949, there was no national understanding of the role of government in land use planning. The new constitution of the republic included a commitment to achieving “equivalent living conditions” throughout the country that required some national scheme for land use planning.44 A federal law adopted in 1960 established procedures for adopting local building and zoning laws. In 1965, a much broader land use planning law was adopted that created a framework for ordering the roles and influences of the national, state, and local governments in land use planning and regulation. The German Constitution gives the federal government certain areas of exclusive jurisdiction and establishes other areas where it enjoys concurrent jurisdiction with the states. Land use planning falls in this latter category. The federal framework law for land use planning allows the federal government to establish national standards and then requires states to adopt more detailed legislation implementing the national policies. The national law applies to all parts of the German Republic; targets economic, infrastructure, social, and cultural needs; and pursues the principles of environmental protection and equivalent living conditions for all people in the country. The law establishes a highly integrated process that coordinates federal, state, and local ministries; informs their respective planning processes; and requires land use activities to consider and respect conditions in neighboring jurisdictions. Under this system, states must adopt land use plans that respect federal interests and identify specific areas where equivalent living conditions are not being maintained, including urban areas where environmental pollution, inadequate transportation, and problems of population concentration are improperly controlled. States are to identify planning regions and prepare regional plans. At the federal level, a system of central cities is created and towns and cities are typed based on the level of development that is to be concentrated in each category. These designations guide federal and state land use, environmental, and infrastructure planning. 5. Mexico

Mexican lawmakers and the nation’s executive have recently made a strong commitment to sustainable development in a country whose abundant resources are threatened on a variety of fronts, most notably by the migration of rural poor to metropolitan areas. Paragraph 3 of Article 27 of the Mexican Constitution grants Congress the power to adopt provisions for the development of human settlements and planning the growth of population centers.45 The national administration adopted a plan committing the government to sustainable development while noting that “environmental protection and sustainable use of natural resources represent a social mandate and a government commitment. Likewise, sustainable development is a task that, besides government action, requires the commitment of all sectors of society.”46 The National Development Plan emphasizes the importance of developing an integrated legal framework, promoting democratic processes of sustainable development and developing efficient governmental entities and strategies.47 Among these strategies is the creation of an adequate land use plan that promotes social inclusivity, a sustainable environment, and economic efficiency.48 A recently adopted national 44 45 46 47 48

For authority regarding German land use planning law, see Larsen, supranote 17, at 981–1002. Mex. Const., art. 27, para. 3. semarnat, National Program of Environmental and Natural Resources 2001–2006 (2001) (statement of President Vicente Fox). Id. National Development Plan of 2001–2006, Diario Oficial de la Federacion [D.O.] May 30, 2001, §5.3.4–5.3.5 (promoting and developing a general policy where all people are included through

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statute, the Social Development Act, declares that Mexican citizens have a right to a healthy environment and focuses on parallel goals of improving social development and biodiversity protection.49 6. United Kingdom and the Commonwealth

In England and Wales, a piecemeal process of town and country planning was enacted into law in 1909 and became more comprehensive and compulsory following the Second World War.50 Under the 1947 Town and Country Planning Act, Parliament delegated planning authority to local governments with responsibility to control all land development, prepare a development plan for their jurisdictions, and establish redevelopment strategies for war-ravaged neighborhoods. The central government, under this act, retained the power to formally approve local development plans, following a public inquiry. A centralized process is established for hearing grievances regarding local development decisions. British urban planning and redevelopment law affected national laws throughout the colonial world, including countries in Asia, Africa, and the Caribbean. The first notable influence was the Housing for the Working Classes Act of 1890, which influenced land use controls in Asia and Africa. Under this program, public entities were created by the state government to conduct planning at the municipal level. In India at the beginning of the twentieth century, laws based on the 1909 British town and country planning act were adopted. Town planning, following the British model, came to Africa as early as 1929 with the adoption of the Lagos Town Planning Ordinance, under which control was centralized rather than distributed to municipally elected authorities. In its earliest manifestations, planning bore the stamp of colonial control and helped create and perpetuate racial and social segregation. Following the adoption of the Town and Country Planning Act in Britain in 1947, Britain’s Colonial Office developed a model planning act, based in part on an ordinance adopted in 1938 in Trinidad and Tobago, which influenced the adoption of land use and planning laws in Africa and the Caribbean. The model was adjusted to the particular needs of each country and region. Much of this effort, in the middle of the last century, was aimed at eradicating bad housing conditions through slum clearance and urban redevelopment. By the early 1960s, in many postcolonial countries in Africa, the Caribbean, and South East Asia, the pattern of urban planning developed in Britain became part of the general development and modernization strategy.51 In recent years, the British model has been criticized as being authoritarian, socially divisive, and difficult to administer in developing countries. While its influences remain, land use laws in developing countries that are former commonwealth countries are becoming more diverse and influenced by indigenous ideas regarding the organization of development in cities and the landscapes beyond. The British approach itself in recent years has become more open and democratic, with significant participation and decision making exercised at the local, even neighborhood, level.52 The experience in countries influenced so heavily by British approaches, of course, is highly varied and idiosyncratic.

49 50 51 52

comprehensive development and public participation), available at: http://pnd.presidencia.gob.mx/index. php?idseccion=42. Ley General de Desarrollo Social [L.G.D.S.], D.O. Jan. 20, 2004. U.K. Government Planning Portal at: http://www.planningportal.gov.uk. See generally Patrick McAuslan, Bringing the Law Back In (Ashgate, 2003) at 84–105. U.K. Government Planning Portal (“Existing town and country planning legislation was consolidated into three Acts: the Town and Country Planning Act, 1990; the Planning (Listed Buildings and Conservations Areas) Act, 1999; and the Planning (Hazardous Substances) Act, 1990”), available at: http://www.planningportal.gov.uk/wales/government/en/l105619050598.html.

INTRODUCTION 4. HUMAN SETTLEMENTS, DECENT HOUSING, AND SLUM ERADICATION

The work and deliberations of the UN Commission on Human Settlements and the UN’s two global conferences on world settlements provide a useful complement and contrast to the topic of town and country, or land use, planning. Since the Conference on Human Settlements in Vancouver, Canada, in 1976 – Habitat I – the conditions of human settlements in metropolitan areas globally, particularly for the poor, have worsened significantly. Concerns regarding slums and inadequate housing in large metropolitan areas led to the Second United Nations Conference on Human Settlements – Habitat II – held in 1996 in Istanbul, Turkey. The conditions in slums are health threatening: slums are communities without basic services such as piped water, sanitation, or health care. According to the Global Report on Human Settlements – The Challenge of Slums – the total number of people living in slums in 2003 was 928 million, and growing. By the end of this decade, more than 50 percent of the world’s population will live in urban areas, reflecting a steady migration from rural to metropolitan areas over the last century. A dramatic example of this trend is evidenced in Mumbai, India, where more than half of the population lives in slums and 80 percent of the slum dwellers live in houses smaller than 100 square feet.53 Worldwide, many urban dwellers live in absolute poverty: estimates run as high as 1 billion.54 Recent demographic trends indicate that 94 percent of the world’s total population growth will occur in developing countries and that 86 percent of this growth will occur in urban areas. The production of 39,000 additional housing units daily, mainly in metropolitan areas, will be required to accommodate the projected population growth of developing countries.55 Laws and planning strategies that deal with urban slums and shelter for the poor and near-poor are a critical and distinct element of town and country planning. The focus here is on individuals in need of shelter, the neighborhoods they inhabit, and their need for services and jobs. Notable problems confronted by public bodies working on these problems are illegal housing possessed by squatters and the isolation and marginalization of slum residents from mainstream urban populations. Since the General Assembly’s adoption in 1988 of the Global Strategy for Shelter to the Year 2000, the strategy of choice regarding the provision of shelter is to use public policy and resources to facilitate or enable nonpublic actors, particularly the private sector, to solve the world’s worsening shelter problems. This contrasts with the more interventionist approach witnessed in some traditions of urban planning that emphasizes detailed public plans, public ownership of infrastructure and protected open space, and extensive regulation of privately owned land in developing and redevelopment areas.56 The Istanbul Declaration on Human Settlements (Habitat II, 1996) responds to the continuing deterioration of conditions of shelter and human settlements by announcing “a new era of cooperation” and offering a “positive vision of sustainable human settlements.”57 The global problems it addresses are unsustainable population change, excessive population concentration, 53 54

55 56 57

Vinit Mukhija, Squatters as Developers?: Slum Demolition and Redevelopment in Mumbai, India (Ashgate, 2003) at 23. UN-HABITAT, “Cities Without Slums,” World Urban Forum (2002) HSP/WUF/1/DLG.I/Paper 4 (Mar. 18, 2002), available at: http://hq.unhabitat.org/cdrom/unhabitat cdrom/html/documents/ dlg1paper4.pdf. Id. Preamble, The Habitat Agenda and Istanbul Declaration U.N. Doc. A/CONF.165/PC.3/4 (June 3–14, 1996), available at: http/www.undp.org/un/habitat/agenda/ist-dec.html. Istanbul Declaration on Human Settlements §15. The Istanbul Declaration endorses “the universal goals of ensuring adequate shelter for all and making human settlements safer, healthier and more livable, equitable, sustainable, and productive” (§1).

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homelessness, a lack of basic infrastructure and services, and a lack of planning. It tackles two issues: the need for adequate shelter for all and sustainable human settlements in an urbanizing world.58 The Declaration affirms the “progressive realization of the right to adequate housing” and seeks to ensure “legal security of tenure.”59 The Istanbul Declaration, consistent with the Rio Declaration of 1992, emphasizes connectivity: the interdependence of rural and urban development; the need for a network of settlements; the participation of all public, private, and nongovernmental stakeholders in decision making; and the need to involve all levels of government in the resolution of settlement problems. To be effective, these human settlement principles and strategies will have to influence urban planning itself. The accommodation of new housing, slum eradication, neighborhood revitalization, and urban redevelopment are central to the traditions of town and country planning. Land use regulation’s focus is on the proper location and accommodation of new residential and job development. Effective human settlement strategies – including the provision of water and sewerage facilities, transportation, and the redevelopment of deteriorated areas – are the day-to-day currencies of the planning field and the concerns of planning and zoning law. In Mexico in 2003 the Secretariat of Social Development initiated Program Habitat, focused on the neediest populations in the nation’s urban centers. Program Habitat in Mexico encourages the establishment of land use plans and the protection of the natural environment; it aspires to improve housing conditions, combat poverty, and revitalize neighborhoods.60 In the United Kingdom, the Office for National Statistics estimates that there is a need for 4.3 million new homes by 2021. The nation’s housing stock is aging, the size of household is decreasing, and the population is increasing and living longer. The Sustainable Communities Plan issued by the Deputy Prime Minister in 2003 follows a policy that assists the private market to address housing market failures in the north of England and development pressures in growing areas, such as London itself. The government plans to invest US$40 billion in this effort over several years, concentrating on the provision of physical infrastructure, transportation, land acquisition, and public services. The program supports three types of projects: those in central cities, the repair of postwar new towns, and the expansion of urban areas in and surrounding existing towns. The essential land use strategy here is one of defining priority growth districts and leveraging public investments to induce private sector intervention.61 5. GOVERNMENTAL ORGANIZATION AND CONSTITUTIONAL FRAMEWORK

The proper development and conservation of land, both privately and publicly held, requires great coordination among levels of government, the private and public sectors, and even nations themselves. The use and preservation of natural resources, the process of urbanization, and the economics and environmental impacts of land use involve federal, state, and local interests and deeply affect private landownership, wealth, and economics. The structure of governments and public polices affecting land ownership are generally created when a nation’s constitution is first framed or restructured over time. Quite often, governmental systems and policies were established to deal with issues markedly different from those presented by the emerging world’s crisis in 58 59 60 61

Istanbul Declaration §1. Id. §8. Subsecretaria de Desarrollo y Ordenacion del Territorio, available at: http://www.sedesol.gob.mx/ subsecretarias/desarrollourbano/programahabitat.htm. Bill Hanway, “Sense of Place in the U.K.,” Urban Land, August 2004, at 66–71.

INTRODUCTION

sustainable development. Without adjusting these institutional arrangements and individual expectations, little progress can be made. In the words of Agenda 21, “An adjustment or even a fundamental reshaping of decisionmaking . . . may be necessary if environment and development is to be put at the centre of economic and political decision-making, in effect achieving a full integration of these factors.”62 The objectives tied to this goal are to allow the full integration of environmental and developmental issues at all levels of decision making; to facilitate the involvement of concerned individuals, groups, and organizations in decision making at all levels; and to establish domestically determined procedures to integrate environment and development issues in decision making.63 In recent years, a number of notions about governmental organization have been articulated that respond to and refine these aspirations. One is that all levels of government should be involved in a collaborative enterprise, with each contributing and controlling according to its particular interests and competencies. Another is that the full participation of all interested stakeholders is necessary to achieve success, for the system to respond to all interests and to earn the confidence it needs to succeed as elections are held or governments abruptly change. A third is that governmental policy setting and regulation should be transparent, open, and incorruptible. The specifics here include open meetings laws, public hearing requirements, availability of public information to the public, citizen participation requirements, opportunities to be heard, and the right of those aggrieved by decisions to seek judicial or other remedies. By observing how lawmakers amend their systems, share power, open up decision making, and delegate responsibility, it is possible to observe the process of reorganization so that effective regimes can be created. 1. Citizen Participation

Evidence that lawmakers are taking these principles into account in drafting laws affecting sustainable development is found throughout this compendium and elsewhere. Regarding progressive reforms to involve citizens in planning and policy formulation, this list illustrates what is being done:

r The South Australia Development Act of 1993 requires planning and regulation of development throughout the state and establishes several advisory committees to assist the state authority: a development policy advisory committee, a development assessment commission, and a major developments panel. The law contains specific membership requirements and duties for these panels to perform. r The Manitoba Sustainable Development Act not only provides for the creation of an advisory board but also funds that body to ensure that it can effectively perform its advisory function.

r Argentina’s General Environmental Law recognizes the right of citizens to have access to environmental information and establishes an obligation to develop a national integrated system of information.64 62 63

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Agenda 21, supranote 18, §8.2. Id. §8.3. See also Rio Declaration, supranote 18, Principle 10: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” Law No. 25.675, Nov. 27, 2002, Art. 17.

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r The Argentine Constitution (Const. Art. Pt. I, art. 43) grants broad power to all affected parties to file judicial appeals to defend the collective right to a healthy environment. r Under the Czechoslovak Act on Land Use Planning and Construction Rules (No. 50/1976) (amended by Act No. 262/1992), neighbors, private individuals, concerned administrative authorities, and businesses affected by proposed governmental land use decisions are given the right to submit comments and participate in hearings conducted on land use approvals and decisions such as land-use plans, locational decisions, construction permits, and construction approvals.

r The Lithuania Law on Territorial Planning provides for the creation of a territorial planning data bank and for public access to all planning data and proposals. It requires public notice and public meetings prior to the adoption of any planning proposals and guarantees the right of administrative and judicial appeal. There are strong provisions for review and enforcement and mechanisms for resolving disputes. r The Village Land Act of Tanzania provides for the establishment of an elders council to act as the village land council, the creation of a village advisory committee, and the use of mediation of disputes between parties. The act refers to “land sharing arrangements between pastoralists and agriculturalists,” and villages are authorized to enter into joint land use agreements with any other village council concerning the use of land by one or more groups. Information regarding programs created to implement the provisions of the act must be provided throughout the nation and translated into native languages. The act secures land rights that promote women’s economic empowerment; it grants Tanzanian women the right to acquire title to land and to register their titles. The act also promotes women’s representation in land use decision-making bodies. 2. Constitutional Rights

The first principle of the Rio Declaration is that “human beings . . . are entitled to a healthy and productive life in harmony with nature.” Perhaps the most obvious evidence that the legal system is in alignment with the principles of sustainable development is when they appear in the national constitution or in key policy documents. Article 24 of the African Charter on the Rights of Man and Peoples (1981) states that “[a]ll peoples shall have the right to a general satisfactory environment favorable to their development.”65 Chapter 2 of the Constitution of South Africa tracks both this African Charter and the Rio Declaration. It states that [e]veryone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

According to the List of Fundamental Rights and Freedoms of the Czech Constitution, citizens have a right to live in an environment favorable to health and well-being. The Hungarian Constitution of 1949 recognizes the right of all citizens to a healthy environment. The government of Lithuania and its citizens are obligated to protect the environment under Article 53 of the 1992 Constitution; Article 54 prohibits the destruction and depletion of the land, forests, and wildlife, as well as the pollution of water and air. Article 21 of the Constitution of the Netherlands states 65

Organization of African Unity: Banjul Charter on Human and Peoples’ Rights, CAB/Leg/6713/Rev, 5 (Jan. 7–19, 1981), 21 I.L.M. 59, 63 (1982).

INTRODUCTION

that it is the responsibility of the public authorities to ensure the habitable nature of the land and to protect and improve the environment. 3. Involvement of Municipal Government

The Istanbul Declaration clearly recognizes and trumpets the importance of local governments: towns, cities, and villages. They are “our closest partners,” who are the most democratic and provide the most effective approach to appropriate human settlements. It recognizes the need to strengthen municipal financial and institutional capacities.66 According to the 2002 World Urban Forum report, this process is slow to develop: The most important difficulty in the decentralization process is the limitations of transfer of authority. Legal and administrative frameworks should promote autonomy over the acquisition and expenditure of public revenues. On the other hand, lack of participatory planning processes, limitations in the capacity of civil society organizations and modalities to involve the most vulnerable groups in decisionmaking appear as factors at the local level hindering the effectiveness of decentralization.67

Evidence of municipal involvement in making land use decisions is found in the Lithuanian Law on Fundamentals of Local Government (1990), which establishes the competence of districts and towns within the national land use planning system. In Hungary, under Act No. iii (1964) on Housing and Construction, as amended in 1993, the central government prepares regional land use plans and municipalities prepare local plans. The South African Constitution contains a blueprint for local government engagement in a national system of government regarding land use management. It states that municipal governments must be established for the whole of the territory of the republic, each of which has the right to govern regarding its own affairs, subject to national and provincial legislation. Among the constitutional objects of local government are “to promote social and economic development; to promote a safe and healthy environment; and to encourage the involvement of communities and community organisations in the matters of local government.” Finally, the constitution provides that the national government and provincial governments, “by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.” Under Article 9 of the Environmental Protection Law of the People’s Republic of China, “[t]he people’s governments of provinces, autonomous regions and municipalities directly under the Central Government may establish their local standards for environment quality for items not specified in the national standards for environment quality and shall report them to the competent department of environmental protection administration under the State Council for the record.” 4. Restructuring of Institutional Arrangements and Decision Making Argentina

The Constitution of Argentina, Article 41, after recognizing its citizens’ right to enjoy a healthy environment, requires the federal Congress to establish minimum standards at the national level and to create an integrated system of national and provincial legislation to enforce those standards. The General Environmental Law, Article 4, contains provisions delegating authority to provincial and municipal governments according to their respective competencies. In the Argentine Constitutional Reform of 1994, a provision was added to the constitution that ensures “municipal autonomy, regulating its scope and content in the institutional, political, 66 67

Istanbul Declaration, supranote 56, §12. “Cities Without Slums,” supranote 54, at 13, para. 56.

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administrative, economic and financial order.”68 The Constitution of the City of Buenos Aires, adopted in 1996, requires the city to adopt planning and environmental management policies and to adopt a framework plan with which all land use regulations and public works projects must conform. Australia

A remarkable legal invention, the Australian Oceans Policy adopts land-based zoning strategies and applies them to its state and national territorial waters. This policy is contained in an executive document released by the Australian government. It applies to the extensive oceans subject to the country’s sovereignty, dividing them into six marine regions, each defined by their distinct biophysical marine characteristics. Within each of these domains, numerous management practices are defined that are to be implemented over time.69 Motivating the policy is the “stark warning” given by the collapse of major marine ecosystems and fisheries resources in the northern hemisphere. The policy recognizes that urban and infrastructure development in coastal zones place increasing demands on coastlines and oceans and that past management practices have not effected the amelioration of adverse human impacts on ocean health and productivity. The goals of the policy include meeting Australia’s international obligations under the UN Convention on the Law of the Sea and establishing integrated ocean planning and management arrangements involving the national and state governments, their agencies, and the public. The policy, issued by the National Oceans Office, establishes a planning process for each of the six regional marine zones within which integrated planning will occur in territorial ocean districts. These districts are defined and differentiated by their unique marine ecosystem characteristics, mimicking approaches taken in land-based planning processes designed to protect inland watersheds, forests, wilderness areas, and, even, urban neighborhoods. This is a highly evolved resource planning strategy that integrates international and domestic law, national and state governments and agencies, and affected industries and the public, in order to realize the objectives of sustainable development off shore. Brazil

The Brazilian Federal Constitution states, “All have the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations.”70 The Constitution creates a plan of co-operative federalism; it enunciates a number of enumerated powers of the federal government,71 express powers that are granted to municipal governments,72 and reserved powers that remain with the states.73 68 69

70 71 72

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Const. Arg., Pt. II, art. 123. An ancient commonwealth precedent to this modern Australian regime is found in “An Act for the Preservation of Spawn and Fry of Fish,” 1 Eliz., c.17 (1558), which regulated fishing, prohibiting various methods of catching young broods and prohibiting out of season fishing of any kind. Title VIII, Chapter VI, art. 225. C.F. art. 21. C.F. art. 30: “The municipalities have the power to: I – legislate upon matters of local interest; II – supplement federal and state legislations where pertinent; . . . IV – create, organize and suppress districts, with due regard for the state legislation; V – organize and render, directly or by concession or permission, the public services of local interest, including mass-transportation . . . ; VIII – promote, wherever pertinent, adequate territorial ordaining, by means of planning and control of use, apportionment and occupation of the urban soil; . . . IX – promote the protection of the local historic and cultural heritage, with due regard for federal and state legislation and supervision.” C.F. art. 25, para. 1.

INTRODUCTION

Article 30 of the Brazilian Constitution reserves the power of urban planning and land management to municipalities to be carried out in conformance with the nation’s broad urban policies. Environmental standards are contained in the Constitution with which all levels of government and all governmental agencies must comply. A 1999 law, adopted by the Brazilian Congress, contains strong criminal and civil enforcement penalties for offenses committed against natural and cultural resources; these penalties are greatly increased when violations affect endangered species or are committed by repeat offenders. Canada

Several Canadian laws are contained in this compendium. They tend to vest clear authority in a specific minister or agency, instruct that minister to coordinate with other involved agencies, focus attention on specific geographical areas, include implementation techniques, and demonstrate a commitment to sustainable development. The Canadian national legislature adopted the Oceans Act in 1996 to protect ocean waters and their marine environment; it adopted the Crown Forest Sustainability Act in 1994 to provide for the sustainable exploitation of forest resources on public lands; and in 1997, it adopted the Muskwa-Kechika Management Area Act to provide for conservation planning and biodiversity protection in the North American continent’s largest protected conservation system, comprising 6.3 million hectares. In each of these statutes, administrative responsibilities are clearly defined, enforcement measures are provided, and funding sources are included. Three provincial statutes from Canada are also included. Ontario’s Sustainable Water and Sewage Systems Act of 2002 requires providers of water and wastewater services to prepare reports that estimate their full costs and how those costs are going to be recovered. The reports are to include water source protection measures that protect the quantity and quality of water supplies. Ontario’s Land Use Planning Act, adopted in 1990, provides for the formation of provincial and municipal planning boards, intermunicipal planning advisory committees, the creation of zoning regulations, site plan control, and the protection of environmental resources and natural features. The province of Manitoba legislature enacted the Sustainable Development Act in 1997 aimed at achieving sustainable development through the comprehensive review of specific projects in an integrated fashion within the province. European Union

At the regional scale, the European Union (EU) attempts to rationalize national policies of Union member-states regarding common interests, including land use and the environment. Relevant provisions of law are found in the Single European Act74 and the modification of it contained in the Treaty of Amsterdam.75 Article 174(1) of the Treaty of Amsterdam establishes as objectives of the EU the preservation of the environment, protection of human health, rational utilization of natural resources, and promotion of regional and worldwide measures for dealing with environmental problems. Article 174(3) states that the EU’s policies on the environment shall take account of “the economic and social development of the Community as a whole and the balanced development of its regions.”76 Article 175(2) of the Treaty of Amsterdam authorizes the EU’s representative body, the Council of the European Union, by unanimous vote, to adopt measures regarding town and country planning, management of water resources, land use, and

74 75 76

Single European Act, 25 I.L.M. 506 (1986). Treaty of Amsterdam amending the Treaty on European Union, The Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, O.J. (C. 340) 1. Id. art. 174(3).

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energy supply.77 This system leaves significant current sovereignty in the member states to adopt and enforce separate land use planning and regulatory measures, subject to periodic directives and regulations adopted by the Council. Mexico

Article 27 of the Mexican Constitution grants Congress the power to dictate measures necessary for the development of human settlements and for the preservation and restoration of the environment. The Ecological Equilibrium and Environmental Protection Act, adopted in 1988, established a foundation for environmental policy, ecological balance, and sustainable development in Mexico.78 It guarantees “the right of all persons to live in an environment suitable for their development, health, and welfare.”79 It also adopts mechanisms for coordination and agreement among governmental authorities and various sectors of society regarding environmental matters.80 In 1996, the Ecological Equilibrium and Environmental Protection Act was amended to strengthen the basis for concurrent federal, state, and local jurisdiction and expand provisions related to land use planning, natural protected areas, and environmental impact assessments.81 New mechanisms of environmental policy (such as economic instruments, environmental audits, and self-regulating agreements) and the establishment of new rules for public participation in the environmental policy were added to the act as well. Since the adoption of the act, all Mexican states have passed environmental laws that partially or wholly address environmental matters such as ecology, urban development, subdivisions, water treatment, planning, sanitation, public administration, transportation, human settlements, and public works. Several states have issued regulations to accompany these laws, and it is also now apparent that Mexican municipalities have begun to adopt land use regulations that protect ecological resources.82 6. PROPERTY RIGHTS AND LAND TENURE

Property rights, in societies that recognize them, play a fundamental role in the affairs of state, giving their holders rights to participate in the national economy and some insulation from arbitrary state action.83 How land is owned is critical to sustainable development. People are connected to their land, communities, and, ultimately, their sovereign states through land ownership and possession and by the degree of control the state and its agencies have over private land use and exploitation. The U.S. Supreme Court has balanced private property rights with the right of the state to regulate land: “We must be cognizant that government regulation – by 77 78 79 80 81

82 83

Id. art 175(2). L.G.E.E. art. 1. Id. art. 1, I. Id. art. 1, IX. See generally Jose Juan Gonzalez, Nuevo Derecho Ambiental Mexicano (Instrumentos de Politico, 1997) at 46–76 (amendment resulting from increased public concern and the subscription to NAFTA and its parallel environmental agreement). See generally Framework of Mexican Environmental Law, available at the Ventana Ambiental Mexico Web site: http://www.ventanaambientalmexico.com. “In a state in which private property does not exist, citizens are dependent on the good will of government officials. . . . Whatever they have is a privilege and not a right. . . . Any challenge to the state may be stifled or driven underground by virtue of the fact that serious challenges could result in the withdrawal of the goods that give people basic security.” Cass R. Sunstein, On Property and Constitutionalism (1993) 14 Cardozo L. Rev. 907, at 915.

INTRODUCTION

definition – involves the adjustment of rights for the public good, and that government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.”84 The connection of people to the land and the compact they have with their governments regarding regulation and appropriation in the public interest are, of course, sensitive to cultural, historical, and political differences from country to country. In general, the world’s national legal systems are becoming more centralized, uniform, and predictable as populations increase and pressures on land use intensify. Unless the government is to retain ownership and regulate all use and enjoyment of land by its citizens, such systems arise to allow land to be defined, transferred, leased, mortgaged, and regulated. National approaches to land ownership and regulation are territorial strategies employed by states to control and define their external boundaries and provide for definition of land rights internally and to serve the cause of intensification of land use due to world population increase. The law of the state defines who can own – who gets landed membership in the national territory – and how property can be used as collateral for loans, sold to third parties, or acquired by the state. Article 2 of Chapter 1 of the Law of Land Administration of the People’s Republic of China creates a land use control regime that is based on the ownership of land by the state. It declares that the republic “resorts to a socialist public ownership i.e. an ownership by the whole people and ownership by collectives of land.” The State Council is empowered to administer land owned by the State. Land use rights are to be transferred by law. Based on this form of ownership, Article 3 states that “[t]he people’s governments at all levels should manage to make an overall plan for the use of land to strictly administer, protect and develop land resources and stop any illegal occupation of land.” Article 4 notes that the State is to establish strict control on the use of the land and prepare “general plans to set usages of land including those of farm or construction use or unused.” The conversion of farmland for commercial or residential development also is strictly controlled. This law provides that “land should be used strictly in line with the purposes of land use defined in the general plan for the utilization of the land whether by units or individuals.” One of the world’s most serious land use problems is the billion or so urban slum dwellers whose existence on the land is extralegal at best. They do not know what they own or whether their possession of land is secure. As a result, they are a source of political instability and their communities often contribute to urban crime and environmental pollution. In an attempt to deal with this issue, the Brazilian Congress adopted the Statute of the City in 2001.85 The statute confers title to property to squatters in urban areas to the properties they occupy under certain conditions. The parcel may not exceed 250 square meters; it must be used as the squatter’s residence for five years without interruption; and the squatters may not own any other land. Another serious problem involves the ownership rights of the rural poor who may also be squatters or occupy land thought to be communal in nature without a clear idea of their right to use pastures, forests, and tillable soil. In general, land ownership regimes are becoming more national in scope, localized property rights systems are eroding, and property rights that were communal in nature are being transformed into individual rights systems. In Mexico, the ejidos – or communal lands – are now available for metropolitan expansion and individual ownership under recent amendments to the Mexican constitution and laws. In the opinion of lawmakers there, this liberalization of 84 85

Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393. Federal Law no. 10.257.

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ownership frees land from the confusion of diffuse community rights, removes constraints on alienation and collateralization, and allows for the expansion of cities. Land ownership depends on a variety of national housekeeping functions that include surveying land parcels, providing legal descriptions of what is owned, recording land ownership, allowing the legal subdivision of land titles, and securing both individual ownership and the rights of the public. Public rights include the power of the state to regulate, or limit, land use in the interest of sustainable development, defining ownership of natural resources and land features under concepts such as the public trust doctrine and authorizing the State to take land titles for public use while providing for compensation. These rules and procedures connect owners precisely with their properties facilitating taxation and revenue generation, which enable states to provide infrastructure: schools, water, sewers, roads, and utilities. They also create legal boundaries between the insulated sphere of private ownership and the legitimate influence of the state, needed to protect the health, safety, and welfare of the people. These features of the national government can be referred to as “property rules.” Land use in Lithuania is controlled, in part, by land title: deeds conveying land titles to new owners include clauses specifying permitted land uses and environmental protection measures.86 Lithuanian law also prohibits foreign investment in mining when national economic security is implicated, except by special permit, and completely prohibits foreign investment in oil pipelines and communications infrastructure.87 In Hungary, foreign corporations and individuals may not purchase land without obtaining a permit from the Ministry of Finance, except for agricultural land and land in nationally designated conservation areas where foreign ownership is prohibited.88 Mexican law provides an instructive case study of these property rules and their relevance to sustainable development.89 Mexican property concepts evolved from the Roman law, under which property rights were highly secure; ownership was protected from violations by the State – an end in itself. This changed in the Constitution of 1917, following the Mexican revolution. The new constitution adopted the view that property owners owed obligations to the community – that property performed a social function. Article 27 of the Constitution gave ownership of the land and waters to the nation along with the right to hold those rights or convey them to private persons. This constitutional understanding greatly advances the state’s ability to regulate and to retain control over natural resources, at least in theory. Under Mexican law all legal questions regarding property rights are determined by the law of the place where the property is located.90 Mexican courts are given exclusive jurisdiction over real property.91 The constitution subjects property to state and municipal taxes.92 All legal rights created in real property must be registered in the public registry of the state in which the property is located. Although mortgages can be created giving preferences to secured creditors in the affected real property,93 the market mechanisms needed to support a strong mortgage market are still being developed. Article 27 of the Constitution allows the government to expropriate, or condemn, privately owned real property, but only for a public purpose, accompanied by the 86 87 88 89 90 91 92 93

Law on Procedures and Conditions for the Restoration of Land Ownership Rights of Citizens (1992). Lithuanian Law and Resolution on Spheres of Business Activity Where Foreign Investment Is Prohibited or Limited (1991). Act No. 1 of 1987 on Land Use and Land Ownership. See, generally, Stephen Zamora et al.; Mexican Law (Oxford) (2004), ch. 16. Mex. Const., art. 121, §1. C.F.P.C., art. 568. Mex. Const., art. 115, §IV(a). C.C.D.F., art. 2893.

INTRODUCTION

payment of indemnification. Article 27 also secures the ownership rights of the federal government of all minerals and organic resources (oil, gas, coal). These resource rights are inalienable by the government, but the right to exploit them can be licensed by the government, except for gas, oil, and radioactive minerals. Article 27 contains extensive regulations and prohibitions regarding the ownership interests of foreigners of Mexican property. Foreign investors must file a statement subjecting themselves to Mexican law; foreign corporations must show that their reason for purchasing property is consistent with their corporate charter; and foreigners may not purchase real property near a Mexican border or coastline.94 7. THE U.S. LAND USE SYSTEM: COHESION AND FRAGMENTATION

The laws from the United States that appear in this compendium include federal, state, and local statutes that exhibit a number of positive characteristics. Several of them target a priority problem, one that besets most nations: managing the land use impacts of populations that are crowding into coastal communities and the general global trend toward urbanization. They illustrate the need to involve all three levels of government (national, state/provincial, and local), each according to its own competencies. These laws emphasize the importance of land use planning within a national framework of laws. They encourage citizen participation, leverage and direct the resources of the private sector, and show how municipal governments – those in direct proximity to discrete problems on the land – can be enabled and supported to address the local dimensions of the planet’s land use problems. Read in conjunction with the UN Convention on the Law of the Sea, the European Landscape Convention, Canada’s Ocean’s Act, and Australia’s Ocean Policy, these laws demonstrate that the law can weave a connected web of policies, standards, and initiatives competent to address the interconnected stresses on the global population and environment. In the next several sections, note how one country, the United States, has equipped itself to comply with the dictates of an important international convention: the UN Convention on the Law of the Sea. That agreement dedicates its signatory nations to preserving the marine environment and assumes that each nation has the legal authority to control, among other things, land-based sources of pollution of the marine environment. This part ends with a reminder that the U.S. land use system is still highly fragmented and in need of much further improvement to achieve the kind of coherence necessary to join all levels of government and all sectors in a coordinated strategy of sustainable development. 1. The National Framework

In the United States, the Coastal Zone Management Act of 1972 (CZMA) aims to control pollution of the marine environment and solve a host of related problems, including the preservation of wetlands, habitats, shorelines, and floodplains within the nation’s coastal areas, where more than 50 percent of the population lives. It is an incentive-based law. The CZMA rewards states that create competent coastal land use plans with funding, eligibility for other rewards, and control over federal activities within their coastal areas. States that do not create coastal land use plans are denied funding and have little control over federal agencies and their projects and other influences in the states’ coastal areas. States submit their coastal plans to the national government, 94

“In no event may foreigners acquire direct ownership of lands and waters located within one hundred kilometers of the borders or fifty kilometers of the beaches” (Art. 27, §1). Foreign investment, particularly in resort communities, is allowed under the Foreign Investment Law of 1993, which allows foreigners to purchase beneficial interests in real estate trusts that can last for fifty years and be renewed.

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which, in turn, must review and certify those plans that comply with established federal coastal policies. State plans must show how local governments, which have significant land use and development control in the United States, will carry out the state coastal plan. In most states, this is accomplished by incentive-based state laws. Localities that adopt land use plans that comply with state and federal coastal policies are allowed to control land use and development in their coastal waterfronts. Under most state coastal programs, localities are offered financial incentives as well: planning grants or favored eligibility for development and conservation funding programs. Woven together with incentives and shared policies, this system allows for some congruency among all three relevant levels of government. 2. State Plans: New York

The New York State Land Use Enabling Acts illustrate how state governments in the United States enable their local municipalities to control land use. New York’s laws are similar to the original model land use enabling acts promulgated by the U.S. Department of Commerce in the 1920s and to land use enabling laws in the fifty states.95 These state statutes authorize towns, cities, and villages to adopt land use plans and then divide their jurisdictions into zoning districts, to specify land uses permitted in those districts, and to establish administrative agencies to review and approve private sector proposals for land use and development. In authorizing localities to adopt comprehensive land use plans, the statute calls land use planning and regulation one of “the most important powers and duties granted by the legislature to [local] governments.” This statute requires citizen participation in the adoption of both land use plans and regulations. It authorizes localities to create stakeholder groups and give them enduring and profound power to advise and shape local plans and regulations. The statute specifies that comprehensive land use plans should consider, among other things, coastal and natural resources and sensitive environmental areas, job creation and economic development, and affordable housing: evidence of the values of sustainable development in the state’s system of land use laws. The New York State Coastal Erosion Hazard Areas Act complements the coastal zone planning program by dealing more discretely with coastal erosion, a significant threat to the marine environment of coastal waters. Again, this act emphasizes planning and governmental collaboration and respects the municipal role. New York’s coastal hazard act calls for an integrated system involving the identification and mapping of coastal erosion hazard areas, the adoption of local laws that control development and land uses within them, the certification of such ordinances by the relevant state agency, and state agency permitting of certain land-based development activities within identified coastal areas. Permits for land development projects are not issued unless they comply with established state standards for development in coastal hazard areas. State enabling law in New York authorizes local governments to adopt laws that protect their aesthetic and physical resources. Under this authority, and that of the Coastal Erosion Hazard 95

“Land use regulation in the United States traditionally has been the province of local governments using zoning ordinances and building codes as their principal regulatory tools.” Robert V. Percival et al., Environmental Regulation: Law, Science, and Policy, 3rd ed. (Aspen, 2000) at 768. See also Zygmunt J. B. Plater et al., Environmental Law and Policy: Nature, Law, and Society, 2nd ed. (Foundation Press, 2002) at 1164: “In day-to-day practice, the overwhelming majority of land-use management occurs at the local level, predominately through local government regulation.”

INTRODUCTION

Areas Act, the Town of Babylon enacted its Coastal Erosion Hazard Zone Ordinance. Babylon is located on Long Island, New York; to its north is Long Island Sound and to its south, the Atlantic Ocean – two critical marine environments. The ordinance operates as an overlay district, adding to local zoning and land use standards those needed to protect against coastal erosion within the identified and mapped coastal erosion zone within the town itself. In this law, one can observe a local government, with local knowledge of its own particular environment, adjusting a state law to its circumstances. The Babylon ordinance, for example, contains separate definitions and standards regarding the protection of bird nesting and breeding areas and other special wildlife habitat considerations. It goes beyond the standards of the state law by prohibiting all development in near-shore and beach areas. 3. Approaches in Other States

Other U.S. laws contained in the compendium illustrate the diversity of approaches taken by states in the United States as they grapple with the difficult task of absorbing 3 million new residents each year.96 Under the Tenth Amendment of the U.S. Constitution, the states reserved various powers not delegated to the federal government.97 The political understanding of this arrangement is that the states control land use and define property rights,98 subject to a limited number of federal requirements that include clauses in the Fifth Amendment securing property rights from arbitrary infringements by state regulations and requiring that government acquisitions of private property for public purposes be accompanied by monetary compensation.99 New Hampshire

Under their reserved powers, states create a variety of approaches to delegating authority to local governments to control land use. New Hampshire, for example, does not require municipalities to control land use through regulation, but if they do, municipalities must first adopt a land use master plan. State law further requires that such plans contain various elements including, for example, natural resource and natural hazard protection, as well as transportation and economic development. Under these provisions, notably, municipalities may choose to develop coastal protection ordinances to carry out master plan provisions regarding the protection of natural resources and natural hazard areas. New Hampshire municipalities are empowered to use a variety of innovative land use mechanisms to phase growth in an orderly way and to conserve open space and natural resources by clustering permitted development on discrete portions of land parcels. A specific law in New Hampshire, from the town of Dover, illustrates this point. The town legislature adopted an “Overriding Districts” ordinance under its land use enabling authority from the state and to conform to the state Comprehensive Shorelands Protection Act. This shorelands act was adopted by New Hampshire, a coastal state, in part to conform to the policies of 96 97

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Stuart Meek (ed.), Growing Smart Legislative Guidebook (American Planning Association, 2002), Chapters 7, 8, and 9. The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (U.S. Const., amend. X). See 42 U.S.C.A., §746: “Nothing in this chapter constitutes an infringement on the existing authority of countries and cities to plan or control land use, and nothing in this chapter provides or transfers authority over such land use.” “No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation” (U.S. Const., amend. V).

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the federal Coastal Zone Management Act, discussed earlier. This ordinance protects wetlands, watercourses, and steep slopes in designated shorelands areas within the town. With the maintenance of high water quality as its objective, this local ordinance aims directly at the objectives of the UN Convention on the Law of the Sea; its land-based activities, under this law, should not contribute to the pollution of adjacent coastal waters. Wisconsin

The state of Wisconsin takes a broad approach to empowering local governments to deal with sustainable development. Under its Smart Growth Act, local governments are required to adopt comprehensive land use plans that contain elements that address housing, economic development, natural and cultural resource protection, and intergovernmental cooperation. It encourages them to promote mixed-use, higher density development in traditional neighborhood developments (TND), in part to absorb market pressures for development in a more cost-effective manner. River Falls, Wisconsin, adopted a TND ordinance designed to concentrate development in this way noting, in the law, that this will reduce impervious surfaces, one of the key contributors to surface water pollution. Washington

Washington State’s Growth Management Act aims to concentrate development more effectively by requiring county governments to adopt comprehensive land use plans that designate urban and rural areas and that prohibit urban densities from occurring in rural areas. This state law requires counties to use best available science to guide them in designating critical environmental areas in rural areas. Thurston County, Washington, adopted the Urban Growth Area Zoning Ordinance for the City of Olympia, the state’s capital. Among the types of legal mechanisms it employs to create efficient neighbors is a planned unit development (PUD) land use control technique. PUD ordinances in the United States allow the owners of several parcels of land to apply for permission to cluster permitted development on a small portion of their properties in the interest of preserving open space, wildlife habitats, and other environmental features. 4. Fragmentation: Mississippi River Basin and the Coasts

This one example of integration in the land use policies, programs, and regulations of the various levels of government in the United States belies the complexity and fragmentation of the nation’s land use system. This is seen in recent efforts to react to catastrophic flooding in the Mississippi River Basin.100 The Mississippi River watershed extends over more than 40 percent of the contiguous United States, reaching from Canada to the Gulf of Mexico and from Colorado to New York. The thirdlargest floodplain river in the world, the Mississippi is bordered by ten states, and its watershed extends into more than twenty other states and provinces.101 In 1999, the U.S. Geological Survey’s Biological Resources Division reported that “declines in key native species across many trophic levels signal a deterioration in the health of this riverine ecosystem.” The report suggested that “the cumulative effects of human activities have already exceeded the ecosystem’s assimilative capacity.”102 100 101 102

The material in this section is adapted from a research paper submitted to the author by Susan Moritz in July 2004 entitled “Ecosystem Approaches to Disaster Mitigation in the Mississippi River Basin.” United States Geological Survey (USGS), Status and Trends of the Nation’s Biological Resources: Mississippi River (1999). Id.

INTRODUCTION

Floods have caused the greatest loss of life and property damage of any type of natural disaster in the United States during the last century.103 Over the past 200 years, flooding in the Mississippi River Basin has been intensified by settlement in the floodplain; by agriculture; by timber harvesting and oil drilling; by the destruction of wetlands and animal habitat; by structural changes meant to improve transportation on the river – channelization, dams and locks, dredging – and by other structural changes, including levees and floodwalls, meant to protect against flooding. In the Delta, this transformation of the river has resulted in subsidence, inundation and land loss, and hypoxia – an aquatic “dead zone” in the Gulf of Mexico. In 2005, the U.S. Environmental Protection Agency reported that only 20 percent of Gulf Coast estuaries “are in good ecological condition. . . . Thirty-nine percent of estuarine area along the Gulf of Mexico was assessed as threatened (in fair condition).”104 The natural complexities of the Mississippi Basin ecosystem are overlaid by the fixed boundary lines of states, by somewhat more flexible municipal boundaries, and by a tangle of laws and policies that regulate the land. At the federal level alone, the National Academy of Sciences’ Committee on Watershed Management has identified twenty-two federal agencies that deal with the hydrologic cycle.105 Following the great Midwest floods of 1993, the Upper Mississippi River Conservation Committee, a five-state consortium of natural resource managers, reported that in addition to a statutory framework that includes the federal Upper Mississippi River Wildlife and Fish Refuge Act of 1924, the Rivers and Harbors Act of 1930, the Fish and Wildlife Coordination Act of 1958, the Flood Control Act of 1944, the Water Project Recreation Act of 1965, the Water Pollution Control Act of 1972, the Water Resources Development Act of 1986, and other federal, state, and local laws, in the Upper Mississippi Basin alone: there now exists a planning, regulatory, and management framework that includes at least 20 different categories of agencies (from federal to local) with jurisdiction over one or more of some 33 different functional areas of activity on the river. This includes at least six federal agencies with significant roles, 23 state agencies in five states, and 233 local governments.106

In 2005, the final report of the U.S. Commission on Ocean Policy outlined the “complex mosaic of legal authorities” affecting coastal management in the United States: Management of ocean and coastal resources and activities must address a multitude of different issues, and involves aspects of a variety of laws – at local, state, federal, and international levels – including those related to property ownership, land and natural resource use, environmental and species protection, and shipping and other marine operations – all applied in the context of the multi-dimensional nature of the marine environment. Several of those aspects of law may come into play simultaneously when addressing conflicts over public and private rights, boundaries, jurisdictions, and management priorities concerning ocean and coastal resources. In addition, some laws result in geographic and regulatory fragmentation and species-by-species or resource-by-resource regulation. Further complexity results because international law recognizes several distinct geographic jurisdictional zones in the ocean and authorizes coastal nations to assert certain rights and jurisdiction within these zones. Additionally, U.S. law divides authority and responsibility between federal and state governments.107 103 104 105 106 107

Tom Daniels and Katherine Daniels, The Environmental Planning Handbook: For Sustainable Communities and Regions (American Planning Association, 2003) at 258. U.S. Environmental Protection Agency, National Coastal Condition Report II – 2005, available at: http://www.epa.gov/owow/oceans/nccr/2005. National Research Council, National Academy of Sciences, New Strategies for America’s Watersheds (National Academy Press, 1999) at 279. Upper Mississippi River Conservation Committee, Facing the Threat: An Ecosystem Management Strategy for the Upper Mississippi River (Dec. 1993). U.S. Commission on Ocean Policy, “An Ocean Blueprint for the 21st Century: Final Report” (2005), Appendix 6, available at: http://www.oceancommission.gov/documents/full color rpt/welcome.html.

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The U.S. Commission on Ocean Policy recommended that “U.S. ocean and coastal resources should be managed to reflect the relationships among all ecosystem components, including humans and nonhuman species and the environments in which they live. Applying this principle will require defining relevant geographic management areas based on ecosystem, rather than political, boundaries.”108 In addition to the complicated legal framework affecting ecosystem management, the commission’s report emphasized the importance of public awareness of ecosystem issues – particularly of the causes of nonpoint source pollution.109 Over the last decade, a number of federal and state agencies have in fact begun to adopt ecosystem approaches to natural resource protection. Integrating science into comprehensive planning, some local governments have used their traditional land use powers to preserve natural resources, biodiversity, and ecosystems and are enacting laws to restore trees, wetlands, habitats, and landforms destroyed in the last 200 years. The 2002 report of the Pew Oceans Commission observes that “America’s oceans and estuaries are international resources, yet their fates lie in the hands of thousands of individual towns, cities, and counties throughout the coastal zone. The plight of these natural systems epitomizes the plight of major ecosystems worldwide, where the structures of authority are dwarfed by the enormous implications of the decisions made.”110 8. CONCLUSION

The principal conclusion one draws from reviewing the laws in this compendium is that a connected framework of legal strategies is slowly and serendipitously being created, either in response to the Rio accords or simply because of the sheer pressure of population growth and its stress on the world’s resources. This single contribution of the law, if there were no more, is critically important. At the international level, the nations, states, and their component parts – provinces, municipalities, and private and civic sectors – are a complex system that is struggling to adapt to critical challenges stemming from the use of the land. In the fields of physics and ecological studies, scientists have studied complex adaptive systems that exist in nature and how they successfully adapt when challenged by change. Their theories gradually migrated to the study of business associations, governmental entities, and public law. Broadly defined, a complex adaptive system is an organized entity comprising various components: niches in ecosystem and divisions in corporations, for example. Governments, nongovernmental organizations, and businesses operating on the world stage constitute such a system as do stakeholder groups working in individual localities.111 Urban planning scholars 108 109

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Id., Summary of Recommendations. “A 1999 study indicated that just 32 percent of the nation’s adults grasp simple environmental concepts, and even fewer understand more complex issues, such as ecosystem decline, loss of biodiversity, or watershed degradation. It is not generally understood that nonpoint source pollution threatens the health of our coastal waters or that mercury in fish comes from human activities via the atmosphere. Few people understand the tangible value of the ocean to the nation or that their own actions can have an impact on that resource. From excess applications of fertilizers, pesticides, and herbicides on lawns, to the trash washed off city streets into rivers and coastal waters, ordinary activities can and do contribute significantly to the degradation of the marine environment. Instilling a stewardship ethic in the American public is an important element of a national ocean policy. Without an acknowledgement of the impacts associated with ordinary behavior and a willingness to take the necessary action – which may incur additional costs – achieving a collective commitment to more responsible lifestyles and new policies will be difficult.” Id. at 69. Dana Beach, Coastal Sprawl: The Effects of Urban Design on Aquatic Ecosystems in the United States (Pew Oceans Commission, 2002) at 29. Murray Gell-Mann, The Quark and the Jaguar: Adventures in the Simple and the Complex (W. H. Freeman, 1994) at 9: “Complex adaptive systems include a human child learning his or her native language, a strain

INTRODUCTION

reference the behavior of complex adaptive systems to define how regional planning networks can work to rationalize land use planning and control.112 In nature and in human organizations, the systems that thrive are those that have established effective mechanisms for exchanging, evaluating, and reacting to information among their component parts. As stress occurs, information is gathered and relayed throughout the system, among components at the local level and from one level to another, and each digests and synthesizes that information. Then, through continued communication, threats are evaluated, strategies devised, and system behaviors reordered to react, adapt to change, and survive.113 The material in this compendium demonstrates the gradual movement toward cohesion of the world’s legal system for promoting sustainable development. Local citizens are being urged to shape local land use planning as local governments are being given more meaningful involvement in shaping state and provincial land use systems. Concurrent jurisdiction between state and federal governments is more and more common. There is evidence that international agreements are affecting national legal systems and that national land use systems are paying attention to the urgings of international declarations and conventions. Viewed optimistically, this evidence of institutional change – an emerging network of agencies and actors learning to communicate – is good news for sustainable development. While there is reason to be impatient with the pace of progressive reform in this field of policy and law, it is impressive to note the progress that this volume demonstrates, much of which has occurred in less than a decade and a half since the clarion call of the Rio accords.

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of bacteria becoming resistant to an antibiotic, the scientific community testing out new theories, an artist getting a creative idea, a society developing new customs or adopting a new set of superstitions, a computer programmed to evolve new strategies for winning at chess, and the human race evolving ways of living in greater harmony with itself and with the other organisms that share the planet Earth.” David E. Booher and Judith E. Innes, “Network Power in Collaborative Planning” (2000–01) (unpublished paper, on file with University of California at Berkeley, Institute of Urban and Regional Development) at 12–13: “Network power emerges from communication and collaboration among individuals, agencies, and businesses in a society. Network power emerges as diverse participants in a network focus on a common task and develop shared meanings and common heuristics for action. It grows as these players identify and build on their interdependencies to create new potential. In the process, innovations and novel responses to environmental stresses can emerge. These innovations, in turn, make possible adaptive change and constructive action of the whole.” The authors further observe that “[l]ike a complex adaptive system, [the planning network] as a whole is more capable of learning and adaption in the face of fragmentation and rapid change than a set of disconnected agents.” Id. at 3. Gell-Mann, supranote 111 at 17: “The common feature of all these processes is that in each one a complex adaptive system acquires information about its environment and its own interaction with that environment, identifying regularities in that information, condensing those regularities into a kind of ‘schema’ or model, and acting in the real world on the basis of that schema. In each case, there are various competing schemata, and the results of the action in the real world feed back to influence the competition among these schemata.”

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I. INTERNATIONAL

United Nations Convention on the Law of the Sea Preamble and Excerpts from Part XII Summary: The United Nations describes its 1982 Convention on the Law of the Sea (UNCLOS) as “[p]ossibly the most significant legal instrument of this century” – “an unprecedented attempt by the international community to regulate all aspects of the resources of the sea and uses of the ocean, and thus bring a stable order to mankind’s very source of life.”1 The convention was adopted in 1982 and entered into full force in 1994. As of January 2005, 147 nations had ratified it. Although the Senate Committee on Foreign Relations has unanimously recommended ratification, the United States has yet to accede to the convention.2 In 1992, the United Nations’ Agenda 21 noted that more than half the world’s population lived less than 40 miles from the coastline and that by 2020 the figure would be three quarters of the world’s population.3 Principle 4 of the Rio Declaration, adopted at the 1992 UN Conference on Environment and Development, states that “in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”4 UNCLOS declares that States have both a general obligation to protect the marine environment and “the sovereign right to exploit their natural resources” under their own environmental policies. Acting individually or jointly, States must take “all measures consistent with this convention” to prevent marine pollution “from any source.” The convention

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. ; . Agenda 21, §17.3 at . .

requires that States adopt legislation to prevent land-based pollution of the marine environment and to minimize the release of pollutants, “especially those which are persistent,” into the oceans. The full text of the convention is available in PDF at: http://www.un.org/Depts/los/convention agreements/texts/unclos/unclos e.pdf The full text, with UN commentaries and updating, is available at: http://www.un.org/Depts/ los/convention agreements/texts/unclos/ closindx.htm

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA PREAMBLE

The States Parties to this Convention prompted by the desire to settle, in a spirit of mutual understanding and co-operation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world, noting that developments since the United Nations Conferences on the Law of the Sea held at Geneva in 1958 and 1960 have accentuated the need for a new and generally acceptable Convention on the law of the sea, conscious that the problems of ocean space are closely interrelated and need to be considered as a whole, recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization

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of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment, bearing in mind that the achievement of these goals will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or land-locked, desiring by this Convention to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, believing that the codification and progressive development of the law of the sea achieved in this Convention will contribute to the strengthening of peace, security, co-operation and friendly relations among all nations in conformity with the principles of justice and equal rights and will promote the economic and social advancement of all peoples of the world, in accordance with the Purposes and Principles of the United Nations as set forth in the Charter, affirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law, have agreed as follows: PART XII PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT SECTION 1. GENERAL PROVISIONS

Article 192. General Obligation. States have the obligation to protect and preserve the marine environment. Article 193. Sovereign Right of States to Exploit Their Natural Resources. States have the sovereign

right to exploit their natural resources pursuant

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to their environmental policies and in accordance with their duty to protect and preserve the marine environment. Article 194. Measures to Prevent, Reduce and Control Pollution of the Marine Environment

1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection. 2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention. 3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent: (a) release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping; (b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels; (c) pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices; (d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing

with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices. (4) In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention. (5) The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. Article 195. Duty Not to Transfer Damage or Hazards or Transform One Type of Pollution into Another. In taking measures to prevent, reduce

and control pollution of the marine environment, States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another. Article 196. Use of Technologies or Introduction of Alien or New Species

1. States shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto.

and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features. [Articles on notification of imminent or actual damage; contingency plans against pollution; studies, research programmes and exchange of information and data; and scientific criteria for regulations are omitted.] SECTION 3. TECHNICAL ASSISTANCE

[Omitted.] SECTION 4. MONITORING AND ENVIRONMENTAL ASSESSMENT

[Omitted.] SECTION 5. INTERNATIONAL RULES AND NATIONAL LEGISLATION TO PREVENT, REDUCE AND CONTROL POLLUTION OF THE MARINE ENVIRONMENT

Article 207. Pollution From Land-Based Sources

1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures. 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution. 3. States shall endeavour to harmonize their policies in this connection at the appropriate regional level.

Article 197. Cooperation on a Global or Regional Basis. States shall cooperate on a global basis and, as

4. States, acting especially through competent international organizations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from landbased sources, taking into account characteristic regional features, the economic capacity of developing States and their need for economic development. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary.

appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards

5. Laws, regulations, measures, rules, standards and recommended practices and procedures referred to in paragraphs 1, 2 and 4 shall include those designed

2. This article does not affect the application of this Convention regarding the prevention, reduction and control of pollution of the marine environment.

SECTION 2. GLOBAL AND REGIONAL COOPERATION

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to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially those which are persistent, into the marine environment. Article 208. Pollution From Seabed Activities Subject to National Jurisdiction

1. Coastal States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction, pursuant to articles 60 and 80. 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution. 3. Such laws, regulations and measures shall be no less effective than international rules, standards and recommended practices and procedures. 4. States shall endeavour to harmonize their policies in this connection at the appropriate regional level. 5. States, acting especially through competent international organizations or diplomatic confer-

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ence, shall establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment referred to in paragraph l. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary. [Articles on pollution from activities in the Area; pollution by dumping; pollution by vessels; and pollution from or through the atmosphere are omitted.] SECTION 6. ENFORCEMENT

Article 213. Enforcement With Respect to Pollution From Land-Based Sources. States shall enforce their

laws and regulations adopted in accordance with article 207 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources. [The remainder of Part XII is omitted.]

African Convention on the Conservation of Nature and Natural Resources Summary: The African Convention on the Conservation of Nature and Natural Resources was adopted in Algiers, Algeria, on September 15, 1968, and it entered into force on June 16, 1969. Recognizing the vital importance of soil, water, flora, and fauna and to promote individual and joint action throughout the continent, the convention focuses on the duty of the contracting states to adopt laws to further conserve and intelligently develop natural resources. The convention outlines the use of land-use plans to conserve and improve soil conditions to ensure long-term productivity, and the implementation of “land-use plans based on scientific investigations.” The convention’s water provisions address the duty of two or more contracting states that jointly use surface or underground water resources stating that the states must engage in consultation and, if needed, consider establishing interstate commissions. In all respects the convention promotes interstate cooperation when necessary to further the conservation provisions. An ellipsis indicates that a provision has been abridged. The full text of the convention is available in PDF at: http://www.africa-union.org/Official documents/Treaties %20Conventions %20Protocols/Convention Nature%20&% 20Natural Resources.pdf The full text of the convention is available in French at: www.africa-union.org/Official documents/Treaties Conventions fr/ Convention%20sur%20la%20conservation %20de%20la%20nat%20et%20Res%20nat%20rev%20Adoptee.pdf The full text of the Revised Convention, adopted in 2003 but not yet in force, is available at: http://www.africa-union.org/Official documents/Treaties %20Conventions % 20Protocols/nature%20and%20natural% 20recesource.pdf

AFRICAN CONVENTION ON THE CONSERVATION OF NATURE AND NATURAL RESOURCES (PREAMBLE AND ARTICLES I–VII, X, XV, XVI, XXI, AND XXV) PREAMBLE

We the Heads of State and Government of Independent African States, fully conscious that soil, water, flora and faunal resources constitute a capital of vital importance to mankind; confirming, as we accepted upon declaring our adherence to the Charter of the Organization of African Unity, that we know that it is our duty “to harness the natural and human resources of our continent for the total advancement of our peoples in spheres of human endeavour”; fully conscious of the ever-growing importance of natural resources from an economic, nutritional, scientific, educational, cultural and aesthetic point of view; conscious of the dangers which threaten some of these irreplaceable assets; accepting that the utilization of the natural resources must aim at satisfying the needs of man according to the carrying capacity of the environment; desirous of undertaking individual and joint action for the conservation, utilization and development of these assets by establishing and maintaining their rational utilization for the present and future welfare of mankind; convinced that one of the most appropriate means of achieving this end is to bring into force a convention; have agreed as follows:

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Article I. The contracting States hereby establish an

african convention on the conservation of nature and natural resources. Article II. Fundamental Principle. The contracting

States shall undertake to adopt the measures necessary to ensure conservation, utilization and development of soil, water, flora and faunal resources in accordance with scientific principles and with due regard to the best interests of the people. Article III. Definitions. For the purposes of the

present Convention, the meaning of the following expressions shall be as defined below: (a) “Natural Resources” means renewable resources, that is soil, water, flora and fauna;


(d.) “Conservation area” means any protected natural resource area, whether it be a strict natural reserve, a national park or a special reserve. (1) “Strict nature reserve” means an area: (i) under State control and the boundaries of which may not be altered nor any portion alienated except by the competent legislative authority; (ii) throughout which any form of hunting or fishing, any undertaking connected with forestry, agriculture or mining, any grazing, any excavation or prospecting, drilling, leveling of the ground or construction, any work tending to alter the configuration of the soil or the character of the vegetation, any water pollution and, generally, any act likely to harm or disturb the fauna or flora, including introduction of zoological or botanical species, whether indigenous or imported, wild or domesticated, are strictly forbidden; (iii) where it shall be forbidden to reside, enter, traverse or camp, and where it shall be forbidden to fly over at low altitude, without a special written permit from the competent authority, and in which scientific investigations (including removal of animals and plants in order to maintain an ecosystem) may only be undertaken by permission of the competent authority. (2) “National park” means an area:

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(i) under State control and the boundaries of which may not be altered or any portion alienated except by the competent legislative authority; (ii) exclusively set aside for the propagation, protection, conservation and management of vegetation and wild animals as well as for the protection of sites, land-spaces or geological formations of particular scientific or aesthetic value, for the benefit and enjoyment of the general public; and (iii) in which the killing, hunting and capture of animals and the destruction or collection of plants are prohibited except for scientific and management purposes and on the condition that such measures are taken under the direction or control of the competent authority; (iv) covering any aquatic environment to which all of the provisions of section (b) (1–3) above are applicable. The activities prohibited in strict nature reserve under the provisions of section (a) (2) of paragraph (4) of this article are equally prohibited in national parks except in so far as they are necessary to enable the park authorities to implement the provisions of section (2) of this paragraph, by applying, for example, appropriate management practices, and to enable the public to visit these parks; however, sport fishing may be practiced with the authorization and under the control of the competent authority. (3) “Special reserve” means other protected areas such as: (i) “game reserve” which shall denote an area (a) set aside for the conservation, management and propagation of wild animal life and the protection and management of its habitat; (b) within which the hunting, killing or capture of fauna shall be prohibited except by or under the direction or control of the reserve authorities; (c) where settlement and other human activities shall be controlled or prohibited. (ii) “partial reserve” or “sanctuary” which shall denote an area: (a) set aside to protect characteristic wildlife and especially bird communities, or to protect

particularly threatened animal or plant species and especially those listed in the Annex to this Convention, together with the biotopes essential for their survival; (b) in which all other interests and activities shall be subordinated to this end. (iii) “soil,” “water” or “forest” reserve shall denote areas set aside to protect such resources. Article IV. Soil. The contracting States shall take

effective measures for conservation and improvement of the soil and shall in particular combat erosion and misuse of the soil. To this end: (a) they shall establish land-use plans based on scientific investigations (ecological, pedological, economic, and sociological) and, in particular, classification of land-use capability; (b) they shall, when implementing agricultural practices and agrarian reforms, (1) improve soil conservation and introduce improved farming methods, which ensure longterm productivity of the land; (2) control erosion caused by various forms of land-use which may lead to loss of vegetation cover. Article V. Water

1. The contracting States shall establish policies for conservation, utilization and development of underground and surface water, and shall endeavour to guarantee for their populations a sufficient and continuous supply of suitable water, taking appropriate measures with due regard to – (a) the study of water cycles and the investigation of each catchment area; (b) the co-ordination and planning of water resources development projects; (c) the administration and control of all water utilization; and (d) prevention and control of water pollution. 2. Where surface or underground water resources are shared by two or more of the contracting States, the latter shall act in consultation, and if the need arises, set up inter-State Commissions to study and resolve problems arising from the joint use of these

resources, and for the joint development and conservation thereof. Article VI. Flora

1. The contracting States shall take all necessary measures for the protection of flora and to ensure its best utilization and development. To this end the Contracting States shall: (a) adopt scientifically based conservation, utilization and management plans of forests and rangeland, taking into account the social and economic needs of the States concerned, the importance of the vegetation cover for the maintenance of the water balance of an area, the productivity of soils and the habitat requirements of the fauna; (b) observe section (a) above by paying particular attention to controlling bush fires, forest exploitation, land clearing for cultivation, and over-grazing by domestic and wild animals; (c) set aside areas for forest reserve and carry out afforestation programmes where necessary; (d) limitation of forest grazing to season and intensities that will not prevent forest regeneration; and (e) establish botanical gardens to perpetuate plant species of particular interest. 2. The Contracting States also shall undertake the conservation of plant species or communities, which are threatened and/or of special scientific or aesthetic value by ensuring that they are included in conservation areas. Article VII. Faunal Resources

1. The Contracting States shall ensure conservation, wise use and development of faunal resources and their environment, within the framework of land-use planning and of economic and social development. Management shall be carried out in accordance with plans based on scientific principles, and to that end the Contracting States shall: (a) manage wildlife populations inside designated areas according to the objectives of such areas and also manage exploitable wildlife populations outside such areas for an optimum sustained yield, compatible with and complementary to other land uses; and

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(b) manage aquatic environments, whether in fresh, brackish or coastal water, with a view to minimise deleterious effects of any water and land use practice which might adversely affect aquatic habitats. Article X. Conservation Areas

1. The Contracting States shall maintain and extend where appropriate, within their territory and where applicable in their territorial waters, the Conservation areas existing at the time of entry into force of the present convention and, preferably within the framework of land use planning programmes, assess the necessity of establishing additional conservation areas in order to: (a) protect those ecosystems which are most representative of and particularly those which are in any respect peculiar to their territories; (b) ensure conservation of all species and more particularly of those listed or may be listed in the annex to this convention.

after the deposit by such State of its instrument of ratification or accession. 3. The London Convention of 1933 or any other Convention on the conservation of flora and fauna in their natural state shall cease to have effect in States in which this Convention has come into force. Article XXV. Final Provisions. The original of this

Convention, of which both the English and the French texts are authentic, shall be deposited with the Administrative Secretary General of the Organization of African Unity. in witness whereof, we, the Heads of State and Government of independent African States, assembled at Algiers, Algeria, on 15th September 1968 have signed this Convention. 1. algeria (Signed) 2. botswana (Signed) 3. burundi (Signed) 4. cameroon (Signed) 5. central african republic (Signed)

Article XV. Organization of National Conservation Services. Each Contracting State shall establish, if it

6. chad (Signed)

has not already done so, a single agency empowered to deal with all matters covered by this Convention, but, where this is not possible a co-coordinating machinery shall be established for this purpose.

7. congo (brazzaville) (Signed)

Article XVI. Inter-State Co-operation

11. gabon (Signed)

1. The Contracting States shall co-operate:

12. gambia (Signed)

(a) whenever such co-operation is necessary to give effect to the provisions of this convention, and (b) whenever any national measure is likely to affect the natural resources of any other State.

8. democratic republic of congo (Signed) 9. dahomey (Signed) 10. ethiopia (Signed)

13. ghana (Signed) 14. guinea (Signed) 15. ivory coast (Signed) 16. kenya (Signed) 17. lesotho (Signed)

Article XXI. Entry into Force

18. liberia (Signed)

1. This Convention shall come into force on the thirtieth day following the date of deposit of the fourth instrument of ratification or accession with the Administrative Secretary General of the Organization of African Unity, who shall inform participating States accordingly.

19. libya (Signed)

2. In the case of a State ratifying or acceding to the Convention after the depositing of the fourth instrument of ratification or accession, the Convention shall come into force on the thirtieth day

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20. madagascar (Signed) 21. malawi (Signed) 22. mali (Signed) 23. mauritania (Signed) 24. mauritius (Signed) 25. morocco (Signed) 26. niger (Signed)

27. nigeria (Signed)

34. togo (Signed)

28. rwanda (Signed)

35. tunisia (Signed)

29. senegal (Signed)

36. uganda (Signed)

30. sierra leone (Signed)

37. untied arab republic (Signed)

31. somalia (Signed)

38. united republic of tanzania (Signed)

32. sudan (Signed)

39. upper volta (Signed)

33. swaziland (Signed)

40. zambia (Signed)

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European Landscape Convention Summary: The member States of the Council of Europe that are signatories to this convention acknowledged that landscape throughout Europe is an important common resource and a “key element to individual and social well-being.” The convention seeks the integration of landscape considerations into regional and local planning policies through public education, special training for professionals, assessment of current landscape resources, setting of objectives, and implementation of policies. It promotes international cooperation and mutual assistance, with special emphasis on transfrontier regions. There are procedures for monitoring implementation, giving awards, and for the adoption, amendment, and “denunciation” of the convention. Upon adoption of the convention by the council, signatory status will also be available by invitation of the council to the European Community and States of Europe that are not council members. The full text of the European Landscape Convention is available at: http://conventions. coe.int/Treaty/EN/Treaties/Html/176.htm The full text of the European Landscape Convention is available in French at: http://conventions.coe.int/Treaty/FR/Treaties/ Html/176.htm

EUROPEAN LANDSCAPE CONVENTION PREAMBLE

The member States of the Council of Europe signatory hereto, Considering that the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage, and that this aim is pursued in particular through agreements in the economic and social fields; Concerned to achieve sustainable development based on a balanced and harmonious relationship

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between social needs, economic activity and the environment; Noting that the landscape has an important public interest role in the cultural, ecological, environmental and social fields, and constitutes a resource favourable to economic activity and whose protection, management and planning can contribute to job creation; Aware that the landscape contributes to the formation of local cultures and that it is a basic component of the European natural and cultural heritage, contributing to human well-being and consolidation of the European identity; Acknowledging that the landscape is an important part of the quality of life for people everywhere: in urban areas and in the countryside, in degraded areas as well as in areas of high quality, in areas recognised as being of outstanding beauty as well as everyday areas; Noting that developments in agriculture, forestry, industrial and mineral production techniques and in regional planning, town planning, transport, infrastructure, tourism and recreation and, at a more general level, changes in the world economy are in many cases accelerating the transformation of landscapes; Wishing to respond to the public’s wish to enjoy high quality landscapes and to play an active part in the development of landscapes; Believing that the landscape is a key element of individual and social well-being and that its protection, management and planning entail rights and responsibilities for everyone; Having regard to the legal texts existing at international level in the field of protection and management of the natural and cultural heritage, regional and spatial planning, local self-government and transfrontier co-operation, in particular the Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 19 September 1979), the Convention for the Protection of

the Architectural Heritage of Europe (Granada, 3 October 1985), the European Convention on the Protection of the Archaeological Heritage (revised) (Valletta, 16 January 1992), the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (Madrid, 21 May 1980) and its additional protocols, the European Charter of Local Self-government (Strasbourg, 15 October 1985), the Convention on Biological Diversity (Rio, 5 June 1992), the Convention concerning the Protection of the World Cultural and Natural Heritage (Paris, 16 November 1972), and the Convention on Access to Information, Public Participation in Decision-making and Access to Justice on Environmental Matters (Aarhus, 25 June 1998); Acknowledging that the quality and diversity of European landscapes constitute a common resource, and that it is important to co-operate toward its protection, management and planning; Wishing to provide a new instrument devoted exclusively to the protection, management and planning of all landscapes in Europe, Have agreed as follows: CHAPTER I – GENERAL PROVISIONS

Article 1 – Definitions. For the purposes of the Con-

vention: a. “Landscape” means an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors; b. “Landscape policy” means an expression by the competent public authorities of general principles, strategies and guidelines that permit the taking of specific measures aimed at the protection, management and planning of landscapes; c. “Landscape quality objective” means, for a specific landscape, the formulation by the competent public authorities of the aspirations of the public with regard to the landscape features of their surroundings; d. “Landscape protection” means actions to conserve and maintain the significant or characteristic features of a landscape, justified by its heritage value derived from its natural configuration and/or from human activity;

e. “Landscape management” means action, from a perspective of sustainable development, to ensure the regular upkeep of a landscape, so as to guide and harmonize changes which are brought about by social, economic and environmental processes; f. “Landscape planning” means strong forwardlooking action to enhance, restore or create landscapes. Article 2 – Scope. Subject to the provisions contained in Article 15, this Convention applies to the entire territory of the Parties and covers natural, rural, urban and peri-urban areas. It includes land, inland water and marine areas. It concerns landscapes that might be considered outstanding as well as everyday or degraded landscapes. Article 3 – Aims. The aims of this Convention are

to promote landscape protection, management and planning, and to organise European co-operation on landscape issues. CHAPTER II – NATIONAL MEASURES

Article 4 – Division of Responsibilities. Each Party

shall implement this Convention, in particular Articles 5 and 6, according to its own division of powers, in conformity with its constitutional principles and administrative arrangements, and respecting the principle of subsidiarity, taking into account the European Charter of Local Selfgovernment. Without derogating from the provisions of this Convention, each Party shall harmonise the implementation of this convention with its own policies. Article 5 – General Measures. Each Party under-

takes: a. to recognise landscapes in law as an essential component of people’s surroundings, an expression of the diversity of their shared cultural and natural heritage, and a foundation of their identity; b. to establish and implement landscape policies aimed at landscape protection, management and planning through the adoption of the specific measures set out in Article 6; c. to establish procedures for the participation of the general public, local and regional authorities, and other parties with an interest in the definition

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and implementation of the landscape policies mentioned in paragraph b above; d. to integrate landscape into its regional and town planning policies and in its cultural, environmental, agricultural, social and economic policies, as well as in any other policies with possible direct or indirect impact on landscape. Article 6 – Specific Measures A. Awareness-Raising. Each Party undertakes to

increase awareness among the civil society, private organisations, and public authorities of the value of landscapes, their role and changes to them. B. Training and Education. Each Party undertakes

to promote: a. training for specialists in landscape appraisal and operations; b. multidisciplinary training programmes in landscape policy, protection, management and planning, for professionals in the private and public sectors and for associations concerned; c. school and university courses which, in the relevant subject areas, address the values attaching to landscapes and the issues raised by their protection, management and planning. C. Identification and Assessment

1. With the active participation of the interested parties, as stipulated in Article 5.c, and with a view to improving knowledge of its landscapes, each Party undertakes: a. (i) to identify its own landscapes throughout its territory; (ii) to analyse their characteristics and the forces and pressures transforming them; (iii) to take note of changes. b. to assess the landscapes thus identified, taking into account the particular values assigned to them by the interested parties and the population concerned. 2. These identification and assessment procedures shall be guided by the exchanges of experience and methodology, organised between the Parties at European level pursuant to Article 8.

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D. Landscape Quality Objectives. Each Party

undertakes to define landscape quality objectives for the landscapes identified and assessed, after public consultation in accordance with Article 5.c. E. Implementation. To put landscape policies into

effect, each Party undertakes to introduce instruments aimed at protecting, managing and/or planning the landscape. CHAPTER III – EUROPEAN CO-OPERATION

Article 7 – International Policies and Programmes.

Parties undertake to co-operate in the consideration of the landscape dimension of international policies and programmes, and to recommend, where relevant, the inclusion in them of landscape considerations. Article 8 – Mutual Assistance and Exchange of Information. The Parties undertake to co-operate in

order to enhance the effectiveness of measures taken under other articles of this Convention, and in particular: a. to render each other technical and scientific assistance in landscape matters through the pooling and exchange of experience, and the results of research projects; b. to promote the exchange of landscape specialists in particular for training and information purposes; c. to exchange information on all matters covered by the provisions of the Convention. Article 9 – Transfrontier Landscapes. The Parties shall encourage transfrontier co-operation on local and regional level and, wherever necessary, prepare and implement joint landscape programmes. Article 10 – Monitoring of the Implementation of the Convention

1. Existing competent Committees of Experts set up under Article 17 of the Statute of the Council of Europe shall be designated by the Committee of Ministers of the Council of Europe to be responsible for monitoring the implementation of the Convention. 2. Following each meeting of the Committees of Experts, the Secretary General of the Council of Europe shall transmit a report on the work carried

out and on the operation of the Convention to the Committee of Ministers.

Article 13 – Signature, Ratification and Entry into Force

3. The Committees of Experts shall propose to the Committee of Ministers the criteria for conferring and the rules governing the Landscape award of the Council of Europe.

1. This Convention shall be open for signature by the member States of the Council of Europe. It shall be subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 11 – Landscape Award of the Council of Europe

1. The Landscape award of the Council of Europe is a distinction which may be conferred on local and regional authorities and their groupings that have instituted, as part of the landscape policy of a Party to this Convention, a policy or measures to protect, manage and/or plan their landscape, which have proved lastingly effective and can thus serve as an example to other territorial authorities in Europe. The distinction may be also conferred on non-governmental organisations having made particularly remarkable contributions to landscape protection, management or planning. 2. Applications for the Landscape award of the Council of Europe shall be submitted to the Committees of Experts mentioned in Article 10 by the Parties. Transfrontier local and regional authorities and groupings of local and regional authorities concerned, may apply provided that they jointly manage the landscape in question. 3. On proposals from the Committees of Experts mentioned in Article 10 the Committee of Ministers shall define and publish the criteria for conferring the Landscape award of the Council of Europe, adopt the relevant rules and confer the award. 4. The granting of the Landscape award of the Council of Europe is to encourage those receiving the award to ensure the sustainable protection, management and/or planning of the landscape areas concerned.

2. The Convention shall enter into force on the first day of the month following the expiry of a period of three months after the date on which ten member States of the Council of Europe have expressed their consent to be bound by the Convention in accordance with the provisions of the preceding paragraph. 3. In respect of any signatory state which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiry of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval. Article 14 – Accession

1. After the entry into force of this Convention, the Committee of Ministers of the Council of Europe may invite the European Community and any European State which is not a member of the Council of Europe, to accede to the Convention by a majority decision as provided in Article 20.d of the Council of Europe Statute, and by the unanimous vote of the States parties entitled to hold seats in the Committee of Ministers. 2. In respect of any acceding State, or the European Community in the event of its accession, this Convention shall enter into force on the first day of the month following the expiry of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.

CHAPTER IV – FINAL CLAUSES

Article 12 – Relationship with Other Instruments.

Article 15 – Territorial Application

The provisions of this Convention shall not prejudice stricter provisions concerning landscape protection, management and planning contained in other existing or future binding national or international instruments.

1. Any State or the European Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which the Convention shall apply.

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2. Any Party may, at any later date, by declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration. The Convention shall take effect in respect of such a territory on the first day following the expiry of a period of three months after the date of receipt of the declaration by the Secretary General. 3. Any declaration made under the two paragraphs above may, in respect of any territory mentioned in such declaration, be withdrawn by notification addressed to the Secretary General. Such withdrawal shall become effective on the first day of the month following the expiry of a period of three months after the date of receipt of the notification by the Secretary General. Article 16 – Denunciation

1. Any Party may, at any time, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.

vote of the States parties entitled to hold seats in the Committee of Ministers, the text shall be forwarded to the Parties for acceptance. 4. Any amendment shall enter into force in respect of the Parties which have accepted it on the first day of the month following the expiry of a period of three months after the date on which three Council of Europe member States have informed the Secretary General of their acceptance. In respect of any Party which subsequently accepts it, such amendment shall enter into force on the first day of the month following the expiry of a period of three months after the date on which the said Party has informed the Secretary General of its acceptance. Article 18 – Notifications. The Secretary General

of the Council of Europe shall notify the member States of the Council of Europe, any State or the European Community having acceded to this Convention, of: [“any . . . act, notification, information or communication relating to this Convention.”]

2. Such denunciation shall become effective on the first day of the month following the expiry of a period of three months after the date of receipt of the notification by the Secretary General.

a. any signature;

Article 17 – Amendments

d. any declaration made under Article 15;

1. Any Party or the Committees of Experts mentioned in Article 10 may propose amendments to this Convention. 2. Any proposal for amendment shall be notified to the Secretary General of the Council of Europe who shall communicate it to the member States of the Council of Europe, to the others Parties, and to any European non-member State which has been invited to accede to this Convention in accordance with the provisions of Article 14. 3. The Committees of Experts mentioned in Article 10 shall examine any amendment proposed and submit the text adopted by a majority of threequarters of the Parties’ representatives to the Committee of Ministers for adoption. Following its adoption by the Committee of Ministers by the majority provided for in Article 20.d of the Statute of the Council of Europe and by the unanimous

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b. the deposit of any instrument of ratification, acceptance, approval or accession; c. any date of entry into force of this Convention in accordance with Articles 13, 14 and 15; e. any denunciation made under Article 16; f. any proposal for amendment, any amendment adopted pursuant to Article 17 and the date on which it comes into force; g. any other act, notification, information or communication relating to this Convention. In witness whereof the undersigned, being duly authorised thereto, have signed this Convention. Done at Florence, this 20th day of October 2000, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each Member State of the Council of Europe and to any State or to the European Community should they be invited to accede to this Convention.

European Landscape Convention Explanatory Report Summary: This report offers a detailed exegesis of the European Landscape Convention and should be read in conjunction with that document. According to the report, the member states of the Council of Europe determined that landscape of any sort, be it “outstanding,” “ordinary,” or “damaged,” is an important resource and a part of their common heritage, and that it should therefore be subject to government regulation. The convention was enacted as part of a larger European effort to promote sustainable development and is intended to integrate landscape considerations into the planning process at the “local, regional, national and international” levels, with special emphasis on regions that cross national boundaries. It is designed to complement existing treaties and provides for cooperation and mutual assistance in the exchange of information and experts. A priority of the convention was to provide a collaborative solution to what the member states of the Council of Europe have identified as a trans-European problem. The full text of the European Landscape Convention Explanatory Report is available at: http://conventions.coe.int/Treaty/EN/Reports/ Html/176.htm The full text of the European Landscape Convention Explanatory Report is available in French at: http://conventions.coe.int/Treaty/ FR/Reports/Html/176.htm

EUROPEAN LANDSCAPE CONVENTION EXPLANATORY REPORT I. ORIGINS OF THE CONVENTION

[Omitted.] In 1994 the Council of Europe’s Congress of Local and Regional Authorities (CLRAE) determined to prepare a “convention on the management and protection of the natural and cultural landscape of Europe as a whole.” In doing so it acknowledged “growing social demand” as well as reports from the European Union and the World Conservation Union and rec-

ommendations from individual European countries. The Congress drew on numerous existing conventions both within and without Europe and sought to “clarify the legal situation and practices relating to landscape protection, management and planning in Council of Europe member States.” After public hearings and consultation with the member states’ national authorities responsible for landscape matters, the Congress was able to submit a draft convention to the Council, which became the basis for the convention adopted by the Council in July of 2000 and opened for signature in October of that year. II. AIMS AND STRUCTURE OF THE CONVENTION

21. Europe’s populations want policies and instruments affecting national territory to take account of their wishes regarding the quality of their surroundings. In their view, this quality to some extent has to do with the feelings aroused in them by contemplating the landscape. They have come to realise that the quality and diversity of many landscapes are deteriorating as a result of a wide variety of factors and that this is having an adverse effect on the quality of their everyday lives. 22. Official landscape activities can no longer be allowed to be an exclusive field of study or action monopolised by specialist scientific and technical bodies. 23. Landscape must become a mainstream political concern, since it plays an important role in the wellbeing of Europeans who are no longer prepared to tolerate the alteration of their surroundings by technical and economic developments in which they have had no say. Landscape is the concern of all and lends itself to democratic treatment, particularly at local and regional level. 24. If people are given an active role in decisionmaking on landscape, they are more likely to identify with the areas and towns where they spend their working and leisure time. If they have more influence on their surroundings, they will be able to

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reinforce local and regional identity and distinctiveness and this will bring rewards in terms of individual, social and cultural fulfilment. This in turn may help to promote the sustainable development of the area concerned, as the quality of landscape has an important bearing on the success of economic and social initiatives, whether public or private. 25. The general purpose of the Convention is to encourage public authorities to adopt policies and measures at local, regional, national and international level for protecting, managing and planning landscapes throughout Europe so as to maintain and improve landscape quality and bring the public, institutions and local and regional authorities to recognise the value and importance of landscape and to take part in related public decisions. 26. The above-mentioned policies and measures cover all the forms of landscape which countries possess. The Convention applies to all parts of Europe, including natural, rural, urban and periurban areas. It is not confined to either the cultural, man-made or natural components of landscape: it is concerned with all of these and how they interconnect. 27. Extending the scope of local authorities’ official landscape action to cover the whole of national territory does not imply that the same measures and policies must be applied to all landscapes; these measures and policies should be adaptable to particular types of landscape, which, depending on their specific characteristics, will need various forms of treatment at local level, ranging from the strictest conservation via protection, management and planning to actual creation. These various treatments may allow an important socio-economic development of the areas concerned. 28. The Convention demands a forward-looking attitude on the part of all those whose decisions affect the protection, management or planning of landscapes. It has implications for many areas of official policy and official or private action, from the local to the European level. 29. In addition to their local significance, Europe’s landscapes are of value in various ways to all Europeans. They are cherished outside the locality and beyond national borders. In addition there are landscapes which have identical characteristics on both sides of borders and therefore require transbor-

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der measures to implement the action principles. Finally, landscapes bear the consequences, whether positive or negative, of processes which may originate elsewhere and whose impact is not checked by national boundaries. That is why it is legitimate to be concerned with landscape at European level. 30. In their diversity and quality, the cultural and natural values linked to European landscapes are part of Europe’s common heritage, and so European countries have a duty to make collective provisions for the protection, management and planning of these values. Only an international Convention at Council of Europe level can help to reach this objective in order to provide a legal reference to other international initiatives active in this field. 31. A number of existing international legal instruments have some bearing upon landscape, either directly or indirectly. However, there is no international legal instrument that deals directly, specifically and comprehensively with European landscapes and their preservation, despite their immense cultural and natural value and the many threats to them. The Convention is designed to fill that gap. 32. An international Convention is a dynamic legal instrument, which evolves together with the subject matter of its provisions. An international legal instrument intended to deal with landscape values and interests should be able to keep pace with changes in those values and interests. The Convention also has the advantage of applying indefinitely, and of being implemented under the auspices of an international organisation, in this case the Council of Europe. 33. The European Landscape Convention is seen as being complementary to existing international legal instruments, such as: a. the Unesco Convention concerning the Protection of the World Cultural and Natural Heritage (Paris, 16 November 1972); b. the Council of Europe Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 19 September 1979); c. the Council of Europe Convention for the Protection of the Architectural Heritage of Europe (Granada, 3 October 1985);

d. the Council of Europe Convention for the Protection of the Archaeological Heritage (revised) (Valletta, 16 January 1992); and to international initiatives such as the PanEuropean Biological and Landscape Diversity Strategy (Sofia, 25 October 1995). The European Landscape Convention should allow to establish formal links where appropriate between the mechanisms of the Convention and these other instruments or initiatives. 34. The European Landscape Convention leaves Parties the choice of means to be used within their internal legal arrangements to fulfil their obligations. The legal, administrative, fiscal and financial arrangements made in each country to serve the Convention’s implementation should fit in as comfortably as possible with that country’s traditions. It is also recognised that, on the basis of the principle of subsidiarity, responsibility for action relating to landscape lies with public authorities not only at national and international levels, but also at local and regional levels. 35. The European Landscape Convention comprises a preamble and four main sections: a. Chapter I, setting out the objectives and scope of the convention, plus key definitions; b. Chapter II, stating the measures to be taken at national level; c. Chapter III, stating the basis for European cooperation, the measures to be taken at international level and the role of the Committees responsible for monitoring the implementation of the Convention; d. Chapter IV, dealing with procedures for adoption of the convention and related matters.

III. COMMENTARY ON THE PROVISIONS OF THE CONVENTION PREAMBLE

36. The preamble outlines the issues underlying the European Landscape Convention, emphasising the following points. The Convention is part of the Council of Europe’s work on natural and cultural heritage, spatial planning, environment and local self-government.

The concern for sustainable development expressed at the Rio de Janeiro conference makes landscape an essential consideration in striking a balance between preserving the natural and cultural heritage as a reflection of European identity and diversity, and using it as an economic resource capable of generating employment in the context of the boom in sustainable tourism. The landscape is important as a component of the environment and of people’s surroundings in both town and country and whether it is ordinary landscape or outstanding landscape. The public is accordingly encouraged to take an active part in landscape management and planning, and to feel it has responsibility for what happens to the landscape. The Council of Europe member States, anxious to promote through international agreements the ideals which are their common heritage, possess a precious asset in the landscapes, and one which needs to be maintained and managed by means of effective international co-operation based on a legal instrument exclusively devoted to landscape. CHAPTER I – GENERAL PROVISIONS

Article 1 – Definitions

37. This article defines various terms used in the Convention to ensure that they are interpreted uniformly by everyone concerned with the well-being of Europe’s landscapes. 38. “Landscape” is defined as a zone or area as perceived by local people or visitors, whose visual features and character are the result of the action of natural and/or cultural (that is, human) factors. This definition reflects the idea that landscapes evolve through time, as a result of being acted upon by natural forces and human beings. It also underlines that a landscape forms a whole, whose natural and cultural components are taken together, not separately. 39. The terms “landscape policy” and “landscape quality objective” relate to the phases of the strategy which States have to devise in two stages: – “Landscape policy” reflects public authorities’ awareness of the need to frame an official policy on landscape. It lays down the basic emphases, general principles and strategic choices by which decisions on landscape protection, management and planning are to be guided;

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– “Landscape quality objective”, once a particular landscape has been identified and described, is a detailed statement of the characteristics which local people want recognised in their surroundings. 40. Article 1 continues with definitions of three terms frequently used in the convention: “protection”, “management” and “planning” of landscapes are principles of landscape action which are treated in a dynamic and forward-looking manner. “Landscape protection” consists of measures to preserve the present character and quality of a landscape which is greatly valued on account of its distinctive natural or cultural configuration. Such protection must be active and involve upkeep measures to preserve significant features of a landscape. “Landscape management” is any measure introduced, in accordance with the principle of sustainable development, to steer changes brought about by economic, social or environmental necessity. Such measures may be concerned with organisation of the landscape or its components. They will ensure a regular upkeep of the landscape and that the landscape evolves harmoniously and in a way that meets economic and social needs. The management approach must be a dynamic one and seek to improve landscape quality on the basis of the population’s expectations. “Landscape planning” is the formal process of study, design and construction by which new landscapes are created to meet the aspirations of the people concerned. It involves framing proper planning projects, more particularly in those most affected by change and badly damaged areas (for example, suburbs, peri-urban and industrial areas, coastal areas). The purpose of such planning projects is to radically reshape the damaged landscapes. 41. In each area of landscape the balance between these three types of activity will depend on the character of the area and the agreed objectives for its future landscape. Some areas may merit the strictest protection. At the other extreme there may be areas whose landscapes are severely damaged and need entirely reshaping. Most landscapes need a combination of the three modes of action, and some of them need some degree of intervention.

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42. In seeking the right balance between protection, management and planning of a landscape, it should be remembered that the aim is not the preservation or “freezing” of the landscape at a particular point in its lengthy evolution. Landscapes have always changed and will continue to change, both through natural processes and through human action. In fact, the aim should be to manage future changes in a way which recognises the great diversity and the quality of the landscapes that we inherit and which seeks to preserve, or even enhance, that diversity and quality instead of allowing them to decline. Article 2 – Scope

43. This article states that the Convention applies to the Parties’ entire territory and covers natural, rural, urban and peri-urban areas. It covers both land areas and water areas, and applies both to inland waters (such as lakes and areas of brackish water) and marine areas (coastal waters and the territorial sea). 44. The reservation in Article 15 refers to the facility whereby some countries are allowed not to apply a ratified international treaty automatically to some territories, in particular overseas (see comment to Article 15). 45. The Convention’s original feature is that it applies to ordinary landscapes no less than to outstanding ones, since all decisively influence the quality of Europeans’ surroundings. Thus everyday, outstanding and damaged landscapes all come within its scope. This comprehensive coverage is justified for the following reasons: every landscape forms the setting for the lives of the population concerned; urban and rural landscapes interlock in complex ways; most Europeans live in towns and cities (large or small), the quality of whose landscapes greatly affects their lives; and rural landscapes occupy an important place in the European consciousness. It is also justified by the profound changes which European landscapes, particularly peri-urban ones, are now undergoing. Article 3 – Aims

46. This article states the objective of the Convention, which is the protection, management and planning of European landscapes by means

of national measures and European co-operation between contracting Parties.

visions of the Convention, by adopting the special measures provided for in Article 6;

47. Chapter II (Articles 4 to 6) and Chapter III (Articles 7 to 11) of the Convention deal with national measures and European co-operation respectively.

c. lay down procedures for participation by the general public, local and regional authorities and other interested parties in the formulation and implementation of these policies. Landscape is an issue which affects the whole population, and care for the landscape requires collaboration between a wide range of individuals and organisations;

CHAPTER II – NATIONAL MEASURES

Article 4 – Division of Responsibilities

48. This article provides that each Party is to implement the convention at the most appropriate level of government for landscape action, regard being had to the principle of subsidiarity and the European Charter of Local Self-Government. This implies that, if necessary, local and regional authorities, and groupings of such authorities, are guaranteed formal involvement in the implementation process. 49. Where local and regional authorities have the necessary competence, protection, management and planning of landscapes will be more effective if responsibility for their implementation is entrusted – within the constitutional framework legislatively laid down at national level – to the authorities closest to the communities concerned. Each country should set out in detail the tasks and measures for which each level – national, regional or local – is responsible and should lay down rules for inter-level co-ordination of such measures, in particular where town planning and regional planning instruments are concerned. Article 5 – General Measures

50. This article lays down the measures necessary to implement the Convention within each Party. These include actions to: a. recognise landscape legally as constituting an essential component of the setting for people’s lives, as reflecting the diversity of their common cultural, ecological and socio-economic heritage and as the foundation of local identity. It may be noted that many European countries already make reference to the landscape in their constitutions or in their legislation on the natural or cultural heritage or on environment; b. frame and implement policies to protect, manage and plan landscapes in keeping with the pro-

d. systematically accommodate landscape into the country’s spatial and town-planning policies, its cultural, environmental, agricultural, social and economic policies, and any other policy sector, which may have direct or indirect impact on the landscape, such as transport. The point of this provision is that landscape is not a question to be treated as a specialist field of public affairs. Landscape can be affected for good or ill by action in many sectors. Hence the need for governments to ensure that landscape objectives are taken into account in all relevant sectors of public life. Article 6 – Specific Measures

51. This article deals with special measures, which Parties must take at national, regional or local level. Paragraph A – Awareness-Raising

52. This paragraph deals with the crucial question of public awareness. Every citizen has a share in the landscape and in the duty of looking after it, and the well-being of landscapes is closely linked to the level of public awareness. Campaigns for informing and educating the public, elected representatives and associations about the value of present and future landscapes should be organised in this perspective. Paragraph B – Training and Education

53. Protection, management and planning of landscapes can be a complex matter, involving many different public and private agencies and multidisciplinary work bringing in a whole range of professions and occupations. Parties are therefore asked: a. to provide high-quality specialist training in landscape appraisal and landscape operations; b. to promote multidisciplinary training in landscape matters for elected members and technical

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staff of local, regional and national authorities and other relevant public and private sector bodies. The aim here is to improve the technical expertise of bodies with landscape responsibilities. Examples of such bodies are professional organisations concerned with regional planning, the management of the environment or heritage, agricultural land use, tourism, industry, construction work or infrastructure; c. to develop school and university courses which, in the relevant subject areas, cover questions related to landscape and landscape protection, management and planning so that young people become aware of the issues concerning the environment in which they live. Paragraph C – Identification and Evaluation

54. This outlines the work needed to identify and evaluate landscapes in order to lay down a sound basis for long-term action aimed at protecting and improving them. Such action must be based on detailed knowledge of the characteristics of each landscape, the evolutionary processes affecting it and the value which the population concerned attaches to it. Evaluation need not involve a precise scale of values. 55. Sub-paragraph C 1 a requires Parties to carry out research and studies in order to identify landscapes and analyse their characteristics and the dynamics and pressures which affect them. Some countries have already performed nation-wide surveys of landscapes. This work has revealed the landscape distinctiveness of different areas, each with its own mixture of natural and man-made elements. Geographical information systems and modern techniques of computerised mapping, also at urban level, are used to show up landscape characteristics, such as the physical relief, the settlement pattern, the main land uses, economic activities, residential areas, the presence or absence of features such as hedgerows and terraces, important wildlife habitats and the heritage of past human activity. 56. It is vital that professional fieldwork of this kind involves the local community, the general public and the various other stakeholders by means of surveys and information meetings. 57. Sub-paragraph C 1 b requires Parties to assess the quality of the landscapes identified, taking

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into account the particular value of different kinds assigned to them by the general public and interested parties such as landowners and land users or land managers. The point of this evaluation is to provide a basis for judging what landscape features of an area are so valuable that they should be protected; what features need management in order to maintain the quality of the landscape; and what features or areas should be considered for enhancement. This process must take account of the concerned people’s opinion and the interests linked to sectoral policies, and here views may well be highly subjective and differ considerably. It may well be worth performing the evaluation according to objective criteria first, then comparing the findings with the various assessments of the landscape by people concerned and other interest groups. If necessary, this comparison could be carried out by public inquiry, with the interested parties having the right to express their opinion. Public participation in this type of procedure could be fostered by providing the public with information, consulting all representative bodies, using the media and conducting awareness-raising campaigns at all levels. 58. Sub-paragraph C 2 refers to the benefits of international exchanges of experience and ideas, as provided for in later articles. There is no universally acknowledged method for studying, identifying and evaluating landscapes, but a considerable body of knowledge already exists and should be tapped. International co-operation will encourage countries to take action, pool knowledge and experience concerning landscapes, landscape value and current problems and policies, and identify the landscapes or problems that warrant international attention. Paragraph D – Landscape Quality Objectives

59. This paragraph requires parties to set quality objectives for the landscapes which have been identified and evaluated, and in doing so to consult the population concerned. Before any measure is taken for the protection, management and planning of a landscape, it is essential to make clear to the public what objectives are being pursued. These objectives should be laid down, explained and announced by the competent authority concerned after the general public and all relevant

interests have been consulted. The objectives may be set within the more general framework of a policy conducted by the territorial or central authorities concerned. The decision setting the objectives should state clearly the special features and qualities of the landscape concerned, the general thrust of the policy for that landscape, and the specific components of the landscape to which protection, management or planning will apply. It should then say by what means the objectives are to be achieved.

Article 8 – Mutual Assistance and Exchange of Information

60. There must be a clear relationship between the objectives, the findings of the identification and evaluation surveys, and the measures deemed necessary to achieve the objectives.

c. exchange of information on all matters covered by the provisions of the Convention.

Paragraph E – Implementation

61. This paragraph invites the Parties to introduce specific legal, administrative, fiscal or financial instruments in view to protecting, managing and planning landscapes, taking into account the agreed landscape policies. The instruments available can be very varied. They include landscape plans, landscape projects, special status for certain types of landscape, a requirement that impact studies, activity licences and land-use permits consider impact on landscape, emergency measures to safeguard threatened landscape, and so on. It is for each state to develop and introduce a range of instruments that is appropriate to the needs of its landscapes and to its legal system. The competent Committees of Experts mentioned in Article 10 of this Convention may make recommendations to facilitate the implementation of the Convention. CHAPTER III – EUROPEAN CO-OPERATION

Article 7 – International Policies and Programmes

62. The Convention should allow international bodies and programmes to take more account of landscape. To that end the Parties most aware of the landscape problem should play an active part by co-ordinating their ideas and proposals in the competent Committees of Experts, mentioned in Article 10 of the Convention. In addition, the Council of Europe should engage in particular landscape co-operation with other governmental international organisations, in particular Unesco, the European Union and IUCN, as well as with other non-governmental organisations.

63. To assist implementation and make the Convention more effective, Parties undertake to cooperate in three ways: a. technical and scientific assistance through exchanges of experience and results of mutual research projects in landscape matters; b. exchange of landscape specialists, in particular for training and information purposes;

64. Recent years have seen a burgeoning of political, professional and academic interest in the subject of landscapes, and thus the development of a growing body of experience and expertise on which member States, local and regional authorities and others can draw as they seek to implement the Convention. At the same time, the growth of electronic communication and the arrival of the Internet have provided radically improved tools for exchanging ideas and, indeed, for the technical study of landscapes. These developments create a much wider basis for the exchange of ideas and mutual support than was possible even a decade ago, allowing local actors throughout Europe to take part and thus creating a true “landscape democracy.” Article 9 – Transfrontier Landscapes

65. This article requires the parties to set up transfrontier programmes for the identification, evaluation, protection, management and planning of landscapes which straddle borders. In doing so, they are asked to rely as far as possible, in accordance with the subsidiarity principle defined by the European Charter of Local Self-Government, on local and regional authorities, and to use the implementation tools advocated in the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities in Europe of 21 May 1980 and its additional protocols. Article 10 – Monitoring of the Application of the Convention

66. It transpires that it would be easier to achieve the objectives of the Convention if the

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representatives of Contracting Parties had the possibility of meeting regularly to devise joint coordinated programmes and of jointly monitoring the application of the Convention. 67. It was therefore agreed that the Council of Europe provided the ideal framework since it already has the competent committees on which all the States parties to the Convention can be represented. 68. Given the many aspects of landscapes activities, the monitoring of the application of the Convention could be entrusted to the Committee for the activities of the Council of Europe in the field of biological and landscape diversity (CO-DBP) and the Cultural Heritage Committee (CC-PAT) which work, within the Council of Europe, in the sphere addressed by the Convention and have direct access to the Committee of Ministers. In order to carry out this task the committees could hold joint meetings so that the Convention benefits from an appropriate forum for discussion. The Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe (CLRAE) will be associated to the work of the mentioned committees relating to the Convention. 69. Given local and regional authorities’ increasing responsibilities with regard to the protection management and planning of landscape, the Congress of Local and Regional Authorities of Europe (CLRAE), the body representing these authorities in the Council of Europe, may convey opinions to the Committee of Ministers on the reports drawn up by the Council of Europe committees responsible for monitoring the application of the Convention, on the basis of Article 2, indent 2 of the Statutory Resolution (2000) 1. 70. Likewise, the CLRAE is called upon to participate actively in the follow-up activities and to give its opinion on the criteria for the conferral of the below-mentioned Landscape award of the Council of Europe. Article 11 – Landscape Award of the Council of Europe

71. This article provides that the Committee of Ministers, on proposal of the competent Committees of Experts mentioned in Article 10 of the Convention, and taking into account the opinion of

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the Congress of Local and Regional Authorities of Europe, is to make a Landscape award of the Council of Europe to a local or regional authority, a group of such authorities (whether within one country or on a transborder basis) or a non-governmental organisation having introduced policies or measures for the protection, management or planning of landscapes which have been of lasting worth and can serve as an example to other authorities throughout Europe. 72. The award is intended as a stimulus to a process, which countries throughout Europe could set in motion, of encouraging and recognising quality stewardship of landscapes. The Landscape award of the Council of Europe could “crown” national level action, which might include national competitions and perhaps financial support to local and regional authorities concerned. 73. Under paragraph 1 local and regional authorities, groups of them, or non-governmental organisations or individuals would apply for the award through their member State. This will enable the contracting Party to appraise the applications, possibly in a national competition carrying national prizes or awards, and to put forward to the competent committee of experts the national winner or a small number of candidates for consideration for the award. 74. Under paragraphs 2 and 3 the competent Committees of Experts lays down and publishes the criteria on which candidates for the award are assessed and receives States’ proposals. The award is granted by the Committee of Ministers of the Council of Europe. 75. Paragraph 4 provides that those which are granted the award will be invited to protect, manage and plan the landscape concerned on a lasting basis.

CHAPTER IV – FINAL CLAUSES

76. With some exceptions, the final clauses are based on the “model final clauses for conventions and agreements concluded within the Council of Europe” which were approved by the Committee of Ministers of the Council of Europe at its 315th meeting of the Deputies, in February 1980. Thus most of these articles do not require any

particular explanation, except for the following points, which deserve a comment. Article 12 – Relations with Other Instruments

77. The wording of this article is based on model provisions already used in other international conventions in order to deal with the problem of linking up conventions concerned with similar fields. 78. The present Convention is distinct from the Unesco Convention concerning the Protection of the World Cultural and Natural Heritage of 16 November 1972 both formally and substantively. The two conventions have different purposes, as do the organisations under whose auspices they were drawn up. One is regional in scope, the other world-wide. The Council of Europe Convention can be regarded as complementary to the Unesco one. As regards its substantive scope, the Council of Europe Convention covers all landscapes, even those that are not of outstanding universal value, but does not deal with historic monuments, unlike the Unesco Convention. Similarly, its main objective is not to draw up a list of assets of exceptional universal value, but to introduce protection, management and planning rules for all landscape based on a set of principles. Thus each convention has its distinctive features. To co-ordinate action under the two conventions, consideration could be given to scientific co-operation between the Unesco World Heritage Committee and the Committees of Experts mentioned under Article 10 of the European Landscape Convention, under Article 13.7 of the Unesco Convention of 16 November 1972, and as suggested in Article 7 of the present Convention. 79. Article 12 of the European Landscape Convention seeks to avert difficulties with other international legal instruments by stating that it does not preclude application of any stricter provisions of other instruments that treat landscape even more favourably.

Article 13 – Signature, Ratification and Entry into Force

80. The Convention will enter into force three months after ten Council of Europe member States have ratified it. Article 15 – Territorial Scope

81. This provision is only concerned with territories having a special status, such as overseas territories, the Faroe Islands or Greenland in the case of Denmark, or Gibraltar, the Isle of Man, Jersey or Guernsey in the case of the United Kingdom. 82. It is well understood, however, that it would be contrary to the object and purpose of this Convention for any contracting Party to exclude parts of its main territory from the Convention’s scope and that it was unnecessary to make this point explicit in the Convention. Article 17 –Amendments

83. Amendments can adapt or improve a Convention. The Committees mentioned in Article 10 of the Convention may prepare amendments and consider those suggested by Parties. Their adoption by the Committee of Ministers requires a three-quarters majority, after which the Parties must agree to them. They come into force three months after acceptance by three contracting Parties members of the Council of Europe. Note: The Council of Europe’s Parliamentary Assembly and Cultural Heritage Committee, the European Union’s Committee of the Regions, Unesco’s World Heritage Committee, the World Commission on Protected Areas and the Commission on Environmental Law of the World Conservation Union (IUCN) presented official opinions at the Florence Conference. A number of non-governmental organisations with technical qualifications in landscape management also gave favourable opinions on the preliminary draft Convention at the conference.

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Agenda 21 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, 3–14 June 1992 U.N. GAOR, 46th Sess., Annex II, Agenda Item 21, U.N. Doc. A/CONF. 151/26 (1992) Summary: Agenda 21 is described by the United Nations Commission on Sustainable Development as “a comprehensive plan of action to be taken globally, nationally and locally by organizations of the United Nations System, Governments, and Major Groups in every area” in which human life affects the environment. Together with the Rio Declaration and the UN Forest Principles, it was adopted by more than 170 nations attending the United Nations Conference on Environment and Development (UNCED) in Rio de Janerio, Brazil, in 1992. The preamble to Agenda 21 states: “Humanity stands at a defining moment in history. We are confronted with a perpetuation of disparities between and within nations, a worsening of poverty, hunger, ill health and illiteracy, and the continuing deterioration of the ecosystems on which we depend for our well-being.” The document sets out objectives, programme areas, and means of implementation for a sweeping range of issues in sustainable development. Agenda 21 is divided into four sections. Section I – Social and Economic Dimensions – sets out goals for combating poverty, promoting sustainable patterns of consumption, encouraging sustainable human settlements, and integrating environmental considerations into development decisions. Section II – Conservation and Management of Resources for Development – takes up specific issues of environmental protection, including ecosystems, agriculture, and marine resources. Section III – Strengthening the Role of Major Groups – considers issues of equity for women, young people, workers, business and industry, and farmers. Section IV – Means of Implementation – concerns financial, legal, and educational instruments for sustainability.

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Excerpts are included here from the Preamble and from Chapter 7, Promoting Sustainable Human Settlement Development; Chapter 8, Integrating Environment and Development in Decision-Making; Chapter 10, Integrated Approaches to the Planning and Management of Land Resources; and Chapter 17, Protection of the Oceans. The full text of Agenda 21 is available at: http://www.un.org/esa/sustdev/documents/ agenda21/english/agenda21toc.htm

AGENDA 21 PREAMBLE

1.1. Humanity stands at a defining moment in history. We are confronted with a perpetuation of disparities between and within nations, a worsening of poverty, hunger, ill health and illiteracy, and the continuing deterioration of the ecosystems on which we depend for our well-being. However, integration of environment and development concerns and greater attention to them will lead to the fulfilment of basic needs, improved living standards for all, better protected and managed ecosystems and a safer, more prosperous future. No nation can achieve this on its own; but together we can – in a global partnership for sustainable development. . . . 1.3. Agenda 21 addresses the pressing problems of today and also aims at preparing the world for the challenges of the next century. It reflects a global consensus and political commitment at the highest level on development and environment cooperation. Its successful implementation is first and foremost the responsibility of Governments. National strategies, plans, policies and processes are crucial in achieving this. International cooperation should support and supplement such national efforts. In this context, the United Nations system has a key role to play. Other international, regional and subregional organizations are also called upon to contribute to this effort. The broadest public participation and the active involvement of the

non-governmental organizations and other groups should also be encouraged. . . .

CHAPTER 7. PROMOTING SUSTAINABLE HUMAN SETTLEMENT DEVELOPMENT

7.1. In industrialized countries, the consumption patterns of cities are severely stressing the global ecosystem, while settlements in the developing world need more raw material, energy, and economic development simply to overcome basic economic and social problems. Human settlement conditions in many parts of the world, particularly the developing countries, are deteriorating mainly as a result of the low levels of investment in the sector attributable to the overall resource constraints in these countries. In the low-income countries for which recent data are available, an average of only 5.6 per cent of central government expenditure went to housing, amenities, social security and welfare.5 Expenditure by international support and finance organizations is equally low. For example, only 1 per cent of the United Nations system’s total grant-financed expenditures in 1988 went to human settlements,6 while in 1991, loans from the World Bank and the International Development Association (IDA) for urban development and water supply and sewerage amounted to 5.5 and 5.4 per cent, respectively, of their total lending.7

5

6

7

No aggregate figures are available on internal expenditure or official development assistance on human settlements. However, data available in the World Development Report, 1991, for 16 low-income developing countries show that the percentage of central government expenditure on housing, amenities and social security and welfare for 1989 averaged 5.6 per cent, with a high of 15.1 per cent in the case of Sri Lanka, which has embarked on a vigorous housing programme. In OECD industrialized countries, during the same year, the percentage of central government expenditure on housing, amenities and social security and welfare ranged from a minimum of 29.3 per cent to a maximum of 49.4 per cent, with an average of 39 per cent (World Bank, World Development Report, 1991, World Development Indicators, table 11 (Washington, D.C., 1991)). See the report of the Director-General for Development and International Economic Cooperation containing preliminary statistical data on operational activities of the United Nations system for 1988 (A/44/324E/1989/106/Add.4, annex). World Bank, Annual Report, 1991 (Washington, D.C., 1991).

7.2. On the other hand, available information indicates that technical cooperation activities in the human settlement sector generate considerable public and private sector investment. For example, every dollar of UNDP technical cooperation expenditure on human settlements in 1988 generated a follow-up investment of $122, the highest of all UNDP sectors of assistance.8 7.3. This is the foundation of the “enabling approach” advocated for the human settlement sector. External assistance will help to generate the internal resources needed to improve the living and working environments of all people by the year 2000 and beyond, including the growing number of unemployed – the no-income group. At the same time the environmental implications of urban development should be recognized and addressed in an integrated fashion by all countries, with high priority being given to the needs of the urban and rural poor, the unemployed and the growing number of people without any source of income. Human Settlement Objective

7.4. The overall human settlement objective is to improve the social, economic and environmental quality of human settlements and the living and working environments of all people, in particular the urban and rural poor. Such improvement should be based on technical cooperation activities, partnerships among the public, private and community sectors and participation in the decisionmaking process by community groups and special interest groups such as women, indigenous people, the elderly and the disabled. These approaches should form the core principles of national settlement strategies. In developing these strategies, countries will need to set priorities among the eight programme areas in this chapter in accordance with their national plans and objectives, taking fully into account their social and cultural capabilities. Furthermore, countries should make appropriate provision to monitor the impact of their strategies on marginalized and disenfranchised groups, with particular reference to the needs of women.

8

UNDP, “Reported investment commitments related to UNDP-assisted projects, 1988,” table 1, “Sectoral distribution of investment commitment in 1988–1989.”

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7.5. The programme areas included in this chapter are: (a) Providing adequate shelter for all; (b) Improving ment;

human

settlement

manage-

(c) Promoting sustainable land-use planning and management; (d) Promoting the integrated provision of environmental infrastructure: water, sanitation, drainage and solid-waste management; (e) Promoting sustainable energy and transport systems in human settlements; (f) Promoting human settlement planning and management in disaster-prone areas; (g) Promoting sustainable construction industry activities; (h) Promoting human resource development and capacity-building for human settlement development. PROGRAMME AREAS

A. Providing Adequate Shelter for All Basis for Action

7.6. Access to safe and healthy shelter is essential to a person’s physical, psychological, social and economic well-being and should be a fundamental part of national and international action. The right to adequate housing as a basic human right is enshrined in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. Despite this, it is estimated that at the present time, at least 1 billion people do not have access to safe and healthy shelter and that if appropriate action is not taken, this number will increase dramatically by the end of the century and beyond. 7.7. A major global programme to address this problem is the Global Strategy for Shelter to the Year 2000, adopted by the General Assembly in December 1988 (resolution 43/181, annex). Despite its widespread endorsement, the Strategy needs a much greater level of political and financial support to enable it to reach its goal of facilitating adequate shelter for all by the end of the century and beyond.

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Objective

7.8. The objective is to achieve adequate shelter for rapidly growing populations and for the currently deprived urban and rural poor through an enabling approach to shelter development and improvement that is environmentally sound. Activities

7.9. The following activities should be undertaken: (a) As a first step towards the goal of providing adequate shelter for all, all countries should take immediate measures to provide shelter to their homeless poor, while the international community and financial institutions should undertake actions to support the efforts of the developing countries to provide shelter to the poor; (b) All countries should adopt and/or strengthen national shelter strategies, with targets based, as appropriate, on the principles and recommendations contained in the Global Strategy for Shelter to the Year 2000. People should be protected by law against unfair eviction from their homes or land; (c) All countries should, as appropriate, support the shelter efforts of the urban and rural poor, the unemployed and the no-income group by adopting and/or adapting existing codes and regulations, to facilitate their access to land, finance and low-cost building materials and by actively promoting the regularization and upgrading of informal settlements and urban slums as an expedient measure and pragmatic solution to the urban shelter deficit; (d) All countries should, as appropriate, facilitate access of urban and rural poor to shelter by adopting and utilizing housing and finance schemes and new innovative mechanisms adapted to their circumstances; (e) All countries should support and develop environmentally compatible shelter strategies at national, state/provincial and municipal levels through partnerships among the private, public and community sectors and with the support of community-based organizations; (f) All countries, especially developing ones, should, as appropriate, formulate and implement

programmes to reduce the impact of the phenomenon of rural to urban drift by improving rural living conditions; (g) All countries, where appropriate, should develop and implement resettlement programmes that address the specific problems of displaced populations in their respective countries; (h) All countries should, as appropriate, document and monitor the implementation of their national shelter strategies by using, inter alia, the monitoring guidelines adopted by the Commission on Human Settlements and the shelter performance indicators being produced jointly by the United Nations Centre for Human Settlements (Habitat) and the World Bank; (i) Bilateral and multilateral cooperation should be strengthened in order to support the implementation of the national shelter strategies of developing countries; (j) Global progress reports covering national action and the support activities of international organizations and bilateral donors should be produced and disseminated on a biennial basis, as requested in the Global Strategy for Shelter to the Year 2000. . . .

Objective

7.15. The objective is to ensure sustainable management of all urban settlements, particularly in developing countries, in order to enhance their ability to improve the living conditions of residents, especially the marginalized and disenfranchised, thereby contributing to the achievement of national economic development goals.

Activities (A) Improving Urban Management

7.16. One existing framework for strengthening management is in the United Nations Development Programme/World Bank/United Nations Centre for Human Settlements (Habitat) Urban Management Programme (UMP), a concerted global effort to assist developing countries in addressing urban management issues. Its coverage should be extended to all interested countries during the period 1993–2000. All countries should, as appropriate and in accordance with national plans, objectives and priorities and with the assistance of nongovernmental organizations and representatives of local authorities, undertake the following activities at the national, state/provincial and local levels, with the assistance of relevant programmes and support agencies:

B. Improving Human Settlement Management Basis for Action

7.13. By the turn of the century, the majority of the world’s population will be living in cities. While urban settlements, particularly in developing countries, are showing many of the symptoms of the global environment and development crisis, they nevertheless generate 60 per cent of gross national product and, if properly managed, can develop the capacity to sustain their productivity, improve the living conditions of their residents and manage natural resources in a sustainable way. 7.14. Some metropolitan areas extend over the boundaries of several political and/or administrative entities (counties and municipalities) even though they conform to a continuous urban system. In many cases this political heterogeneity hinders the implementation of comprehensive environmental management programmes.

(a) Adopting and applying urban management guidelines in the areas of land management, urban environmental management, infrastructure management and municipal finance and administration; (b) Accelerating efforts to reduce urban poverty through a number of actions, including: Generating employment for the urban poor, particularly women, through the provision, improvement and maintenance of urban infrastructure and services and the support of economic activities in the informal sector, such as repairs, recycling, services and small commerce; Providing specific assistance to the poorest of the urban poor through, inter alia, the creation of social infrastructure in order to reduce hunger and homelessness, and the provision of adequate community services;

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Encouraging the establishment of indigenous community-based organizations, private voluntary organizations and other forms of nongovernmental entities that can contribute to the efforts to reduce poverty and improve the quality of life for low-income families; (c) Adopting innovative city planning strategies to address environmental and social issues by: Reducing subsidies on, and recovering the full costs of, environmental and other services of high standard (e.g. water supply, sanitation, waste collection, roads, telecommunications) provided to higher income neighbourhoods; Improving the level of infrastructure and service provision in poorer urban areas; (d) Developing local strategies for improving the quality of life and the environment, integrating decisions on land use and land management, investing in the public and private sectors and mobilizing human and material resources, thereby promoting employment generation that is environmentally sound and protective of human health. (B) Strengthening Urban Data Systems

7.17. During the period 1993–2000 all countries should undertake, with the active participation of the business sector as appropriate, pilot projects in selected cities for the collection, analysis and subsequent dissemination of urban data, including environmental impact analysis, at the local, state/provincial, national and international levels and the establishment of city data management capabilities.9 United Nations organizations, such as Habitat, UNEP and UNDP, could provide technical advice and model data management systems. (C) Encouraging Intermediate City Development

7.18. In order to relieve pressure on large urban agglomerations of developing countries, policies 9

A pilot programme of this type, the City Data Programme (CDP), is already in operation in the United Nations Centre on Human Settlements (Habitat) aimed at the production and dissemination to participating cities of microcomputer application software designed to store, process and retrieve city data for local, national and international exchange and dissemination.

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and strategies should be implemented towards the development of intermediate cities that create employment opportunities for unemployed labour in the rural areas and support rural-based economic activities, although sound urban management is essential to ensure that urban sprawl does not expand resource degradation over an ever wider land area and increase pressures to convert open space and agricultural/buffer lands for development. 7.19. Therefore all countries should, as appropriate, conduct reviews of urbanization processes and policies in order to assess the environmental impacts of growth and apply urban planning and management approaches specifically suited to the needs, resource capabilities and characteristics of their growing intermediate-sized cities. As appropriate, they should also concentrate on activities aimed at facilitating the transition from rural to urban lifestyles and settlement patterns and at promoting the development of small-scale economic activities, particularly the production of food, to support local income generation and the production of intermediate goods and services for rural hinterlands. 7.20. All cities, particularly those characterized by severe sustainable development problems, should, in accordance with national laws, rules and regulations, develop and strengthen programmes aimed at addressing such problems and guiding their development along a sustainable path. Some international initiatives in support of such efforts, as in the Sustainable Cities Programme of Habitat and the Healthy Cities Programme of WHO, should be intensified. Additional initiatives involving the World Bank, the regional development banks and bilateral agencies, as well as other interested stakeholders, particularly international and national representatives of local authorities, should be strengthened and coordinated. Individual cities should, as appropriate: (a) Institutionalize a participatory approach to sustainable urban development, based on a continuous dialogue between the actors involved in urban development (the public sector, private sector and communities), especially women and indigenous people; (b) Improve the urban environment by promoting social organization and environmental

awareness through the participation of local communities in the identification of public services needs, the provision of urban infrastructure, the enhancement of public amenities and the protection and/or rehabilitation of older buildings, historic precincts and other cultural artifacts. In addition, “green works” programmes should be activated to create self-sustaining human development activities and both formal and informal employment opportunities for low-income urban residents; (c) Strengthen the capacities of their local governing bodies to deal more effectively with the broad range of developmental and environmental challenges associated with rapid and sound urban growth through comprehensive approaches to planning that recognize the individual needs of cities and are based on ecologically sound urban design practices; (d) Participate in international “sustainable city networks” to exchange experiences and mobilize national and international technical and financial support; (e) Promote the formulation of environmentally sound and culturally sensitive tourism programmes as a strategy for sustainable development of urban and rural settlements and as a way of decentralizing urban development and reducing discrepancies among regions; (f) Establish mechanisms, with the assistance of relevant international agencies, to mobilize resources for local initiatives to improve environmental quality; (g) Empower community groups, nongovernmental organizations and individuals to assume the authority and responsibility for managing and enhancing their immediate environment through participatory tools, techniques and approaches embodied in the concept of environmental care. 7.21. Cities of all countries should reinforce cooperation among themselves and cities of the developed countries, under the aegis of non-governmental organizations active in this field, such as the International Union of Local Authorities (IULA), the International Council for Local Environmental Initiatives (ICLEI) and the World Federation of Twin Cities. . . .

C. Promoting Sustainable Land-Use Planning and Management Basis for Action

7.27. Access to land resources is an essential component of sustainable low-impact lifestyles. Land resources are the basis for (human) living systems and provide soil, energy, water and the opportunity for all human activity. In rapidly growing urban areas, access to land is rendered increasingly difficult by the conflicting demands of industry, housing, commerce, agriculture, land tenure structures and the need for open spaces. Furthermore, the rising costs of urban land prevent the poor from gaining access to suitable land. In rural areas, unsustainable practices, such as the exploitation of marginal lands and the encroachment on forests and ecologically fragile areas by commercial interests and landless rural populations, result in environmental degradation, as well as in diminishing returns for impoverished rural settlers. Objective

7.28. The objective is to provide for the land requirements of human settlement development through environmentally sound physical planning and land use so as to ensure access to land to all households and, where appropriate, the encouragement of communally and collectively owned and managed land.10 Particular attention should be paid to the needs of women and indigenous people for economic and cultural reasons. Activities

7.29. All countries should consider, as appropriate, undertaking a comprehensive national inventory of their land resources in order to establish a land information system in which land resources will be classified according to their most appropriate uses and environmentally fragile or disasterprone areas will be identified for special protection measures. 7.30. Subsequently, all countries should consider developing national land-resource management 10

This calls for integrated land-resource management policies, which are also addressed in chapter 10 of Agenda 21 (Integrated approach to planning and management of land resources).

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plans to guide land-resource development and utilization and, to that end, should: (a) Establish, as appropriate, national legislation to guide the implementation of public policies for environmentally sound urban development, land utilization, housing and for the improved management of urban expansion; (b) Create, where appropriate, efficient and accessible land markets that meet community development needs by, inter alia, improving land registry systems and streamlining procedures in land transactions; (c) Develop fiscal incentives and land-use control measures, including land-use planning solutions for a more rational and environmentally sound use of limited land resources; (d) Encourage partnerships among the public, private and community sectors in managing land resources for human settlements development; (e) Strengthen community-based land-resource protection practices in existing urban and rural settlements; (f) Establish appropriate forms of land tenure that provide security of tenure for all land-users, especially indigenous people, women, local communities, the low-income urban dwellers and the rural poor; (g) Accelerate efforts to promote access to land by the urban and rural poor, including credit schemes for the purchase of land and for building/acquiring or improving safe and healthy shelter and infrastructure services; (h) Develop and support the implementation of improved land-management practices that deal comprehensively with potentially competing land requirements for agriculture, industry, transport, urban development, green spaces, preserves and other vital needs; (i) Promote understanding among policy makers of the adverse consequences of unplanned settlements in environmentally vulnerable areas and of the appropriate national and local landuse and settlements policies required for this purpose. 7.31. At the international level, global coordination of land-resource management activities should be

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strengthened by the various bilateral and multilateral agencies and programmes, such as UNDP, FAO, the World Bank, the regional development banks, other interested organizations and the UNDP/World Bank/Habitat Urban Management Programme, and action should be taken to promote the transfer of applicable experience on sustainable land-management practices to and among developing countries. . . .

D. Promoting the Integrated Provision of Environmental Infrastructure: Water, Sanitation, Drainage and Solid-Waste Management Basis for Action

7.35. The sustainability of urban development is defined by many parameters relating to the availability of water supplies, air quality and the provision of environmental infrastructure for sanitation and waste management. As a result of the density of users, urbanization, if properly managed, offers unique opportunities for the supply of sustainable environmental infrastructure through adequate pricing policies, educational programmes and equitable access mechanisms that are economically and environmentally sound. In most developing countries, however, the inadequacy and lack of environmental infrastructure is responsible for widespread ill-health and a large number of preventable deaths each year. In those countries conditions are set to worsen due to growing needs that exceed the capacity of Governments to respond adequately. 7.36. An integrated approach to the provision of environmentally sound infrastructure in human settlements, in particular for the urban and rural poor, is an investment in sustainable development that can improve the quality of life, increase productivity, improve health and reduce the burden of investments in curative medicine and poverty alleviation. 7.37. Most of the activities whose management would be improved by an integrated approach, are covered in Agenda 21 as follows: chapter 6 (Protecting and promoting human health conditions), chapters 9 (Protecting the atmosphere), 18 (Protecting the quality and supply of freshwater resources) and 21 (Environmentally sound management of solid wastes and sewage-related issues).

Objective

7.38. The objective is to ensure the provision of adequate environmental infrastructure facilities in all settlements by the year 2025. The achievement of this objective would require that all developing countries incorporate in their national strategies programmes to build the necessary technical, financial and human resource capacity aimed at ensuring better integration of infrastructure and environmental planning by the year 2000. Activities

7.39. All countries should assess the environmental suitability of infrastructure in human settlements, develop national goals for sustainable management of waste, and implement environmentally sound technology to ensure that the environment, human health and quality of life are protected. Settlement infrastructure and environmental programmes designed to promote an integrated human settlements approach to the planning, development, maintenance and management of environmental infrastructure (water supply, sanitation, drainage, solid-waste management) should be strengthened with the assistance of bilateral and multilateral agencies. Coordination among these agencies and with collaboration from international and national representatives of local authorities, the private sector and community groups should also be strengthened. The activities of all agencies engaged in providing environmental infrastructure should, where possible, reflect an ecosystem or metropolitan area approach to settlements and should include monitoring, applied research, capacity-building, transfer of appropriate technology and technical cooperation among the range of programme activities. 7.40. Developing countries should be assisted at the national and local levels in adopting an integrated approach to the provision of water supply, energy, sanitation, drainage and solid-waste management, and external funding agencies should ensure that this approach is applied in particular to environmental infrastructure improvement in informal settlements based on regulations and standards that take into account the living conditions and resources of the communities to be served. 7.41. All countries should, as appropriate, adopt the following principles for the provision of environmental infrastructure:

(a) Adopt policies that minimize if not altogether avoid environmental damage, whenever possible; (b) Ensure that relevant decisions are preceded by environmental impact assessments and also take into account the costs of any ecological consequences; (c) Promote development in accordance with indigenous practices and adopt technologies appropriate to local conditions; (d) Promote policies aimed at recovering the actual cost of infrastructure services, while at the same time recognizing the need to find suitable approaches (including subsidies) to extend basic services to all households; (e) Seek joint solutions to environmental problems that affect several localities. 7.42. The dissemination of information from existing programmes should be facilitated and encouraged among interested countries and local institutions. . . . E. Promoting Sustainable Energy and Transport Systems in Human Settlements Basis for Action

7.46. Most of the commercial and non-commercial energy produced today is used in and for human settlements, and a substantial percentage of it is used by the household sector. Developing countries are at present faced with the need to increase their energy production to accelerate development and raise the living standards of their populations, while at the same time reducing energy production costs and energy-related pollution. Increasing the efficiency of energy use to reduce its polluting effects and to promote the use of renewable energies must be a priority in any action taken to protect the urban environment. 7.47. Developed countries, as the largest consumers of energy, are faced with the need for energy planning and management, promoting renewable and alternate sources of energy, and evaluating the life-cycle costs of current systems and practices as a result of which many metropolitan areas are suffering from pervasive air quality problems related to ozone, particulate matters and carbon monoxide. The causes have much to do with technological inadequacies and with an increasing

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fuel consumption generated by inefficiencies, high demographic and industrial concentrations and a rapid expansion in the number of motor vehicles. 7.48. Transport accounts for about 30 per cent of commercial energy consumption and for about 60 per cent of total global consumption of liquid petroleum. In developing countries, rapid motorization and insufficient investments in urbantransport planning, traffic management and infrastructure, are creating increasing problems in terms of accidents and injury, health, noise, congestion and loss of productivity similar to those occurring in many developed countries. All of these problems have a severe impact on urban populations, particularly the low-income and no-income groups. Objectives

7.49. The objectives are to extend the provision of more energy-efficient technology and alternative/renewable energy for human settlements and to reduce negative impacts of energy production and use on human health and on the environment. Activities

7.50. The principal activities relevant to this programme area are included in chapter 9 (Protection of the atmosphere), programme area B, subprogramme 1 (Energy development, efficiency and consumption) and subprogramme 2 (Transportation). 7.51. A comprehensive approach to human settlements development should include the promotion of sustainable energy development in all countries, as follows: (a) Developing countries, in particular, should: Formulate national action programmes to promote and support reafforestation and national forest regeneration with a view to achieving sustained provision of the biomass energy needs of the low-income groups in urban areas and the rural poor, in particular women and children;Formulate national action programmes to promote integrated development of energy-saving and renewable energy technologies, particularly for the use of solar, hydro, wind and biomass sources; Promote wide dissemination and commercialization of renewable energy technologies through

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suitable measures, inter alia, fiscal and technology transfer mechanisms; Carry out information and training programmes directed at manufacturers and users in order to promote energy-saving techniques and energyefficient appliances. (b) International organizations and bilateral donors should: Support developing countries in implementing national energy programmes in order to achieve widespread use of energy-saving and renewable energy technologies, particularly the use of solar, wind, biomass and hydro sources; Provide access to research and development results to increase energy-use efficiency levels in human settlements. 7.52. Promoting efficient and environmentally sound urban transport systems in all countries should be a comprehensive approach to urbantransport planning and management. To this end, all countries should: (a) Integrate land-use and transportation planning to encourage development patterns that reduce transport demand; (b) Adopt urban-transport programmes favouring high-occupancy public transport in countries, as appropriate; (c) Encourage non-motorized modes of transport by providing safe cycleways and footways in urban and suburban centers in countries, as appropriate; (d) Devote particular attention to effective traffic management, efficient operation of public transport and maintenance of transport infrastructure; (e) Promote the exchange of information among countries and representatives of local and metropolitan areas; (f) Re-evaluate the present consumption and production patterns in order to reduce the use of energy and national resources. . . . F. Promoting Human Settlement Planning and Management in Disaster-prone Areas Basis for Action

7.55. Natural disasters cause loss of life, disruption of economic activities and urban productivity,

particularly for highly susceptible low-income groups, and environmental damage, such as loss of fertile agricultural land and contamination of water resources, and can lead to major resettlement of populations. Over the past two decades, they are estimated to have caused some 3 million deaths and affected 800 million people. Global economic losses have been estimated by the Office of the United Nations Disaster Relief Coordinator to be in the range of $30–50 billion per year. . . .

Restructuring of the economic activities and promoting new job opportunities in environmentally sound sectors; Promoting close collaboration between governmental and local authorities, local communities and non-governmental organizations and private business; Developing and enforcing strict environmental control standards.

Objective

(B) Developing Pre-disaster Planning

7.58. The objective is to enable all countries, in particular those that are disaster-prone, to mitigate the negative impact of natural and man-made disasters on human settlements, national economies and the environment.

7.61. Pre-disaster planning should form an integral part of human settlement planning in all countries. The following should be included:

Activities

7.59. Three distinct areas of activity are foreseen under this programme area, namely, the development of a “culture of safety,” pre-disaster planning and post-disaster reconstruction. (A) Developing a Culture of Safety

7.60. To promote a “culture of safety” in all countries, especially those that are disaster-prone, the following activities should be carried out: (a) Completing national and local studies on the nature and occurrence of natural disasters, their impact on people and economic activities, the effects of inadequate construction and land use in hazard-prone areas, and the social and economic advantages of adequate pre-disaster planning; (b) Implementing nationwide and local awareness campaigns through all available media, translating the above knowledge into information easily comprehensible to the general public and to the populations directly exposed to hazards;

(a) Undertaking complete multi-hazard research into risk and vulnerability of human settlements and settlement infrastructure, including water and sewerage, communication and transportation networks, as one type of risk reduction may increase vulnerability to another (e.g., an earthquakeresistant house made of wood will be more vulnerable to wind storms); (b) Developing methodologies for determining risk and vulnerability within specific human settlements and incorporating risk and vulnerability reduction into the human settlement planning and management process; (c) Redirecting inappropriate new development and human settlements to areas not prone to hazards; (d) Preparing guidelines on location, design and operation of potentially hazardous industries and activities; (e) Developing tools (legal, economic etc.) to encourage disaster-sensitive development, including means of ensuring that limitations on development options are not punitive to owners, or incorporate alternative means of compensation;

(c) Strengthening, and/or developing global, regional, national and local early warning systems to alert populations to impending disasters;

(f) Further developing and disseminating information on disaster-resistant building materials and construction technologies for buildings and public works in general;

(d) Identifying industrially based environmental disaster areas at the national and international levels and implementing strategies aimed at the rehabilitation of these areas through, inter alia:

(g) Developing training programmes for contractors and builders on disaster-resistant construction methods. Some programmes should be directed particularly to small enterprises, which

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build the great majority of housing and other small buildings in the developing countries, as well as to the rural populations, which build their own houses; (h) Developing training programmes for emergency site managers, non-governmental organizations and community groups which cover all aspects of disaster mitigation, including urban search and rescue, emergency communications, early warning techniques, and pre-disaster planning; (i) Developing procedures and practices to enable local communities to receive information about hazardous installations or situations in these areas, and facilitate their participation in early warning and disaster abatement and response procedures and plans; (j) Preparing action plans for the reconstruction of settlements, especially the reconstruction of community life-lines.

(C) Initiating Post-disaster Reconstruction and Rehabilitation Planning

7.62. The international community, as a major partner in post-reconstruction and rehabilitation, should ensure that the countries involved derive the greatest benefits from the funds allocated by undertaking the following activities: (a) Carrying out research on past experiences on the social and economic aspects of post-disaster reconstruction and adopting effective strategies and guidelines for post-disaster reconstruction, with particular focus on development-focused strategies in the allocation of scarce reconstruction resources, and on the opportunities that postdisaster reconstruction provides to introduce sustainable settlement patterns; (b) Preparing and disseminating international guidelines for adaptation to national and local needs; (c) Supporting efforts of national Governments to initiate contingency planning, with participation of affected communities, for post-disaster reconstruction and rehabilitation. . . .

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G. Promoting Sustainable Construction Industry Activities Basis for Action

7.67. The activities of the construction sector are vital to the achievement of the national socioeconomic development goals of providing shelter, infrastructure and employment. However, they can be a major source of environmental damage through depletion of the natural resource base, degradation of fragile eco-zones, chemical pollution and the use of building materials harmful to human health. Objectives

7.68. The objectives are, first, to adopt policies and technologies and to exchange information on them in order to enable the construction sector to meet human settlement development goals, while avoiding harmful side-effects on human health and on the biosphere, and, second, to enhance the employment-generation capacity of the construction sector. Governments should work in close collaboration with the private sector in achieving these objectives. Activities

7.69. All countries should, as appropriate and in accordance with national plans, objectives and priorities: (a) Establish and strengthen indigenous building materials industry, based, as much as possible, on inputs of locally available natural resources; (b) Formulate programmes to enhance the utilization of local materials by the construction sector by expanding technical support and incentive schemes for increasing the capabilities and economic viability of small-scale and informal operatives which make use of these materials and traditional construction techniques; (c) Adopt standards and other regulatory measures which promote the increased use of energyefficient designs and technologies and sustainable utilization of natural resources in an economically and environmentally appropriate way; (d) Formulate appropriate land-use policies and introduce planning regulations specially aimed at

the protection of eco-sensitive zones against physical disruption by construction and constructionrelated activities; (e) Promote the use of labour-intensive construction and maintenance technologies which generate employment in the construction sector for the underemployed labour force found in most large cities, while at the same time promoting the development of skills in the construction sector; (f) Develop policies and practices to reach the informal sector and self-help housing builders by adopting measures to increase the affordability of building materials on the part of the urban and rural poor, through, inter alia, credit schemes and bulk procurement of building materials for sale to small-scale builders and communities. 7.70. All countries should: (a) Promote the free exchange of information on the entire range of environmental and health aspects of construction, including the development and dissemination of databases on the adverse environmental effects of building materials through the collaborative efforts of the private and public sectors; (b) Promote the development and dissemination of databases on the adverse environmental and health effects of building materials and introduce legislation and financial incentives to promote recycling of energy-intensive materials in the construction industry and conservation of waste energy in building-materials production methods;

H. Promoting Human Resource Development and Capacity-Building for Human Settlements Development Basis for Action

7.75. Most countries, in addition to shortcomings in the availability of specialized expertise in the areas of housing, settlement management, land management, infrastructure, construction, energy, transport, and pre-disaster planning and reconstruction, face three cross-sectoral human resource development and capacity-building shortfalls. First is the absence of an enabling policy environment capable of integrating the resources and activities of the public sector, the private sector and the community, or social sector; second is the weakness of specialized training and research institutions; and third is the insufficient capacity for technical training and assistance for low-income communities, both urban and rural. Objective

7.76. The objective is to improve human resource development and capacity-building in all countries by enhancing the personal and institutional capacity of all actors, particularly indigenous people and women, involved in human settlement development. In this regard, account should be taken of traditional cultural practices of indigenous people and their relationship to the environment. Activities

(c) Promote the use of economic instruments, such as product charges, to discourage the use of construction materials and products that create pollution during their life cycle;

7.77. Specific human resource development and capacity-building activities have been built into each of the programme areas of this chapter. More generally, however, additional steps should be taken to reinforce those activities. In order to do so, all countries, as appropriate, should take the following action:

(d) Promote information exchange and appropriate technology transfer among all countries, with particular attention to developing countries, for resource management in construction, particularly for non-renewable resources;

(a) Strengthening the development of human resources and of capacities of public sector institutions through technical assistance and international cooperation so as to achieve by the year 2000 substantial improvement in the efficiency of governmental activities;

(e) Promote research in construction industries and related activities, and establish and strengthen institutions in this sector. . . .

(b) Creating an enabling policy environment supportive of the partnership between the public, private and community sectors;

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(c) Providing enhanced training and technical assistance to institutions providing training for technicians, professionals and administrators, and appointed, elected and professional members of local governments and strengthening their capacity to address priority training needs, particularly in regard to social, economic and environmental aspects of human settlements development; (d) Providing direct assistance for human settlement development at the community level, inter alia, by: Strengthening and promoting programmes for social mobilization and raising awareness of the potential of women and youth in human settlements activities; Facilitating coordination of the activities of women, youth, community groups and nongovernmental organizations in human settlements development; Promoting research on women’s programmes and other groups, and evaluating progress made with a view to identifying bottlenecks and needed assistance; (e) Promoting the inclusion of integrated environmental management into general local government activities. 7.78. Both international organizations and nongovernmental organizations should support the above activities by, inter alia, strengthening subregional training institutions, providing updated training materials and disseminating the results of successful human resource and capacity-building activities, programmes and projects. CHAPTER 8. INTEGRATING ENVIRONMENT AND DEVELOPMENT IN DECISION-MAKING

8.1. This chapter contains the following programme areas: (a) Integrating environment and development at the policy, planning and management levels; (b) Providing an effective legal and regulatory framework; (c) Making effective use of economic instruments and market and other incentives;

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(d) Establishing systems for integrated environmental and economic accounting.

PROGRAMME AREAS

A. Integrating Environment and Development at the Policy, Planning and Management Levels Basis for Action

8.2. Prevailing systems for decision-making in many countries tend to separate economic, social and environmental factors at the policy, planning and management levels. This influences the actions of all groups in society, including Governments, industry and individuals, and has important implications for the efficiency and sustainability of development. An adjustment or even a fundamental reshaping of decision-making, in the light of country-specific conditions, may be necessary if environment and development is to be put at the centre of economic and political decision-making, in effect achieving a full integration of these factors. In recent years, some Governments have also begun to make significant changes in the institutional structures of government in order to enable more systematic consideration of the environment when decisions are made on economic, social, fiscal, energy, agricultural, transportation, trade and other policies, as well as the implications of policies in these areas for the environment. New forms of dialogue are also being developed for achieving better integration among national and local government, industry, science, environmental groups and the public in the process of developing effective approaches to environment and development. The responsibility for bringing about changes lies with Governments in partnership with the private sector and local authorities, and in collaboration with national, regional and international organizations, including in particular UNEP, UNDP and the World Bank. Exchange of experience between countries can also be significant. National plans, goals and objectives, national rules, regulations and law, and the specific situation in which different countries are placed are the overall framework in which such integration takes place. In this context, it must be borne in mind that environmental standards may pose severe economic and social costs if they are uniformly applied in developing countries.

Objectives

8.3. The overall objective is to improve or restructure the decision-making process so that consideration of socio-economic and environmental issues is fully integrated and a broader range of public participation assured. Recognizing that countries will develop their own priorities in accordance with their prevailing conditions, needs, national plans, policies and programmes, the following objectives are proposed: (a) To conduct a national review of economic, sectoral and environmental policies, strategies and plans to ensure the progressive integration of environmental and developmental issues; (b) To strengthen institutional structures to allow the full integration of environmental and developmental issues, at all levels of decisionmaking; (c) To develop or improve mechanisms to facilitate the involvement of concerned individuals, groups and organizations in decision-making at all levels; (d) To establish domestically determined procedures to integrate environment and development issues in decision-making. Activities (A) Improving Decision-making Processes

8.4. The primary need is to integrate environmental and developmental decision-making processes. To do this, Governments should conduct a national review and, where appropriate, improve the processes of decision-making so as to achieve the progressive integration of economic, social and environmental issues in the pursuit of development that is economically efficient, socially equitable and responsible and environmentally sound. Countries will develop their own priorities in accordance with their national plans, policies and programmes for the following activities: (a) Ensuring the integration of economic, social and environmental considerations in decisionmaking at all levels and in all ministries; (b) Adopting a domestically formulated policy framework that reflects a long-term perspective

and cross-sectoral approach as the basis for decisions, taking account of the linkages between and within the various political, economic, social and environmental issues involved in the development process; (c) Establishing domestically determined ways and means to ensure the coherence of sectoral, economic, social and environmental policies, plans and policy instruments, including fiscal measures and the budget; these mechanisms should apply at various levels and bring together those interested in the development process; (d) Monitoring and evaluating the development process systematically, conducting regular reviews of the state of human resources development, economic and social conditions and trends, the state of the environment and natural resources; this could be complemented by annual environment and development reviews, with a view to assessing sustainable development achievements by the various sectors and departments of government; (e) Ensuring transparency of, and accountability for, the environmental implications of economic and sectoral policies; (f) Ensuring access by the public to relevant information, facilitating the reception of public views and allowing for effective participation. (B) Improving Planning and Management Systems

8.5. To support a more integrated approach to decision-making, the data systems and analytical methods used to support such decision-making processes may need to be improved. Governments, in collaboration, where appropriate, with national and international organizations, should review the status of the planning and management system and, where necessary, modify and strengthen procedures so as to facilitate the integrated consideration of social, economic and environmental issues. . . . (C) Data and Information

8.6. Countries could develop systems for monitoring and evaluation of progress towards achieving sustainable development by adopting indicators that measure changes across economic, social and environmental dimensions.

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(D) Adopting a National Strategy for Sustainable Development

8.7. Governments, in cooperation, where appropriate, with international organizations, should adopt a national strategy for sustainable development based on, inter alia, the implementation of decisions taken at the Conference, particularly in respect of Agenda 21. This strategy should build upon and harmonize the various sectoral economic, social and environmental policies and plans that are operating in the country. The experience gained through existing planning exercises such as national reports for the Conference, national conservation strategies and environment action plans should be fully used and incorporated into a country-driven sustainable development strategy. Its goals should be to ensure socially responsible economic development while protecting the resource base and the environment for the benefit of future generations. It should be developed through the widest possible participation. It should be based on a thorough assessment of the current situation and initiatives. . . . B. Providing an Effective Legal and Regulatory Framework Basis for Action

8.13. Laws and regulations suited to countryspecific conditions are among the most important instruments for transforming environment and development policies into action, not only through “command and control” methods, but also as a normative framework for economic planning and market instruments. Yet, although the volume of legal texts in this field is steadily increasing, much of the law-making in many countries seems to be ad hoc and piecemeal, or has not been endowed with the necessary institutional machinery and authority for enforcement and timely adjustment. 8.14. While there is continuous need for law improvement in all countries, many developing countries have been affected by shortcomings of laws and regulations. To effectively integrate environment and development in the policies and practices of each country, it is essential to develop and implement integrated, enforceable and effective laws and regulations that are based upon sound social, ecological, economic and scientific principles. It is equally critical to develop workable pro-

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grammes to review and enforce compliance with the laws, regulations and standards that are adopted. Technical support may be needed for many countries to accomplish these goals. Technical cooperation requirements in this field include legal information, advisory services and specialized training and institutional capacity-building. 8.15. The enactment and enforcement of laws and regulations (at the regional, national, state/provincial or local/municipal level) are also essential for the implementation of most international agreements in the field of environment and development, as illustrated by the frequent treaty obligation to report on legislative measures. The survey of existing agreements undertaken in the context of conference preparations has indicated problems of compliance in this respect, and the need for improved national implementation and, where appropriate, related technical assistance. In developing their national priorities, countries should take account of their international obligations.

Objectives

8.16. The overall objective is to promote, in the light of country-specific conditions, the integration of environment and development policies through appropriate legal and regulatory policies, instruments and enforcement mechanisms at the national, state, provincial and local level. Recognizing that countries will develop their own priorities in accordance with their needs and national and, where appropriate, regional plans, policies and programmes, the following objectives are proposed: (a) To disseminate information on effective legal and regulatory innovations in the field of environment and development, including appropriate instruments and compliance incentives, with a view to encouraging their wider use and adoption at the national, state, provincial and local level; (b) To support countries that request it in their national efforts to modernize and strengthen the policy and legal framework of governance for sustainable development, having due regard for local social values and infrastructures;

(c) To encourage the development and implementation of national, state, provincial and local programmes that assess and promote compliance and respond appropriately to non-compliance.

closer cooperation among all agencies concerned would avoid duplication of databases and facilitate division of labour. These agencies could examine the possibility and merit of performing reviews of selected national legal systems.

Activities (A) Making Laws and Regulations More Effective

8.17. Governments, with the support, where appropriate, of competent international organizations, should regularly assess the laws and regulations enacted and the related institutional/administrative machinery established at the national/state and local/municipal level in the field of environment and sustainable development, with a view to rendering them effective in practice. Programmes for this purpose could include the promotion of public awareness, preparation and distribution of guidance material, and specialized training, including workshops, seminars, education programmes and conferences, for public officials who design, implement, monitor and enforce laws and regulations. (B) Establishing Judicial and Administrative Procedures

8.18. Governments and legislators, with the support, where appropriate, of competent international organizations, should establish judicial and administrative procedures for legal redress and remedy of actions affecting environment and development that may be unlawful or infringe on rights under the law, and should provide access to individuals, groups and organizations with a recognized legal interest. (C) Providing Legal Reference and Support Services

8.19. Competent intergovernmental and nongovernmental organizations could cooperate to provide Governments and legislators, upon request, with an integrated programme of environment and development law (sustainable development law) services, carefully adapted to the specific requirements of the recipient legal and administrative systems. Such systems could usefully include assistance in the preparation of comprehensive inventories and reviews of national legal systems. Past experience has demonstrated the usefulness of combining specialized legal information services with legal expert advice. Within the United Nations system,

(D) Establishing a Cooperative Training Network for Sustainable Development Law

8.20. Competent international and academic institutions could, within agreed frameworks, cooperate to provide, especially for trainees from developing countries, postgraduate programmes and in-service training facilities in environment and development law. Such training should address both the effective application and the progressive improvement of applicable laws, the related skills of negotiating, drafting and mediation, and the training of trainers. Intergovernmental and non-governmental organizations already active in this field could cooperate with related university programmes to harmonize curriculum planning and to offer an optimal range of options to interested Governments and potential sponsors. (E) Developing Effective National Programmes for Reviewing and Enforcing Compliance with National, State, Provincial and Local Laws on Environment and Development

8.21. Each country should develop integrated strategies to maximize compliance with its laws and regulations relating to sustainable development, with assistance from international organizations and other countries as appropriate. The strategies could include: (a) Enforceable, effective laws, regulations and standards that are based on sound economic, social and environmental principles and appropriate risk assessment, incorporating sanctions designed to punish violations, obtain redress and deter future violations; (b) Mechanisms for promoting compliance; (c) Institutional capacity for collecting compliance data, regularly reviewing compliance, detecting violations, establishing enforcement priorities, undertaking effective enforcement, and conducting periodic evaluations of the effectiveness of compliance and enforcement programmes;

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(d) Mechanisms for appropriate involvement of individuals and groups in the development and enforcement of laws and regulations on environment and development. (F) National Monitoring of Legal Follow-up to International Instruments

8.22. Contracting parties to international agreements, in consultation with the appropriate secretariats of relevant international conventions as appropriate, should improve practices and procedures for collecting information on legal and regulatory measures taken. Contracting parties to international agreements could undertake sample surveys of domestic follow-up action subject to agreement by the sovereign States concerned. . . . C. MAKING EFFECTIVE USE OF ECONOMIC INSTRUMENTS AND MARKET AND OTHER INCENTIVES Basis for Action

8.27. Environmental law and regulation are important but cannot alone be expected to deal with the problems of environment and development. Prices, markets and governmental fiscal and economic policies also play a complementary role in shaping attitudes and behaviour towards the environment. 8.28. During the past several years, many Governments, primarily in industrialized countries but also in Central and Eastern Europe and in developing countries, have been making increasing use of economic approaches, including those that are market-oriented. Examples include the polluterpays principle and the more recent naturalresource-user-pays concept. 8.29. Within a supportive international and national economic context and given the necessary legal and regulatory framework, economic and market-oriented approaches can in many cases enhance capacity to deal with the issues of environment and development. This would be achieved by providing cost-effective solutions, applying integrated pollution prevention control, promoting technological innovation and influencing environmental behaviour, as well as providing financial resources to meet sustainable development objectives.

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8.30. What is needed is an appropriate effort to explore and make more effective and widespread use of economic and market-oriented approaches within a broad framework of development policies, law and regulation suited to country-specific conditions as part of a general transition to economic and environmental policies that are supportive and mutually reinforcing. Objectives

8.31 Recognizing that countries will develop their own priorities in accordance with their needs and national plans, policies and programmes, the challenge is to achieve significant progress in the years ahead in meeting three fundamental objectives: (a) To incorporate environmental costs in the decisions of producers and consumers, to reverse the tendency to treat the environment as a “free good ” and to pass these costs on to other parts of society, other countries, or to future generations; (b) To move more fully towards integration of social and environmental costs into economic activities, so that prices will appropriately reflect the relative scarcity and total value of resources and contribute towards the prevention of environmental degradation; (c) To include, wherever appropriate, the use of market principles in the framing of economic instruments and policies to pursue sustainable development. Activities (A) Improving or Reorienting Governmental Policies

8.32. In the near term, Governments should consider gradually building on experience with economic instruments and market mechanisms by undertaking to reorient their policies, keeping in mind national plans, priorities and objectives, in order to: (a) Establish effective combinations of economic, regulatory and voluntary (self-regulatory) approaches; (b) Remove or reduce those subsidies that do not conform with sustainable development objectives; (c) Reform or recast existing structures of economic and fiscal incentives to meet environment and development objectives;

(d) Establish a policy framework that encourages the creation of new markets in pollution control and environmentally sounder resource management; (e) Move towards pricing consistent with sustainable development objectives. 8.33. In particular, Governments should explore, in cooperation with business and industry, as appropriate, how effective use can be made of economic instruments and market mechanisms in the following areas: (a) Issues related to energy, transportation, agriculture and forestry, water, wastes, health, tourism and tertiary services; (b) Global and transboundary issues; (c) The development and introduction of environmentally sound technology and its adaptation, diffusion and transfer to developing countries in conformity with chapter 34.

(D) Increasing Understanding of the Role of Economic Instruments and Market Mechanisms

8.36. Governments should encourage research and analysis on effective uses of economic instruments and incentives with the assistance and support of regional and international economic and environmental organizations, as well as non-governmental research institutes, with a focus on such key issues as: (a) The role of environmental taxation suited to national conditions; (b) The implications of economic instruments and incentives for competitiveness and international trade, and potential needs for appropriate future international cooperation and coordination; (c) The possible social and distributive implications of using various instruments. (E) Establishing a Process for Focusing on Pricing

(B) Taking Account of the Particular Circumstances of Developing Countries and Countries with Economies in Transition

8.34. A special effort should be made to develop applications of the use of economic instruments and market mechanisms geared to the particular needs of developing countries and countries with economies in transition, with the assistance of regional and international economic and environmental organizations and, as appropriate, nongovernmental research institutes, by: (a) Providing technical support to those countries on issues relating to the application of economic instruments and market mechanisms; (b) Encouraging regional seminars and, possibly, the development of regional centres of expertise. (C) Creating an Inventory of Effective Uses of Economic Instruments and Market Mechanisms

8.35. Given the recognition that the use of economic instruments and market mechanisms is relatively recent, exchange of information about different countries’ experiences with such approaches should be actively encouraged. In this regard, Governments should encourage the use of existing means of information exchange to look at effective uses of economic instruments.

8.37. The theoretical advantages of using pricing policies, where appropriate, need to be better understood, and accompanied by greater understanding of what it means to take significant steps in this direction. Processes should therefore be initiated, in cooperation with business, industry, large enterprises, transnational corporations, as well as other social groups, as appropriate, at both the national and international levels, to examine: (a) The practical implications of moving towards greater reliance on pricing that internalize environmental costs appropriate to help achieve sustainable development objectives; (b) The implications for resource pricing in the case of resource-exporting countries, including the implications of such pricing policies for developing countries; (c) The methodologies used in valuing environmental costs. (F) Enhancing Understanding of Sustainable Development Economics

8.38. Increased interest in economic instruments, including market mechanisms, also requires a concerted effort to improve understanding of

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sustainable development economics by: (a) Encouraging institutions of higher learning to review their curricula and strengthen studies in sustainable development economics; (b) Encouraging regional and international economic organizations and non-governmental research institutes with expertise in this area to provide training sessions and seminars for government officials; (c) Encouraging business and industry, including large industrial enterprises and transnational corporations with expertise in environmental matters, to organize training programmes for the private sector and other groups. . . .

to be established in all member States at the earliest date should be seen as a complement to, rather than a substitute for, traditional national accounting practices for the foreseeable future. IEEAs would be designed to play an integral part in the national development decision-making process. National accounting agencies should work in close collaboration with national environmental statistics as well as the geographic and natural resource departments. The definition of economically active could be expanded to include people performing productive but unpaid tasks in all countries. This would enable their contribution to be adequately measured and taken into account in decision-making. Activities (A) Strengthening International Cooperation . . .

D. ESTABLISHING SYSTEMS FOR INTEGRATED ENVIRONMENTAL AND ECONOMIC ACCOUNTING Basis for Action

8.41. A first step towards the integration of sustainability into economic management is the establishment of better measurement of the crucial role of the environment as a source of natural capital and as a sink for by-products generated during the production of man-made capital and other human activities. As sustainable development encompasses social, economic and environmental dimensions, it is also important that national accounting procedures are not restricted to measuring the production of goods and services that are conventionally remunerated. A common framework needs to be developed whereby the contributions made by all sectors and activities of society, that are not included in the conventional national accounts, are included, to the extent consistent with sound theory and practicability, in satellite accounts. A programme to develop national systems of integrated environmental and economic accounting in all countries is proposed. Objectives

8.42. The main objective is to expand existing systems of national economic accounts in order to integrate environment and social dimensions in the accounting framework, including at least satellite systems of accounts for natural resources in all member States. The resulting systems of integrated environmental and economic accounting (IEEA)

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(B) Strengthening National Accounting Systems

8.45. At the national level, the programme could be adopted mainly by the agencies dealing with national accounts, in close cooperation with environmental statistics and natural resource departments, with a view to assisting national economic analysts and decision makers in charge of national economic planning. National institutions should play a crucial role not only as the depositary of the system but also in its adaptation, establishment and continuous use. Unpaid productive work such as domestic work and child care should be included, where appropriate, in satellite national accounts and economic statistics. Time-use surveys could be a first step in the process of developing these satellite accounts. (C) Establishing an Assessment Process

8.46. At the international level, the Statistical Commission should assemble and review experience and advise member States on technical and methodological issues related to the further development and implementation of IEEAs in member States. 8.47. Governments should seek to identify and consider measures to correct price distortions arising from environmental programmes affecting land, water, energy and other natural resources. 8.48. Governments should encourage corporations: (a) To provide relevant environmental information through transparent reporting to

shareholders, creditors, employees, governmental authorities, consumers and the public; (b) To develop and implement methods and rules for accounting for sustaining development. (D) Strengthening Data and Information Collection

8.49. National Governments could consider implementing the necessary enhancement in data collection to set in place national IEEAs with a view to contributing pragmatically to sound economic management. Major efforts should be made to augment the capacity to collect and analyse environmental data and information and to integrate it with economic data, including gender disaggregated data. Efforts should also be made to develop physical environmental accounts. International donor agencies should consider financing the development of intersectoral data banks to help ensure that national planning for sustainable development is based on precise, reliable and effective information and is suited to national conditions. (E) Strengthening Technical Cooperation

8.50. The Statistical Office of the United Nations Secretariat, in close collaboration with relevant United Nations organizations, should strengthen existing mechanisms for technical cooperation among countries. This should also include exchange of experience in the establishment of IEEAs, particularly in connection with the valuation of nonmarketed natural resources and standardization in data collection. The cooperation of business and industry, including large industrial enterprises and transnational corporations with experience in valuation of such resources, should also be sought.

CHAPTER 10 INTEGRATED APPROACH TO THE PLANNING AND MANAGEMENT OF LAND RESOURCES

10.1. Land is normally defined as a physical entity in terms of its topography and spatial nature; a broader integrative view also includes natural resources: the soils, minerals, water and biota that the land comprises. These components are organized in ecosystems which provide a variety of services essential to the maintenance of the integrity of life-support systems and the productive capacity of the envi-

ronment. Land resources are used in ways that take advantage of all these characteristics. Land is a finite resource, while the natural resources it supports can vary over time and according to management conditions and uses. Expanding human requirements and economic activities are placing ever increasing pressures on land resources, creating competition and conflicts and resulting in suboptimal use of both land and land resources. If, in the future, human requirements are to be met in a sustainable manner, it is now essential to resolve these conflicts and move towards more effective and efficient use of land and its natural resources. Integrated physical and land-use planning and management is an eminently practical way to achieve this. By examining all uses of land in an integrated manner, it makes it possible to minimize conflicts, to make the most efficient trade-offs and to link social and economic development with environmental protection and enhancement, thus helping to achieve the objectives of sustainable development. The essence of the integrated approach finds expression in the coordination of the sectoral planning and management activities concerned with the various aspects of land use and land resources. 10.2. The present chapter consists of one programme area, the integrated approach to the planning and management of land resources, which deals with the reorganization and, where necessary, some strengthening of the decision-making structure, including existing policies, planning and management procedures and methods that can assist in putting in place an integrated approach to land resources. It does not deal with the operational aspects of planning and management, which are more appropriately dealt with under the relevant sectoral programmes. Since the programme deals with an important cross-sectoral aspect of decisionmaking for sustainable development, it is closely related to a number of other programmes that deal with that issue directly. PROGRAMME AREA

Integrated Approach to the Planning and Management of Land Resources Basis for Action

10.3. Land resources are used for a variety of purposes which interact and may compete with one

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another; therefore, it is desirable to plan and manage all uses in an integrated manner. Integration should take place at two levels, considering, on the one hand, all environmental, social and economic factors (including, for example, impacts of the various economic and social sectors on the environment and natural resources) and, on the other, all environmental and resource components together (i.e., air, water, biota, land, geological and natural resources). Integrated consideration facilitates appropriate choices and trade-offs, thus maximizing sustainable productivity and use. Opportunities to allocate land to different uses arise in the course of major settlement or development projects or in a sequential fashion as lands become available on the market. This in turn provides opportunities to support traditional patterns of sustainable land management or to assign protected status for conservation of biological diversity or critical ecological services. 10.4. A number of techniques, frameworks and processes can be combined to facilitate an integrated approach. They are the indispensable support for the planning and management process, at the national and local level, ecosystem or area levels and for the development of specific plans of action. Many of its elements are already in place but need to be more widely applied, further developed and strengthened. This programme area is concerned primarily with providing a framework that will coordinate decision-making; the content and operational functions are therefore not included here but are dealt with in the relevant sectoral programmes of Agenda 21.

Objectives

10.5. The broad objective is to facilitate allocation of land to the uses that provide the greatest sustainable benefits and to promote the transition to a sustainable and integrated management of land resources. In doing so, environmental, social and economic issues should be taken into consideration. Protected areas, private property rights, the rights of indigenous people and their communities and other local communities and the economic role of women in agriculture and rural development, among other issues, should be taken into account. In more specific terms, the objectives are as follows:

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(a) To review and develop policies to support the best possible use of land and the sustainable management of land resources, by not later than 1996; (b) To improve and strengthen planning, management and evaluation systems for land and land resources, by not later than 2000; (c) To strengthen institutions and coordinating mechanisms for land and land resources, by not later than 1998; (d) To create mechanisms to facilitate the active involvement and participation of all concerned, particularly communities and people at the local level, in decision-making on land use and management, by not later than 1996. Activities (A) Management-related Activities Developing Supportive Policies and Policy Instruments

10.6. Governments at the appropriate level, with the support of regional and international organizations, should ensure that policies and policy instruments support the best possible land use and sustainable management of land resources. Particular attention should be given to the role of agricultural land. To do this, they should: (a) Develop integrated goal-setting and policy formulation at the national, regional and local levels that takes into account environmental, social, demographic and economic issues; (b) Develop policies that encourage sustainable land use and management of land resources and take the land resource base, demographic issues and the interests of the local population into account; (c) Review the regulatory framework, including laws, regulations and enforcement procedures, in order to identify improvements needed to support sustainable land use and management of land resources and restricts the transfer of productive arable land to other uses; (d) Apply economic instruments and develop institutional mechanisms and incentives to encourage the best possible land use and sustainable management of land resources; (e) Encourage the principle of delegating policymaking to the lowest level of public authority

consistent with effective action and a locally driven approach.

integrated and sustainable approach to land and resources. To do this, they should:

Strengthening Planning and Management Systems

(a) Adopt improved systems for the interpretation and integrated analysis of data on land use and land resources;

10.7. Governments at the appropriate level, with the support of regional and international organizations, should review and, if appropiate, revise planning and management systems to facilitate an integrated approach. To do this, they should: (a) Adopt planning and management systems that facilitate the integration of environmental components such as air, water, land and other natural resources, using landscape ecological planning (LANDEP) or other approaches that focus on, for example, an ecosystem or a watershed; (b) Adopt strategic frameworks that allow the integration of both developmental and environmental goals; examples of these frameworks include sustainable livelihood systems, rural development, the World Conservation Strategy/Caring for the Earth, primary environmental care (PEC) and others; (c) Establish a general framework for land-use and physical planning within which specialized and more detailed sectoral plans (e.g., for protected areas, agriculture, forests, human settlements, rural development) can be developed; establish intersectoral consultative bodies to streamline project planning and implementation; (d) Strengthen management systems for land and natural resources by including appropriate traditional and indigenous methods; examples of these practices include pastoralism, Hema reserves (traditional Islamic land reserves) and terraced agriculture; (e) Examine and, if necessary, establish innovative and flexible approaches to programme funding; (f) Compile detailed land capability inventories to guide sustainable land resources allocation, management and use at the national and local levels. Promoting Application of Appropriate Tools for Planning and Management

10.8. Governments at the appropriate level, with the support of national and international organizations, should promote the improvement, further development and widespread application of planning and management tools that facilitate an

(b) Systematically apply techniques and procedures for assessing the environmental, social and economic impacts, risks, costs and benefits of specific actions; (c) Analyse and test methods to include land and ecosystem functions and land resources values in national accounts. Raising Awareness

10.9. Governments at the appropriate level, in collaboration with national institutions and interest groups and with the support of regional and international organizations, should launch awarenessraising campaigns to alert and educate people on the importance of integrated land and land resources management and the role that individuals and social groups can play in it. This should be accompanied by provision of the means to adopt improved practices for land use and sustainable management. Promoting Public Participation

10.10. Governments at the appropriate level, in collaboration with national organizations and with the support of regional and international organizations, should establish innovative procedures, programmes, projects and services that facilitate and encourage the active participation of those affected in the decision-making and implementation process, especially of groups that have, hitherto, often been excluded, such as women, youth, indigenous people and their communities and other local communities. (B) Data and Information Strengthening information systems

10.11. Governments at the appropriate level, in collaboration with national institutions and the private sector and with the support of regional and international organizations, should strengthen the information systems necessary for making decisions and evaluating future changes on land use and management. The needs of both men and women should

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be taken into account. To do this, they should: (a) Strengthen information, systematic observation and assessment systems for environmental, economic and social data related to land resources at the global, regional, national and local levels and for land capability and land-use and management patterns; (b) Strengthen coordination between existing sectoral data systems on land and land resources and strengthen national capacity to gather and assess data; (c) Provide the appropriate technical information necessary for informed decision-making on land use and management in an accessible form to all sectors of the population, especially to local communities and women; (d) Support low-cost, community-managed systems for the collection of comparable information on the status and processes of change of land resources, including soils, forest cover, wildlife, climate and other elements. (C) International and Regional Coordination and Cooperation Establishing Regional Machinery

10.12. Governments at the appropriate level, with the support of regional and international organizations, should strengthen regional cooperation and exchange of information on land resources. To do this, they should: (a) Study and design regional policies to support programmes for land-use and physical planning; (b) Promote the development of land-use and physical plans in the countries of the region; (c) Design information systems and promote training; (d) Exchange, through networks and other appropriate means, information on experiences with the process and results of integrated and participatory planning and management of land resources at the national and local levels. Means of Implementation (A) Financing and Cost Evaluation

10.13. The Conference secretariat has estimated the average total annual cost (1993–2000) of imple-

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menting the activities of this programme to be about $50 million from the international community on grant or concessional terms. These are indicative and order-of-magnitude estimates only and have not been reviewed by Governments. Actual costs and financial terms, including any that are non-concessional, will depend upon, inter alia, the specific strategies and programmes Governments decide upon for implementation. (B) Scientific and Technological Means Enhancing Scientific Understanding of the Land Resources System

10.14. Governments at the appropriate level, in collaboration with the national and international scientific community and with the support of appropriate national and international organizations, should promote and support research, tailored to local environments, on the land resources system and the implications for sustainable development and management practices. Priority should be given, as appropriate, to: (a) Assessment of land potential capability and ecosystem functions; (b) Ecosystemic interactions and interactions between land resources and social, economic and environmental systems; (c) Developing indicators of sustainability for land resources, taking into account environmental, economic, social, demographic, cultural and political factors. Testing Research Findings Through Pilot Projects

10.15. Governments at the appropriate level, in collaboration with the national and international scientific community and with the support of the relevant international organizations, should research and test, through pilot projects, the applicability of improved approaches to the integrated planning and management of land resources, including technical, social and institutional factors. (C) Human Resource Development Enhancing Education and Training

10.16. Governments at the appropriate level, in collaboration with the appropriate local authorities, non-governmental organizations and international institutions, should promote the development of

the human resources that are required to plan and manage land and land resources sustainably. This should be done by providing incentives for local initiatives and by enhancing local management capacity, particularly of women, through: (a) Emphasizing interdisciplinary and integrative approaches in the curricula of schools and technical, vocational and university training; (b) Training all relevant sectors concerned to deal with land resources in an integrated and sustainable manner; (c) Training communities, relevant extension services, community-based groups and nongovernmental organizations on land management techniques and approaches applied successfully elsewhere.

(D) Capacity-building Strengthening Technological Capacity

10.17. Governments at the appropriate level, in cooperation with other Governments and with the support of relevant international organizations, should promote focused and concerted efforts for education and training and the transfer of techniques and technologies that support the various aspects of the sustainable planning and management process at the national, state/provincial and local levels. Strengthening Institutions

10.18. Governments at the appropriate level, with the support of appropriate international organizations, should: (a) Review and, where appropriate, revise the mandates of institutions that deal with land and natural resources to include explicitly the interdisciplinary integration of environmental, social and economic issues; (b) Strengthen coordinating mechanisms between institutions that deal with land-use and resources management to facilitate integration of sectoral concerns and strategies; (c) Strengthen local decision-making capacity and improve coordination with higher levels.

CHAPTER 17. PROTECTION OF THE OCEANS, ALL KINDS OF SEAS, INCLUDING ENCLOSED AND SEMI-ENCLOSED SEAS, AND COASTAL AREAS AND THE PROTECTION, RATIONAL USE AND DEVELOPMENT OF THEIR LIVING RESOURCES

17.1. The marine environment – including the oceans and all seas and adjacent coastal areas – forms an integrated whole that is an essential component of the global life-support system and a positive asset that presents opportunities for sustainable development. International law, as reflected in the provisions of the United Nations Convention on the Law of the Sea, referred to in this chapter of Agenda 21, sets forth rights and obligations of States and provides the international basis upon which to pursue the protection and sustainable development of the marine and coastal environment and its resources. This requires new approaches to marine and coastal area management and development, at the national, subregional, regional and global levels, approaches that are integrated in content and are precautionary and anticipatory in ambit, as reflected in the following programme areas: (a) Integrated management and sustainable development of coastal areas, including exclusive economic zones; (b) Marine environmental protection; (c) Sustainable use and conservation of marine living resources of the high seas; (d) Sustainable use and conservation of marine living resources under national jurisdiction; (e) Addressing critical uncertainties for the management of the marine environment and climate change; (f) Strengthening international, including regional, cooperation and coordination; (g) Sustainable development of small islands. 17.2. The implementation by developing countries of the activities set forth below shall be commensurate with their individual technological and financial capacities and priorities in allocating resources for development needs and ultimately depends on the technology transfer and financial resources required and made available to them.

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PROGRAMME AREAS

Objectives

A. Integrated Management and Sustainable Development of Coastal and Marine Areas, Including Exclusive Economic Zones

17.5. Coastal States commit themselves to integrated management and sustainable development of coastal areas and the marine environment under their national jurisdiction. To this end, it is necessary to, inter alia:

Basis for Action

17.3. The coastal area contains diverse and productive habitats important for human settlements, development and local subsistence. More than half the world’s population lives within 60 km of the shoreline, and this could rise to three quarters by the year 2020. Many of the world’s poor are crowded in coastal areas. Coastal resources are vital for many local communities and indigenous people. The exclusive economic zone (EEZ) is also an important marine area where the States manage the development and conservation of natural resources for the benefit of their people. For small island States or countries, these are the areas most available for development activities. 17.4. Despite national, subregional, regional and global efforts, current approaches to the management of marine and coastal resources have not always proved capable of achieving sustainable development, and coastal resources and the coastal environment are being rapidly degraded and eroded in many parts of the world.

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(a) Provide for an integrated policy and decisionmaking process, including all involved sectors, to promote compatibility and a balance of uses; (b) Identify existing and projected uses of coastal areas and their interactions; (c) Concentrate on well-defined issues concerning coastal management; (d) Apply preventive and precautionary approaches in project planning and implementation, including prior assessment and systematic observation of the impacts of major projects; (e) Promote the development and application of methods, such as national resource and environmental accounting, that reflect changes in value resulting from uses of coastal and marine areas, including pollution, marine erosion, loss of resources and habitat destruction; (f) Provide access, as far as possible, for concerned individuals, groups and organizations to relevant information and opportunities for consultation and participation in planning and decisionmaking at appropriate levels. . . .

Rio Declaration on Environment and Development Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3–14 June 1992) U.N. Doc. A/CONF.151/26 (Vol. I) Summary: “Recognizing the interdependent nature of the Earth, our home,” the Rio Declaration affirms that economic efficiency, environmental protection, and equity are integral to the process of sustainable development. In 1992, more than 170 nations met in Brazil for the Earth Summit, which was attended by nearly 100 heads of state. All the participating nations adopted Agenda 21 and the 27 principles of the Rio Declaration to guide sustainable development. The declaration acknowledges States’ sovereign right to exploit their resources, together with their responsibility not to cause harm to other States, to the environment, or to future generations. The rights and needs of the least developed countries, of women, and of indigenous peoples are of special concern in ensuring sustainable development. Intergovernmental cooperation in environmental protection and in disaster prevention is a primary goal of the declaration. Citizen participation in decision making is central to the creation of effective environmental and economic policies and legislation. This document is available online at: http://www.un.org/documents/ga/conf151/ aconf15126-1annex1.htm

RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT

The United Nations Conference on Environment and Development, Having met at Rio de Janeiro from 3 to 14 June 1992, Reaffirming the Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm on 16 June 1972, and seeking to build upon it, With the goal of establishing a new and equitable global partnership through the creation of new levels of cooperation among States, key sectors of societies and people,

Working towards international agreements which respect the interests of all and protect the integrity of the global environmental and developmental system, Recognizing the integral and interdependent nature of the Earth, our home, Proclaims that: Principle 1. Human beings are at the centre of con-

cerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. Principle 2. States have, in accordance with the

Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Principle 3. The right to development must be ful-

filled so as to equitably meet developmental and environmental needs of present and future generations. Principle 4. In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. Principle 5. All States and all people shall cooper-

ate in the essential task of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better meet the needs of the majority of the people of the world. Principle 6. The special situation and needs of

developing countries, particularly the least developed and those most environmentally vulnerable,

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shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries.

may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries.

Principle 7. States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

Principle 12. States should cooperate to promote a

Principle 8. To achieve sustainable development

and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies. Principle 9. States should cooperate to strengthen endogenous capacity-building for sustainable development by improving scientific understanding through exchanges of scientific and technological knowledge, and by enhancing the development, adaptation, diffusion and transfer of technologies, including new and innovative technologies. Principle 10. Environmental issues are best handled

with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. Principle 11. States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. Standards applied by some countries

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supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus. Principle 13. States shall develop national law

regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction. Principle 14. States should effectively cooperate to

discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health. Principle 15. In order to protect the environment,

the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Principle 16. National authorities should endeav-

our to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with

due regard to the public interest and without distorting international trade and investment. Principle 17. Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. Principle 18. States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States. Every effort shall be made by the international community to help States so afflicted. Principle 19. States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith. Principle 20. Women have a vital role in environ-

mental management and development. Their full participation is therefore essential to achieve sustainable development.

Principle 22. Indigenous people and their commu-

nities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. 23. The environment and natural resources of people under oppression, domination and occupation shall be protected.

Principle

Principle 24. Warfare is inherently destructive of

sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary. Principle 25. Peace, development and environmen-

tal protection are interdependent and indivisible. Principle 26. States shall resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations. Principle 27. States and people shall cooperate in

Principle 21. The creativity, ideals and courage of

the youth of the world should be mobilized to forge a global partnership in order to achieve sustainable development and ensure a better future for all.

good faith and in a spirit of partnership in the fulfilment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development.

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Istanbul Declaration on Human Settlements United Nations Conference on Human Settlements (Habitat II) (1996) [The Habitat Agenda and Istanbul Declaration U.N. Doc. A/CONF.165/PC.3/4 (1996)] Summary: The major themes of the United Nations Conference on Human Settlements – Habitat II – were “adequate shelter for all and sustainable human settlements development in an urbanizing world.” One hundred seventy-one countries participated in meetings that – building on the agreements of the1976 Vancouver Conference on Human Settlements (Habitat I) and the 1992 Rio Conference on Environment and Development – produced the Habitat Agenda. The preamble to the Habitat Agenda describes the document as “a framework of goals and principles and commitments” for international, national, and local action to remedy unsustainable patterns of consumption and development and “to ensure future progress in the improvement of economic, social and environmental conditions in human settlements.” The Istanbul Declaration states that rural and urban development are interdependent. It advocates policies at all governmental levels to provide affordable housing in urbanized environments and to “promote the conservation, rehabilitation and maintenance of buildings, monuments, open spaces, landscapes and settlement patterns of historical, cultural, architectural, natural, religious and spiritual value.” The declaration recognizes “local authorities as our closest partners” and states that “within the legal framework of each country,” it is essential to “promote decentralization through democratic local authorities.” The full text of the Habitat Agenda and Istanbul Declaration is available at: http://www.unchs.org/english/hagenda/istdec.htm

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ISTANBUL DECLARATION ON HUMAN SETTLEMENTS UNITED NATIONS CONFERENCE ON HUMAN SETTLEMENTS (HABITAT II) (1996)

1. We, the Heads of State or Government and the official delegations of countries assembled at the United Nations Conference on Human Settlements (Habitat II) in Istanbul, Turkey from 3 to 14 June 1996, take this opportunity to endorse the universal goals of ensuring adequate shelter for all and making human settlements safer, healthier and more liveable, equitable, sustainable and productive. Our deliberations on the two major themes of the Conference – adequate shelter for all and sustainable human settlements development in an urbanizing world – have been inspired by the Charter of the United Nations and are aimed at reaffirming existing and forging new partnerships for action at the international, national and local levels to improve our living environment. We commit ourselves to the objectives, principles and recommendations contained in the Habitat Agenda and pledge our mutual support for its implementation. 2. We have considered, with a sense of urgency, the continuing deterioration of conditions of shelter and human settlements. At the same time, we recognize cities and towns as centres of civilization, generating economic development and social, cultural, spiritual and scientific advancement. We must take advantage of the opportunities presented by our settlements and preserve their diversity to promote solidarity among all our peoples. 3. We reaffirm our commitment to better standards of living in larger freedom for all humankind. We recall the first United Nations Conference on Human Settlements, held at Vancouver, Canada, the celebration of the International Year of

Shelter for the Homeless and the Global Strategy for Shelter to the Year 2000, all of which have contributed to increased global awareness of the problems of human settlements and called for action to achieve adequate shelter for all. Recent United Nations world conferences, including, in particular, the United Nations Conference on Environment and Development, have given us a comprehensive agenda for the equitable attainment of peace, justice and democracy built on economic development, social development and environmental protection as interdependent and mutually reinforcing components of sustainable development. We have sought to integrate the outcomes of these conferences into the Habitat Agenda. 4. To improve the quality of life within human settlements, we must combat the deterioration of conditions that in most cases, particularly in developing countries, have reached crisis proportions. To this end, we must address comprehensively, inter alia, unsustainable consumption and production patterns, particularly in industrialized countries; unsustainable population changes, including changes in structure and distribution, giving priority consideration to the tendency towards excessive population concentration; homelessness; increasing poverty; unemployment; social exclusion; family instability; inadequate resources; lack of basic infrastructure and services; lack of adequate planning; growing insecurity and violence; environmental degradation; and increased vulnerability to disasters. 5. The challenges of human settlements are global, but countries and regions also face specific problems which need specific solutions. We recognize the need to intensify our efforts and cooperation to improve living conditions in the cities, towns and villages throughout the world, particularly in developing countries, where the situation is especially grave, and in countries with economies in transition. In this connection, we acknowledge that globalization of the world economy presents opportunities and challenges for the development process, as well as risks and uncertainties, and that achievement of the goals of the Habitat Agenda would be facilitated by, inter alia, positive actions on the issues of financing of development, external debt, international trade and transfer of technology. Our cities must be places where human beings lead fulfilling

lives in dignity, good health, safety, happiness and hope. 6. Rural and urban development are interdependent. In addition to improving the urban habitat, we must also work to extend adequate infrastructure, public services and employment opportunities to rural areas in order to enhance their attractiveness, develop an integrated network of settlements and minimize rural-to-urban migration. Small- and medium-sized towns need special focus. 7. As human beings are at the centre of our concern for sustainable development, they are the basis for our actions as in implementing the Habitat Agenda. We recognize the particular needs of women, children and youth for safe, healthy and secure living conditions. We shall intensify our efforts to eradicate poverty and discrimination, to promote and protect all human rights and fundamental freedoms for all, and to provide for basic needs, such as education, nutrition and life-span health care services, and, especially, adequate shelter for all. To this end, we commit ourselves to improving the living conditions in human settlements in ways that are consonant with local needs and realities, and we acknowledge the need to address the global, economic, social and environmental trends to ensure the creation of better living environments for all people. We shall also ensure the full and equal participation of all women and men, and the effective participation of youth, in political, economic and social life. We shall promote full accessibility for people with disabilities, as well as gender equality in policies, programmes and projects for shelter and sustainable human settlements development. We make these commitments with particular reference to the more than one billion people living in absolute poverty and to the members of vulnerable and disadvantaged groups identified in the Habitat Agenda. 8. We reaffirm our commitment to the full and progressive realization of the right to adequate housing as provided for in international instruments. To that end, we shall seek the active participation of our public, private and non-governmental partners at all levels to ensure legal security of tenure, protection from discrimination and equal access to affordable, adequate housing for all persons and their families. 9. We shall work to expand the supply of affordable housing by enabling markets to perform efficiently

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and in a socially and environmentally responsible manner, enhancing access to land and credit and assisting those who are unable to participate in housing markets. 10. In order to sustain our global environment and improve the quality of living in our human settlements, we commit ourselves to sustainable patterns of production, consumption, transportation and settlements development; pollution prevention; respect for the carrying capacity of ecosystems; and the preservation of opportunities for future generations. In this connection, we shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of different contributions to global environmental degradation, we reaffirm the principle that countries have common but differentiated responsibilities. We also recognize that we must take these actions in a manner consistent with the precautionary principle approach, which shall be widely applied according to the capabilities of countries. We shall also promote healthy living environments, especially through the provision of adequate quantities of safe water and effective management of waste. 11. We shall promote the conservation, rehabilitation and maintenance of buildings, monuments, open spaces, landscapes and settlement patterns of historical, cultural, architectural, natural, religious and spiritual value. 12. We adopt the enabling strategy and the principles of partnership and participation as the most democratic and effective approach for the realization of our commitments. Recognizing local authorities as our closest partners, and as essential, in the implementation of the Habitat Agenda, we must, within the legal framework of each country, promote decentralization through democratic local authorities and work to strengthen their financial and institutional capacities in accordance with the conditions of countries, while ensuring their transparency, accountability and responsiveness to the needs of people, which are key requirements for Governments at all levels. We shall also increase our cooperation with parliamentarians, the private sector, labour unions and non-governmental and other civil society organizations with due respect for their autonomy. We shall also enhance the role

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of women and encourage socially and environmentally responsible corporate investment by the private sector. Local action should be guided and stimulated through local programmes based on Agenda 21, the Habitat Agenda, or any other equivalent programme, as well as drawing upon the experience of worldwide cooperation initiated in Istanbul by the World Assembly of Cities and Local Authorities, without prejudice to national policies, objectives, priorities and programmes. The enabling strategy includes a responsibility for Governments to implement special measures for members of disadvantaged and vulnerable groups when appropriate. 13. As the implementation of the Habitat Agenda will require adequate funding, we must mobilize financial resources at the national and international levels, including new and additional resources from all sources – multilateral and bilateral, public and private. In this connection, we must facilitate capacity-building and promote the transfer of appropriate technology and know-how. Furthermore, we reiterate the commitments set out in recent United Nations conferences, especially those in Agenda 21 on funding and technology transfer. 14. We believe that the full and effective implementation of the Habitat Agenda will require the strengthening of the role and functions of the United Nations Centre for Human Settlements (Habitat), taking into account the need for the Centre to focus on well-defined and thoroughly developed objectives and strategic issues. To this end, we pledge our support for the successful implementation of the Habitat Agenda and its global plan of action. Regarding the implementation of the Habitat Agenda, we fully recognize the contribution of the regional and national action plans prepared for this Conference. 15. This Conference in Istanbul marks a new era of cooperation, an era of a culture of solidarity. As we move into the twenty-first century, we offer a positive vision of sustainable human settlements, a sense of hope for our common future and an exhortation to join a truly worthwhile and engaging challenge, that of building together a world where everyone can live in a safe home with the promise of a decent life of dignity, good health, safety, happiness and hope.

Johannesburg Declaration on Sustainable Development Adopted at the 17th plenary meeting of the World Summit on Sustainable Development, September 4, 2002 [U.N. Doc. A/CONF.199/20 (2002)] Summary: The World Summit on Sustainable Development, held at Johannesburg, South Africa, in 2002, reaffirmed the principles of the Stockholm Declaration of 1972 and of the Rio Declaration and Agenda 21 of 1992. The Johannesburg Declaration states: “The deep fault line that divides human society between the rich and the poor and the ever-increasing gap between the developed and developing worlds pose a major threat to global prosperity, security and stability.” Since the Rio Summit, globalization has added new challenges for the goal of sustainable development. “To achieve our goals,” the Declaration concludes, “we need more effective, democratic and accountable international and multilateral institutions.” This document is available at:http://www.un.org/ esa/sustdev/documents/ WSSD POI PD/English/

JOHANNESBURG DECLARATION ON SUSTAINABLE DEVELOPMENT

degradation and patterns of unsustainable development. 4. As part of our response to these children, who represent our collective future, all of us, coming from every corner of the world, informed by different life experiences, are united and moved by a deeply felt sense that we urgently need to create a new and brighter world of hope. 5. Accordingly, we assume a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection – at the local, national, regional and global levels. 6. From this continent, the cradle of humanity, we declare, through the Plan of Implementation of the World Summit on Sustainable Development and the present Declaration, our responsibility to one another, to the greater community of life and to our children. 7. Recognizing that humankind is at crossroads, we have united in a common resolve to make a determined effort to respond positively to the need to produce a practical and visible plan to bring about poverty eradication and human development.

FROM OUR ORIGINS TO THE FUTURE

1. We, the representatives of the peoples of the world, assembled at the World Summit on Sustainable Development in Johannesburg, South Africa, from 2 to 4 September 2002, reaffirm our commitment to sustainable development. 2. We commit ourselves to building a humane, equitable and caring global society, cognizant of the need for human dignity for all. 3. At the beginning of this Summit, the children of the world spoke to us in a simple yet clear voice that the future belongs to them, and accordingly challenged all of us to ensure that through our actions they will inherit a world free of the indignity and indecency occasioned by poverty, environmental

FROM STOCKHOLM TO RIO DE JANEIRO TO JOHANNESBURG

8. Thirty years ago, in Stockholm, we agreed on the urgent need to respond to the problem of environmental deterioration. Ten years ago, at the United Nations Conference on Environment and Development, held in Rio de Janeiro, we agreed that the protection of the environment and social and economic development are fundamental to sustainable development, based on the Rio Principles. To achieve such development, we adopted the global programme entitled Agenda 21and the Rio Declaration on Environment and Development, to which we reaffirm our commitment. The Rio Conference

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was a significant milestone that set a new agenda for sustainable development.

developing countries facing special difficulties in meeting this challenge.

9. Between Rio and Johannesburg, the world’s nations have met in several major conferences under the auspices of the United Nations, including the International Conference on Financing for Development, as well as the Doha Ministerial Conference. These conferences defined for the world a comprehensive vision for the future of humanity.

15. We risk the entrenchment of these global disparities and unless we act in a manner that fundamentally changes their lives the poor of the world may lose confidence in their representatives and the democratic systems to which we remain committed, seeing their representatives as nothing more than sounding brass or tinkling cymbals.

10. At the Johannesburg Summit, we have achieved much in bringing together a rich tapestry of peoples and views in a constructive search for a common path towards a world that respects and implements the vision of sustainable development. The Johannesburg Summit has also confirmed that significant progress has been made towards achieving a global consensus and partnership among all the people of our planet.

THE CHALLENGES WE FACE

11. We recognize that poverty eradication, changing consumption and production patterns and protecting and managing the natural resource base for economic and social development are overarching objectives of and essential requirements for sustainable development. 12. The deep fault line that divides human society between the rich and the poor and the everincreasing gap between the developed and developing worlds pose a major threat to global prosperity, security and stability. 13. The global environment continues to suffer. Loss of biodiversity continues, fish stocks continue to be depleted, desertification claims more and more fertile land, the adverse effects of climate change are already evident, natural disasters are more frequent and more devastating, and developing countries more vulnerable, and air, water and marine pollution continue to rob millions of a decent life. 14. Globalization has added a new dimension to these challenges. The rapid integration of markets, mobility of capital and significant increases in investment flows around the world have opened new challenges and opportunities for the pursuit of sustainable development. But the benefits and costs of globalization are unevenly distributed, with

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OUR COMMITMENT TO SUSTAINABLE DEVELOPMENT

16. We are determined to ensure that our rich diversity, which is our collective strength, will be used for constructive partnership for change and for the achievement of the common goal of sustainable development. 17. Recognizing the importance of building human solidarity, we urge the promotion of dialogue and cooperation among the world’s civilizations and peoples, irrespective of race, disabilities, religion, language, culture or tradition. 18. We welcome the focus of the Johannesburg Summit on the indivisibility of human dignity and are resolved, through decisions on targets, timetables and partnerships, to speedily increase access to such basic requirements as clean water, sanitation, adequate shelter, energy, health care, food security and the protection of biodiversity. At the same time, we will work together to help one another gain access to financial resources, benefit from the opening of markets, ensure capacity-building, use modern technology to bring about development and make sure that there is technology transfer, human resource development, education and training to banish underdevelopment forever. 19. We reaffirm our pledge to place particular focus on, and give priority attention to, the fight against the worldwide conditions that pose severe threats to the sustainable development of our people, which include: chronic hunger; malnutrition; foreign occupation; armed conflict; illicit drug problems; organized crime; corruption; natural disasters; illicit arms trafficking; trafficking in persons; terrorism; intolerance and incitement to racial, ethnic, religious and other hatreds; xenophobia; and endemic, communicable and chronic diseases, in particular HIV/AIDS, malaria and tuberculosis.

20. We are committed to ensuring that women’s empowerment, emancipation and gender equality are integrated in all the activities encompassed within Agenda 21, the Millennium development goals and the Plan of Implementation of the Summit. 21. We recognize the reality that global society has the means and is endowed with the resources to address the challenges of poverty eradication and sustainable development confronting all humanity. Together, we will take extra steps to ensure that these available resources are used to the benefit of humanity. 22. In this regard, to contribute to the achievement of our development goals and targets, we urge developed countries that have not done so to make concrete efforts reach the internationally agreed levels of official development assistance. 23. We welcome and support the emergence of stronger regional groupings and alliances, such as the New Partnership for Africa’s Development, to promote regional cooperation, improved international cooperation and sustainable development. 24. We shall continue to pay special attention to the developmental needs of small island developing States and the least developed countries. 25. We reaffirm the vital role of the indigenous peoples in sustainable development. 26. We recognize that sustainable development requires a long-term perspective and broad-based participation in policy formulation, decisionmaking and implementation at all levels. As social partners, we will continue to work for stable partnerships with all major groups, respecting the independent, important roles of each of them.

which should take place within a transparent and stable regulatory environment. 30. We undertake to strengthen and improve governance at all levels for the effective implementation of Agenda 21, the Millennium development goals and the Plan of Implementation of the Summit. MULTILATERALISM IS THE FUTURE

31. To achieve our goals of sustainable development, we need more effective, democratic and accountable international and multilateral institutions. 32. We reaffirm our commitment to the principles and purposes of the Charter of the United Nations and international law, as well as to the strengthening of multilateralism. We support the leadership role of the United Nations as the most universal and representative organization in the world, which is best placed to promote sustainable development. 33. We further commit ourselves to monitor progress at regular intervals towards the achievement of our sustainable development goals and objectives. MAKING IT HAPPEN!

34. We are in agreement that this must be an inclusive process, involving all the major groups and Governments that participated in the historic Johannesburg Summit. 35. We commit ourselves to act together, united by a common determination to save our planet, promote human development and achieve universal prosperity and peace.

27. We agree that in pursuit of its legitimate activities the private sector, including both large and small companies, has a duty to contribute to the evolution of equitable and sustainable communities and societies.

36. We commit ourselves to the Plan of Implementation of the World Summit on Sustainable Development and to expediting the achievement of the time-bound, socio-economic and environmental targets contained therein.

28. We also agree to provide assistance to increase income-generating employment opportunities, taking into account the Declaration on Fundamental Principles and Rights at Work of the International Labour Organization.

37. From the African continent, the cradle of humankind, we solemnly pledge to the peoples of the world and the generations that will surely inherit this Earth that we are determined to ensure that our collective hope for sustainable development is realized.

29. We agree that there is a need for private sector corporations to enforce corporate accountability,

[Notes omitted]

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II. AFRICA

CAPE VERDE

Cape Verde Order No. 86/IV/93 Summary: Order No. 86/IV/93 of June 26, 1993, sets forth Cape Verde’s general environmental regulation framework. Though it does not outline regulatory procedures specifically, it contains general provisions pertaining to the regulation of private property for the promotion of sustainable development. This Order underscores the right of Cape Verde’s citizens to a healthy environment and emphasizes the citizens’ corresponding duty to defend this right. Cape Verde is an island state lying in the Atlantic Ocean some 300 miles from the African continent and belonging to the sub-Saharan region. The state is responsible for enforcing the National Environmental Policy, including the coordination of regional policies and adoption of the measures of this Order, and for encouraging the participation of private entities. Each municipal district of the state is obligated to establish an environmental law commission. Examples of protection measures detailed in this Order are preservation of access to light by regulating building construction locations, strict avoidance of water and sewage pipe degradation by restricting the release of water, regulation of the use of soil for building and agricultural activities, preparation of mandatory early cost-benefit analysis for proposed developments, and licensing to control potentially polluting construction and operation. An ellipsis indicates that a provision has been abridged.

CHAPTER I: PRINCIPLES AND OBJECTIVES

The full text of this Order is available in PDF at: http://www.unep.org/padelia/publications/ comp1Cape%20Verde.pdf

Article 7 (Protection of the Quality of Natural Environmental Components). In order to ensure the

CAPE VERDE ORDER NO. 86/IV/93 OF JUNE 26, 1993

Chapter I, Article 2, Chapter II, Articles 6, 7, 9, 10, 13, 14, Chapter III, Article 18, and Chapter V, Article 33.

Article 2 (General Principle)

1. All citizens have the right to a healthy and ecologically stable living environment and the duty to defend it, the State and municipal districts having responsibility, through the appropriate organizations and through appeals, as well as support through community initiatives, for promoting the improvements of the quality of life, individually and collectively. 2. The environmental policy is aimed at optimizing and ensuring the continual utilization of natural resources, both qualitatively and quantitatively, as a pre-requisite for self-sustainable development. CHAPTER II: NATURAL ENVIRONMENTAL COMPONENTS

Article 6 (Natural Environmental Components).

This order classifies the environmental components as follows: a) The air; b) The light; c) The water; d) The soil and subsoil; e) The flora; f) The fauna.

protection of the desirable quality of the natural environmental components referred to previously, the State may, through the ministry in charge of the respective activity, forbid or restrict such activities and develop the necessary actions to enforce this purpose, i.e. the adoption of restrictions, and inspection measures, that take into account the economic, social and cultural costs of environmental

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degradation in terms of the mandatory early costbenefit analysis. Article 9 (Light and Luminosity Levels)


4. Based on the above the following are restricted: a. The volume of newly built edifices that could deteriorate society’s quality of life and the local vegetation due to shading; b. The rules for building fire places in private homes, offices, factories, and other working places and schools; c. The volume of the buildings built on the periphery of existing or planned green spaces; d. Lit adverts are only allowed in urban areas and are conditioned by their color, form, location, and intermittency to specific rules. 5. Under the terms of the present article, the destruction of vegetal cover, including that used in the characterization of land plots, is forbidden. Article 10 (Water)

1. The categories of water covered in this document are as follows: a. Inland surface waters;

c. The establishment of a protection zone along the coastline; d. The development, application and coordination of water, industrial, agricultural, domestic, and vehicle spill pollution prevention techniques. 4. The factories and other establishments that release water to the sewage systems are obliged to clean it to avoid the degradation of the pipe system as well as any disturbance to the major water purification plants. Article 13 (Soil)

1. Regulations shall be established for the protection of the soil as a natural resource. These regulations shall be aimed at the rational utilization of the soil, avoiding soil degradation, increasing soil fertility and regeneration, and include the establishment of a natural resources management policy that ensures the stability of ecosystems and of the water cycles. 2. The following uses of the soil shall be conditioned to regulations: – agricultural soils that are used for non-agricultural activities; – use of soil for building, plantations or other agricultural activities that may cause soil degradation, de-stabilization, flooding, salinisation, and other adverse effects. Article 14 (Subsoil)

b. Inland ground waters;

...

c. Closed sea;

2. The exploration of the subsoil shall be conducted in such a manner as to respect the following principles:

d. Archipelagic waters; e. Territorial sea; f. Economic exclusive zone; . . . . 3. The measures related to the following topics shall be subject to the appropriate rules and regulations: a. The rational utilization of water, with quality levels specified according to use, in order to avoid unnecessary costs and increase the degree of reutilization; b. The undertaking of the appropriate actions aimed at increasing conservation efforts, increasing and optimizing the use of surface and ground waters, based on group projects;

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a. Ensure the regeneration of the natural renewable resources and the most appropriate relationship between the volume of opened land and that of land prepared for exploration; b. Maximumization of the value of all extracted raw materials; c. Exploration of sources of drinking and thermal waters and establishment of a protection perimeter; d. Adoption of preventive measures to avoid environmental degradation resulting form the extraction of raw materials that could disturb the stability of natural and social systems;

e. Mandatory recovery of the landscapes if the exploration of the subsoil has resulted in the alteration of the pre-existing topography or of important natural systems, with the aim of integrating the explored area to the landscape in a harmonious manner. CHAPTER III: HUMAN ENVIRONMENTAL COMPONENTS

Article 18 (Landscape)

1. In order to achieve the objectives of this order, in relation to the landscape as an aesthetic and visual unit, the central, regional and local administrative bodies shall condition the construction of buildings, road infra-structures and new urban conglomerates that in view of their dimensions, volume, color, shape, or location result in detrimental effect to the landscape, as well as exploration of mines and quarries, the evacuation and accumulation of residues and materials used and the excessive wood logging, to regulations to be defined. 2. The marginal occupation of road, pluvial, portuary and aviation infra-structures, independent of type, hierarchy or location shall be subject to special regulation.

CHAPTER V: LICENSING AND EMERGENCY SITUATIONS

Article 33 (Licensing)

1. The construction, extension, installation and operation of establishments and any activities that result in the pollution of the environment shall be subject to the legal approval of the state agency in charge of the environment and of the territorial management. 2. The licensing of establishments is subject to regulation under the terms of article 30. 3. The authorization for the operation of any establishment requires the licensing and the inspection of the installations in accordance with the legislation in force. 4. The payment of a bond corresponding to the cost of operation shall be mandatory, in order to ensure the compliance with article 14, no. 2, paragraph e). 5. The granting and renewal of the licensing covered in No. 1 shall be published in a national, regional, or local periodical. 6. The licensing to petrochemical complexes and/or other defined by law shall be the responsibility of the appropriate authorities.

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GHANA

Forests Ordinance (Cap. 157) Summary: The purpose of this ordinance is to protect the forests of the Gold Coast. The Gold Coast was a British colony on the Gulf of Guinea in West Africa. Formed in 1821 when the British government took over privately held lands along the coast, it became the independent nation of Ghana in 1957. The Forest Ordinance of 1927 is still the principal statute governing the forest reserves that extend northward from the shore. It regulates government, tribal lands, and private lands, and the central government is vested with the power to establish reserves on all land. Clauses applicable to government lands are equally applicable to private lands. Through the Governor, the ordinance provides for the creating and management of forest reserves. Public notice is required before the Governor creates a Forest Reserve, and once a reserve is created, the Governor appoints a Reserve Settlement Commissioner. The ordinance details additional public rights, including notice provided in local native languages and compensation for private property converted into a forest reserve. Two management methods are established: management by the owners, under the direction of the state, or by the government for the benefit of the owners. The latter allows for the owners to be paid based on the gross yearly revenue of the forest reserve. The ordinance provides dispute resolution procedures and establishes penalties for offenses within designated forest reserves. The full text of this ordinance is available at: http://www.law.columbia.edu/library/ electronic/ind˙db FORESTS ORDINANCE (Cap. 157) SECTION 3 – APPOINTMENT OF FOREST OFFICERS

The Governor, or any officer empowered by the Governor on his behalf, may from time to time

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appoint Forest Officers by name or as holding an office, to carry out all or any of the purposes of this Ordinance, or to do anything required or allowed by this Ordinance to be done by a Forest Officer. SECTION 4 – POWER TO CONSTITUTE FOREST RESERVES

Subject as provided in section 34, it shall be lawful for the Governor to constitute as a Forest Reserve any of the following lands, namely – (1) Lands, the property of the Government; (2) Tribal or Stool lands, at the request of the Native Authority; (3) Private lands, at the request of the owner; (4) Lands in respect of which the Governor in Council is, on the advice of the Chief Conservator of Forests, satisfied that the forests ought to be protected from injury or destruction, or from any further injury or destruction, as the case may be, or that forest growth should be established thereon, in order – (a) to safeguard the water supply of the district; or (b) to assist the well-being of the forest and agricultural crops grown on the said lands or in the vicinity thereof; or (c) to secure the supply of forest produce to the inhabitants of villages situated on the said lands or in the vicinity thereof. (Substituted by 31 of 1928, s.2, and amended by 21 of 1949, s.3.) SECTION 5 – NOTIFICATION OF INTENTION TO CREATE A FOREST RESERVE; AND APPOINTMENT OF RESERVE SETTLEMENT COMMISSIONER

(1) When it is proposed to constitute any area of land a Forest Reserve, a notice shall be published in the Gazette.

(a) Specifying as nearly as may be the situation and limits of the land; (b) Stating the reasons for constituting the Forest Reserve; and (c) Appointing a Reserve Settlement Commissioner. . . . SECTION 7 – NOTICE OF ENQUIRY

Upon the publication of the said notice the Reserve Settlement Commissioner shall forthwith cause the particulars contained therein to be made known in the district or districts in which the land is situated by causing the same to be read and interpreted in the local native language or languages at a convenient session of the Magistrate’s Court in the said district or districts, as the case may be, and by causing the notice to be posted outside such Court, and also by informing the Native Authority or Native Authorities concerned. The Reserve Settlement Commissioner shall also and in the manner aforesaid fix a period being not less than six months within which, and a place or places to or at which, any person or native community claiming any right affecting the land or rights over the land which it is proposed to constitute a Forest Reserve shall either send in a written statement of his or their claim to the Reserve Settlement Commissioner or appear before him and state orally the nature and extent of his or their alleged rights. . . .

ownership of any land which lies within the proposed Forest Reserve, the Reserve Settlement Commissioner shall try and determine such dispute, either in the course of such enquiry or at a separate enquiry, and shall incorporate his finding in his judgment given under the provisions of section 14 of this Ordinance. (3) Notwithstanding the provisions of subsection (2) of this section, where such a dispute is determinable by a Native Court, the Reserve Settlement Commissioner may, in his discretion, refer the dispute to the appropriate Native Court, and upon such reference it shall be deemed for all purposes to be a civil suit brought before such Native Court, and, subject to the provisions of subsection (4) of this section, shall be tried and determined accordingly. . . . SECTION 11 – SPECIAL POWER TO EXCLUDE LAND FROM PROPOSED FOREST RESERVE

The Reserve Settlement Commissioner may, after consultation with a Forest Officer not below the rank of Assistant Conservator of Forests, exclude any land from the proposed Forest Reserve either by altering the external boundary thereof or by demarcating the land within such external boundary: provided that no such alteration or demarcation shall have the effect of increasing the area of the proposed Forest Reserve. SECTION 12 – COMMUTATION OF RIGHTS

SECTION 9 – ENQUIRY

(1) Save as is otherwise provided in this section, the Reserve Settlement Commissioner shall enquire into and determine the existence, nature and extent of the rights in respect of which he has received any claim under section 7 of this Ordinance, and for the purpose of such enquiry he may divide the proposed Forest Reserve into as many portions of land as he may deem expedient and make a separate enquiry and determination in respect of each such portion. If in the course of any enquiry any other rights affecting the proposed Forest Reserve are alleged to exist or are brought to his notice, the Reserve Settlement Commissioner shall enquire into and determine their existence, nature and extent. (2) If in the course of any enquiry made under subsection (1) of this section a dispute arises as to the

(1) If, after consultation with a Forest Officer not below the rank of Assistant Conservator of Forests, the Reserve Settlement Commissioner finds it impossible, having due regard to the establishment and maintenance of the proposed Forest Reserve, to permit wholly or in part the exercise of any established right within the Forest Reserve, he shall assess a lump sum amount by the payment of which to the holder of the right such right may be commuted. . . . SECTION 13 – RESTRICTIONS ON PAYMENT OF COMPENSATION

Notwithstanding anything in this Ordinance contained, no compensation shall be payable in respect of –

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(a) any restriction upon the exercise of rights in Tribal or Stool lands which lie within a proposed Forest Reserve; (b) any restriction, whether in whole or in part, upon the exercise of the rights of any person to collect forest produce, hunt, fish, set traps, obstruct the channel of any river, pasture cattle or light fires, where such restriction is for the protection and orderly management of the Forest Reserve. SECTION 17 – ORDER CONSTITUTING FOREST RESERVE

(1) As soon as the Reserve Settlement Commissioner shall have delivered his judgment under section 15 the Governor may make an order constituting the land in respect of which the Reserve Settlement Commissioner has in his judgment described the limits recommended for reservation of a Forest Reserve. Such order shall set forth the limits and situation of the land which constitutes the Forest Reserve and all rights affecting the same as set forth in the judgment of the Reserve Settlement Commissioner; and such order shall be published in the Gazette, and shall thereupon come into operation. . . . SECTION 18 – OWNERSHIP OF LAND WITHIN FOREST RESERVE

(1) The ownership of land within a proposed Forest Reserve shall not be altered by its constitution as a Forest Reserve. Method of Management of Forest Reserve

(2) Every Forest Reserve shall be managed in one of the following ways – (a) By the owner or owners under the direction of the Forestry Department; or (b) By the Government for the benefit of the owner or owners. In the latter case there shall be paid to the owner or owners in such proportion as the Governor shall decide the whole of the gross yearly revenue of the Forest Reserve accruing under this Ordinance, subject to the deduction of such sum not exceeding one third of such gross revenue as may at the discretion of the Conservator of Forests be reserved for

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expenditure on the improvement of the forest in the interest of the owner or owners. If such deduction be made the Chief Conservator of Forests shall render an account of its expenditure to the owner or owners concerned. Option as to Method of Management

(3) The method of management of a Forest Reserve shall be at the option of the Governor who shall have power at any time to vary the method of management if and whenever a variation appears to him necessary or desirable: provided that the owners shall be at liberty to refuse to undertake the management under the method specified in subhead (a) of subsection (2). Fetish Trees and Groves

(4) Where any recognised fetish grove or fetish tree is included in a Forest Reserve, the Forest Officers concerned shall not wilfully interfere therewith, and shall do their utmost to ensure that the fetish character thereof is respected. SECTION 19 – TRANSFER OF RIGHTS IN A FOREST RESERVE

Rights in a Forest Reserve may not be alienated by sale, lease, mortgage, charge, or transfer, unless and until the right-holder shall have given a written notification of his intention to the Chief Conservator of Forests. SECTION 20 – POWER TO DECLARE FOREST NO LONGER RESERVED

When, in the opinion of the Governor in Council, there is no longer any need to maintain any particular land as a Forest Reserve, the Governor in Council may, by order published in the Gazette, direct that from a date to be fixed by such order any land or any portion thereof reserved under this Ordinance shall cease to be a Forest Reserve.

SECTION 21 – POWER TO DISTRICT COMMISSIONER TO STOP WAYS AND WATER-COURSES IN A FOREST RESERVE

A District Commissioner may, on the request of the Chief Conservator of Forests, stop any public or

private way or water-course in a Forest Reserve, provided that a substitute for the way or water-course so stopped, which the District Commissioner deems to be reasonably convenient, already exists or has been provided or constructed by the Forestry Department in lieu thereof.

SECTION 22 – OFFENCES AND PENALTIES

Subject as in section 23 provided, any person who makes any clearing, cutting, or burning prohibited by section 6, or whoever in or from any Forest Reserve, except with the authority in writing of the competent forest authority –

Taking Forest Produce

(9) Subjects to any manufacturing process, collects, conveys, or removes any forest produce; Trespass by Cattle

(10) Pastures cattle or permits cattle to trespass; shall on summary conviction be liable to a fine not exceeding fifty pounds or to imprisonment with or without hard labour for any term not exceeding six months, and in addition to pay to the person whose rights have been infringed such compensation for damage, if any, done to the forest as the convicting Court may direct to be paid.

Damaging Trees, Etc.

(1) Fells, uproots, lops, girdles, taps, or injures by fire, or otherwise damages, any tree or timber; Farming

(2) Makes or cultivates any farm;

SECTION 23 – SECTION 22 NOT TO PROHIBIT EXERCISE OF ADMITTED RIGHTS

Nothing in section 22 contained shall prohibit the exercise in a Forest Reserve by any person of any right which under this Ordinance for the time being is, or is treated as, an admitted right.

Fires and Smoking

(3) Sets fire to any grass or herbage, or kindles a fire without taking due precaution to prevent its spreading; (4) Smokes or lights a fire in any part of a Forest Reserve within which, or at any time when, smoking or lighting a fire is prohibited by an order of the Chief Conservator of Forests; Negligent Felling, Etc.

(5) Causes any damage by negligence in felling any tree or cutting or removing any timber; Obstructing River

(6) Constructs any dam or weir across any river, or otherwise obstructs the channel of any river; Poaching

(7) Hunts, shoots, fishes, poisons water, or sets traps or snares; Squatting

(8) Resides, or erects any building;

SECTION 24 – PENALTY FOR COUNTERFEITING OR DEFACING MARKS ON TREES OR TIMBER, AND FOR ALTERING BOUNDARY

Whoever, with intent to cause damage or injury to the public or to any person or to cause wrongful gain – (1) knowingly counterfeits or fraudulently uses or aids or abets any person to counterfeit or fraudulently use upon any timber or standing tree a mark used by Forest Officers or any registered property mark to indicate that such timber or tree is the property of some person; or (2) without the written permission of a Forest Officer alters, defaces, or obliterates any mark placed on a tree or on timber; or (3) alters, moves, destroys, or defaces any boundary mark of any Forest Reserve, shall on summary conviction be liable to imprisonment with or without hard labour for any term not exceeding one year or to a fine not exceeding one hundred pounds, or to both.

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SECTION 25 – PENALTIES FOR FOREST OFFENCES NOT SPECIFICALLY PENALISED

Any person committing any act forbidden by this Ordinance or failing to perform any act enjoined by this Ordinance shall, where no other penalty is herein provided, be liable to imprisonment with or without hard labour for any term not exceeding one month or to a fine not exceeding ten pounds, or to both. SECTION 26 – PREVENTION OF OFFENCES

Every District Commissioner and Forest Officer shall to the extent of his power prevent, and may interfere for the purpose of preventing, the commission of any forest offence . . .

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SECTION 34 – SPECIAL PROVISIONS RELATING TO FOREST RESERVES CONSTITUTED BY BYE-LAWS

(1) No proceedings shall be taken under this Ordinance to constitute as a Forest Reserve any area of land which shall have already been constituted a Forest Reserve by bye-laws made by the appropriate Native Authority, unless the Governor is satisfied that the administration of such Forest Reserve is not being effectively carried out under such bye-laws or that the interest of any right holder has been adversely affected by the reservation of such area of land under such bye-laws. . . .

SOUTH AFRICA

Conservation Of Agricultural Resources Act Summary: The Conservation of Agricultural Resources Act controls the utilization of South Africa’s agricultural land. Land used for agriculture comprises 84 percent of the country’s total area. Agricultural land is mainly used for grazing; only 13 percent of the country’s surface area can be used for crop production, and only 21 percent of the arable land is of high potential. The objectives of the act are to provide for the conservation of the natural agricultural resources through “maintenance of the production potential of land,” “combating and prevent[ing] erosion and weakening or destruction of water sources,” and the “protection of the vegetation and the combating of weeds and invader plants.” The act vests power in an officer of the Department of Agriculture. Through this executive officer, national conservation is implemented through controlled use of agricultural resources. Agricultural land is protected by prohibiting the sale, dispersment, or transportation of weeds and invader plants. If weeds are spread, the act authorizes that the weed be returned to the place of origin, be forwarded to a specified place, or be destroyed in a way determined by the executive officer. To achieve protection of agricultural land, control measures are implemented pertaining to the use of water sources, the flow pattern of runoff water, and the control of areas used by grazing animals. The act acknowledges that the minister has the authority to punish those who fail to comply with conservation measures detailed in the act. Conservation committees and regional conservation committees are created to advise the executive regarding the application of the act and the creation of local natural agricultural resources conservation schemes.

CONSERVATION OF AGRICULTURAL RESOURCES ACT NO. 43 OF 1983 2. Application of Act

(1) Subject to the provisions of subsection (2) this Act shall not apply – (a) to any land which is situated in an urban area; [Para. (b) deleted by Proclamation No. R.116 of 1994.] (c) to any land situated within any area declared under section 2 of the Mountain Catchment Areas Act, 1970 (Act No. 63 of 1970), to be a mountain catchment area. (2) (a) The provisions of this Act relating to weeds and invader plants shall also apply to land which is situated within an urban area. (b) The provisions of this Act relating to the burning of veld shall not apply to a private forest as defined in section 1 of the Forest Act, 1968 (Act No. 72 of 1968), to which any provision of that Act which relates solely to State forests has been applied under section 2 (2) of that Act. (3) The Minister may by regulation declare any plant to be a weed or an invader plant for the purposes of this Act, either throughout the Republic or in one or more areas therein. 3. Objects of Act. – The objects of this Act are to

provide for the conservation of the natural agricultural resources of the Republic by the maintenance of the production potential of land, by the combating and prevention of erosion and weakening or destruction of the water sources, and by the protection of the vegetation and the combating of weeds and invader plants. 4. Executive officer and authorized person

(1) An officer of the department designated as executive officer by the Minister shall exercise the powers

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and perform the duties conferred or imposed upon the executive officer by or under this Act or a scheme. (2) The executive officer shall exercise his powers and perform his duties with due regard to any instructions issued by the Minister. (3) (a) Any power conferred or duty imposed upon the executive officer may be exercised or performed by the executive officer personally or by an officer under a delegation or direction or under the control of the executive officer. (b) Any decision made or order given by such officer may be withdrawn or amended by the executive officer and shall, until it has been so withdrawn or amended, except for the purposes of this paragraph, be deemed to have been made or given by the executive officer. . . . 5. Prohibition of the spreading of weeds

(1) No person shall – (a) sell, agree to sell or offer, advertise, keep, exhibit, transmit, send, convey or deliver for sale, or exchange for anything or dispose of to any person in any manner for a consideration, any weed; or (b) in any other manner whatsoever disperse or cause or permit the dispersal of any weed from any place in the Republic to any other place in the Republic. (2) (a) If seed, grain, hay or any other agricultural product contains any weed the executive officer may issue an order that the seed, grain, hay or other agricultural product concerned – (i) be returned to the place of origin thereof; (ii) be forwarded to a specified place in order to have the weed concerned removed therefrom; or (iii) be destroyed in such manner as he may determine. (b) A copy of any such order shall be served on the owner of the seed, grain, hay or other agricultural product concerned: provided that a copy of an order referred to in subparagraph (i) of paragraph (a) may be served on the person who has the control of that seed, grain, hay or other agricultural product instead of on the owner thereof. (c) Any such order shall be executed by the person on whom it has been served within the period

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specified therein, failing which the executive officer may take such steps for the execution thereof as he may deem necessary. (d) The costs incurred in connection with the execution thus of such order shall be borne by the owner of the seed, grain, hay or other agricultural product concerned, and may be recovered from him by the executive officer. (3) (a) If any weed adheres to an animal which is driven on a public road, conveyed in a vehicle or offered for sale at a livestock auction, the executive officer may issue an order that the weed concerned be removed from that animal. (b) A copy of any such order shall be served on the owner or on the person who has the control of the animal concerned. (c) The provisions of subsection (2) (c) and (d) shall mutatis mutandis apply to an order referred to in paragraph (a) of this subsection. (4) The provisions of subsections (1) and (2) shall not apply with regard to weed which occurs in seed which is conveyed or sold to or is present on the premises of an establishment which is registered in terms of the Plant Improvement Act, 1976 (Act No. 53 of 1976), in respect of the business of the cleansing of propagating material for sale, provided the words “uncleansed seed” or “onskoongemaakte saad” appear on the containers of such seed or on labels attached thereto. (5) Any person who removes any weed from seed, grain, hay or any other agricultural product or from an animal in terms of any order under subsection (2) or (3) shall deal with it in such manner as will ensure that it will not be able to reproduce itself. (6) Any person who contravenes any provision of subsection (1) or (5) or fails to execute any order served on him under subsection (2) or (3) shall be guilty of an offence. 6. Control measures

(1) In order to achieve the objects of this Act the Minister may prescribe control measures which shall be complied with by land users to whom they apply. (2) Such control measures may relate to – (a) the cultivation of virgin soil;

(b) the utilization and protection of land which is cultivated; (c) the irrigation of land;

(5) Any land user who refuses or fails to comply with any control measure which is binding on him, shall be guilty of an offence.

(d) the prevention or control of waterlogging or salination of land;

8. Schemes

(e) the utilization and protection of vleis, marshes, water sponges, water courses and water sources; (f) the regulating of the flow pattern of run-off water; (g) the utilization and protection of the vegetation; (h) the grazing capacity of veld, expressed as an area of veld per large stock unit; (i) the maximum number and the kind of animals which may be kept on veld; (j) the prevention and control of veld fires; (k) the utilization and protection of veld which has burned; (l) the control of weeds and invader plants; (m) the restoration or reclamation of eroded land or land which is otherwise disturbed or denuded; (n) the protection of water sources against pollution on account of farming practices; (o) the construction, maintenance, alteration or removal of soil conservation works or other structures on land; and (p) any other matter which the Minister may deem necessary or expedient in order that the objects of this Act may be achieved, and the generality of this provision shall not be limited by the preceding paragraphs of this subsection. (3) A control measure may – (a) contain a prohibition or an obligation with regard to any matter referred to in subsection (2); (b) provide that the executive officer may exempt a person from such prohibition or obligation by means of a written consent; (c) prescribe the procedure with regard to the lodging of an application for such written consent. (4) Different control measures may be prescribed in respect of different classes of land users or different areas or in such other respects as the Minister may determine.

(1) The Minister may, with the concurrence of the Minister of Finance, by notice in the Gazette establish a scheme in terms of which assistance, out of moneys appropriated by Parliament for this purpose, may be granted to land users by means of – (a) the payment of subsidies in respect of – (i) the construction of soil conservation works; (ii) the reparation of damage to the natural agricultural resources or soil conservation works which has been caused by a flood or any other disaster caused by natural forces; (iii) the reduction of the number of animals being kept on land in order to restrict the detrimental effect of a drought on that land; (iv) the restoration or reclamation of eroded, disturbed, denuded or damaged land; (v) the planting and cultivation of particular crops which improve soil fertility or counteract the vulnerability of soil to erosion; (vi) the combating of weeds or invader plants; (vii) the performance or omission of anything else which the Minister may deem necessary or expedient in order to achieve the objects of this Act; and (a) the supplying of weed killers in order to combat weeds or invader plants, and the rendering of services by the department, including the utilization of weed killers, in order to combat weeds or invader plants on the land of land users. (2) Different schemes may be so established in respect of different areas, and the provisions of a scheme may differ in respect of different areas in such respects as the Minister may determine. 9. Provisions of schemes

(1) The Minister may in a notice by which a scheme is established – (a) set out the objects of the scheme; (b) mention the areas in which and the periods during which the scheme shall apply;

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(c) mention the acts in respect of which assistance may be rendered under the scheme; (d) mention the basis for the determination of subsidies which may be paid under the scheme; (e) determine the requirements which have to be complied with in order to qualify for assistance under the scheme; (f) determine the procedure with regard to the lodging of an application in terms of the scheme;

thereof in order to achieve the objects of this Act, shall be maintained in such manner as in the opinion of the executive officer will obviate the necessity of a repetition of that act. (c) Notwithstanding the provisions of paragraph (a) the executive officer may order a land user in writing, or on application grant written consent to a land user, to alter, remove or destroy a particular soil conservation work.

(g) require that particular reports with regard to the progress and completion of the act concerned shall be submitted at specified times;

(2) (a) If a land user or his successor in title refuses or fails to comply with the provisions of subsection (1) in respect of –

(h) mention the conditions on which assistance may be rendered under the scheme;

(i) a soil conservation work or an act for which assistance has been rendered under a scheme or is deemed to have been so rendered, or which has been constructed or performed in terms of section 11 of this Act or section 4 (4), 7, 8 or 19 of the Soil Conservation Act, 1969 (Act No. 76 of 1969); or

(i) provide that – (i) any subsidy or grant paid or made under section 6 of the Soil Conservation Act, 1969 (Act No. 76 of 1969), and the conditions, determined or prescribed under that section, upon which it was so paid or made; or (ii) any financial or other assistance rendered under section 5 (1) (b) of the Weeds Act, 1937 (Act No. 42 of 1937), and the conditions, determined under that section, upon which it was so rendered, shall be deemed to be assistance rendered under the scheme, and the conditions on which such assistance has been so rendered; and (j) provide generally for any other matter which, in the opinion of the Minister, is necessary or expedient in order to promote or achieve the objects of the scheme, and the generality of this provision shall not be limited by the preceding paragraph of this subsection. . . . 12. Maintenance of soil conservation works and maintenance of certain states of affairs

(1) (a) A soil conservation work shall, except where otherwise provided in this Act or a scheme, be maintained by every land user of the land concerned and his successor in title at his own expense in a manner which, in the opinion of the executive officer, will ensure the continued efficiency thereof. (b) The state of affairs arising on any land after any act has been performed thereon or in respect

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(ii) an act which has been performed in terms of section 4 or 5 of the Weeds Act, 1937 (Act No. 42 of 1937), an amount equal to the monetary value of such assistance, or the actual costs less any contribution already paid by a land user, of such construction or performance, or such portion of such amount or actual costs as the executive officer may in each case determine, shall be repayable. (b) An amount which is repayable in terms of paragraph (a) – (i) shall be paid by the person who is the land user of the land concerned on the date on which the executive officer becomes aware of such refusal or failure, unless the person concerned proves, in the case of a soil conservation work which has been altered, removed or destroyed, to the satisfaction of the executive officer that it was altered, removed or destroyed before he became the land user of the land concerned; and (ii) shall be paid to the executive officer within 60 days of the date on which he ordered the land user concerned in writing to pay the amount due. (c) If a land user fails to pay the amount repayable by him in terms of paragraph (b) within the period referred to in subparagraph (ii) of that paragraph, interest at a rate equal to the rate determined in

terms of section 26 (1) of the Exchequer and Audit Act, 1975 (Act No. 66 of 1975), and which is applicable on the date on which the executive officer ordered the repayment concerned in writing, shall be payable in respect of the amount due.

(2) A regional conservation committee so established in respect of a particular region shall –

(3) If the executive officer becomes aware of any refusal or failure to comply with the provisions of subsection (1), he may order a land user to repair or reconstruct the soil conservation work concerned or to repeat the act concerned.

(b) advise the department and the advisory board on any matter arising from the application of this Act or a scheme in the region concerned, or which it may deem necessary in order that the objects of this Act may be achieved in that region; and

(4) The land user concerned shall not be discharged from prosecution for a contravention of the provisions of subsection (1) on account of the payment of an amount due in terms of subsection (2), or the repair or reconstruction of a soil conservation work or the repetition of an act in terms of subsection (3) or otherwise. (5) Any person who contravenes any provision of subsection (1) or refuses or fails to comply with an order contemplated in subsection (3) shall be guilty of an offence. 15. Conservation committees

(1) The Minister may establish a committee, to be known as a conservation committee, in respect of any area determined by the Minister. (2) A conservation committee so established for any area – (a) shall promote the conservation of the natural agricultural resources in the area concerned in order to achieve the objects of this Act on or with regard to the land in that area;

(a) advise every conservation committee in the region concerned on matters regarding the conservation of the natural agricultural resources;

(c) perform such other duties as may be imposed upon it by the Minister. . . . 17. Conservation Advisory Board

(1) There is hereby established an advisory board to be known as the Conservation Advisory Board. (2) The advisory board shall advise the Minister on matters concerning – (a) the desirability of prescribing specific control measures with regard to a particular area; (b) the desirability of establishing a specified scheme, and the provisions of any such scheme; and (c) any other matter arising from the application of this Act or a scheme, or which it may deem necessary in order to achieve the objects of this Act or which the Minister may refer to it for advice. . . . 29. Regulations

(1) The Minister may make regulations –

(b) shall advise the department on any matter as to the application of this Act or a scheme in the area concerned, or which it may deem necessary in order that the objects of this Act may be achieved in the area concerned; and

(a) as to the categories into which weeds and invader plants are divided;

(c) may exercise such other powers and shall perform such other duties as may be conferred or imposed upon it by or in terms of this Act or by the Minister. . . .

(c) as to the powers and duties of a conservation committee;

(b) as to the documents with reference to a direction and the service thereof which are to be obtained and kept by the executive officer;

16. Regional conservation committees

(d) with the concurrence of the Minister of Finance, prescribing the matters in respect of which fees shall be payable, and the tariff of those fees;

(1) The Minister may establish in respect of any region determined by him, a committee to be known as a regional conservation committee.

(e) as to any matter which in terms of this Act is required or permitted to be prescribed or done by regulation, and, generally, with reference to any

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matter which he considers necessary or expedient to prescribe in order to achieve or to promote the objects of this Act, and the generality of this provision shall not be limited by the preceding paragraphs of this subsection. (2) Different regulations may be made under this section in respect of different areas or in

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such other respects as the Minister may determine. (3) Any regulation may prescribe penalties, not exceeding a fine of R500 or imprisonment for a period of three months or both such fine and such imprisonment, for any contravention of or failure to comply with its provisions.

Constitution of the Republic of South Africa Summary: The Constitution of the Republic of South Africa, Act 108 of 1996, was the result of long, detailed, and inclusive negotiations carried out with an awareness of the injustices of the country’s nondemocratic past. This progressive constitution, drawing on the experiences of advanced democracies, is a prominent example of how national concern for sustainable development can be provided for in a nation’s fundamental governing laws. The following excerpts highlight relevant provisions of the Bill of Rights, namely those related to environment and property rights, and provisions of Chapter 7 that address local government functions. The framers of the constitution provided citizens the right to an environment that is not harmful to their health. Through this, legislation is used to protect the environment for the present and future generations. The constitution stresses the prevention of pollution and the promotion of conservation. It encourages sustainable development and the use of natural resources in secure ways. Property that is properly expropriated for public use is subject to compensation. Chapter 7 establishes that local government is responsible for the continued availability of sustainable services. Local governments are established throughout South Africa. The duties, powers, and functions of the municipalities are detailed, including the duty to “ensure the provision of services to communities in a sustainable manner,” and it is provided that the national or provincial governments may not compromise any municipality’s ability to perform its duties.

The full text of Chapter 2 of the Constitution is available at:http://www.info.gov.za/documents/ constitution/1996/96cons2.htm The full text of Chapter 7 of the Constitution is available at:http://www.info.gov.za/documents/ constitution/1996/96cons7.htm

CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT NO. 108 OF 1996

Chapter 2, Sections 24 and 25, Chapter 7, Sections 151–154 and 156 CHAPTER 2. BILL OF RIGHTS

24. Environment. Everyone has the right –

a. to an environment that is not harmful to their health or well-being; and b. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

25. Property

(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. (2) Property may be expropriated only in terms of law of general application a. for a public purpose or in the public interest; and b. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court. (3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including a. the current use of the property;

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b. the history of the acquisition and use of the property;

(2) The executive and legislative authority of a municipality is vested in its Municipal Council.

c. the market value of the property;

(3) A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution.

d. the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and e. the purpose of the expropriation. (4) For the purposes of this section a. the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and b. property is not limited to land. (5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. (6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. (7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress. (8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1). (9) Parliament must enact the legislation referred to in subsection (6).

(4) The national or a provincial government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions. 152. Objects of Local Government–

(1) The objects of local government are – (a) to provide democratic and accountable government for local communities; (b) to ensure the provision of services to communities in a sustainable manner; (c) to promote social and economic development; (d) to promote a safe and healthy environment; and (e) to encourage the involvement of communities and community organisations in the matters of local government. (2) A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1). 153. Developmental Duties of Municipalities– A

municipality must – (a) structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community; and (b) participate in national and provincial development programmes.

CHAPTER 7. LOCAL GOVERNMENT

151. Status of Municipalities

154. Municipalities in Co-operative Government

(1) The local sphere of government consists of municipalities, which must be established for the whole of the territory of the Republic.

(1) The national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of

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municipalities to manage their own affairs, to exercise their powers and to perform their functions. (2) Draft national or provincial legislation that affects the status, institutions, powers or functions of local government must be published for

public comment before it is introduced in Parliament or a provincial legislature, in a manner that allows organised local government, municipalities and other interested persons an opportunity to make representations with regard to the draft legislation.

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National Environmental Management Act 107 of 1998 Summary: The National Environmental Management Act, which commenced in January 1999, provides for cooperative environmental governance. The act establishes principles for decision making on matters affecting the environment, institutions that will promote cooperative governance, and procedures for coordinating environmental function exercised by administrative bodies. The objective of this act is to provide for the prohibition, restriction, and control of activities that are “likely to have a detrimental effect on the environment.” Like the Constitution of the Republic of South Africa, the act grants citizens the right to an environment that is not harmful to health or well-being. The act makes use of sustainable development principles to encourage a healthy environment. Each national department must prepare an environmental implementation plan. An implementation plan is a regulatory tool used to coordinate the principles of all the environmental policies into one comprehensive plan. The act establishes the National Environmental Advisory Forum and the Committee for Environmental Co-ordination. Cooperative governance is furthered through required preparation of environmental implementation plans and management plans. These plans serve to coordinate the national departments found in Schedules 1 and 2 as they exercise their duties. The full text of this act is available at: http://www.environment.gov.za/Documents/ Documents/2005Mar17/NEMA%20as%20 amended%202004.htm The full text of this act is available as a PDF at: http://www.mangaung.co.za/dbtwwpd/temp/LegalServices/Documents/NatEnvironmental-Management-Act.PDF

NATIONAL ENVIRONMENTAL MANAGEMENT ACT 107 OF 1998

Chapters 1–3, 8, and 9.

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CHAPTER 1. NATIONAL ENVIRONMENTAL MANAGEMENT PRINCIPLES (S 2)

2

Principles

(1) The principles set out in this section apply throughout the Republic to the actions of all organs of state that may significantly affect the environment and – (a) shall apply alongside all other appropriate and relevant considerations, including the State’s responsibility to respect, protect, promote, and fulfil the social and economic rights in Chapter 2 of the Constitution and in particular the basic needs of categories of persons disadvantaged by unfair discrimination; (b) serve as the general framework within which environmental management and implementation plans must be formulated; (c) serve as guidelines by reference to which any organ of state must exercise any function when taking any decision in terms of this Act or any statutory provision concerning the protection of the environment; (d) serve as principles by reference to which a conciliator appointed under this Act must make recommendations; and (e) guide the interpretation, administration, and implementation of this Act, and any other law concerned with the protection or management of the environment. (2) Environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural, and social interests equitably. (3) Development must be socially, environmentally, and economically sustainable. (4) (a) Sustainable development requires the consideration of all relevant factors including the following: (i) That the disturbance of ecosystems and loss of biological diversity are avoided, or, where they

cannot be altogether avoided, are minimised and remedied;

thereto by categories of persons disadvantaged by unfair discrimination.

(ii) that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied;

(e) Responsibility for the environmental health and safety consequences of a policy, programme, project, product, process, service or activity exists throughout its life cycle.

(iii) that the disturbance of landscapes and sites that constitute the nation’s cultural heritage is avoided, or where it cannot be altogether avoided, is minimised and remedied; (iv) that waste is avoided, or where it cannot be altogether avoided, minimised and re-used or recycled where possible and otherwise disposed of in a responsible manner; (v) that the use and exploitation of nonrenewable natural resources is responsible and equitable, and takes into account the consequences of the depletion of the resource; (vi) that the development, use, and exploitation of renewable resources and the ecosystems of which they are part do not exceed the level beyond which their integrity is jeopardised; (vii) that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; and (viii) that negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied. (b) Environmental management must be integrated, acknowledging that all elements of the environment are linked and interrelated, and it must take into account the effects of decisions on all aspects of the environment and all people in the environment by pursuing the selection of the best practicable environmental option. (c) Environmental justice must be pursued so that adverse environmental impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons. (d) Equitable access to environmental resources, benefits and services to meet basic human needs and ensure human well-being must be pursued and special measures may be taken to ensure access

(f) The participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured. (g) Decisions must take into account the interests, needs and values of all interested and affected parties, and this includes recognising all forms of knowledge, including traditional and ordinary knowledge. (h) Community well-being and empowerment must be promoted through environmental education, the raising of environmental awareness, the sharing of knowledge and experience and other appropriate means. (i) The social, economic and environmental impacts of activities, including disadvantages and benefits, must be considered, assessed and evaluated, and decisions must be appropriate in the light of such consideration and assessment. (j) The right of workers to refuse work that is harmful to human health or the environment and to be informed of dangers must be respected and protected. (k) Decisions must be taken in an open and transparent manner, and access to information must be provided in accordance with the law. (l) There must be intergovernmental coordination and harmonisation of policies, legislation, and actions relating to the environment. (m) Actual or potential conflicts of interest between organs of state should be resolved through conflict resolution procedures. (n) Global and international responsibilities relating to the environment must be discharged in the national interest. (o) The environment is held in public trust for the people, the beneficial use of environmental

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resources must serve the public interest and the environment must be protected as the people’s common heritage.

Part 2. Committee ordination (ss 7–10)

(p) The costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment.

7 Establishment, Objects and Functions of Committee

(q) The vital role of women and youth in environmental management and development must be recognised and their full participation therein must be promoted. (r) Sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal shores, estuaries, wetlands, and similar systems require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure.

CHAPTER 2. INSTITUTIONS (SS 3–10)

Part 1. National Environmental Advisory Forum (ss 3–6)

3 Establishment, Objects and Functions of National Environmental Advisory Forum

(1) The National Environmental Advisory Forum is hereby established. (2) The object of the Forum is to – (a) inform the Minister of the views of stakeholders regarding the application of the principles set out in section 2; and (b) advise the Minister on – (i) any matter concerning environmental management and governance and specifically the setting and achievement of objectives and priorities for environmental governance; and (ii) appropriate methods of monitoring compliance with the principles set out in section 2. (3) The Forum may, on its own initiative and after consultation with the Director-General, draw the Minister’s attention to any matter concerning environmental management requiring attention, and the Minister may refer matters for consideration by the Forum. . . .

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for

Environmental

Co-

(1) The Committee for Environmental Coordination is hereby established. (2) The object of the Committee is to promote the integration and co-ordination of environmental functions by the relevant organs of state, and in particular to promote the achievement of the purpose and objectives of environmental implementation plans and environmental management plans as set out in section 12. (3) The functions of the Committee shall include the following: (a) scrutinising, reporting and making recommendations on the environmental implementation plans submitted to it in accordance with section 15; (b) investigating and making recommendations regarding the assignment and delegation of functions between organs of state under this Act or any other law affecting the environment and regarding the practical working arrangements, including memoranda of understanding, between the organs of state represented by members and other organs of state; (c) investigating and recommending the establishment of mechanisms in each province, with the concurrence of the MEC, for providing a single point in the province for the receipt of applications for authorisations, licences and similar permissions required for activities under legal provisions concerned with the protection of the environment where such authorisations, licences or permissions are required from more than one organ of state, and procedures for the co-ordinated consideration of such applications by the organs of state concerned; (d) making recommendations to co-ordinate the application of integrated environmental management as contemplated in Chapter 5, including co-operation in environmental assessment procedures and requirements and making determinations regarding the prevention of duplication of efforts as contemplated in section 24 (4);

(e) making recommendations aimed at securing compliance with the principles set out in section 2 and national norms and standards contemplated in section 146 (2) (b) (i) of the Constitution; (f) making recommendations regarding the harmonisation of the environmental functions of all relevant national departments and spheres of government; (g) advising the Minister on providing guidelines for the preparation of environmental management plans and environmental implementation plans; and (h) endeavouring to ensure compliance with the principle set out in section 2 (2) by making appropriate recommendations, requiring reports from its members and advising government on law reform. . . .

CHAPTER 3. PROCEDURES FOR CO-OPERATIVE GOVERNANCE (SS 11–16)

11 Environmental Implementation Plans and Management Plans

(1) Every national department listed in Schedule 1 as exercising functions which may affect the environment and every province must prepare an environmental implementation plan within one year of the promulgation of this Act and at least every four years thereafter. (2) Every national department listed in Schedule 2 as exercising functions involving the management of the environment must prepare an environmental management plan within one year of the promulgation of this Act and at least every four years thereafter. (3) Every national department that is listed in both Schedule 1 and Schedule 2 may prepare a consolidated environmental implementation and management plan. . . . 12 Purpose and Objects of Environmental Implementation Plans and Environmental Management Plans

The purpose of environmental implementation and management plans is to – (a) co-ordinate and harmonise the environmental policies, plans, programmes and decisions of

the various national departments that exercise functions that may affect the environment or are entrusted with powers and duties aimed at the achievement, promotion, and protection of a sustainable environment, and of provincial and local spheres of government, in order to – (i) minimise the duplication of procedures and functions; and (ii) promote consistency in the exercise of functions that may affect the environment; (b) give effect to the principle of co-operative government in Chapter 3 of the Constitution; (c) secure the protection of the environment across the country as a whole; (d) prevent unreasonable actions by provinces in respect of the environment that are prejudicial to the economic or health interests of other provinces or the country as a whole; and (e) enable the Minister to monitor the achievement, promotion, and protection of a sustainable environment. 16 Compliance with Environmental Implementation Plans and Environmental Management Plans

(1) (a) Every organ of state must exercise every function it may have, or that has been assigned or delegated to it, by or under any law, and that may significantly affect the protection of the environment, substantially in accordance with the environmental implementation plan or the environmental management plan prepared, submitted and adopted by that organ of state in accordance with this Chapter: Provided that any substantial deviation from an environmental management plan or environmental implementation plan must be reported forthwith to the Director-General and the Committee . . . CHAPTER 8. ENVIRONMENTAL MANAGEMENT CO-OPERATION AGREEMENTS (S 35)

35 Conclusion of Agreements

(1) The Minister and every MEC and municipality, may enter into environmental management co-operation agreements with any person or community for the purpose of promoting compliance with the principles laid down in this Act.

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(2) Environmental agreements must –

management

co-operation

(a) only be entered into with the agreement of – (i) every organ of state which has jurisdiction over any activity to which such environmental management co-operation agreement relates; (ii) the Minister and the MEC concerned; (b) only be entered into after compliance with such procedures for public participation as may be prescribed by the Minister; and (c) comply with such regulations as may be prescribed under section 45. (3) Environmental management agreements may contain –

co-operation

(a) an undertaking by the person or community concerned to improve on the standards laid down by law for the protection of the environment which are applicable to the subject matter of the agreement; (b) a set of measurable targets for fulfilling the undertaking in (a), including dates for the achievement of such targets; and (c) provision for – (i) periodic monitoring and reporting of performance against targets; (ii) independent verification of reports; (iii) regular inspections;

independent

monitoring

36 Expropriation

(1) The Minister may purchase or, subject to compensation, expropriate any property for environmental or any other purpose under this Act, if that purpose is a public purpose or is in the public interest. (2) The Expropriation Act, 1975 (Act 63 of 1975) applies to all expropriations under this Act and any reference to the Minister of Public Works in that Act must be read as a reference to the Minister for purposes of such expropriation. (3) Notwithstanding the provisions of subsection (2), the amount of compensation and the time and manner of payment must be determined in accordance with section 25 (3) of the Constitution, and the owner of the property in question must be given a hearing before any property is expropriated. 37 Reservation

The Minister may reserve State land with the consent of the Minister authorised to dispose of the land, and after consultation with any other Minister concerned, for environmental or other purposes in terms of this Act, if that purpose is a public purpose or is in the public interest. . . . 44 Regulations in General

and

(iv) verifiable indicators of compliance with any targets, norms and standards laid down in the agreement as well as any obligations laid down by law; (d) the measures to be taken in the event of noncompliance with commitments in the agreement, including where appropriate penalties for noncompliance and the provision of incentives to the person or community.

(1) The Minister may make regulations – (a) dealing with any matter which under this Act must be dealt with by regulation; (aA) prohibiting, restricting or controlling activities which are likely to have a detrimental effect on the environment; and (b) generally, to carry out the purposes and the provisions of this Act.

CHAPTER 9. ADMINISTRATION OF ACT (SS 36–47)

(2) The Minister may make different regulations under this Act in respect of different activities, provinces, geographical areas and owners or classes of owners of land.

[NB: The heading has been substituted by s. 8 of the National Environmental Management Amendment Act 46 of 2003, a provision which will be put into operation by proclamation.]

(3) The Minister may by regulation provide that infringements of certain regulations constitute criminal offences and prescribe penalties for such offences.

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45 Regulations for Management Co-operation Agreements

(1) The Minister may make regulations concerning – (a) procedures for the conclusion of environmental management co-operation agreements, which must include procedures for public participation; (b) the duration of agreements; (c) requirements relating to the furnishing of information; (d) general conditions and prohibitions; (e) reporting procedures; (f) monitoring and inspection. (2) An MEC or municipal council may substitute his or her or its own regulations or bylaws, as the case may be, for the regulations issued by the Minister under subsection (1) above: Provided that such provincial regulations or municipal bylaws must cover the matters enumerated in subsection (1), and comply with the principles laid down in this Act. 46 Model Environmental Management Bylaws

(1) The Minister may make model bylaws aimed at establishing measures for the management of environmental impacts of any development within the jurisdiction of a municipality, which may be adopted by a municipality as municipal bylaws. (2) Any municipality may request the DirectorGeneral to assist it with the preparation of bylaws on matters affecting the environment and the DirectorGeneral may not unreasonably refuse such a request. (3) The Director-General may institute programmes to assist municipalities with the preparation of bylaws for the purposes of implementing this Act. (4) The purpose of the model bylaws referred to in subsection (1) must be to – (a) mitigate adverse environmental impacts; (b) facilitate the implementation of decisions taken, and conditions imposed as a result of the

authorisation of new activities and developments, or through the setting of norms and standards in respect of existing activities and developments; and (c) ensure effective environmental management and conservation of resources and impacts within the jurisdiction of a municipality in co-operation with other organs of state. (5) The model bylaws referred to in subsection (1) must include measures for environmental management, which may include – (a) auditing, monitoring and ensuring compliance; and (b) reporting requirements and the furnishing of information. . . . Schedule 1. Section 11 (1) National departments exercising functions which may affect the environment

∗ Department of Environmental Affairs and Tourism ∗ Department of Land Affairs ∗ Department of Agriculture ∗ Department of Housing ∗ Department of Trade and Industry ∗ Department of Water Affairs and Forestry ∗ Department of Transport ∗ Department of Defence Schedule 2. Section 11 (2) National departments exercising functions that involve the management of the environment

∗ Department of Environmental Affairs and Tourism ∗ Department of Water Affairs and Forestry ∗ Department of Minerals and Energy ∗ Department of Land Affairs ∗ Department of Health ∗ Department of Labour

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National Forests Act Summary: South Africa’s National Forests Act was assented to on October 20, 1998, and its purpose is to promote the sustainable management of forests. This act provides principles that apply to all official decisions affecting forests. Every South African has the right to access State forests for the purpose of recreation, education, culture, or spiritual fulfillment; however, this right may be restricted and this act details the procedures for imposing restrictions. The Minister, as trustee of the National Forest Recreation and Access Trust, can promote the grant of access to forests outside of State control, and financial assistance is to be provided to owners if they suffer any damages. The right to use and manage State forests and their produce is vested in the State. The act provides for the transfer of rights in State forests through licenses, servitudes, and lease agreements. Communities that wish to engage in community forestry can enter into agreements with the Minister, and the agreement procedure and requirements are detailed. The National Forests Advisory Council is established and the Council must create the Committee for Sustainable Forest Management to advise on aspects of sustainable forest management. Power is vested in the Minister to establish a panel of facilitators, mediators, and arbitrators for dispute resolution. The Minister is given the power to set criteria, indicators, and standards for assessing and enforcing sustainable forest management; create incentives on the advice of the Committee for Sustainable Forest Management; and purchase or expropriate any property any public purpose. The full text of this act is available at: http://faolex.fao.org/docs/html/saf17629.htm The full text of this act is available as a PDF at: http://www.info.gov.za/gazette/acts/1998/a8498.pdf

ACT

To reform the law on forests; to repeal certain laws; and to provide for related matters. Preamble. Parliament recognises that –

∗ everyone has the constitutional right to have the environment protected for the benefit of present and future generations; ∗ natural forests and woodlands form an important part of that environment and need to be conserved and developed according to the principles of sustainable management; ∗ plantation forests play an important role in the economy; ∗ plantation forests have an impact on the environment and need to be managed appropriately; ∗ the State’s role in forestry needs to change; and ∗ the economic, social and environmental benefits of forests have been distributed unfairly in the past. Parliament therefore enacts the following law: CHAPTER 1 – INTRODUCTORY PROVISIONS

Purposes

1. The purposes of this Act are to – a. promote the sustainable management and development of forests for the benefit of all; b. create the conditions necessary to restructure forestry in State forests; c. provide special measures for the protection of certain forests and trees; d. promote the sustainable use of forests for environmental, economic, educational, recreational, cultural, health and spiritual purposes; e. promote community forestry;

NATIONAL FORESTS ACT NO. 84 OF 1998

Preamble, Chapters 1, 2, 4, 6

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f. promote greater participation in all aspects of forestry and the forest products industry by persons disadvantaged by unfair discrimination.

CHAPTER 2 – SUSTAINABLE FOREST MANAGEMENT

Part 1. Management Principles to Guide Decisions Affecting Forests

3. (1) The principles set out in subsection (3) must be considered and applied in a balanced way –

c. forests must be developed and managed so as to – (i) conserve biological diversity, ecosystems and habitats; (ii) (sustain the potential yield of their economic, social and environmental benefits;

a. in the exercise of any power or the performance of any duty in terms of this Act;

(iii) promote the fair distribution of their economic, social, health and environmental benefits;

b. in the development and implementation of government policies affecting forests;

(iv) promote their health and vitality;

c. in the exercise of any power or the performance of any duty in terms of any other legislation where the exercise of that power or the performance of that duty will impact on a natural forest or woodland; d. in the issuing of a licence or other authorisation relating to the use of water for afforestation or forestry in terms of section 39 (1) or 40 (1) of the National Water Act, 1998; and e. by any person required in terms of any legislation to carry out an environmental impact assessment in respect of any activity which will or may have an effect on natural forests or woodlands. (2) An organ of State applying these principles must – a. take into account the differences between natural forests, woodlands and plantations; b. recognise that conservation of biological diversity within plantations should be promoted in a way which is consistent with the primary economic purpose for which the plantation was established; c. only apply those principles which it considers relevant to the decision or action which is contemplated; and d. give such weight to each principle as it considers appropriate. (3) The principles are that – a. natural forests must not be destroyed save in exceptional circumstances where, in the opinion of the Minister, a proposed new land use is preferable in terms of its economic, social or environmental benefits; b. a minimum area of each woodland type should be conserved; and

(v) conserve natural resources, especially soil and water; (vi) conserve heritage resources and promote aesthetic, cultural and spiritual values; and (vii) advance persons or categories of persons disadvantaged by unfair discrimination. (4) The Minister must determine the minimum area of each woodland type to be conserved in terms of subsection (3) (b) on the basis of scientific advice. Promotion and Enforcement of Sustainable Forest Management

4. (1) For the purposes of this section, “owner” means – a. the registered owner; or b. where the registered owner has transferred control of the forest management unit in question to another person or organ of State, whether by way of assignment, delegation, contract or otherwise, that person or organ of State. (2) The Minister may – a. determine – (i) criteria on the basis of which it can be determined whether or not forests are being managed sustainably; (ii) indicators which may be used to measure the state of forest management; and (iii) appropriate standards in relation to the indicators; and (b) create or promote certification programmes and other incentives to encourage sustainable forest management, on the advice of the Committee for Sustainable Forest Management.

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(3) The Minister must – a. publish the criteria, indicators and standards in the form of regulations made under section 53 (2) (b); b. identify clearly where the breach of a standard may be an offence.

who is in breach of that standard by written notice of – a. the nature of the breach; b. the steps which the owner must take to remedy the breach; and c. the period within which he or she must do so.

(4) The Minister may publish the criteria, indicators and standards in such other media as he or she considers appropriate.

(9) The period laid down in the notice may be extended by the Minister for good reason.

(5) Specific regional, economic, social and environmental conditions must be taken into account in determining criteria, indicators and standards.

CHAPTER 4 – USE OF FORESTS

(6) Criteria and indicators may include, but are not limited to, those for determining –

21. (1) The Minister, in his or her capacity as trustee of the Trust, may take steps to promote the voluntary grant of access to forests other than State forests by the registered owners of such forests.

a. the level of maintenance and development of – (i) forest resources; (ii) biological diversity in forests; (iii) the health and vitality of forests; (iv) the productive functions of forests; (v) the protective and environmental functions of forests; and (vi) the social functions of forests; b. the level of provision of socio-economic benefits; and c. the status and appropriateness of the policy and the legislative and institutional framework for forest management. (7) The criteria, indicators and standards determined under subsection (2) (a) – a. may apply nationally, regionally or to specific forest management units; b. may identify the boundaries of the forest management unit or units to which they apply; c. may apply to all or to specific forest types; d. bind all owners of land on which there are forests in the area and of the type to which the standards apply; e. bind any other persons to whom they are expressly made applicable. (8) Where the breach of a particular standard may be an offence, a forest officer may inform an owner

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... Access to Forests Other Than State Forests

(2) The registered owner may lodge with the Minister a map displaying clearly the areas designated for public access and a set of written rules recording the conditions on which he or she is prepared to allow access. (3) At the request of – a. a person seeking access to a forest other than a State forest; or b. a registered owner of such a forest, the Minister may negotiate, or appoint a facilitator from the panel referred to in section 45 to facilitate negotiations, with interested parties with a view to determining whether and on what terms a registered owner of such a forest is willing to grant access to the public. (4) Where the Minister is of the opinion that it is justified and affordable, he or she may – a. provide financial or other assistance from the Trust funds for the development of an area of public access in a forest other than a State forest; b. compensate a registered owner of such a forest from the Trust funds for losses caused by the grant of access to the public in such a forest. (5) No person who is granted access to a forest other than a State forest may interfere with the privacy or cause damage to the property of the registered owner. (Date of commencement of s. 21 to be proclaimed.)

Part 2. Vesting and Granting of Rights to Use State Forests

... Activities Which May Be Licensed in State Forests

23. (1) The Minister may in a State forest, license – a. the establishment and management of a plantation; b. the felling of trees and removal of timber; c. the cutting, disturbance, damage or destruction of any other forest produce; d. the removal or receipt of any other forest produce;

Servitudes in State Forests

26. (1) The Minister may grant a servitude in a State forest if – a. in the case of State forests other than trust forests, the Minister of Public Works agrees; or b. in the case of trust forests on land held in trust by the Ingonyama referred to in the KwaZulu Ingonyama Trust Act, 1994 (KwaZulu Act No. 3 of 1994), the authority with the necessary power in terms of that Act agrees; or c. in the case of trust forests other than those referred to in paragraph (b), the Minister of Land Affairs agrees; and

e. the use of land, structures or buildings for agricultural, commercial, communications, domestic, industrial, residential or transportation purposes;

d. it does not conflict with an existing right; and

f. the use of roads;

f. there is compliance with section 10 (2) where it is a protected area.

g. the moving of water, electricity, gas, fuel and any other thing across a State forest; h. the construction of any road, building or structure; i. the grazing or herding of animals; j. the cultivation of land; k. hunting and fishing; l. the use of a State forest for recreational, educational, cultural or spiritual purposes where there is no right to such use under section 19; and m. the use of a State forest for any other purpose, if it is consistent with the sustainable management of the forest. (2) No person may engage in any activity in a State forest for which a licence is required without such a licence, unless – a. he or she is exempted under section 24 (6); b. he or she is acting in the scope of his or her employment or mandate as an officer, employee or agent of the Department; c. he or she has a right to engage in the activity in terms of the Interim Protection of Informal Land Rights Act, 1996 (Act No. 31 of 1996). (3) An organ of State must obtain a licence to carry on an activity for which a licence is required. . . .

e. it does not materially affect the ecology and the useful extent of the State forest; and

(2) Any agreement entered into with the Minister creating the servitude may include such provisions as he or she considers appropriate, including payment for the rights granted under the servitude. (3) A community or members of a community who are granted a servitude of right of way in order to walk to or from their homes are exempt from payment for such rights. (4) The Minister must keep a register of all servitudes granted under subsection (1). (5) The Minister must license any activity which is permitted under a servitude. (6) No servitude or other right of any nature in a State forest may be acquired by prescription. Leasing of State Forests

27. (1) The Minister may lease a State forest or part of it to any person if – a. in the case of State forests other than trust forests, the Minister of Public Works agrees; b. in the case of trust forests on land held in trust by the Ingonyama referred to in the KwaZulu Ingonyama Trust Act, 1994 (KwaZulu Act No. 3 of 1994), the authority with the necessary power in terms of that Act agrees; and

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c. in the case of trust forests other than those referred to in paragraph (b), the Minister of Land Affairs agrees. (2) The lease agreement may provide for – a. the carrying on by the lessee of any of the activities referred to in section 23 (1); b. the management, control and operation of a State forest for commercial purposes; c. the management, control and operation of a protected area; d. the performance by the lessee of the State’s obligations to supply forest produce from that State forest; e. the lodging by the lessee of and compliance with a sustainable forest management plan; f. the sustainable management of natural forests, woodlands and other habitats falling within the forest let; g. the establishment and operation of facilities for tourism and recreation; h. the resolution of disputes by members of the panel referred to in section 45; and i. such other matters as the parties consider appropriate. (3) The Minister must license the activities which the lessee may carry on in terms of the lease. Part 3.

Community Forestry

Offers to Enter into Community Forestry Agreements

(3) The offer must include – a. details of the membership of the community; b. a copy or details of the constitution, laws or customs which regulate the community; c. the terms of its offer; d. details of any rights held by the community or any of its members in the State forest concerned in terms of the Interim Protection of Informal Land Rights Act, 1996 (Act No. 31 of 1996); and e. any other prescribed information. (4) The Minister must investigate the offer and may in doing so – a. establish whether or not there are any other communities who may wish to make offers to enter into a community forestry agreement in respect of the forest in question; b. invite such communities to make offers; c. consult with any other persons or organs of State having an interest in the matter; d. evaluate the suitability of the forest for community forestry in comparison to its current or potential uses; e. establish whether or not any offeror is willing to amend the terms of its offer to accommodate any concerns of the Minister and, if so, invite the offeror to amend it; f. in the event of competing offers, evaluate which offers or offerors are the most suitable; and g. appoint a facilitator from the panel referred to in section 45 to attempt to secure agreement between competing offerors.

29. (1) Any community wishing – a. to do anything in a State forest for which a licence is required; b. to manage a State forest or part of it, whether alone or jointly with an organ of State; or c. to do both, may make an offer to the Minister to enter into a community forestry agreement with him or her and any other person or organ of State who must by law consent. (2) The Minister may invite communities to submit offers to enter into community forestry agreements in respect of a particular State forest or forests.

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CHAPTER 6 – ADMINISTRATION OF ACT

Part 1.

General Powers and Duties of Minister

... Expropriation of Property

49. (1) The Minister may purchase or expropriate any property and reserve it for forestry or any other purpose in terms of this Act, if – a. that purpose is a public purpose or is in the public interest; and b. the Minister of Public Works agrees.

(2) Land purchased or expropriated for forestry under subsection (1) may include land which is not treed or which will not be afforested if that land will be managed as part of the forest management unit or units in question.

(iii) the preparing and maintenance of firebreaks for the protection of such a tree;

(3) The Expropriation Act, 1975 (Act No. 63 of 1975), applies to all expropriations under this Act and any reference to the Minister of Public Works in that Act must be read as a reference to the Minister for purposes of such expropriations. . . .

(v) management plans for protected trees;

Content of Regulations

53. (1) For the purposes of this section, “owner” means – a. the registered owner; and b. where the registered owner has transferred control of the forest management unit in question to another person or organ of State, whether by way of assignment, delegation, contract or otherwise, that person or organ of State. (2) The Minister may make regulations to deal with – a. any matter which must be dealt with by regulation in terms of this Act; b. the criteria, indicators and standards referred to in section 4 (2) (a), including – (i) their determination and enforcement; (ii) the creation and promotion of the incentives referred to in section 4 (2) (b); c. research;

(iv) the control of the collection, removal, transport, export, purchase, sale or donation of parts or produce of protected trees; f. the management of State forests in general or a particular State forest or part of it; g. licences under section 23, leases under section 27, agreements under section 28 and community forestry agreements under section 30, including – (i) the appointment and functioning of a person or organ of State outside of the Department to exercise powers and perform duties of the Minister and the Director-General in terms of Chapter 4 and such other sections as relate to that task; and (ii) procedures for the selection of suitable licensees, lessees, purchasers or offerors; h. facilitation, mediation and arbitration before a panel member referred to in section 45; i. forest hygiene, including – (i) the combating of any harmful organism which affects any kind of forest, tree or timber on any land or in any vehicle, building or other place where timber is stored, stacked, seasoned or processed; (ii) the prevention of the introduction into or the spreading within the Republic of any such harmful organism; and

d. monitoring of the forest resource, including regulations relating to –

j. in general, the carrying out of the purposes and the provisions of this Act.

(i) the registration of, and collection of data from, owners of forests;

(3) The Minister may make different regulations under subsection (2) for different regions of the Republic, different forests or parts or classes of forests and different owners or classes of owners of forests.

(ii) the registration of, and collection of data from, persons who harvest, saw, process or sell forest produce; (iii) collection of data from institutions which certify sustainable forest management;

(4) The Minister may make regulations –

(i) the cultivation and grazing of land around any protected tree;

(i) for the inspection of any forest, trees, timber, vehicle, pack-animal or premises by any person or the incumbent of a post designated by the Minister for purposes of enforcing regulations made under this section;

(ii) financial assistance for erecting stock-proof fences;

(ii) prescribing how samples of any timber for examination or testing must be taken and how

e. protected trees, including –

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and where such timber may or must be graded or marked. (5) The reference to specific regulation-making powers in this section does not limit the general regulation-making powers conferred by it.

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(6) a. The Minister may by regulation provide that infringements of certain regulations constitute criminal offences and prescribe maximum penalties for such offences. b. The penalties may not exceed those for a second category offence in terms of section 58(2).

TA N Z A N I A

The Village Land Act Summary: The Village Land Act of Tanzania, passed in the National Assembly in 1999, provides guidance for both the acquisition of village land for public purposes and the acquisition of public land for village use. In Tanzania, all land is “public land vested in the President as trustee on behalf of all citizens.” The act sets forth fundamental principles of national land policy and details how villages are created and managed. The Village Land Act provides the basic law on transferring land, administering and managing hazardous lands, granting and managing the customary right of occupancy, adjudicating interests in land, and settling village land disputes. A provision provides for the establishment of an elders council to act as the village land council, to establish an advisory committee, and to provide mediation between parties. Alternate configurations of land are established, including joint village land, communal village land, and “land sharing arrangement[s]” between pastoralists and agriculturalists. A village council has the power to enter into joint village land use agreement with any other village council concerning the use of land by one or more groups. The minister is granted the power to make arrangements for the management of joint village lands, and he or she may provide for the commissioner to be involved in joint management of land. Implementation of the act gives rise to the need to inform all stakeholders of their rights and obligations, and this is provided for through translation into local native languages and national publication. The act secures land rights that promote women’s economic empowerment, and it grants Tanzanian women the right to acquire title and registration of land. The act also promotes women’s representation in land issue decision-making bodies and ensures that the special needs of women for land are adequately met; it addresses issues of customary land rights and upholding the principle of nondiscrimination based on sex.

The full text of this Act can be found at: http://www.parliament.go.tz/Polis/PAMS/Docs/51999.pdf

THE VILLAGE LAND ACT

The United Republic of Tanzania, No. 5 of 1999 (Parts II – VI) PART II. APPLICATION OF FUNDAMENTAL PRINCIPLES OF THE NATIONAL LAND POLICY

3. (1) The fundamental principles of National Land Policy which are the objectives of the Land Act, 1999, to which persons exercising powers under, applying or interpreting this Act are to have regard to are – (a) to make sure that there is established an independent, expeditious and just system for adjudication of land disputes which will hear and determine land disputes without undue delay; (b) to recognise that all Land in Tanzania is public Land vested in the President as trustee on behalf of all citizens; (c) to ensure that existing rights in and recognized long standing occupation or use of Land are clarified and secured by the law; (d) to facilitate an equitable distribution of and access to land by all citizens; (e) to regulate the amount of land that any one person or corporate body may occupy or use; (f) to ensure that land is used productively and that any such use complies with the principles of sustainable development; (g) to take into account that an interest in land has value and that value is taken into consideration in any transaction affecting that interest; (h) to pay full, fair and prompt compensation to any person whose right of occupancy or recognized

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long-standing occupation or customary use of land is revoked or otherwise interfered with to their detriment by the State under this Act or is acquired under the Land Acquisition Act, 1967; (i) to provide for an efficient, effective, economical and transparent system of Land administration; (j) to enable all citizens to participate in decision making on matters connected with their occupation or use of land; (k) to facilitate the operation of a market in Land; (l) regulate the operation of a market in Land so as to ensure that rural and urban small-holders pastoralists are not disadvantaged; (m) to set out rules of Land Law accessibly in a manner which can be readily understood by all citizens (n) to establish an independent, expeditious and just system for the adjudication of Land disputes which will hear and determine cases without undue delay; (o) to encourage the dissemination of information about land administration and Land Law as provided for by this Act through programmes of public and adult education, using all forms of media. (2) The right of every woman to acquire, hold, use and deal with land shall to the same extent and subject to the same restriction be treated as the right of any man, is hereby declared to be law. PART III.

TRANSFERS AND HAZARD LAND

Transfer of Village Land to General or Reserved Land

4. (1) Where the President is minded to transfer any area of village land to general or reserved land for public interest, he may direct the Minister to proceed in accordance with the provisions of this section. (2) For the purposes of subsection (1), public interest shall include investments, of national interest. (3) The Minister shall cause to be published in the Gazette and sent to the village council having jurisdiction over the land which is the subject of the

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proposed transfer, hereinafter called ‘village transfer land’ a notice specifying – (a) the location of the area of the village transfer land; (b) the extent and boundaries of the village transfer land; (c) a brief statement of the reasons for the proposed transfer; (d) the date, being not less than ninety days from the date of the publication of the notice, when the President may exercise his power to transfer the land or a part of it. . . . (5) Any person referred to in subsection (3) may make representations to the Commissioner and to the village council on the proposed transfer of the land and the persons to whom those representations are made shall take them into account in any decisions or recommendations that they may make on the proposed transfer. (6) Where the the land proposed to be transferred is (a) less than 250 hectares in extent, the village council shall prepare and submit recommendations for the proposed transfer to the village assembly for it to approve or refuse and the village assembly shall, meeting under section 103 (3) of the Local Government (District Authorities) Act, 1982, consider the recommendations of the village council and any representations made by the district council of the area where the land is situated, and decide whether to approve or refuse to approve the proposed transfer; (b) greater than 250 hectares, the Minister shall, after considering any recommendations made by the village assembly through the Village Council, district council and any representations on the matter made by the village and district councils of the area where the land is situated, by resolution, signify his approval or refusal to approve the proposed transfer. Transfer of General or Reserved Land to Village Land

5. The President may direct the transfer of any area of general or reserved land to village land subject to the provisions of Section 6 of the Land Act, 1999.

Declaration of Hazard Land

6. (1) The Minister may declare any area of a village land to be hazard land subject to the provisions of subsection 3. (2) Notwithstanding the provisions of subsection (1), any local authority having jurisdiction in any village may advise the Minister to declare any of the Village Land as hazard Land if in its opinion it is necessary to do so. (3) For purposes of this Section, hazard land is land the development of which is likely to pose a danger to life or to lead to the degradation of or environmental destruction on that or contiguous land and includes but is not limited to – (a) mangrove swamps and coral reefs; (b) wetlands and offshore islands in the sea and lakes; (c) land designated or used for the dumping of hazardous waste; (d) land within sixty metres of a river bank or the shoreline of an inland lake; (e) land on slopes with a gradient exceeding any angle which the Minister shall, after taking account of proper scientific advice, specify; (f) land specified by the appropriate authority as land which should not be developed on account of its fragile nature; (g) land specified by the appropriate authority as being land which should not be developed on account of its environmental significance. . . . PART IV.

VILLAGE LANDS

A: Management and Administration Village Land

7. (1) Village land shall consist of – (a) land within the boundaries of a village registered in accordance with the provisions of section 22 of the Local Government (District Authorities) Acts, 1982; (b) land designated as village land under the Land Tenure Act (Village Settlements) Act, 1965; (c) land, the boundaries of which have been demarcated as village land under any law or administrative procedure in force at any time

before this Act comes into operation whether that administrative procedure based on or conducted in accordance with any statute law or general principles of either received or customary law applying in Tanzania and whether that demarcation has been formally approved or gazetted or not; (d) land, the boundaries of which have been agreed upon between the village council claiming jurisdiction over that land and (i) where the land surrounding contiguous to that village is village land, the village councils of the contiguous village; (ii) where the land surrounding or contiguous to that village is general land, the Commissioner; or (iii) where the land surrounding or contiguous to that village is reserved land, the official or public organization for the time being responsible for that reserved land; or (iv) where the land which is claimed as a part of the land of, or is surrounding or contiguous to, that village is land which has been declared to be urban land or peri-urban land, the local authority having jurisdiction over that urban land or periurban land; or (v) where the land which is claimed as a part of the land of or is surrounding or contiguous to, that village is land which is occupied and used by a person or body under a right of occupancy, that person or body; (e) land, other than reserved land, which the villagers have been, during the twelve years preceding the enactment of this Act regularly occupying and using as village land, in whatever manner such persons or the village assembly or village council were allocated such land including land(i) lying fallow at any time during the said preceding twelve years; (ii) used for depasturing cattle belonging to villagers or to persons using that land with the agreement of the villagers or in accordance with customary law; (iii) land customarily used for passage or land used for depasturing cattle. . . .

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Management of Village Land

8. (1) The village council shall, subject to the provisions of this Act, be responsible for the management of all village land. (2) The village council shall exercise the functions of management in accordance with the principles applicable to a trustee managing property on behalf of a beneficiary as if the council were a trustee of, and the villagers and other persons resident in the village were beneficiaries under a trust of the village land. (3) In the management of village land, a village council shall have regard to – (a) the principle of sustainable development in the management of village land and the relationship between land use, other natural resources and the environment in and contiguous to the village and village land; (b) the need to consult with and take account of the views and, where it is so provided, comply with any decisions or orders of any public officer or public authority having jurisdiction over any matter in the area where the village land is; (c) the need to consult with and take account of the views of other local authorities having jurisdiction in the area where the village land is. (4) A village council may establish a committee to advise and make recommendations to it on the exercise of any of the functions of the management of village land but, notwithstanding the provisions of section 108 of the Local Government (District Authorities) Act, 1982, such committee shall have no power to take any decisions concerning the management of village land. (5) A village council shall not allocate land or grant a customary right of occupancy without a prior approval of the village assembly. . . . (10) Where the Commissioner, or an inquiry, determines that the village council has taken or omitted to take any action on village land which is contrary to law, the Commissioner shall take all such action as may be necessary to re-establish the lawful management of that village land and the proper allocation of interests in that village land. (11) The Minister may, in consultation with the Minister responsible for local government, by reg-

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ulations, make arrangements for the management of village lands jointly between – (a) two or more villages; or (b) between one or more village and the district council having jurisdiction in the area where the village or villages which are to be part of an arrangement of joint management are situated; or (c) between one or more village and an urban authority within whose boundaries that village or those villages are situated, and that arrangement may provide for the Commissioner to be involved in that joint management of village land. (12) Any villager who is aggrieved by the management of village land by a village council, including management by a village council as part of any arrangement for joint management has standing to sue that village council in respect of the management of that village land. Advice by the District Council

9. (1) A district council may the provide advice and guidance to any village council situated within its area of jurisdiction concerning the administration by that village council of village land, either in response to a request for that advice and guidance from a village council or of its own motion and any village council to which that advice and guidance is given shall have regard to that advice and guidance. (2) No advice and guidance given by a district council shall contradict or conflict with any directive or circular issued by the Commissioner under subsection (3) of Section II of the Land Act, 1999. . . . Joint Village Land Use Agreements Between Villages

11. (1) In the exercise of the powers of management, a village council shall have power to enter into an agreement, to be known as a joint village land use agreement with any other village council concerning the use by any one or more groups, by those groups, being the Land which is partly within the jurisdiction of one village and partly within the jurisdiction of another village with which an agreement is to be entered into and that agreement may be amended, modified or varied from time to time.

(2) Where an agreement which is referred to in subsection (1) is to be entered into, the village councils proposing to enter into that agreement shall –

(e) any other matters which may be prescribed or which the village councils shall consider necessary and desirable.

(a) first, convene one or more meetings of the groups of persons using the land which is to be the subject of the agreement –

(5) An agreement reached by villagers of two or more villages about the use, by those villagers jointly of village land which falls within the jurisdiction of two or more villages or an agreement reached between the traditional leaders of a group of persons using village land which falls within the jurisdiction of two or more villages and the village councils of those villages may be adopted and approved as a joint village land use agreement by the village assembly of the village of those villagers or, as the case may be, of that village council. . . .

(i) to give groups an opportunity to make representations about their use of land and the content of any agreement about that use; (ii) explain the nature, purpose and proposed content of that agreement to those groups; (b) second, prepare: a draft agreement which shall take account of any misrepresentations at any meeting convened under subparagraph (i) of paragraph (a); (c) third, inform the district council or district councils having jurisdiction in the area where land covered by the proposed agreement is located of the contents of the draft agreement; (d) fourth, place that draft agreement before a meeting of the village assembly of each of the villages proposing to enter into an agreement for the approval of each such village assembly. (3) An agreement made in accordance with this section shall not take effect unless approved by each village assembly of the villages proposing to enter into that agreement. (4) An agreement made under and in accordance with this section may include matters concerning – (a) the boundaries of the land covered by the agreement; (b) the use of the land, or parts of it, by different groups of persons, and the periods of time when that group may so use the land or part of it including arrangement for the dual use of land or part of it by one or more group of persons using that land for different purposes at the same time; (c) the nature and scope of any rights to or interests in land recognised by the rules of customary law applicable to the land covered by the agreement, and where more than one set of rules of customary law are applicable to that land, the manner of resolving any conflict between the sets of rules – (d) the manner of resolving disputes about the use of the land covered by the agreement;

Division of Village Land

12. (1) A Village land shall be divided into – (a) land which is occupied and used or available for occupation and use on a community and public basis, to be known as communal village land, by all villagers and any other persons who are, with the agreement of the village council, living and working in the village whether those persons are occupying and using village land under a derivative right or not and that communal village land shall not be made available for individual occupation and use by any person through a grant of a communal or individual customary right of occupancy or a derivative right or any other disposition; (b) land which is being occupied or used by an individual or family or group of persons under customary law; or (c) land which may be made available for communal or individual occupation and use through allocation by the village council in accordance with the provisions of this Part. Communal Village Land

13. (1) The village council shall recommend to the village assembly what portions of village land shall be set aside as communal village land and for what purposes. (2) The recommendations of the village council may be put forward as – (a) a land use plan for the village or part of it; or (b) specific recommendations on specific portions of village land – or

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(c) partly in accordance with paragraph (a) and partly in accordance with paragraph (b). Land Which Is or May Be Held for Customary Rights of Occupancy

14. (1) Land which is or may be held for a customary right of occupancy shall be – (a) any village land; (b) any general land occupied occupancy by persons who immediately before the coming into operation of this Act held that land under and in accordance with a deemed right of occupancy. (2) It is hereby affirmed that, notwithstanding any of the provisions of – (a) the Town and Country Planning Ordinance, and (b) Part III of the Land Acquisition Act, 1967, a person who occupies land in an urban or periurban area after the material date of declaration of a planning area and does not occupy that land as a tenant of another person to whom the Urban Leasehold (Acquisition and Regrant) Act, 1968, could be applicable or under a granted right of occupancy, occupies that land under a customary right of occupancy and shall where that land or part of it – (3) For Purposes of sub-section (2) occupation by the family of the person claiming to have been in occupation for the specified time shall be deemed to be occupation by that person. . . . Land Sharing Arrangements Between Pastoralists and Agriculturalists

58. (1) Where, in respect of any land the subject of adjudication, the village adjudication committee or, as the case may be, the adjudication officer is satisfied that there is a dual use of the land between groups of persons using the land for pastoral purposes and groups of persons using the land for agricultural purposes and that both groups claim to be using that land in accordance with customary law applicable to their respective uses, the committee or, as the case may be the adjudication officer shall – (a) determine and record the nature, extent and incidents of each use and so far as it is possible to

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do so, the length of time that each group has used or claimed the use of that land for their respective uses; (b) where the village adjudication committee or the adjudication officer is satisfied that the groups of persons so using the land have in the past and are likely to continue in the future to carry out their respective uses of the land in co-operation with each other, he or as the case may be prepare an arrangement for that continued dual use which records – (i) the rights to the use and occupation of the land by each group as recognised by each group; and (ii) the arrangements for resolving any disputes between the dual uses adopted and used by those groups; (c) where the village adjudication committee or an adjudication officer is satisfied – that the groups of persons using the land are in continuous dispute about the uses of the land, it or he as the case may be, shall – (i) record the rights to the use and occupation of the land claimed by each group; and (ii) prepare a draft sharing arrangement for the continued dual use of the land either for a limited period or indefinitely based on the claimed uses of the land modified so as to reduce the likelihood of disputes; and (iii) discuss the arrangement with each group of persons or their representatives with a view to obtaining their agreement to the said arrangement or the said arrangement modified to take account of the views of those groups their representatives; and (iv) adopt the draft arrangement as a Scheme. (2) An arrangement prepared or adopted under subsection (1) shall be known as a “land sharing arrangement” and shall provide – (a) for each group using the land to which it relates, rights to the occupation and use of that land based on the provisions on easements and analogous rights and on co-occupancy contained in Parts XI and XII of the Land Act, 1999, respectively;

(b) arrangements for the resolution by a joint mediation panel composed of equal members of each group, of disputes about the rights so provided for by the scheme. (3) (3) A land sharing arrangement may, notwithstanding the provisions of Part XI of the Land Act, 1999, provide that different groups of persons may occupy or use different parts of the land the subject of the scheme exclusively for specified purposes or for a specified period. (4) A land sharing arrangement shall be registered in the Village Land Registry and in the District Land Registry. PART V.

DISPUTE SETTLEMENTS

Elders Council Panels

60. (1) For the purposes of this Part, every village shall establish a Village Land Council to mediate between and assist parties to arrive at a mutually acceptable solution on any matter concerning village land. (2) Where a village council establishes a village land council, that council shall consist of seven persons of whom three shall be women who shall be – (a) nominated by the village council; and

(2) Where the parties to a dispute referred to in subsection (1) agree to call in the village land council, the convenor of the village land council shall, after discussing the matter with the parties to the dispute, either – (a) convene a meeting of the village land council; or (b) appoint one or more members of the village land council, to act as mediators between the parties to the dispute. (3) Where the convenor or any member of the Village Council becomes aware of or is informed of a dispute as referred to in subsection (1), the convenor shall use his best endeavours to persuade all parties to the dispute to make use of the services of the village land council or one or more of its members to act as mediators in the dispute. (4) The village land council shall exercise its functions of mediation in accordance with – (a) any customary principles of mediation; (b) natural justice in so far as any customary principles of mediation do provide for them; (c) any principles and practices of mediation in which the members may have received any training. . . .

(b) approved by the village assembly. PART VI.

Functions of the Village Land Council

61. (1) Where any villager or person residing or working in a village or the village council or a nonvillage organisation within the village or a person coming within an agreement made under section 11 or an arrangement made under section 58 has a dispute with any other villager or person residing or working in a village or with the village council or a non-village organisation within the village or a person coming within an agreement made under section 11 or an arrangement made under section 58 over any matter concerning village land within that village or land to which sections 11 or 58 apply, all parties to that dispute may agree to call in the services of the village land council or its member to mediate between and assist those parties to arrive at a mutually acceptable solution to the dispute,

MISCELLANEOUS PROVISIONS

... Regulations

65. (1) The Minister may make regulations generally for, the better carrying into effect of the Purposes and provisions of this Act and without prejudice to the generality of the such regulations may prescribe – (a) the forms to be used in connection with this Act; (b) the procedures to be followed by village adjudication committees, village adjudication advisors and other officers exercising powers under Part IVC of this Act; (c) procedures to be followed with respect to the making of any claim for compensation and the payment of any compensation under this Act;

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(d) the alteration from; time to time – of the amount which may be advanced by way of a small mortgage; (e) the form and scope of joint village land use agreements; (2) A village council may, with the approval of the District, Council and subject to any general directive of the Minister, make by laws for the better management and administration of land matters within the jurisdiction of the village land. (3) The procedure for making bylaws under subsection (2) shall be as prescribed mutatis mutandis, by the provisions of Part VI of the Local Government (District Authorities) Act, 1982.

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Translation

66. (1) The Minister shall as soon as practicable after the enactment of this Act cause this Act to be translated into Kiswahili and such translation shall be published in the Gazette and in such other manner and form as will enable the citizens of Tanzania to gain access to such translation. (2) The Minister shall, by order published in the Gazette cause to be incorporated into the Kiswahili version of this Act and published in the Gazette any amendments made to this Act. (3) Any form prescribed under this Act shall be made available to the members of the public in both English and Kiswahili.

III. ASIA

M A L AY S I A

Town and Country Planning Act (Act 172) (1976) Summary: The Town and Country Planning Act is nearly identical to the Malaysian Federal Territory (Planning) Act in the bulk of its provisions. It closely tracks the Federal Planning Act, with substantially the same definitions, aims, and strategies. The main difference between the two acts is the fact that the Federal Territory Act regulates development within federal territory lands and the Town and Country Planning Act regulates development within Peninsular Malaysia. This requires a different planning authority structure because the lands of Peninsular Malaysia fall under the jurisdiction of the various states on the peninsula. Therefore, where the Federal Territory Act places the bulk of the planning and administration authority with an appointed commissioner, the Town and Planning Act creates various councils within the several overlapping levels of government and integrates them in order to maintain cohesion and uniformity among their respective development plans and compliance with the overarching national plan. Appellate procedures, planning control requirements, and enforcement provisions are nearly identical. Because the two laws are similar, the Town and Country Planning Act has been omitted with the exception of Part II of the law, which has been reproduced to illustrate the differences noted earlier. The full text of this law published by International Law Book Services can be found in the library of the International Islamic University of Malaysia. For more information see www.malaysialawbooks.com or e-mail [email protected]. PART I: PRELIMINARY

1. Short Title, Application, and Commencement

(1) This Act may be cited as the Town and Country Planning Act 1976 and shall apply in Peninsular Malaysia. [Am. Act A1129]

2. Interpretation

(1) In this Act, unless the context otherwise requires – “Appeal Board” means the Appeal Board constituted under section 36; “authorized person”, in relation to any provision, means a person designated in writing by the local planning authority to be an authorized person for the purposes of that provision; “Committee” means the State Planning Committee established under section 4; “Council” means the National Physical Planning Council established under section 2A; [Ins. Act A1129] “development” means the carrying out of any building, engineering, mining, industrial, or other similar operation in, on, over, or under land, the making of any material change in the use of any land or building or any part thereof, or the subdivision or amalgamation of lands; and “develop” shall be construed accordingly; “development area” means a development are a declared under section 38 (1); “development charge” means the development charge referred to in section 32; “development plan”, in relation to an area, means – (a) the local plan for the area; or (b) if there is no local plan for the area, the structure plan for the area; and, in relation to any land or building, means the development plan, as so defined, for the area in which the land or building is situated; “development proposal report” means the report required to be submitted by an applicant for planning permission under section 21a(1);

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“Director General of Town and Country Planning” means the Director General of Town and Country Planning whose functions are set out primarily in section 2B; “land” includes – (a) the surface, and all substances forming the surface, of the earth;

(a) a tenant of the land or building; (b) an owner of the land or building occupying or otherwise using the land or building; (c) a person in actual occupation of the land or building or having the charge, management, or control thereof, whether on his own account or as an agent of another person; but does not include a lodger;

(b) all substances below the surface of the earth; (c) all vegetation and other natural products, whether or not requiring periodical application of labour to their production, and whether on or below the surface of the earth; (d) all things, whether on or below the surface of the earth, that are attached to the earth or permanently fastened to any thing attached to the earth; (e) land covered by water; and (f) any estate or interest in, or right over, land; “local authority” means any city council, municipal council, municipality, district council, town council, town board, local council, rural board, or other similar authority established by or under any written law; “local plan”, in relation to an area, means the local plan for the area, and any alteration of the plan, for the time being having effect in the area by virtue of section 15 (1); and, in relation to any land or building, means the local plan, as so defined, for the area in which the land or building is situated; and “draft local plan” shall be construed as the context requires; “local planning authority”, in relation to an area, shall be construed as provided in section 5 and, in relation to any land or building, means the local planning authority, as so construed, for the area in which the land or building is situated; “Minister” means the Minister responsible for town and country planning; “national physical plan” means the physical plan covering Peninsular Malaysia prepared and approved under section 6B; “occupier”, in relation to any land or building, includes –

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“open space” means any land whether enclosed or not which is laid out or reserved for laying out wholly or partly as a public garden, park, sport and recreation ground, pleasure ground, walk or as a public place; [Ins. Act A933] “owner”, in relation to any land or building, means – (a) the registered proprietor of the land; (b) if, in the opinion of the local planning authority, the registered proprietor of the land cannot be traced, his agent or trustee; (c) if the registered proprietor of the land is dead, his legal personal representative; (d) if none of the persons mentioned in paragraphs (a), (b), and (c) exists, the person who for the time being is receiving the rent of the land or building, whether on his own account or as an agent or trustee of another person or as a receiver, or who would be receiving the rent if the land or building were let; “planning permission” means permission granted, with or without condition, to carry out development; “regional planning committee”, in relation to an area, means the regional planning committee established for that area under 6A; [Ins. Act A1129] “State Director”, in relation to a State, means the Director of Town and Country Planning Department of that State; [Ins. Act A1129] “structure plan”, in relation to an area, means the structure plan for the area, and any alteration of the plan, having effect in the area virtue of section 10 (6); and, in relation to any land or building, means the structure plan, as so defined, for the area in which the land or building is situated; and “draft structure plan” shall be construed as the context requires.

PART II: POLICY AND ADMINISTRATION

2A. National Physical Planning Council. [Ins. Act A1129]

(1) There shall be established a National Physical Planning Council consisting of – (a) a Chairman, being the Prime Minister; (b) a Deputy Chairman, being the Deputy Prime Minister;

things as may be necessary or expedient for carrying out its functions under this Act. 2B. Director General of Town and Country Planning. [Ins. Act A1129]

(1) There shall be a Director General of Town and Country Planning whose functions shall be –

(c) the Minister;

(a) to conduct, promote and co-ordinate research in relation to any aspect of town and country planning;

(d) the Minister responsible for housing and local government, if he is not also the Minister responsible for town and country planning;

(b) to publish reports, bulletins, statistics, monographs and other publications relating to town and country planning and its methodology;

(e) the Minister of Finance;

(c) to provide information and education to the public regarding town and country planning;

(f) the Minister responsible for land; (g) the Menteri Besar or Chief Minister of every State; (h) the Minister responsible for the Federal Territory; and (i) not more than seven other members to be appointed by the Chairman. (2) The functions of the National Physical Planning Council shall be – (a) to promote in the country, within the framework of the national policy, town and country planning as an effective and efficient instrument for the improvement of the physical environment and towards the achievement of sustainable development in the country; (b) to advise the Federal Government or the Government of any State, on matters relating to the town and country planning required under this Act; and (c) to perform any other functions conferred upon the Council under this Act. (3) The Council may from time to time give the Director General of Town and Country Planning directions which are consistent with the provisions of this Act, and the Director General of Town and Country Planning shall give effect to such directions. (4) The Council may perform any other functions that are incidental or consequantial to any of the functions specified in subsection (2) and do all such

(d) to report to and advise the Council upon matters concerning the use of town and country planning in the conservation, use and development of lands in the country and upon any amendments he thinks desirable to any law affecting town and country planning and upon any matters referred to him by the Council; (e) to establish and maintain liaison and cooperation with each of the State Authorities with respect to town and country planning. (2) The Director General of Town and Country Planning shall be the Secretary of the Council. 3. General Planning Policy. Subject to Clauses (5)

and (6) of Article 91 of the Constitution, the State Authority shall be responsible for the general policy in respect of the planning of the development and use of all lands and buildings within the area of every local authority in the State; and the State Authority may, in or for the purpose of discharging the responsibility of the State Authority under this section, from time to time give to the Committee or any local planning authority directions of a general character not inconsistent with the provisions of this Act, and the Committee or local planning authority shall give effect to such directions. 4. The State Planning Committee and its Functions.

(1) There shall be established for the State a State Planning Committee consisting of –

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(a) a Chairman, being the Menteri Besar or Chief Minister of the State; (aa) to regulate, control, plan and co-ordinate all development [activities] in the State; [Ins. Act A1129] (b) a Deputy Chairman, being a member of the State Executive Council, to be appointed by the State Authority; (ba) not more than three members to be appointed by the State Authority from amongst the members of the State Executive Council, at least one of whom shall be the member responsible for and whose portfolio is related to town and country planning in the State; [Ins. Act A1129] (c) the State Secretary; (d) the State Director, who shall be the Secretary of the Committee; [Am. Act A1129] (e) the State Director of Lands and Mines; (f) the Director of the State Economic Planning Unit or an officer responsible for such affairs in the State;

(5) The Committee may from time to time give to any local planning authority directions not inconsistent with the provisions of this Act, and the local planning authority shall give effect to such directions. (6) The Committee may perform any other functions that are supplemental, incidental, or consequential to any of the functions specified in subsection (4) and do all such things as may be necessary or expedient for carrying out its functions under this Act. (7) The Committee may cause a local inquiry or hearing to be held in or for the purpose of exercising any of its functions under this Act. (8) The State Director of Town and Country Planning shall be the principal adviser to the Committee on matters relating to town and country planning and, as Secretary of the Committee, shall be responsible for carrying out the decisions and implementing the policies of the Committee; and in or for the purpose of discharging his functions under this subsection, he may draw upon the financial, manpower, and other resources of his department.

(g) the State Director of Public Works; (h) the State Legal Adviser;

5. Local Planning Authorities.

(ha) the State Financial Officer; [Ins. Act A933]

(1) Every local authority shall be the local planning authority for the area of the local authority.

(hb) the State Development Officer or an officer responsible for such affairs in the State; (hc) the State Director of Environment or an officer responsible for such affairs in the State; and (i) not more than four other members to be appointed by the State Authority. (4) The functions of the Committee shall be – (a) to promote in the State, within the framework of the national policy, the conservation, use, and development of all lands in the State; (b) to advise the State Government, either on its own initiative or in response to a request by the State Government, on matters relating to the conservation, use, and development of land in the State; and (c) to undertake, assist in, and encourage the collection, maintenance, and publication of statistics, bulletins, and monographs, and other publications relating to town and country planning and its methodology.

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(2) For any area in the State that does not form part of the area of any local authority, the State Director shall be the local planning authority, and references to the “local planning authority” in this Act shall be deemed to include the State Director whenever he performs the functions of the local planning authority in relation to that area. [Subs. Act A1129] (3) A local planning authority shall furnish the Committee with such returns and information relating to its activities as the Committee may from time to time require. 6. Functions of Local Planning Authorities.

(1) The functions of a local planning authority shall be – (a) to regulate, control, and plan the development and use of all lands and buildings within its area; (b) to undertake, assist in, and encourage the collection, maintenance, and publication of statistics, bulletins, and monographs, and other

publications relating to town and country planning and its methodology; and

(f) to conduct research required for the planning of the region.

(c) to perform such other functions as the State Authority or the Committee may from time to time assign to it.

(4) The regional planning committee shall furnish the Council or Committee with such returns, reports and information relating to its activities as the Council or Committee may from time to time require.

(2) A local planning authority may perform any other functions that are supplemental, incidental, or consequential to any of the functions specified in subsection (1) and do all such things as may be necessary or expedient for carrying out its functions under this Act.

PART 11B: NATIONAL PHYSICAL PLAN [Ins. Act A1129]

6B. National Physical Plan. PART IIA: REGIONAL PLANNING COMMITTEE [Ins. Act A1129]

6A. Regional Planning Committee.

(1) The Council may from time to time, after consultation with the State Authorities concerned, establish a regional planning committee for a region which consists of an area situated in two or more States. (2) For the purpose of subsection (1), the Minister shall cause the fact of the establishment of a regional planning committee to be published in the Gazette together with the marking by which the boundary of the region for which the committee is established may be identified. (3) The functions of the regional planning committee shall be – (a) to advise and assist the State Planning of Committees and the local planning authorities within the region pertaining to the development plans appropriate for the region, in accordance with the national policy; (b) to establish policies and to devise a comprehensive regional plan to guide and co-ordinate development of the region; (c) to plan and co-ordinate the provision of infrastructure and facilities for the region; (d) to establish uniform process and procedures to be used by the Federal Government and the State Governments and local authorities concerned for the region; (e) to monitor the implementation of standards, guidelines and procedures in facilitating the development of the region; and

(1) The Director General of Town and Country Planning shall, upon the direction of the Council, prepare and submit to the Council for its approval a draft national physical plan which covers Peninsular Malaysia. (2) The draft national physical plan shall – (a) be a written statement formulating strategic policies for the purpose of determining the general directions and trends of the physical development of the nation; (b) be accompanied by such indicative plans as may be required to clarify the strategic policies; and (c) contain such other matters as may be prescribed or as the Council may in any particular case specify. (3) When preparing the draft national physical plan and determining its contents for submission to the Council, the Director General of Town and Country Planning shall take into consideration the current national urbanization policy or other similar policies and shall consult with every State Authority and such other authorities or bodies as the Council may direct. (4) The national physical plan shall be reviewed every five years in tandem with the review of the National Five Year Development Plans, or as and when directed by the Council. (5) It shall be the general duty of the Federal Government and the Government of every State to assist in ensuring that the objectives of the national physical plan are achieved. (6) The Director General of Town and Country Planning shall periodically report to the Council on

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the implementation of the national physical plan, or as and when directed by the Council.

PART III: DEVELOPMENT PLANS

7. Survey of Planning Areas. [Am. Act A1129]

(1) The State Director shall, in so far as it has not already done so, institute a survey of the State examining the matters that may be expected to affect the development, or the planning of the development, of the State, and shall in any event keep all those matters under review. (2) Notwithstanding that the State Director has carried out his duty under subsection (1), he may, if he thinks fit, and shall, if directed to do so by the Council or Committee, institute a fresh survey of the whole State, examining the matters mentioned in that subsection. [Subs. Act A1129] (3) Without prejudice to the generality of subsections (1) and (2), the matters to be examined and kept under review under those subsections shall include – (a) the principal physical, economic, environmental, and social characteristics, including the principal land uses, of the State and, so far as they may be expected to affect the state, those of the neighbouring areas; [Am. Act A1129] (aa) the national physical plan and other principal economic, social, physical and environmental management and conservation policies of the nation; [Ins. Act A1129] (b) the size, composition, and distribution of the population of the State, whether resident or not; [Am. Act A1129] (c) without prejudice to paragraph (a), the communications, transport system, and traffic of the State and, so far as they may be expected to affect the State, those of the neighbouring areas; [Am. Act A1129] (d) any matters not mentioned in any of the preceding paragraphs that may be expected to affect any matters so mentioned; (e) such other matters as may be prescribed or as the Council or Committee may in any particular case specify; [Am. Act A1129] (f) any changes already projected in any of the matters mentioned in any of the preceding para-

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graphs and the effect that those changes are likely to have on the development, or the planning of the development, of the State. [Am. Act A1129] (4) The State Director shall, for the purpose of discharging his functions under this section, consult with the State Director of any other State about matters relating to the area of that other State that may be expected to affect the development or the planning of the development of the State in respect of which the survey is instituted under this section. [Subs. Act A1129] (5) Subsection (1) shall, as respects any period during which this section is in operation in part only of the State, be construed as requiring the State Director to Institute a survey of, and to keep under review, matters affecting that part of the State only; and subsection (2) shall, whether or not this section is in operation in the whole of the State, have effect as if the power thereby conferred included power for the State Director to Institute, and for the Council or Committee to direct him to institute, a fresh survey of part of the State only; and references in subsection (3) to the State or the neighbouring areas shall be construed accordingly. [Am. Act A1129] 8. Preparation of Draft Structure Plans. [Subs. Act A1129]

(1) The State Director shall, within such period as the Council or Committee may specify, prepare and submit to the Committee a report of his survey under section 7 and at the same time prepare and submit to the Committee for its approval a draft structure plan complying with subsection (3) for the State. (2) The report shall include an estimate of any changes likely to occur, during such period as the Council or Committee may specify, in the matters mentioned in section 7 (3); and different periods may be specified in relation to different matters. [Am. Act A1129] (3) The draft structure plan for the State shall be a written statement – [Am. Act A1129] (a) formulating the policy and general proposals of the State Authority in respect of the development and use of land in that State, including measures for the improvement of the physical living

environment, the improvement of communications, the management of traffic, the improvement of socio-economic well-being and the promotion of economic growth, and for facilitating sustainable development; [Subs. Act A1129] (b) stating the relationship of those proposals to general proposals for the development and use of land in the neighbouring areas that may be expected to affect that area; and (c) containing such other matters as may be prescribed or as the Council or Committee may in any particular case specify. [Am. Act A1129] (4) In formulating the policy and general proposals under paragraph (3)(a), the State Director shall secure that the policy and proposals are justified by the results of his survey under section 7 and by any other information that he may obtain, and shall have regard – [Am. Act A1129] (a) to current policies in respect of the social and economic planning and development and the environmental protection of the State and the nation; (b) to the resources likely to be available for the carrying out of the proposals of the structure plan; and (c) to such other matters as the Council or Committee may direct him to take into account. [Am. Act A1129] 9. Publicity in Connexion With Preparation of Draft Structure Plans.

(1) When preparing a draft structure plan for the State and finally determining its content for submission to the Committee, the State Director shall take such steps as will in his opinion secure – [Am. Act A1129] (a) that publicity is given in the State to the report of the survey under section 7 and to the matters that he proposes to include in the plan; and

10. Approval or Rejection of Draft Structure Plans by Committee.

(1) The Committee may, after considering a draft structure plan submitted or resubmitted to it, either approve it, in whole or in part and with or without modifications or reservations, or reject it. 11. Review or Alteration of Structure Plan.

(1) A structure plan that has come into effect shall be subjected to review every five years in tandem with the preparation of the State’s five-year development plans, and the review shall relate to the whole of the State. [Subs. Act A1129] (2) Notwithstanding subsection (1), after a structure plan for a State has come into effect, the State Director may submit to the Committee and shall, if so directed by the Committee, submit to it, within a period specified in the direction, proposals for such review or alterations to the plan as appear to the State Director to be expedient or as the Committee may direct, as the case may be, and the proposals may relate to the whole or to part of the State. 12. Preparation of Draft Local Plans.

(1) The local planning authority, while a draft structure plan is being prepared, or before the State Authority gives assent to a draft structure plan that has been prepared, may, if it thinks it desirable, prepare a draft local plan for any part of its area. [Subs. Act A1129] (2) Where a structure plan for the State has come into effect, the local planning authority shall as soon as practicable prepare a draft local plan for the whole of its area. [Subs. Act A1129] (3) A draft local plan shall consist of a map and a written statement and shall – (a) formulate, in such details as the local planning authority thinks appropriate, its proposals for – [Subs. Act A933]

(b) that persons who may be expected to desire an opportunity of making representations to the State Director in respect of those matters are made aware that they are entitled to, and are given, an opportunity of doing so;

(i) the development of;

and the State Director shall consider every representation made within the prescribed period to him.

(iv) the preservation of the natural topography of;

(ii) the use of land in; (iii) the protection and improvement of the physical environment of;

(v) the improvement of the landscape of;

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(vi) the preservation and planting of trees in; (vii) the making up of open spaces in; (viii) the preservation and enhancement of character and appearance of buildings in; (ix) the improvement of communications in; and

account of the objections or representations or of any matters arising therefrom, to the committee for its approval. (1A) The Committee may, after considering a draft local plan submitted to it, either approve it, in whole or in part and with or without modifications, or reject it. [Ins. Act A1129]

(x) the management of traffic in, the area of the local plan; and (b) contain such matters as may be prescribed or as the Committee may in any particular case specify. (4) In formulating its proposals in a draft local plan, the local planning authority shall secure that the proposals conform generally to the structure plan for the State as it stands for the time being, whether or not it has come into effect, and shall have regard to any information and other considerations that appear to it to be relevant, or that may be prescribed, or that the Committee may in any particular case direct it to take into account. [Am. Act A1129] 12A. Publicity in Connexion with Preparation of Draft Local Plan. Before commencing the prepara-

tion of a local plan, the local planning authority shall take such steps as will in its opinion secure – [Ins. Act A1129] (a) that publicity is given in its area to the draft local plan that will be prepared, its objectives and the purpose for its preparation, and matters that the local planning authority proposes to include in the plan; (b) that persons who may be expected to desire an opportunity of making representations to the local planning authority in respect of those matters are made aware that they are entitled to, and are given, an opportunity of doing so. 15. Approval or Rejection of Draft Local Plans. [Am. Act A1129]

(1) After the expiry of the period afforded for making objections to or representations in respect of a draft local plan or, if such objections or representations have been duly made during that period, after considering the objections or representations, the local planning authority shall submit the draft local plan or the draft local plan as modified so as to take

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16A. Preparation, Etc., of Local Plan by State Director. [Ins. Act A1129]

(1) If the Committee is satisfied that a local planning authority has failed to take steps to prepare a local plan or proposals for the alteration, repeal or replacement of a local plan, the Committee may direct the State Director to prepare the plan or proposals and the expenses incurred in connection with such preparations shall be payable by the local planning authority to the State Director. (2) Sections 12, 13, 14, 15 and 16 shall apply in relation to the preparation of a local plan or the making of proposals for the alteration, repeal or replacement of a local plan under this section. 16B. Special Area Plan.

(1) At any time during the preparation or upon the coming into effect of a structure plan or a local plan, a State Director or a local planning authority, on his or its own initiative or as directed by the Committee, may submit to the Committee a proposal for the designation of a special area for special and detailed treatment by development, redevelopment, improvement, conservation or management practice, or partly by one and partly by another method, of the whole or part of such special area, and the nature of the treatment proposed. [Ins. Act A1129] (2) For the purposes of subsection (1), the Committee shall determine whether it is the State Director or the local planning authority who shall have the responsibility of preparing a plan for the special area. (3) For the purpose of subsection (2), the plan for a special area shall be prepared in the same manner as the preparation of a local plan, but there shall be incorporated in such plan detailed guidance for its implementation and management, and the plan shall have the effect of a local plan.

17. Power to Make Rules. The State Authority may make rules for the better carrying out of the purposes of this Part or for prescribing anything that may be, or is required to be, prescribed under this Part. PART IV: PLANNING CONTROL

18. Use of Land and Buildings.

(1) No person shall use or permit to be used any land or building otherwise than in conformity with the local plan. 19. Prohibition of Development Without Planning Permission.

(1) No person, other than a local authority, shall commence, undertake, or carry out any development unless planning permission in respect of the development has been granted to him under section 22 or extended under section 24 (3). 20. Prohibition of Development Contrary to Planning Permission. No person shall commence,

undertake, or carry out any development otherwise than in conformity with the planning permission granted to him under section 22 in respect of the development or with the conditions of the planning permission. 20A. Duty to Consult. [Ins. Act A1129] It shall be the duty of every Federal and State Government department or agency to consult the Committee on any development activity that it proposes to carry out within the State. 21. Application for Planning Permission.

(1) An application for planning permission in respect of a development shall be made to the local planning authority and shall be in such form and shall contain such particulars and be accompanied by such documents, plans, and fees as may be prescribed.

been dealt with under section 21 (1), the local planning authority shall decide on the application for planning permission. 23. Appeal Against Decision of Local Planning Authority.

(1) An appeal against the decision of the local planning authority made under section 22 (3) may be made to the Appeal Board within one month from the date of the communication of such decision to him, by – (a) an applicant for planning permission aggrieved by the decision of the local planning authority to refuse planning permission or by any condition imposed by the local planning authority in granting planning permission; and (b) a person who has lodged an objection pursuant to section 21(6) and is aggrieved by the decision of the local planning authority in relation to his objection. 25. Revocation and Modification of Planning Permission and Approval of Building Plans.

(1) If it appears to the local planning authority to be in the public interest that a planning permission granted under section 22(3) or an approval of a building plan given under any of the previous local government laws should be revoked or modified, the local planning authority may order the permission or approval to be revoked or modified to such extent as appears to it to be necessary. 26. Offences Relating to Unauthorized Development.

(1) A person who, whether at his own instance or at the instance of another person – (a) uses or permits to be used any land or building in contravention of section 18;

22. Treatment of Applications.

(b) commences, undertakes, or carries out, or permits, to be commenced, undertaken, or carried out, any development in contravention of section 19 or 20;

(1) As soon as possible after the receipt of an application for planning permission, or, if the application is one to which section 21 (6) applies, as soon as possible after the expiry of the period within which objections may be made or, if objections have been made, as soon as possible after the objections have

(c) commences, undertakes, or carries out, or permits to be commenced, undertaken, or carried out, any development where the planning permission or the approval of the building plan, as the case may be, in respect of the development has been revoked pursuant to section 25; or

105

(d) commences, undertakes, or carries out, or permits to be commenced, undertaken, or carried out, any development after the planning permission or the approval of the building plan, as the case may be, in respect of the development has been modified pursuant to section 25 and the development so commenced, undertaken, or carried out is inconsistent with the modified permission or approval, commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both and, in the case of a continuing offence, to a further fine which may extend to five thousand ringgit for each day during which the offence continues after the first conviction for the offence. [Ins. Act A933; Am. Act A1129] (2) Unless the contrary is proved, the owner of the land in respect of which any act that constitutes an offence under subsection (1) is done shall be deemed to have permitted the doing of that act. 30. Requisition Notice.

(1) If the local planning authority is satisfied – (a) that any use of land should be discontinued; or (b) that conditions should be imposed on the continued use thereof; or (c) that any building or works on any land should be altered or removed, the local planning authority may, with the approval of the State Authority, by a requisition notice served on the owner of the land –

(2) A person aggrieved by a requisition notice may, within the period stated therein and in the manner prescribed, appeal to the Appeal Board. 31. Execution by Authorized Person.

(1) If any requirement of any notice served under any of the provisions of sections 27, 28, 29, and 30, other than a requirement to discontinue any development or activity, is not complied with within the period specified in the notice or within any further period that may have been allowed by the respective local planning authority, an authorized person may, with or without workmen, enter upon the land to which the notice relates and take such steps as may be necessary to execute the notice, including the demolishing or altering of any building or works and the removal of any goods, vehicles, or things from any building or from the land. (2) The local planning authority may request the officer in charge of the police district in which the area of the local planning authority is situated to provide police officers to render assistance to an authorized person in taking any action by virtue of subsection (1) and it shall be the duty of the officer in charge of the police district to comply with the request and of the police officers provided in compliance therewith to render such assistance. (3) The local planning authority may recover the expenses and costs incurred in executing a notice under subsection (1) from the owner of the land to which the notice relates in the manner in which rates are recovered under any written law relating to local government.

(i) require the discontinuance of that use; or (ii) impose such conditions for the continued use of the land as may be specified in the requisition notice; or (iii) require such steps as may be specified in the requisition notice to be taken for the alteration or removal of the building or works, and the owner shall, within such period as may be specified in the requisition notice, not being less than one month from the date of service of the notice, comply with such requirements or conditions.

106

31A. Inconsistency Between Building By-laws and Development Plan. [Ins. Act A1129] Where an

inconsistency exists between any buildings by-laws and a development plan in relation to any policies in that plan – (a) the development plan shall prevail over the bylaws; and (b) the approving authority shall apply the provisions of the building by-laws in such manner and to such extent as may be necessary to avoid the inconsistency, but so as to ensure that the standards of building soundness for the safety of the occupants

and amenity achieved in respect of the development are as good as can reasonably be achieved in the circumstances.

development plan, whether expressly or by implication, as land intended for a public purpose and who claims that, by reason of the refusal, the land is incapable of reasonable beneficial use; or

PART V: DEVELOPMENT CHARGE

(b) who claims that, by reason of compliance with a requisition notice in respect of his land served on him under section 30, the land is incapable of reasonable beneficial use,

32. Development Charge and Liability Thereto.

(1) Where a local plan or an alteration of a local plan effects a change of use, density, or floor area in respect of any land so as to enhance the value of the land, a development charge shall be levied in respect of any development of the land commenced, undertaken, or carried out in accordance with the change.

may, in the prescribed manner, serve on the local planning authority a purchase notice in the prescribed form, requiring his interest in the land to be purchased in accordance with this section. PART VIII: DEVELOPMENT AREAS

35. Power to Make Rules. The State Authority may make rules for the purpose of giving effect to and carrying out the provisions of this Part or of prescribing anything that may be, or is required to be, prescribed under this Part. PART VA: TREE PRESERVATION ORDER

35A. Tree Preservation Order.

(1) If it appears to the local planning authority that it is expedient in the interest of amenity to preserve any tree, trees or group of trees in its area, it may make a tree preservation order with respect to such tree, trees or group of trees. PART VI: THE APPEAL BOARD

36. The Appeal Board.

(1) For the purposes of this Act, there shall be constituted an Appeal Board in and for the State. PART VII: PURCHASE NOTICE AND ACQUISITION OF LAND

37. Notice Requiring Purchase of Land in Certain Cases.

(1) Without prejudice to the operation of any written law for the time being in force relating to the acquisition of land, a registered proprietor of land – (a) for the development of whose land planning permission has been refused under section 22 (3) on the grounds that the land is indicated in the

38. Declaration of Development Areas.

(1) At any time after the local planning authority has adopted a local plan for a special area, the local planning authority may, by notification in the State Gazette, declare the area or any part thereof to be a development area. [Am. Act A1129] (2) Upon an area being declared to be a development area, it shall be the duty of the local planning authority to acquire, by purchase or by compulsory acquisition under the Land Acquisition Act, 1960, all alienated lands situated within the area, and to develop the area in accordance with the local plan. 41. Local Planning Authority May Employ Agents, Enter into Arrangements, and Establish Corporations.

(1) For the purpose of developing a development area in the discharge of its duty under section 38 (2), the local planning authority may appoint or employ agents, or, with the approval of the Menteri Besar or Chief Minister and subject to the rules made under section 44 and to such conditions and restrictions as may be approved or required by the Menteri Besar or Chief Minister, enter into any arrangement for sharing profits, union of interests, co-operation, joint adventure, or reciprocal concession with any person, company, or body. (2) The local planning authority may, with the approval of the Menteri Besar or Chief Minister, from time to time by order published in the State Gazette, establish a corporation by such name as

107

the local planning authority thinks fit, to carry out and have the charge, conduct, and management of any project, scheme, or enterprise that has been planned or undertaken by the local planning authority in the discharge of its duty under section 38 (2) of developing a development area. (3) Every order made under subsection (2) shall make provision in respect of – (a) the purposes and objects for which the corporation is established; (b) the constitution of the corporation; (c) the duties, powers, and rights of the corporation;

(d) generally for the better carrying out of the provisions of this Part. PART IX: MISCELLANEOUS PROVISIONS

45. Power of Entry.

(1) An authorized person may, with or without assistants or workmen, enter upon or into any land or building for the purpose of – (a) making any inquiry, inspection, measurement, or survey, or taking the levels of the land or building; (b) setting out boundaries and intended lines of works;

(d) the system of management of the corporation;

(c) indicating such levels, boundaries, and lines by placing or setting up marks and cutting trenches;

(e) the financing of the corporation;

(d) digging or boring into the subsoil;

(f) the accounts to be kept by the corporation and the auditing thereof;

(e) ascertaining whether any development has been commenced, undertaken, or carried out in contravention of this Act or the rules made thereunder; and

(g) the relations between the corporation and the local planning authority and its right of control over the corporation; and

(f) doing any other acts necessary for the efficient administration of this Act.

(h) the common seal of the corporation. 50. Prosecution. 42. Power to Borrow Moneys. The local planning

authority may, with the approval of the Menteri Besar or Chief Minister, but subject to the Public Authorities (Control of Borrowing Powers) Act, 1961, borrow such sums of money as are necessary for financing the development of a development area. 43. Power to Dispose of Land and Property. The

local planning authority may, subject to rules made under section 44, sell, let, or otherwise deal with or dispose of any land or property in a development area that it has developed pursuant to section 38 (2). 44. Power to Make Rules. The State Authority may

make rules – (a) to regulate the conduct of negotiations for the purchase of lands in a development area and the terms of purchase; (b) to regulate the making and the terms of any arrangement under section 41 (1); (c) to secure a just and equitable implementation of section 43; and

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(1) An authorized person or any police officer not below the rank of Inspector may conduct prosecutions for offences under this Act or the rules made thereunder. (2) The local planning authority may authorize in writing the incurring of such expenses as may be necessary for prosecutions for offences under this Act or the rules made thereunder. 58. Power to Make Rules.

(1) The State Authority may make rules to carry out the purposes; of this Act. (1a) The Council may make rules with respect to any of the matters in this Act. [Ins. Act A1129] (1b) If any rule made by the State Authority is inconsistent with a rule made by the Council, the rule made by the Council shall prevail over the rule made by the State Authority and the rule made by the State Authority shall, to the extent of the inconsistency, be void. [Ins. Act A1129] (2) In particular, and without prejudice to the generality of subsection (1), rules made under that subsection may provide for –

(a) the regulation of the development of land in accordance with proper planning;

TOWN AND COUNTRY PLANNING ACT 1976 (ACT 172)

(b) the classes of use of land and buildings or parts thereof;

List of Amendments

(c) the control of the density, floor area, plot ratio, plinth area, and use of land and buildings; (d) the regulation of the height, design, appearance, and siting of buildings, and of the provision of car parks, set backs, and open spaces;

Amending law Act A866

Short title/Sections affected

Act A933

Town and Country Planning see State (Amendment) Act 1995 PU(S) s. 2(1); 4(1); 10(5); 12(3); for c.i.f. 13(3); 21(1), (6); 21A; 21B; 21C; 22(2), (5); (5A); 26(1); 27(6), (9); 28(6), (9); 29(4), (6); 30(8); Pt. VA (35A, 35B, 35C, 35D, 35E, 35F, 35G, 35H); 36(10); 52A; 58(2), (3).

Act A1129

Town and Country Planning Peninsular Malaysia: (Amendment) Act 2001 27.9.2001 long title; preamble; -ss- 2–5 enacting clause; ss-1(1); [see s. 1 of 2(1); 2A; 2B; 4(1), (4); 5(2), this Act] 3; 6(1); Parts IIA; IIB; 7(1), (2), (3), (4), (5), 8(1), (2), (3), (4), (5), (6), (7); 9; 10(3), (4), (5); 11; 11A; 11B; 12(1); (2), (5), (6), (8), (9); 12A; 15; 16A; 16B; 20A; 21(6), (8), 21A(1A); 22(2), (2A), (2B), (4), (5); 26(1); 27(6), (9); 28(6), (9); 29(4), (6); 30(8); 31A; 35A(4); 35E(5); 35H(3); 36(2); 38(1); 58(1A), (1B).

(e) the control of means of access to lands and buildings; (f) the protection of ancient monuments and lands and buildings of historic or architectural interest; (g) the details of the forms and contents of the structure plan and local plan, the procedure to be followed in the preparation, submission, and approval thereof, the form and manner in which they shall be published, and the form of the notices relating thereto; (h) the qualifications of persons who may prepare or submit plans, documents, particulars and layout plans for the purposes of this Act; [Am. Act A933] (i) the form in which an application for planning permission shall be made, the particulars to be furnished in, and the plans, documents, particulars and layout plans to be submitted with the application and its form and scale; [Am. Act A933] (j) the fees to be paid under this Act; (k) the registration of applications and the form of, and particulars to be contained in, the register; (l) prescribing anything that may be, or is required to be, prescribed under this Act. (3) Where any rule made under subsection (2) (h) does not include a person who is entitled under any other written law to prepare and submit plans, documents, particulars and layout plans relating to town and country planning to any person or authority, the entitlement of such person shall not be affected. [Ins. Act A933]

Town and Country Planning (Amendment) Act 1933 s. 22(2)(ba).

In force from 1.3.1994 – PU(B) 93/94

TOWN AND COUNTRY PLANNING ACT 1976 (Act 172)

Date of Coming into Force under Sections 1(2) and (3)

Area JOHORE Johore Johore Bahru Johore Bahru Tengah Pasir Gudang Segamat Utara Kluang Utara

Provisions in force

With effect from

Authority

Parts I, II & III ”

1.7.1981

J.P.U.

28/84

1.7.1981

J.P.U.

29/84

”

1.1.1983

J.P.U.

30/84

”

1.1.1983

J.P.U.

31/84

”

7.10.1982

J.P.U.

32/84

”

7.10.1982

J.P.U.

33/84

109

Area KEDAH Kota Setar KELANTAN Kota Bharu & All District Councils in the State MALACCA Central Malacca State of Malacca

Provisions in force Parts I, II, & III

With effect from

Authority

1.6.1982 K.P.U.

1/82

Taiping Krian

Temerloh Jerantut Lipis Bentong Cameron Highlands PENANG The whole State of Pahang

110

Grik

Parts I, II & 1.3.1982 Kn.P.U. III

1/86

The Whole 1.7.1978 M.G.N.

161/78

Lenggong

Parts I, II & 1.7.1985 M.G.N. III

498/85

Selama

NEGERI SEMBILAN Port Parts I, II & 1.1.1980 NS.P.U. Dickson III Jempol I, II & III 1.8.1980 NS.P.U. Jelebu I, II & III 1.8.1980 NS.P.U. PAHANG The whole State of Pahang Kuantan Raub

Area PERAK Kinta Barat

Kroh

19/79 14/80 15/80

Parts I, & II

1.7.1983 Phg.G.N. 357/84

Parts III Parts I, & II Parts I, & II Parts I, & II Parts I, & II Parts I, & II Parts I, & II

1.7.1983 Phg.G.N. 358/84 1.7.1983 Phg.G.N. 359/84

Perak Tengah Kinta Selatan Tanjong Malim Hilir Perak Tapah

1.7.1983 Phg.G.N. 360/84 1.7.1983 Phg.G.N. 361/84 1.7.1983 Phg.G.N. 362/84 1.7.1983 Phg.G.N. 363/84 1.7.1983 Phg.G.N. 364/84

The Whole 1.1.1985 Pg.P.U.

30/84

PERLIS SELANGOR The whole State of Selangor

With Provisions effect in force from Parts I, II & III Parts I, II & III Parts I, II & III Parts I, II & III Parts I, II & III Parts I, II & III Parts I, II & III Parts I, II & III Parts I, II & III Parts I, II & III Parts I, II & III Parts I, II & III

Parts I & II

TRENGGANU Kuala Parts I, II Trengganu & III The area Parts I, II marked & III grey in Plan No. PW 182 deposited in the office of Director of Survey, Trengganu Besut Parts I, II Kemanan & III Dungun Hulu Trengganu Marang

Authority

1.9.1979

Pk.P.U.

42/79

1.9.1979

Pk.P.U.

43/79

1.9.1979

Pk.P.U.

48/79

1.12.1979

Pk.P.U.

66/79

1.12.1979

Pk.P.U.

69/79

1.12.1979

Pk.P.U.

72/79

1.12.1979

Pk.P.U.

75/79

1.12.1979

Pk.P.U.

78/79

1.12.1979

Pk.P.U.

81/79

1.12.1979

Pk.P.U.

84/79

1.12.1979

Pk.P.U.

87/79

1.12.1979

Pk.P.U.

90/79

1.12.1978

Sel.P.U. 21/78

1.1.1980

Tr.P.U.

2/80

1.1.1980

Tr.P.U.

9/80

1.1.1985

Tr.G.N.

1/85

Federal Territory (Planning) Act 1982 Summary: This law is a comprehensive planning and enforcement document for Malaysia’s Federal Territory. It is analogous to local land use laws in the United States, with separate provisions for a planning arm and an appeal board. However, although it does create an advisory board, this law vests primary planning authority in a minister and a commissioner answerable only to the minister. The commissioner has the power to promulgate planning rules and regulations, vary those rules, issue approvals, and set fees and fines. The commissioner’s decisions may be challenged before an appeal board; this board’s decisions are final and not subject to further review. The statute contains enforcement provisions, with a nearly absolute right of entry for inspection and substantial penalties for violations. The commissioner may order the demolition of nonconforming structures or demolish them at government expense and bill the offender. There are also strong provisions for tree preservation and planting and the creation of open space, and the commissioner may go so far as to order the preservation of even a single tree. Finally, the Act allows the commissioner to acquire land for development by eminent domain and to “enter into any arrangement for sharing profits, union of interests, cooperation, joint venture, or reciprocal concession with any person, company or body.” The full text of this law published by International Law Book Services can be found in the library of the International Islamic University of Malaysia. For more information see www.malaysialawbooks.com or e-mail [email protected].

2. (1) In this Act, unless the context otherwise requires – “action area” means an area or areas shown in any development plan or has been declared as such in accordance with the provisions of this Act to facilitate new development, redevelopment or improvement; “Appeal Board” means the Appeal Board constituted under section 45; “authorised officer”, in relation to any provision, means an officer designated in writing by the Commissioner to be an authorised officer for the purposes of that provision; “Commissioner” means the Commissioner appointed under the Federal Capital Act 1960; Act 190. “Comprehensive Development Plan” means the comprehensive development plan referred to as plans Nos.: 1039, 1040 and 1041 in the City of Kuala Lumpur (Planning) Act. 1973; “development” means the carrying out of any building, engineering, mining, industrial, or other similar operation in, on, over, or under land, and includes any change in the use of any land or building or any part thereof, or the subdivision or amalgamation of lands; “development area” means a part or the whole of an action area which is to be acquired in accordance with section 47; “development order” means the development order issued under this Act granting planning permission with or without conditions for any development specified in such order; “development plan”, in relation to an area means –

LAWS OF MALAYSIA ACT 267: FEDERAL TERRITORY (PLANNING) ACT 1982

1. Without prejudice to subsection (3), this Act shall apply only to the Federal Territory.

(a) the local plan for the area; or (b) if there is no local plan for the area, the structure plan for the area; and, in relation to any land or building, means the development plan, as so defined, for the area in which the land or building is situated;

111

“Federal Territory” means the area as shown in the deposited plan identified by reference to Gazette Plan No. 383; “local plan”, in relation to an area, means the local plan as prepared under section 13; “occupier”, in relation to any land or building, includes – (a) a tenant of the land or building; (b) an owner of the land or building occupying or otherwise using the land or building; (c) a person in actual occupation of the land or building or having the charge, management, or control thereof, whether on his own account or as an agent of another person; but does not include a lodger; “open space” means any land whether enclosed or not which is laid out (or reserved for laying out) wholly or partly as a public garden, park, sport and recreation ground or pleasure ground or walk, or as a public place; “owner”, in relation to any land or building, means – (a) the registered proprietor of the land; (b) the registered lessee of a lease including a registered sub-lessee; (c) the agent or trustee of any of the persons described in paragraphs (a) and (b) if in the opinion of the Commissioner that any of such persons cannot be traced; (d) the legal personal representative of any of the persons described in paragraphs (a) and (b) if any of such persons is dead; (e) the person who for the time being is receiving the rent of the premises in connection with which the word is used whether on his own account or as agent or trustee for any other person or as a receiver or who would receive the same if such premises were let to a tenant; “planning permission” means permission granted with or without condition in a development order to carry out any development specified in such order; “public place” includes any place, building or road which is open to the use and enjoyment of the public or where the public have or are permitted to have access whether on payment or otherwise;

112

“structure plan”, in relation to an area, means a written statement accompanied by diagrams, illustrations and other descriptive matter containing policies and proposals in respect of the development and use of land in the area and may indicate action area; and “draft structure plan” Shall be construed as the text requires; PART II: FUNCTIONS AND POWERS OF THE COMMISSIONER

3. The Minister shall be responsible for general policy with respect to the planning of the development of all lands within the Federal Territory and (subject to Clauses (5) and (6) of Article 91 of the Constitution) of the use of such lands and buildings and for such purposes the Minister may give directions of a general character or specific in nature not inconsistent with the provisions of this Act and the Commissioner shall give effect to such directions. 4. (1) There shall be established for the purpose of this Act a body to be known as the Federal Territory Planning Advisory Board, which in this Act is referred to as the “Advisory Board”, to advise the Minister upon – (a) the draft structure plan; (b) the draft local plan; (c) the declaration and revocation of action areas; (d) the declaration of development areas; or (e) such other matters as the Minister may from time to time refer to the Advisory Board. (2) The Advisory Board shall consist of – (a) the Secretary General of the Ministry of the Federal Territory who shall be the Chairman; (b) a representative of the Land Executive Committee established under the National Land Code; (c) the Director General of Perbadanan Pembangunan Bandar (UDA); (d) the Director General of the Federal Town and Country Planning Department; and (e) three other members as may be appointed by the Minister. 5. (1) The Commissioner is hereby appointed to exercise all the functions and powers conferred

and to perform the duties imposed on him by this Act.

functions aforesaid or which may be assigned by the Minister.

(3) Where by or under this Act the Commissioner is empowered to exercise any powers or to perform any duties, he may in writing delegate subject to such conditions and restrictions as may be specified in such written delegation, the exercise of such powers or the performance of such duties to any person described by name or office;

(3) The Commissioner may exercise all such powers as may be necessary or expedient for the purposes of carrying out his functions under this Act.

Provided that nothing in this subsection shall apply to any power to make subsidiary legislation conferred upon the Commissioner by or under this Act. (4) Where the Commissioner delegates the exercise of any powers or the performance of any duties to any person pursuant to subsection (3), the person so delegated shall in this Act be referred to as an authorised officer. (5) The Commissioner may appoint with the approval of the Minister and subject to such terms and conditions as may be specified in the letter of appointment, agents to transact any business or to do any act required to be transacted or done in the execution of his functions, powers and duties or for the better carrying into effect the purpose of this Act; and the agent so appointed shall in this Act be referred to as the authorised agent. 6. (1) Subject to the provisions of this Act, the functions of the Commissioner shall be to regulate, control and plan the development of all lands within the Federal Territory and the use of such lands and buildings and to perform any such other functions as the Minister may assign to him. (2) In particular and without prejudice to the generality of the foregoing provisions, the Commissioner may, and shall if directed by the Minister – (a) prepare and implement the development plan; (b) undertake, assist and encourage the collection, maintenance and publication of statistics, bulletins and other publications relating to town planning; (c) prepare and furnish reports relating to the working of this Act; and (d) perform any other function which is supplemental, incidental or consequential to any of the

PART III: DEVELOPMENT PLANS

7. (1) On the date of this Act coming into force or as soon as possible thereafter, the Commissioner shall submit the draft structure plan prepared by him to the Minister for the Minister’s consent to publish a public notice in the Gazette and in such local newspapers as the Commissioner may determine, of the preparation of the draft structure plan for the Federal Territory. (2) The public notice under subsection (1) shall contain – (i) particulars of the place or places where copies of the draft structure plan may be inspected and where copies may be purchased on payment of the prescribed fees; (ii) invitation for objections in writing stating the grounds for the objections from any person with respect to the draft structure plan; and (iii) the period within which, but not less than one month from the date the notice is published, such objections may be made, provided that the period of objection may be extended by the Commissioner if he considers it necessary. (3) For the purpose of considering and reporting on any objection made pursuant to subsection (2) the Minister shall appoint a Committee hereinafter in this Act referred to as the “the Committee” comprising of not less than three persons to be appointed by the Minister. (4) If no objection is received, the Commissioner shall on, the expiry of the period within which objections may be made, submit the draft structure plan to the Minister for his decision pursuant to section 8. (5) Where any objection is received, the Commissioner shall inform the Committee which shall consider and report on such objection. (6) In considering any objection the Committee shall as soon as practicable hear any person including representatives of Government Departments

113

or statutory bodies who in filing the objection has made a request to be heard. (7) After the Committee has heard and considered the objections it shall within a reasonable time, but not later than six months or such extended period as the Minister may allow after the date of the last hearing, make a report to the Commissioner and the Commissioner shall consider the report of the Committee and may make such amendments to the draft structure plan as he considers proper and shall submit the draft structure plan with or without amendments together with the report of the Committee to the Minister not later than three months from the date of the receipt of the report from the Committee or such other extended period as the Minister may allow. 8. As soon as may be after the receipt of the draft structure plan, pursuant to subsection (4) or (7) of section 7 the Minister may – (i) approve it; or (ii) approve it with such modifications, as he may consider necessary; or (iii) return it to the Commissioner for further consideration before granting his approval; or (iv) reject the plan. 12. The Commissioner with the approval of the Minister may at any time by notification in the Gazette and in such local newspapers as the Commissioner may determine, declare any area not already shown to be an action area on the development plan to be an action area or may revoke any action area shown on the development plan. 13. (1) The Commissioner in the course of preparing a draft structure plan for the Federal Territory or before the Minister approves or rejects a draft structure plan that the Commissioner has prepared, may, if he thinks it desirable, prepare a draft local plan for any part of the area. (2) Where a structure plan for the Federal Territory has come into effect, the Commissioner shall as soon as practicable consider, and thereafter keep under review, the desirability of preparing and, if he considers it desirable and he has not already done so, shall prepare, a draft local plan for any part or for the whole of the Federal Territory. (3) A draft local plan shall consist of a map and a written statement and shall –

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(a) formulate, in such detail as the Commissioner thinks appropriate, his proposals for the development and use of land in the area of the local plan, including such measures as the Commissioner thinks fit for the improvement of the physical environment and the improvement of transportation; and (b) contain such matters as the Minister may in any particular case specify. (4) A draft local plan for an area shall be accompanied by such diagrams, illustrations, and descriptive matter as the Commissioner thinks appropriate for the purpose of explaining or illustrating the proposals in the plan and the diagrams, illustrations, and descriptive matter shall be treated as forming part of the plan. (5) If an area is indicated as an action area in a structure plan or declared to be an action area under section 12, the Commissioner shall, as soon as practicable after the structure plan comes into effect, prepare a draft local plan for that area. (6) In formulating his proposals in a draft local plan, the Commissioner shall ensure that the proposals conform generally to the structure plan as it stands for the time being, whether or not it has come into effect, and shall have regard to any information and other considerations that appear to him to be relevant, or that may be prescribed, or that the Minister may in any particular case direct him to take into account. 14. When the Commissioner has prepared a draft local plan, he shall, before adopting it under section 16 but not before the structure plan comes into effect, publish a public notice in the Gazette and in such local newspapers as the Commissioner may determine of the preparation of the draft local plan and subsection (2) of section 7 shall apply with such modifications as may be necessary. 15. The Commissioner shall wherever practicable hear any person including the representative of Government department or statutory body who has made a request to be heard at the time of filing the objection or making; representation and if necessary he may call for a local enquiry. 16. (1) After the expiry of the period afforded for making objections to or representations in respect of a draft local plan or, if such objections or representations have been duly made during that period

after considering the objections or representations, the Commissioner may with the approval of the Minister, subject to subsection (2) adopt the plan either as originally prepared or as modified so as to take account of the objections or representations or for any matters arising therefrom, and thereupon the plan shall come into effect. (2) The Commissioner shall cause the fact of his adoption of a draft local plan to be published in the Gazette and in such local newspapers as the Commissioner may determine, and of the place or places where the copies of such plan may be inspected and where copies may be purchased on payment of the prescribed fee. 17. (1) The Commissioner may at any time make proposals for the alteration, addition, revision, repeal or replacement in whole or in part of a local plan. (2) Without prejudice to subsection (1), the Commissioner shall if the Minister gives him a direction in that behalf in respect of a local plan, as soon as practicable prepare proposals of a kind specified in the direction, being proposals for the alteration, addition, revision, repeal or replacement in whole or in part of the local plan. (3) Subsection (6) of section 13 and sections 14, 15 and 16 shall apply in relation to the making of proposals for the alteration, addition, revision, repeal or replacement in whole or in part of a local plan. 18. (1) The Minister may at his own instance or on the recommendation of the Commissioner and by order published in the Gazette and any local newspaper as specified by the Commissioner suspend the development plan or part thereof for such period and in respect of such area within the Federal Territory as the Minister may deem fit if he is satisfied that having regard to such special circumstances it is expedient so to do. (2) Where the Minister makes an order under subsection (1), he may in that order provide for such adaptation or modification of the provisions of this Act as may be necessary to bring them into accord with the suspension of the development plan or any part thereof in respect of the area to which the suspension relates.

PART IV: PLANNING CONTROL

19. (1) Subject to the provisions of this Act no person shall use or permit to be used any land or building or commence, undertake or carry out any development otherwise than in conformity with the development plan or any planning permission granted under this Act in respect of the development. (2) Notwithstanding subsection (1), the Commissioner may permit upon such terms and conditions as may be specified in the permit the continuance for such period as may be specified therein of the use of any land or building for the purposes and to the extent for and to which it was being used prior to the date this Act comes into force. 20. (1) Without prejudice to subsection (2) of section 19, no person shall commence, undertake or carry out any development irrespective of whether or not the development is in conformity with the development plan unless – (a) a development order granting planning permission, in respect of the development has been issued to him under this Act; and (b) where in respect of a development the provisions of section 40 apply, he has complied with the provisions of section 41. (2) Notwithstanding subsection (1), no planning permission shall be necessary – (a) for carrying out such works necessary for the maintenance, improvement or other alteration of any building which affect only the interior of the building and which do not – (i) involve any change in the use of the land or building; (ii) materially affect the external appearance of the building; (iii) involve any increase in height or floor spaces of the building; (iv) involve any addition to or alteration of a building which affects or is likely to affect its drainage, sanitary arrangements or its soundness; or (v) contravene or be inconsistent with any provision in the development plan; (b) for any minor works or for the construction of awnings or extensions of such size and

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materials as the Commissioner may by policy decision exempt; (c) for the carrying out by the Federal or the State Government or the City of any works required for the making, maintenance or improvement of a highway, road or public street; (d) for the carrying out by the Federal or the State Government or the City or any authority established by law to provide amenities of any works for the purpose of laying, inspecting, repairing or renewing any drains, sewers, mains, pipes, cables or other apparatus including the breaking open of any road or other land for that purpose; (e) for the excavations (including wells) made in the ordinary course of agricultural operations; (f) for the construction of road intended to give access to land used solely for agricultural purposes; (g) for the use of any land or building for a period not exceeding one month or such further period as the Commissioner may allow for purposes of – (i) a temporary mobile cinema, theatre, or show; (ii) a temporary amusement park, fair, or exhibition; or (iii) a temporary ceremony or festivity of a religious, social, or other character; and for any development necessary to give effect to such use; (h) for the construction or erection on any land of temporary buildings for the accommodation of works involved in the construction or erection of a building on the land, for which planning permission has been granted;

22. (1) The Commissioner shall have power exercisable at his discretion to grant planning permission or to refuse to grant planning permission in respect of any development irrespective of whether or not such development is in conformity with the development plan; provided however the exercise of the discretion by the Commissioner under this subsection shall be subject to the provisions of subsection (4) and section 23. (2) Where the Commissioner decides to grant planning permission in respect of a development he may issue a development order – (a) granting planning permission without any condition in respect of the development; (b) granting planning permission subject to such condition or conditions as the Commissioner may think fit in respect of the development: Provided that the Commissioner shall not issue a development order under this subsection unless he is satisfied that the provision of section 41 relating to the assessment of development charges has been complied with. (3) The Commissioner in dealing with an application for planning permission shall take into consideration such matters as are in his discretion expedient or necessary for purposes of proper planning and in this connection but without prejudice to the discretion of the Commissioner to deal with such application, the Commissioner shall as far as practicable have regard to – (a) the provisions of the development plan and where the local plan has not been adopted, the Comprehensive Development Plan; and

(j) for the making of such change in the use of land or building as the Commissioner may prescribe to be a change for which no planning permission is necessary.

(b) any other material consideration: Provided that, in the event of there being no local plan for an area and the Commissioner is satisfied that any application for planning permission should not be considered in the interest of proper planning until the local plans for the area have been prepared and adopted under this Act then the Commissioner may either reject or suspend the application.

21. (1) An application for planning permission in respect of a development shall be made to the Commissioner and shall be in such form and shall contain such particulars and be accompanied by such documents, plans and fees as may be prescribed.

(4) Upon the receipt of an application for planning permission the Commissioner shall within such time as may be prescribed either grant or refuse the application and when the application is granted subject to condition or refused, the

(i) for the use of any land or building within the curtilage of a dwelling-house for any purpose incidental to the enjoyment of the dwelling-house as such; or

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Commissioner shall give his reasons in writing for his decision.

ified in a development order granting planning permission in respect of such development;

23. (1) An appeal against the decision of the Commissioner made under subsection (1) or (2) of section 22 may be made to the Appeal Board within one month from the date of communication of such decision to him, by any applicant aggrieved by the decision of the Commissioner in refusing his application for planning permission or who is aggrieved by any condition imposed by the Commissioner in granting the planning permission in respect of his application.

(d) commences, undertakes or carries out any development where the development order in respect of such development has lapsed under section 24;

(2) In considering any appeal the Appeal Board shall hear the appellant and the Commissioner. (3) After hearing the appeal, the Appeal Board may make an order – (a) confirming the decision of the Commissioner and dismissing the appeal; or (b) allowing the appeal by directing the Commissioner to grant planning permission subject to such conditions as the Appeal Board may think fit; or (c) allowing the appeal by directing the Commissioner to remove or modify any condition subject to which planning permission has been granted or to replace such condition with such other condition as the Appeal Board may think fit. 25. (1) If it appears to the Commissioner that any development order issued under this Act or under Part V of the City of Kuala Lumpur (Planning) Act, 1973 should be revoked or modified, the Commissioner may order such development order or permission or approval to be revoked or modified to such extent as appears to him to be necessary. 26. (1) Any person who whether at his own instance or at the instance of any other person – (a) commences, undertakes or carries out development in contravention of subsection (1) of section 19 or uses or permits to be used any land in contravention of that section; (b) commences, undertakes or carries out development in contravention of subsection (1) of section 20; (c) commences, undertakes or carries out development in contravention of any condition spec-

(e) commences, undertakes or carries out any development where the development order or permission or approval for building plan as the case may be in respect of such development has been revoked pursuant to section 25 or subsection (2) of section 41; or (f) commences, undertakes or carries out development where the development order or the permission or approval for building plan as the case may be in respect of such development has been modified pursuant to section 25 as a result of which the development so commenced, undertaken or carried out by such person is inconsistent with such modified development order or permission or approval, is guilty of an offence and on conviction is liable to a fine not exceeding fifty thousand ringgit and in the case of a continuing offence to a further fine which may extend to five hundred ringgit for every day during which the offence continues after conviction for the first commission of the offence. (2) The owner of the land in respect of which any act that constitutes an offence under subsection (1) is done shall be deemed to have permitted the doing of that act and is liable for the like offence to the like penalty. (3) Where the use of land or building is permitted to be continued by the Commissioner pursuant to the provisions of subsection (2) of section 19, any person who continues such use on or after the expiry of the period specified in the permit allowing such use or who continues such use in contravention of any terms or conditions under which such use is permitted, is guilty of an offence and on conviction is liable to a fine not exceeding twenty-five thousand ringgit and in the case of a continuing offence to a further fine which may extend to five hundred ringgit for every day during which the offence continues after conviction for the first commission of the offence.

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PART V: PRESERVATION AND PLANTING OF TREES

ground provided that the girth of the tree with buttress shall be measured above the buttress.

31. (1) It shall be the duty of the Commissioner whenever it is appropriate at the time of granting planning permission or at any time thereafter to impose conditions for the preservation or planting of trees and the making up of open spaces.

(3) Any person who fells or cuts a tree in contravention of subsection (1) or who wilfully causes the death of a tree to which that section applies is guilty of an offence and is liable on conviction to a fine not exceeding five thousand ringgit.

(2) The Commissioner may at the time of granting planning permission and at any time thereafter require the applicant to deposit and deposit further with the Commissioner such amount as the Commissioner may determine to ensure that –

(4) Where in any proceeding for an offence under this section it is proved that a tree was felled or cut, it shall be presumed, until the contrary is proved, that the tree had been felled or cut by the occupier of the land on which the tree was growing.

(a) the condition for the preservation or planting of trees will be complied with; and

37. (1) If any tree in respect of which a tree preservation order is for the time being in force is removed or destroyed in contravention of the order or is removed or destroyed or dies, it shall be the duty of the owner of the land, unless on his application the Commissioner dispenses with this requirement, to plant another tree of an appropriate size and species at the same place as he reasonably can.

(b) any open spaces are made up according to the approved plans and specifications. (3) The amount determined by the Commissioner shall be deposited within such period as may be specified by the Commissioner. 32. (1) If – (a) the condition for the preservation and planting of trees is not complied with; or (b) the open spaces are not made up in accordance with the approved plans and specifications, to the satisfaction of the Commissioner in any case where a deposit has been made under section 31, the Commissioner may, at any time, after service of a notice on the person who made the deposit cause the trees to be planted, or execute or cause works to be carried out to ensure that the open spaces are made up in accordance with the approved plans and specifications. (2) The cost of any works to be carried out by the Commissioner under subsection (1) shall be recovered from the deposit made under section 31. 36. (1) Notwithstanding section 35 no person shall, without the written permission of the Commissioner fell or cut any tree with a girth exceeding one metre growing on any land except where – (a) the felling or cutting is for the prevention of imminent danger; or (b) the felling or cutting is in compliance with any written law. (2) For the purpose of subsection (1) the girth of a tree shall be measured half a metre from the

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(2) The duty imposed by subsection (1) on the owner of the land shall attach to the person who is from time to time the owner of the land and may be enforced as provided. 38. If any person, in contravention of a tree preservation order cuts down or wilfully destroys a tree or tops or lops the tree in such a manner as to be likely to destroy it, he is guilty of an offence and is liable on conviction to a fine not exceeding five thousand ringgit. 39. If a tree preservation order which requires replacement of a tree or trees is not complied with, the Commissioner may proceed to replace the tree or trees of such size and species as he may decide and the cost and expenses incurred thereby shall be paid by the person in default or the owner.

PART VI: DEVELOPMENT CHARGE

40. (1) Where a local plan or an alteration of a local plan effects a change of use, density, plot ratio or floor area in respect of any land so as to enhance the value of the land, a development charge at the prescribed rates shall be levied in respect of any development of the land commenced, undertaken, or carried out in accordance with the change.

41. (1) Before granting planning permission for any development, the Commissioner shall determine whether a development charge is payable in respect of the development and, if payable, the amount thereof, and shall serve on the applicant for planning permission an order in the prescribed form demanding payment of the amount: Provided that the Commissioner may in his discretion permit the development charge to be paid by such number of instalments as he deems just together with interest thereon at such rate as he may fix. PART VII: APPEAL BOARD

45. (1) For the purpose of this Act there shall be appointed an Appeal Board consisting of three members, one of whom shall be the Chairman, which in this section is referred to as “the Chairman”, and two other members who shall serve in the Appeal Board pursuant to subsection (5). (8) Every decision of the Appeal Board shall be made by the Chairman after considering the opinion of the other two members but in making his decision the Chairman shall not be bound to concur with the opinion of the other two members or either of them provided that the Chairman shall record his reasons for dissenting therefrom. (12) An order made by the Appeal Board on an appeal before it shall be final, shall not be called into question in any court, and shall be binding on all parties to the appeal or involved in the matter. (13) For the purposes of the Penal Code, the Appeal Board shall be deemed to be a court and every members thereof shall be deemed to be a public servant. (14) The Minister may make rules to prescribe the procedure of appeals to the Appeal Board and the fees payable in respect thereof and to regulate the proceedings of the Appeal Board but, until such rules are made and in operation the Appeal Board shall, for the purpose of its proceedings, as far as practicable follow the Subordinate Courts Rules 1980.

PART VIII: PURCHASE NOTICE AND ACQUISITION OF LAND

46. (1) Without prejudice to the operation of any written law for the time being in force relating to the acquisition of land, a registered proprietor of land – (a) for the development of whose land planning permission has been refused under section 22 on the grounds that the land is indicated in the development plan, whether expressly or by implication, as land intended for a public purpose and who claims that, by reason of the refusal, the land is incapable of reasonable beneficial use; or (b) who claims that, by reason of compliance with a requisition notice in respect of his land served on him under section 30, the land is incapable of reasonable beneficial use, may, in the prescribed manner, serve on the Commissioner a purchase notice in the prescribed form, requiring his interest in the land to be purchased in accordance with this section. (2) There shall be served with the purchase notice a statement of the facts and reasons to justify the claims in the notice, together with copies of any available documents, including affidavits that may furnish proof of the facts and reasons. (3) The Commissioner shall investigate the claim made in every purchase notice served under subsection (1) and, if it is satisfied that the notice is in the prescribed form and has been prepared and served in the prescribed manner, shall submit the notice to the Minister together with the statement and any other documents served with the notice and – (a) in the case of a purchase notice of a person claiming under paragraph (a) of subsection (1), a detailed report concerning the refusal of planning permission giving rise to the claim, a statement of the specific purpose for which the land is intended, and a statement of the opinion of the Commissioner as to whether the land is capable of reasonable beneficial use; and (b) in the case of a purchase notice of a person claiming under paragraph (b) of subsection (1), details of the requisition notice giving rise to the claim and a statement of the opinion of the

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Commissioner as to whether the land is capable of reasonable beneficial use. (4) If the Commissioner is not satisfied that the purchase notice is in the prescribed form or has been prepared or served in the prescribed manner, he shall reject the purchase notice, but without prejudice to the service of another purchase notice. (5) The Minister, after considering the purchase notice and all other matters submitted by the Commissioner under subsection (3) shall – (a) if the Minister is satisfied that the land to which the purchase notice relates is capable of reasonable beneficial use, reject the purchase notice; or (b) if the Minister is not satisfied that the land to which the purchase notice relates is capable of reasonable beneficial use or is satisfied that the land is not capable of such use, direct the Commissioner to initiate steps towards the acquisition of the land in accordance with the provisions of the Land Acquisition Act 1960. (6) For the purposes of the Land Acquisition Act 1960 – (a) any land intended to be acquired pursuant to this section shall be deemed to be needed by the Commissioner; and (b) the land shall be deemed to be needed for the purpose referred to in paragraph (b) of section 3 of the said Act. PART IX: ACTION AREAS AND DEVELOPMENT AREAS

47. (1) Where an area has been shown to be an action area on the development plan or has been declared to be an action area under section 12, the Commissioner shall either before or after adoption of the local plan for the area, serve an action area order on the owner of the lands affected thereby informing them –

(iii) the period within which the development is to be commenced in the area and where the Commissioner considers it necessary, requesting that an application for planning permission be made within a specified period. (2) If within the period specified in the action area order the owner or owners fail to apply for planning permission or, if there is no such period specified and the owner fails to commence development within the period stated in the order, the Commissioner may with the approval of the Minister, by notification in the Gazette and in such local newspaper determined by the Commissioner declare the area or any part thereof to be a development area. (3) Upon an area being declared to be a development area, it shall be the duty of the Commissioner to acquire, by purchase or by compulsory acquisition under the Land Acquisition Act 1960, all alienated lands situated within the area, and to develop the area in accordance with the local plan. 49. (1) For the purpose of developing a development area in the discharge of his duty under this part, the Commissioner may with the approval of the Minister appoint or employ agents, and enter into any arrangement for sharing profits, union of interests, cooperation, joint venture, or reciprocal concession with any person, company or body. (2) The Commissioner may with the approval of the Minister establish a corporation by such name as the Commissioner thinks fit, to develop, carry out and have the charge, conduct and management of any project scheme or enterprise that has been planned or undertaken by the Commissioner in the discharge of his duty under this Part of developing a development area.

(i) the date on which the area was indicated as an action area on the development plan or declared to be such under section 12;

50. The Commissioner may, with the approval of the Minister and of the Minister of Finance on such terms and conditions as he may specify, borrow such sums of money as are necessary for financing the development of a development area.

(ii) the type of development, redevelopment or improvement that would be permitted or likely to be permitted either by individual lots or as a comprehensive development;

51. The Commissioner may with the approval of the Minister sell, let, or otherwise deal with or dispose of any land or property in a development area.

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PART X: MISCELLANEOUS PROVISIONS

52. (1) An authorised officer may, with or without assistants or workmen, enter upon or into any land or building for the purpose of – (a) making any enquiry, inspection, measurement or survey or taking the levels of such land or building; (b) setting out boundaries and intended lines of works; (c) marking such levels, boundaries and lines by placing marks and cutting trenches; (d) examining works under construction and ascertaining the course of sewers and drains; (e) digging or boring into the sub-soil; (f) ascertaining whether any development has been commenced, undertaken or carried out in contravention of any provision of this Act or rules made thereunder; and (g) doing any other acts necessary for the efficient administration of this Act. 59. Any person who, without the authority of the Commissioner, wilfully destroys, damages, defaces, moves, or otherwise interferes with any mark placed

or set up for the purpose of indicating any level or direction necessary for the carrying out of the purposes of this Act commits an offence and on conviction – (a) is liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding one year or to both; and (b) may, in addition to or in place of that penalty, be ordered to pay to the Commissioner a sum, recoverable as a fine, not exceeding three times the cost of repairing or re-emplacing the mark and of making any survey rendered necessary by the act in respect of which he is convicted. 63. (1) All developments intended exclusively for religious, educational, recreational, social, welfare, or charitable purposes and not for pecuniary profit are exempted from the payment of all charges and fees under this Act. (2) The exemption under subsection (1) does not extend to development charges. 64. (1) The Commissioner may with the approval of the Minister make rules generally for the better carrying out of the provisions of this Act.

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CHINA

The Law of Land Administration of the People’s Republic of China Summary: The People’s Republic of China Law of Land Administration, enacted in 1999, sets out procedural and legal requirements for development and use of land. In this chapter, the law is reproduced in part. The national law provides that all land is owned by the People’s Republic. Specifically, urban land is owned by the state directly and rural and suburban peasants collectively own rural and suburban land. The law requires that collectively held land be managed by economic organizations of the collective owners. The law also permits that collectively held land be divided into parcels for individual use, on the condition that the individual use is rational and that the user manages and protects the land. The Land Administration Law further specifies China’s land use priorities, which include preservation and reclamation of farmland, maximum utility, and environmental protection. The planning and administration authorized by this law, to be carried out by all levels of government, must be carried out with consideration to China’s land use priorities. Chapter Seven, omitted here, indicates that penalties will be imposed for violations of various provisions of the Law, but it does not provide specific penalties. Omitted portions of the law are indicated by an ellipsis.

CHAPTER ONE: GENERAL PROVISIONS

Article 1. The law is formulated in compliance with the Constitution with a view to strengthening the administration of land, safeguarding the socialist public ownership of land, protecting and developing land resources, ensuring a rational use of and giving a real protection to cultivated land to promote sustainable development of the socialist economy. Article 2. The People’s Republic of China resorts to

a socialist public ownership, i.e. an ownership by

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the whole people and ownerships by collectives, of land. In ownership by the whole people, the State Council is empowered to be on behalf of the State to administer the land owned by the State. No unit or individual is allowed to occupy, trade or illegally transfer land by other means. Land use right may be transferred by law. The State may requisition land owned by collectives according to law on public interests. The State introduces the system of compensated use of land owned by the State except the land that has been allocated for use by the State according to law. Article 3. To cherish and give a rational use to the

land as well as to give a true protection to the cultivated land are seen as a basic principle of land use in the country. The people’s governments at all levels should manage to make an overall plan for the use of land to strictly administer, protect and develop land resources and stop any illegal occupation of land. Article 4. The State is to place a strict control on

the usages of land. The State shall compile general plans to set usages of land including those of farm or construction use or unused. A strict control is to place on the turning of land for farm use to that for construction use to control the total amount of land for construction use and exercise a special protection on cultivated land. . . . Land should be used strictly in line with the purposes of land use defined in the general plan for the utilization of the land whether by units or individuals. Article 5. The land administrative department of

the State Council shall be unifiedly responsible for the administration and supervision of land in the whole country. . . .

Article 7. People’s governments shall award units or individuals who have made outstanding achievements in protecting and developing land resources, rational utilization of land and in carrying out research in this regard. CHAPTER TWO: OWNERSHIP AND RIGHT OF USE OF LAND

Article 8. Land in urban districts shall be owned by

the State. Land in the rural areas and suburban areas, except otherwise provided for by the State, shall be collectively owned by peasants including land for building houses, land and hills allowed to be retained by peasants. Article 9. Land owned by the State and land collectively owned by peasants may be allocated to be used by units or individuals according to law. Units or individuals using land shall be responsible for the protection, management and a rational use of the land. Article 10. In lands collectively owned by peasants those that have been allocated to villagers for collective ownership according to law shall be operated and managed by village collective economic organizations or villagers’ committee and those that have been allocated to two or more peasants collective economic organizations of a village, shall be operated and managed jointly by the collective economic organizations of the village or villagers’ groups; and those that have been allocated to township (town) peasant collectives shall be operated and managed by the rural collective economic organizations of the township (town). . . .

CHAPTER THREE: GENERAL PLANS FOR THE UTILIZATION OF LAND

Article 17. People’s governments at all levels shall

manage to compile general plans for land uses in accordance with the national economic and social development program, requirements of national land consolidation and resources and environmental protection, land supply capacity and the requirements of various construction projects. The validity term of the general plans for land use shall be determined by the State Council.

Article 18. General plans for land use at a lower

level shall be compiled according to the general plans for the utilization of land at the next higher level. The total amount of land for construction uses in the general plans of land use compiled by local people’s governments at all levels shall not exceed the controlled targets set in the general plans for land use at the next higher level and the total amount of cultivated land should not be lower than the controlled targets set in the general plans for land use at the next higher level. In mapping out the general plans for land use, the provinces, autonomous regions and municipalities shall ensure that the total amount of cultivated land under their jurisdiction shall not be reduced. Article 19. General plans for land use should be mapped out according to the following principles:

1. Strictly protect the basic farmland and control the occupation of agricultural land for nonagricultural purposes. 2. Raise the utilization rate of land. 3. Make an overall plan and arrangements about the use of land in various kinds and various areas. 4. Protect and improve the ecological environment to ensure a sustainable use of land. 5. Keep a balance between cultivated land occupied and cultivated land developed and reclaimed. Article 20. General plans for land use at the county level should define the areas and purposes of land use.

General plans for the land use at the township (town) level should define the areas for the utilization of land and define the purpose of each tract of land according to the actual conditions for the use of land and make an announcement. Article 21. General plans for land use shall be examined and approved level by level. . . . Article 22. The amount of land used for urban construction shall conform to the standards prescribed by the State so as to make full use of the existing land for construction purposes, not to occupy or occupy as less agricultural land as possible. . . .

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Article 24. People’s governments at all levels shall

strengthen the administration of plans for land use and exercise control of the aggregate land for construction purposes. . . . Article 26. Revision of the general plans for land use

shall be approved by the original organ of approval. Without approval, the usages of land defined in the general plans for the utilization of land shall not be changed. Whereas the purpose of land use defined in the general plans for the utilization of land needs to be changed due to the construction of large energy, communications, water conservancy and other infrastructure projects approved by the State Council, it shall be changed according to the document of approval issued by the State Council. . . . Article 27. The State fosters land survey system.

The land administrative departments of the people’s governments at and above the county level shall carry out land surveys together with related departments at the same level. Land owners or users should provide good cooperation and necessary data and materials required. Article 28. Land administrative departments of the

people’s government at and above the county level shall, together with related departments at the same level, grade the land according to the results of the surveys, their planned uses and the unified standards formulated by the State.

ments at all levels in compiling the general plans for the utilization of land. Article 30. The State shall establish the national

land management information system to conduct dynamic monitoring of the utilization of land. CHAPTER FOUR: PROTECTION OF CULTIVATED LAND

Article 31. The State protects the cultivated land

and strictly controls the conversion of cultivated land into non-cultivated land. Article 34. The State fosters the system of pro-

tecting the basic farmland. The following cultivated land shall be demarcated as basic farmland protection areas and subject to stringent control according to the general plans for the utilization of land: 1. Cultivated land in the grain, cotton and oilbearing crops production bases approved by the land administrative department of the State Council or the local people’s governments at and above the county level; 2. Cultivated land with good water conservancy and water and soil conservation facilities and medium-and low-yielding land where the execution of amelioration plan is in progress or medium-and low-yielding land that is transformable. 3. Vegetable production bases; 4. Experimental plots for research and teaching;

Article 29. The State establishes the land statistical

system. Land administrative departments of the people’s governments at and above the county level shall, together with the statistical departments at the same level shall, formulate plans for statistical surveys and compile statistics about land according to law and regularly issue statistical data about the land. Land owners and users shall provide related materials and it is strictly forbidden to provide false and concealed materials or refuse to provide or delay the delivery of materials. The statistical materials about the land areas issued by land administrative departments and statistical departments serve as the basis for people’s govern-

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5. Other cultivated land that should be designated as basic farmland protection areas as provided for by the State Council. . . . Article 35. People’s governments at all levels shall

adopt measures to maintain and protect irrigation and drainage facilities, ameliorate the soil to raise fertility and prevent desertification, salinization, water loss and soil erosion and pollution. Article 36. Land shall be used sparingly for non-

agricultural construction purposes. Whereas wasteland can be used, no cultivated land should be occupied; whereas poor land can be used, no good land should be occupied. . . .

Article 37. No unit or individual is allowed to let the land to lie idle or go wasted. Whereas a cultivated land which has been occupied for nonagricultural construction upon approval and can surely start construction within one year is found cultivable and yieldable, it should be cultivated by the unit or individual that originally cultivates the land or cultivated by units occupying the land. Whereas construction work fails to start for over one year, land idling fees shall be paid according to the provisions by various provinces, autonomous region and municipalities. Whereas construction work fails to start for two successive years, the people’s governments at and above the county level shall revoke the use right of the land with the approval of the original organ of approval. Whereas the land used to be owned by peasant collectives, it should be turned over to original rural collective economic organizations for recultivation. . . . Article 38. The State encourages development of unused land by units or individuals according to the general plans for the utilization of land and under the precondition of protecting and improving the ecological environment, preventing water loss, soil erosion and desertification.

Land suitable for agricultural use should have the priority of developing into land for agricultural use. The State protects the legitimate rights and interests of developers. Article 39. Reclaiming unused land shall go through scientific argumentation and evaluation and can proceed according to law after approval within the reclaimable areas demarcated in the general plans for the utilization of land. It is forbidden to destroy forests and grassland in the process of land reclamation. It is forbidden to carry out landfill of lakes and occupy beachland of rivers.

Whereas reclaimation of a land or rounding up of a land for reclaimation would give harm to ecological environment the land concerned should be restored as forerts, pasture fields or lakes step by step and in a planned manner according to the general plans for the utilization of land. . . . Article 41. The State encourages land consolida-

tion. People’s governments of counties and town-

ships (towns) shall organize rural collective economic organizations to carry out comprehensive consolidation of fields, water surface, roads, woods and villages according to the general plans for the utilization of land to raise the quality of cultivated land and increase areas for effective cultivation and improve the agricultural production conditions and ecological environment. Local people’s governments at all levels shall adopt measures to ameliorate medium- and low-yielding land and consolidate idle and scattered and abandoned land. Article 42. Whereas land is damaged due to dig-

ging, cave-in and occupation, the units or individuals occupying the land should be responsible for reclamation according to the relevant provisions of the State; for lack of ability of reclamation or for failure to meet the required reclamation, land reclamation fees shall be paid, for use in land reclamation. Land reclaimed shall be first used for agricultural purposes. . . . CHAPTER SIX: SUPERVISION AND EXAMINATION

Article 66. Land administrative departments of the

people’s governments at and above the county level shall exercise supervision and examination on violations to the land administrative law and administrative decrees. . . . Article 67. In performing their supervising and

examination duties, the land administrative departments of the people’s governments at and above the county level have the right to adopt the following measures: 1. Demand for documents and materials concerning land-use rights from units or individuals for examination, review or copying. 2. Demand explanations from units or individuals concerned in regard to land-use rights; 3. Enter into land illegally occupied by units or individuals under examination to carry out on-thespot surveys, and 4. Command units or individuals that have occupied land illegally to stop their acts of violating the land administrative law and decrees. . . .

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Law of the People’s Republic of China on Water and Soil Conservation Summary: The Law on Water and Soil Conservation was adopted by the Standing Committee of the Seventh National People’s Congress on June 29, 1991, and became effective the same day. The purpose of this law is to undertake nationwide water and soil conservation and coordinate the overall control of water and soil losses. The Law outlines prevention, rehabilitation, supervision, and legal responsibility measures and prioritizes the implementation of a national “prevention first” policy. Water and soil resources are conserved through the implementation of conservation plans; organized activities of nationwide water and soil conservation in priority areas; and organized monitoring of water and soil losses. Power is vested in the State Council’s department of water administration to establish a monitoring network for water and soil conservation. All units and individuals are obligated to protect resources and all have the right to report offenders. To encourage water and soil conservation, all citizens are to engage in the planting of trees or their seeds, and agricultural uses of hillsides and the felling of trees are strictly controlled. For land development projects, environmental impact statements must include an approved conservation program. Local governments allow individuals to organize in agricultural collective economic organizations. Any dispute arising among regions over prevention and control are to be solved through consultation or, if no settlement is reached, through the government at the next higher level. The Law addresses the importance of publicity and education to engender adherence, and it provides incentives for successful prevention and control of soil erosion and appropriate use of water and soil resources.

Article 3. All units and individuals shall have the obligation to protect water and soil resources, prevent and control soil erosion, and also have the right to report against any unit or individual that damages water and soil resources and causes soil erosion.

The full text of this law can be found at: http://us.tom.com/english/1914.htm

under the State Council and those under the local people’s governments at or above the county level

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CHAPTERS I – V CHAPTER I: GENERAL PROVISIONS

Article 1. This Law is formulated for the purpose

of the prevention and control of soil erosion, the protection and rational utilization of water and soil resources, the mitigation of disasters of flood, drought and sandstorm, the improvement of ecological environment and the development of production. Article 2. As used in this Law, the term “water and

soil conservation” means preventive and rehabilitative measures taken against soil erosion which is caused by natural factors or human activities.

Article 4. The state shall, in relation to the work of

water and soil conservation, implement the policy of prevention first, overall planning, comprehensive prevention and control, adoption of measures suited to local conditions, strengthening management and stress on beneficial results. . . . Article 6. The department of water administration

under the State Council shall be in charge of the work of water and soil conservation throughout the country. The departments of water administration under the local people’s governments at or above the county level shall be in charge of the work of water and soil conservation in areas under their respective jurisdiction. Article 7. The department of water administration

shall, on the basis of investigation and assessment of water and soil resources, draw up water and soil conservation plans in conjunction with other departments concerned. Such water and soil conservation plans shall be subject to the approval by the people’s governments at the corresponding levels. Any water and soil conservation plan approved by the local people’s government at or above the county level shall be submitted to the department of water administration under the people’s government at the next higher level for the record. Any modification to be made to an approved water and soil conservation plan shall be re-submitted for approval to the original approving department. The people’s governments at or above the county level shall incorporate the tasks specified in the water and soil conservation plans into their respective plans for national economic and social development, allocate special funds therefor and organize the implementation thereof. The people’s governments at or above the county level shall, in line with the actual conditions of soil erosion, designate key areas on which preventive and rehabilitative efforts against soil erosion shall be focused. Article 8. Units and individuals engaged in produc-

tion and construction activities which may cause soil erosion must adopt measures to protect the water and soil resources, and shall be responsible to take rehabilitative measures against the soil erosion resulted from their production and construction activities. Article 9. The people’s governments at various levels shall intensify the publicity of and education in water and soil conservation, and popularize scientific knowledge concerning water and soil conservation. Article 10. The state shall encourage the research in and raise the level of science and technology of water and soil conservation, popularize the advanced technology in water and soil conservation, and train in a planned way scientific and technological personnel in the field of water and soil conservation. Article 11. Units and individuals that have made outstanding achievements in the prevention and

control of soil erosion shall be awarded by the people’s government. CHAPTER II: PREVENTION

Article 12. The people’s governments at various

levels shall organize every citizen to engage in afforestation and encourage the planting of grass, thereby enlarging forest-covered areas and increasing vegetation. Article 13. The local people’s governments at var-

ious levels shall, in light of respective actual conditions, organize agricultural collective economic organizations as well as state owned agricultural, forest, and livestock farms to plant firewood forests, forage and green manure crops, and to conduct in a planned way the closing of hillsides for facilitating afforestation and growing grass and the rotation of closing and grazing periods, so as to check winds, fix drifting sand and preserve vegetation. Destroying forest or burning vegetation for land reclamation and stripping vegetation and digging up tree stumps on steep hillslopes or in arid regions shall be prohibited. Article 14. Reclamation of hillsides with a slope of over 25 degrees for cultivation of crops shall be prohibited. . . . Article 15. Anyone who reclaims waste hillsides

with a slope of above 5 degrees but under the prescribed reclamation-forbidden degrees must obtain prior approval from the department of water administration under the people’s government at the county level; anyone who intends to reclaim waste hillslopes owned by the state may apply to the people’s government at or above the county level for going through the procedures for land reclamation only after obtaining approval from the department of water administration under the people’s government at the county level. Article 16. Felling of forest trees must be carried out

in a rational manner and in line with the local conditions, and clear felling shall be strictly controlled. Preventive measures against soil erosion shall be adopted in the felling areas and on skid trails, and reforestation shall be accomplished in good time after the felling. With respect to protective forests

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such as those for water supply conservation, water and soil conservation, windbreak and sand-fixation, felling shall only be permitted for tending and regeneration of forests. . . . Article 18. In the construction of a railway, highway or water project, the disturbance of vegetation shall be minimized; waste sand, rocks and earth thus created must be disposed of in an area specially designated for the purpose, and shall not be dumped out into any river, lake, reservoir or any ditch or canal other than the specially designated area; slope protection must be built or other land management measures adopted on hillslopes within the frontage of the railway and highway; after the project is completed, trees must be planted and grass grown on the earth-fetching area, excavated land surface and the exposed land surface for the disposition of waste sand, rock and earth, in order to prevent soil erosion.

In the establishment of a mining or electrical power enterprise or any other large or medium-sized industrial enterprise, the abandoned stripped topsoil, waste rock, tailings and residues must be disposed of in a specially designated area, and shall not be dumped out into any river, lake, reservoir or any ditch or canal other than the specially designated area. If the vegetation is damaged on account of the mining or construction, measures must be taken to rehabilitate the topsoil and vegetation, thereby preventing soil erosion.

Earth-fetching, sand-digging and quarrying shall be prohibited in areas in danger of land-collapsing or land-sliding or where mudrock flow is liable to occur. The scope of such areas shall be determined and announced by the local people’s governments at or above the county level. CHAPTER III: REHABILITATION

Article 21. The people’s governments at or above

the county level shall, in accordance with the water and soil conservation plans, organize competent administrative departments and units concerned to engage in a planned way in the rehabilitation of soil erosion. Article 22. In a water-eroded region, by taking a small river basin comprising the natural ravines and flanking hillslopes as a unit, a comprehensive system for the prevention and control of soil erosion shall be set up on the basis of overall planning and comprehensive rehabilitation.

In a wind-eroded region, such measures as exploitation of water resources, water diversion for sand removal, planting of trees and growing of grass, installation of artificial sandbreak and forest network shall be adopted to build a protective system for windbreak and sand-fixation, thereby controlling hazards of sand storms. Article 23. The state shall encourage the agricul-

Article 19. When the construction of a railway,

highway or a water project is carried out, a mining or electrical power enterprise or any other large or medium-sized industrial enterprise is established in a mountainous, hilly or sandstorm area, the environmental impact statement for the project must include a water and soil conservation programme approved by the department of water administration. The water and soil conservation programme shall be drawn up in accordance with the provisions of Article 18 of this Law. . . . Article 20. The local people’s governments at various levels shall take measures to strengthen the control over such production activities as mining, earth-fetching, sand-digging and quarrying, so as to prevent soil erosion.

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tural collective economic organizations and farmers in soil-eroded regions to carry out rehabilitation of soil erosion, and shall also practise a policy of giving support as to fund, energy, grain, taxation, etc.; the specific measures thereof shall be prescribed by the State Council. Article 24. The local people’s governments at vari-

ous levels shall organize agricultural collective economic organizations and farmers to manage in a planned way the cultivated land with a slope of above 5 degrees but under the reclamationforbidden degrees, by taking in line with different conditions such water and soil conservation measures as regulating drainage systems, building terraced fields, and practising a method of cultivation conducive to water and soil conservation.

Article 25. In soil-eroded regions, any individual who contracts for the use of land owned by the collective shall include the responsibility of rehabilitating soil erosion in the contract. Article 26. The rehabilitation of soil erosion on barren hills, waste valleys, barren hillocks and desolated beaches may be contracted to agricultural collective economic organizations, individual farmers or leaseholding household groups.

Where the rehabilitation of soil erosion on barren hills, waste valleys, barren hillocks or desolated beaches are contracted out, contracts for the rehabilitation of soil erosion shall be concluded according to the principle of the benefits derived therefrom to be enjoyed by the contractors for the rehabilitation. The trees planted on account of the contracted rehabilitation and the fruits yielded therefrom shall belong to the contractors; and the land expanded as a result of the contracted rehabilitation shall be used by the contractors. The state shall protect the lawful rights and interests of the parties to a contract for rehabilitation. Within the term of the contracted rehabilitation, if a contractor dies, his or her successor(s) may, in accordance with the agreements stipulated in the contract, continue to undertake the contract. Article 27. Any enterprise or institution must, in

the course of construction or production, adopt water and soil conservation measures, and shall be responsible for the rehabilitation of the soil eroded. If an enterprise or institution is unable to carry out the rehabilitation, the department of water administration shall undertake the task, and the cost thus entailed shall be borne by the enterprise or institution that has caused the soil erosion. The expenses for the prevention and control of soil erosion arising in the course of construction shall be allocated from the capital construction investment; the expenses for the prevention and control of soil erosion arising in the course of production shall be allocated from the production cost. Article 28. The people’s governments at or above

the county level shall organize departments concerned to inspect for acceptance the water and soil

conservasion facilities built and the trees and grass planted in soil-eroded regions. The management and protection of water and soil conservation facilities, experimental sites, trees and grass planted and other rehabilitation achievements shall be strengthened. CHAPTER IV: SUPERVISION

Article 29. The department of water administration under the State Council shall establish a monitoring network for water and soil conservation, so as to conduct monitoring and prediction of the nation-wide soil erosion developments and publicly announce the results thereof. Article 30. Personnel in charge of supervision over

water and soil conservation in the departments of water administration under the people’s governments at or above the county level shall have the right to carry out on-the-spot inspection on the situations of soil erosion and the prevention and control thereof in areas under their respective jurisdiction. Units and individuals that are being inspected must truthfully report the situations and provide necessary working conditions for the inspection. Article 31. Any dispute arising among regions over

the prevention and control of soil erosion shall be solved through consultation; if no settlement is reached through consultation, the case shall be handled by the people’s government at the next higher level. CHAPTER V: LEGAL RESPONSIBILITY

Article 32. In the case of any violation of the provi-

sions in Article 14 of this Law by cultivation crops on reclamation-forbidden hillslopes, the department of water administration under the people’s government at the county level shall order the cessation of the reclamation and the adoption of remedial measures, and may also impose a fine. Article 33. Where any enterprise, institution,

or agricultural collective economic organization, without approval of the department of water administration under the people’s government at the county level, reclaims waste hillsides with a

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slope of above 5 degrees but under the reclamationforbidden degrees, the department of water administration under the people’s government at the county level shall order the cessation of the reclamation and the adoption of remedial measures, and may also impose a fine. Article 34. In the case of earth-fetching, sanddigging or quarrying in areas in danger of landcollapsing or land-sliding or where mud-rock flow is liable to occur, as designated by the local people’s government at or above the county level, the department of water administration under the people’s government at or above the county level shall order the cessation of the above law-breaking acts and the adoption of remedial measures, and shall also impose a fine.

The imposition of a fine shall be subject to a decision by the people’s government at the county level on a report submitted by the department of water administration under the people’s government at the county level. The decision on ordering the suspension of business for rehabilitation shall be made by the people’s government at the municipal or county level; the suspension of business for rehabilitation for an enterprise or institution directly under the Central Government or a people’s government at the provincial level shall be reported to the State Council or the provision people’s government for approval. Any individual who engages in mining causes soil erosion and fails to carry out rehabilitation shall be punished in accordance with the provisions of the preceding two paragraphs.

Article 35. In the case of tree-felling in forest

areas without adopting water and soil conservation measures, thus causing serious soil erosion, the department of water administration shall report thereon to the people’s government at or above the county level for a decision to order a rectification within a fixed period of time and the adoption of remedial measures, and shall also impose a fine. Article 36. Any enterprise or institution that causes

soil erosion in the course of construction or production and fails to carry out rehabilitation may, in light of the harmful consequences thus entailed, be punishable with a fine or be instructed to suspend its business for rehabilitation; the responsible persons concerned shall be subjected to administrative sanctions by the unit where they work or by the competent departments at higher levels.

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Article 37. Whoever hinders, by use of violence

or threat, the performance of duty according to Law by personnel in charge of supervision over water and soil conservation shall be investigated for criminal responsibility according to law; those who refuse to accept or hinders the performance of duty by personnel in charge of supervision over water and soil conservation, but without resorting to violence or use of threat, shall be punished by the public security organ in accordance with the Regulations on Administrative Penalties for Public Security. . . . Article 39. Any individual or unit that causes dam-

age from soil erosion shall bear the responsibility of removing the damage, and shall compensate the units and individuals that have directly suffered the damage.

Environmental Protection Law of the People’s Republic of China Summary: The People’s Republic of China’s Environmental Protection Law establishes the basic principles for coordinated development between economic construction, social progress, and environmental protection, and it defines the rights and duties of governments, units, and individuals in regard to environmental protection. This law was adopted at the 11th Meeting of the Standing Committee of the Seventh National People’s Congress on December 26, 1989, and was promulgated by Order No. 22 of the President of the People’s Republic of China the same day. The law stipulates that all units and individuals have duties to protect the environment and have the right to report and sue any unit and individual who pollutes the environment. The Chinese citizens’ environment rights were written into law for the first time in this Environmental Protection Law, which allows all citizens the right to know and understand decisions related to their own environment. A State Council department of environmental protection administration establishes the national standards and the governments of provinces, autonomous regions, and municipalities establish local environmental standards. The law recognizes that economic and technological challenges exist throughout the country; nevertheless, it seeks to address pollution and advance preservation efforts through techniques including environmental impact assessments. A priority of this law is to effectively utilize resources while emitting low levels of pollution from newly built and existing industrial enterprises. A ban is placed on the importation of technology or facilities that do not meet the country’s environmental protection regulation standards. Special protection zones are designated, within which no industrial production installation that causes environmental pollution can be built. The law’s provisions allow existing monitoring systems to be organized and strengthened, and protective measures address environmental concerns including desertification, alkalization of land, and ecological imbalances.

The full text of this law can be found at: http:// www.globaloceans.org/laws/PRC envtpro law. html

CHAPTERS II–V CHAPTER II: SUPERVISION AND MANAGEMENT OF THE ENVIRONMENT

Article 9. The competent department of environ-

mental protection administration under the State Council shall establish the national standards for environment quality. The people’s governments of provinces, autonomous regions and municipalities directly under the Central Government may establish their local standards for environment quality for items not specified in the national standards for environment quality and shall report them to the competent department of environmental protection administration under the State Council for the record. Article 10. The competent department of environ-

mental protection administration under the State Council shall, in accordance with the national standards for environment quality and the country’s economic and technological conditions, establish the national standards for the discharge of pollutants. The people’s governments of provinces, autonomous regions and municipalities directly under the Central Government may establish their local standards for the discharge of pollutants for items not specified in the national standards; with regard to items already specified in the national standards, they may set local standards which are more stringent than the national standards and report the same to the competent department of environmental protection administration under the State Council for the record. Units that discharge pollutants in areas where the local standards for the discharge of pollutants

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have been established shall observe such local standards. Article 11. The competent department of environmental protection administration under the State Council shall establish a monitoring system, formulate the monitoring norm and, in conjunction with relevant departments, organize a monitoring network and strengthen the management of environmental monitoring. The competent departments of environmental protection administration under the State Council and governments of provinces, autonomous regions and municipalities directly under the Central Government shall regularly issue bulletins on environmental situations. Article 12. The competent departments of environ-

mental protection administration of the people’s governments at or above the county level shall, in conjunction with relevant departments, make an investigation and an assessment of the environmental situation within areas under their jurisdiction, draw up plans for environmental protection which shall, subject to overall balancing by the department of planning, be submitted to the people’s government at the same level for approval before implementation. Article 13. Units constructing projects that cause

pollution to the environment must observe the state provisions concerning environmental protection for such construction projects. The environmental impact statement on a construction project must assess the pollution the project is likely to produce and its impact on the environment and stipulate the preventive and curative measures; the statement shall, after initial examination by the authorities in charge of the construction project, be submitted by specified procedure to the competent department of environmental protection administration for approval. The department of planning shall not ratify the design plan descriptions of the construction project until after the environmental impact statement on the construction project is approved. Article 14. The competent departments of environ-

mental protection administration of the people’s governments at or above the county level or other departments invested by law with power to conduct

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environmental supervision and management shall be empowered to make on-site inspections of units under their jurisdiction that discharge pollutants. The units being inspected shall truthfully report the situation to them and provide them with the necessary information. The inspecting authorities shall keep confidential the technological know-how and business secrets of the units inspected. Article 15. Work for the prevention and control

of the environmental pollution and damage that involve various administrative areas shall be conducted by the relevant local people’s governments through negotiation, or by decision of the people’s government at a higher level through mediation. CHAPTER III: PROTECTION AND IMPROVEMENT OF THE ENVIRONMENT

Article 16. The local people’s governments at vari-

ous levels shall be responsible for the environment quality of areas under their jurisdiction and take measures to improve the environment quality. Article 17. The people’s governments at various

levels shall take measures to protect regions representing various types of natural ecological systems, regions with a natural distribution of rare and endangered wild animals and plants, regions where major sources of water are conserved, geological structures of major scientific and cultural value, famous regions where karst caves and fossil deposits are distributed, traces of glaciers, volcanoes and hot springs, traces of human history, and ancient and precious trees. Damage to the above shall be strictly forbidden. Article 18. Within the scenic spots or historic sites,

nature reserves and other zones that need special protection, as designated by the State Council, the relevant competent department under the State Council, and the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government, no industrial production installations that cause environmental pollution shall be built; other installations to be built in these areas must not exceed the prescribed standards for the discharge of pollutants. If the installations that have been built discharge more pollutants than are specified by the prescribed

discharge standards, such pollution shall be eliminated or controlled within a prescribed period of time. Article 19. Measures must be taken to protect the ecological environment while natural resources are being developed or utilized. Article 20. The people’s governments at various lev-

els shall provide better protection for the agricultural environment by preventing and controlling soil pollution, the desertification and alkalization of land, the impoverishment of soil, the deterioration of land into marshes, earth subsidence, the damage of vegetation, soil erosion, the drying up of sources of water, the extinction of species and the occurrence and development of other ecological imbalances, by extending the scale of a comprehensive prevention and control of plant diseases and insect pests, and by promoting a rational application of chemical fertilizers, pesticides and plant growth hormone. Article 21. The State Council and the people’s governments at various levels in coastal areas shall provide better protection for the marine environment. The discharge of pollutants and the dumping of wastes into the seas, the construction of coastal projects, and the exploration and exploitation of offshore oil must be conducted in compliance with legal provisions so as to guard against the pollution and damage of the marine environment. Article 22. The targets and tasks for protecting and improving the environment shall be defined in urban planning. Article 23. In urban and rural construction, vegetation, waters and the natural landscape shall be protected and attention paid to the construction of gardens, green land and historic sites and scenic spots in the cities in the light of the special features of the local natural environment.

work of environmental protection into their plans and establish a responsibility system for environmental protection, and must adopt effective measures to prevent and control the pollution and harms caused to the environment by waste gas, waste water, waste residues, dust, malodorous gases, radioactive substances, noise, vibration and electromagnetic radiation generated in the course of production, construction or other activities. Article 25. For the technological transformation of newly-built industrial enterprises and existing industrial enterprises, facilities and processes that effect a high rate of the utilization of resources and a low rate of the discharge of pollutants shall be used, along with economical and rational technology for the comprehensive utilization of waste materials and the treatment of pollutants. . . .

CHAPTER V: LEGAL LIABILITY

Article 35. Any violator of this Law shall, accord-

ing to the circumstances of the case, be warned or fined by the competent department of environmental protection administration or another department invested by law with power to conduct environmental supervision and management for any of the following acts: (1) refusing an on-site inspection by the competent Department of environmental protection administration or another department invested by law with power to conduct environmental supervision and management, or resorting to trickery and fraud while undergoing inspection; (2) refusing to report or submitting a false report on items for which declaration is required by the competent department of environmental protection administration under the State Council; (3) failing to pay, as provided for by the state, the fee for the excessive discharge of pollutants; (4) importing technology or a facility that fails to meet the requirements specified in the state provisions concerning environmental protection; or

CHAPTER IV: PREVENTION AND CONTROL OF ENVIRONMENTAL POLLUTION AND OTHER PUBLIC HAZARDS

(5) transferring a production facility that causes severe pollution for use by a unit that is unable to prevent and control pollution.

Article 24. Units that cause environmental pollution and other public hazards shall incorporate the

Article 36. When a construction project is com-

missioned or put to use in circumstances where

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facilities for the prevention and control of pollution either have not been completed or fail to meet the requirements specified in state provisions, the competent department of environmental protection administration responsible for the approval of the environmental impact statement on the construction project shall order the suspension of its operations or use and may concurrently impose a fine. . . . Article 44. Whoever, in violation of this Law, causes damage to natural resources like land, forests, grass-

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lands, water, minerals, fish, wild animals and wild plants shall bear legal liability in accordance with the provisions of relevant laws. Article 45. Any person conducting supervision and

management of environmental protection who abuses his power, neglects his duty or engages in malpractices for personal gains shall be given administrative sanction by the unit to which he belongs or the competent higher authorities; if his act constitutes a crime, he shall be investigated for criminal responsibility according to law.

SINGAPORE

Planning Act Summary: Singapore’s 1998 Planning Act, reproduced here in part, allows for amendments to Singapore’s 1958 Master Plan. The federal act regulates land use planning and prohibits unauthorized development and subdivision within and outside Singapore’s Planning Areas, with the goal of general improvement of planning and land use. The act seeks to achieve these objectives by allowing the minister to create “conservation areas,” which may be chosen for their architectural, historic or aesthetic attributes. Development is strictly limited within the conservation areas. The act contains enforcement provisions for development violations. Omitted portions of the act are indicated by an ellipsis.

(c) any failure to comply with any condition subject to which planning permission or conservation permission was granted; . . . “certificate of statutory completion” has the same meaning as in the Building Control Act (Cap. 29); “Certified Interpretation Plan” means a Certified Interpretation Plan prepared and certified by the competent authority under section 7; “Collector” has the same meaning as in the Land Revenue Collection Act (Cap.155); . . . “conservation” means the preservation, enhancement or restoration of the character or appearance of, and the interior and exterior of any building in, a conservation area; “conservation area” means an area designated by the Minister in accordance with sections 8 and 9;

PLANNING ACT (CHAPTER 232)

An Act to provide for the planning and improvement of Singapore and for the imposition of development charges on the development of land and for purposes connected therewith PART I: PRELIMINARY

Short Title

“conservation guidelines” means the conservation guidelines issued under section 11; “conservation permission” means permission referred to in section 12 (2); . . . “Master Plan” has the meaning assigned to it in section 6; . . . “planning permission” means permission referred to in section 12 (1);

1. This Act may be cited as the Planning Act.

“prescribe” means prescribe by rules made under this Act; . . .

Interpretation

“repealed Act” means the repealed Planning Act (Cap. 232, 1990 Ed.); . . .

2. In this Act, unless the context otherwise requires – . . . “breach of planning control” means – (a) the carrying out of any development of land without the requisite planning permission; (b) the carrying out of works in a conservation area without the requisite conservation permission; or

“works within a conservation area” means – (a) any development of land within a conservation area; or (b) any decorative, painting, renovation or other works (whether external or internal) to any building within a conservation area which may affect its character or appearance; . . .

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Meaning of “Development”

Amendments to Master Plan

3. – (1) Subject to subsections (2) and (3), in this Act, except where the context otherwise requires, “development” means the carrying out of any building, engineering, mining, earthworks or other operations in, on, over or under land, or the making of any material change in the use of any building or land, and “develop” and “developing” shall be construed accordingly. . . .

8. (1) At least once in every 5 years after 1st April 1998, the competent authority shall review the Master Plan and submit to the Minister a report of his review together with proposals for amendment to the Master Plan which he may consider expedient.

Meaning of “Subdivide”

4. – (1) Subject to this section, a person shall, for the purposes of this Act, be said to subdivide land if, by any deed or instrument, he conveys, assigns, demises or otherwise disposes of any part of the land in such a manner that the part so disposed of becomes capable of being registered under the Registration of Deeds Act (Cap. 269) or, in the case of registered land, being included in a separate folio of the land-register under the Land Titles Act (Cap. 157), and “subdivide” and “subdivision” shall be construed accordingly. This section describes leases which are specifically excluded from the subdivision guidelines. The Minister can alter which leases are excluded . . .

(2) Without prejudice to subsection (1), the competent authority may at any time also submit to the Minister proposals for amendment to the Master Plan. (3) Proposals for amendment to the Master Plan may provide for any of the following in relation to the whole of the area which is the subject of the Master Plan or any part thereof: (a) rezoning; (b) change of plot ratios; (c) change of the written statement in any respect; (d) designation of conservation areas; or (e) any other purpose therein stated. . . . (4) Amendment proposals are submitted to the Minister and may include maps and planning reports.

Competent Authority. Authorities include any qual-

ified person who has been appointed by the Minister. This competent authority can then appoint public officials to carry out the specific provisions of the Act. . . . PART II: MASTER PLAN AND CONSERVATION AREAS AND GUIDELINES

Master Plan

6. The Master Plan means the Master Plan that was originally submitted to and approved by the Governor in Council on 5th August 1958 under the provisions of Part IV of the Singapore Improvement Ordinance (Cap. 259, 1955 Ed.) as subsequently amended under the repealed Act or this Act, and includes the approved maps and written statement.

Conservation Areas

9. (1) Where in the opinion of the Minister any area is of special architectural, historic, traditional or aesthetic interest, the Minister may approve under section 8 a proposal to amend the Master Plan to designate the area as a conservation area. (2) A conservation area may comprise – (a) an area; (b) a single building; or (c) a group of buildings. Rules Relating to Amendments to Master Plan. The

Minister can make rules relating to the content and submission of amendments. . . .

Certified Interpretation Plans

7. Certified Interpretation Plans (maps more detailed than those in the Master Plan) may be provided by the competent authority. . . .

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Conservation Guidelines. Conservation guidelines

can be issued by the competent authority and made available to the public. . . .

PART III: DEVELOPMENT AND SUBDIVISION OF LAND

(d) a proposal to amend the provisions of the Master Plan in so far as it relates to the relevant land, or its locality, has been submitted to the Minister for approval under section 8;

Unauthorised Subdivision, Development and Other Works

(e) the competent authority is of the view that the development proposed in the application is incongruent with the developments on land adjoining the relevant land or other land in the locality; or

12. (1) No person shall without planning permission carry out any development of any land outside a conservation area. (2) No person shall without conservation permission carry out any works within a conservation area.

(f) the planning permission or conservation permission to be granted for the development proposed in the application is for a specified period not exceeding 10 years.

(3) No person shall without subdivision permission subdivide any land. (4) Any person who contravenes subsection (1), (2) or (3) shall be guilty of an offence and shall be liable on conviction – (a) to a fine not exceeding $200,000; and

(3) Where subsection (2) applies, the competent authority may determine the application in the manner as the Minister may approve. . . .

(b) in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part thereof during which the offence continues after conviction. . . .

Subdivision Permission: Supplementary Provisions

Applications Determined with Reference to Master Plan, Etc.

14. (1) Subject to subsection (2), in determining an application for written permission, the competent authority shall act in conformity with the provisions of the Master Plan and any Certified Interpretation Plan in so far as they may be relevant. (2) Where the Minister approves, either in relation to a particular application or a class of applications, as the case may be, the competent authority need not act in accordance with subsection (1) in any of the following circumstances: (a) the land to which the application relates (referred to in this subsection as the relevant land) is or will be required for any public purpose or for the provision of any utility services or infrastructural, social or transportation facility; (b) the relevant land, or its locality, is the subject of a planning, transportation, conservation or preservation study being carried out by the competent authority or any other public authority; (c) the provisions of the Master Plan in so far as it relates to the relevant land, or its locality, is being reviewed by the competent authority;

16. (1) A planning permission or conservation permission may also, where it expressly so provides, contain subdivision permission. . . . Appeals to Minister

... The Minister may hear appeals brought within 60 days of the competent authority’s decision. The determination of the Minister is final and cannot be appealed. Obligation to Purchase Land in Certain Cases

24. (1) Without prejudice to the operation of any other written law relating to the acquisition of land for a public purpose, any owner of land which is allocated in the Master Plan for development for a public purpose may serve on the competent authority a purchase notice requiring his interest in the land so required for that public purpose to be purchased in accordance with this section, if he – (a) is refused permission under section 14 to develop that land; or (b) has completed the development of any contiguous land belonging to him in accordance with any permission granted by the competent authority under section 14. . . . The purchase notice will be submitted to the Minister by the competent authority.

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PART IV: ENFORCEMENT

(d) the removal from the land of all property and materials used in connection with the breach of planning control. . . .

Power to Require Information about Activities on Land

25. (1) Where it appears to the competent authority that there may have been a breach of planning control in respect of any land, he may serve an information notice on any person who – (a) is an owner or occupier of the land or has any other interest in the land; or (b) is carrying out operations on the land or is using the land for any purpose. . . .

An enforcement notice may require the removal, construction, or alteration of any building on the land or the cessation of a specific activity. The notice is effective until withdrawn or superceded by a grant of permission and compliance with the requirements will not be sufficient to discharge it. . . . Removal and Sale of Property and Materials

... A competent authority can serve an information notice on any land owner or person who is using the land when it appears there may have been a breach of planning control. The notice may require the person served to give information regarding the activities being performed on the land, including the purpose, duration, and personal information on those who have been involved in the activities. Penalties for Non-compliance with Information Notice

26. (1) If the person on whom an information notice is served does not comply with the notice at the end of 21 days from the day the notice was served on him, he shall be guilty of an offence. . . . Authority to Enter upon Land

... The compentent authority may enter the land in order to determine whether the provisions of the Planning Act have been violated. Enforcement Notices

28. (1) The competent authority may issue an enforcement notice where it appears to him that there has been a breach of planning control. . . . (3) An enforcement notice may, in particular, require – (a) the alteration, demolition or removal of any building or works; (b) the carrying out of any building or other operations; (c) the cessation, either wholly or to the extent specified in the notice, of any activity on or use of the land; or

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Any property removed by the competent authority while enforcing the notice will be sold or disposed of and will not be returned to the owner unless the civil debt is paid. . . . PART V: DEVELOPMENT CHARGES

Principles of Development Charge

35. (1) Subject to the provisions of this Act, there shall be paid to the competent authority a tax known as a development charge in respect of every development of land authorised by any planning or conservation permission, except where the planning permission or conservation permission is granted for a specified period of 10 years or less. The developmental charge will be the difference between the Developmental Baseline and the Developmental Ceiling. Development Baseline and Development Ceiling

36. (1) Subject to this section, the Development Baseline for any land shall be the value of one of the following developments which, when calculated in accordance with the prescribed method and rates, gives the highest figure: (a) any development for which that land was allocated in the Master Plan as approved by the Governor in Council on 5th August 1958 under the provisions of Part IV of the Singapore Improvement Ordinance (Cap. 259, 1955 Ed.); (b) any development for which that land was allocated in the Master Plan as the result of any alteration or addition made under section 6 (1) of the repealed Act prior to 24th April 1982; or

(c) any authorised development of that land which satisfies any one or more of the following criteria: (i) development charge, where payable in respect of the authorised development, has been paid; (ii) no development charge is payable in respect of the authorised development by reason of any exemption or remission under this Act or the repealed Act; (iii) development charge is not payable in respect of the authorised development under the written law in force when the development was authorised. . . . Alternative Basis for Determination of Development Charge

... A person who is not satisfied with the estimated developmental charge may request that the charge be determined based on a prescribed percentage of the land appreciation value that would result from the proposed development. If still dissatisfied, the person may then appeal to the Minister, whose decision will be final. . . . PART VI: TEMPORARY DEVELOPMENT LEVY

... Power to Make Rules Relating to Temporary Development Levy

... The Minister can make rules which will change the rates and manner of calculation or exempt certain developmental classes from the levy. PART VI: RECOVERY OF MONEYS

Application of Proceeds

...

If money remains after the debt is satisfied, it will be paid to the person who holds title to the land. . . . Security to Be Given

... All costs incurred will be added into the civil debt. A person whose land or property has been attached may stop the proceedings by satisfying the debt or obtaining a court order to stay the proceedings. PART VII MISCELLANEOUS

... Protection from Liability

... No official act will subject the competent authority to personal liability. . . . Rules

61. (1) The Minister may make rules generally to give effect to the provisions of this Act and for prescribing anything that is to be prescribed. (2) Without prejudice to the generality of subsection (1), the Minister may by such rules provide for – (a) the development of land; (b) the control of density of buildings on land; (c) the regulation of the height, design, appearance and siting of buildings; (d) the control of means of access to land or buildings; (e) the protection of ancient monuments and land and buildings of historic or architectural interest; (f) the conservation of buildings, premises or land; . . .

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Singapore Land Acquisition Act Summary: The 1985 Singapore Land Acquisition Act outlines the national procedure Singapore’s government follows to obtain private land for public purposes. The procedure includes preliminary investigation, declaration of intent, filing of claims for compensation, and distribution of compensation. The act guides authorities in determining the appropriate uses for which private land may be taken, such as uses that benefit the public interest or public utility. The act further explains criteria for determining how to compensate landowners, such as market value and hardship on the landowner, and gives such landowners a method for appealing unsatisfactory awards.

(e) mark those levels, boundaries and line by placing marks and cutting trenches; and (f) cut down and clear away any standing crop, fence or jungle, where otherwise the survey cannot be completed, the levels taken or the boundaries or line of the work marked. (2) No person shall enter into any building or upon any enclosed court or garden attached to a dwelling-house unless with the consent of the occupier thereof, without previously giving the occupier at least 7 days’ notice in writing of his intention to do so. . . . Declaration of Intended Acquisition Notification That Land is Required for Specific Purposes

PARTS II – VII PART II: ACQUISITION

Preliminary Investigation Power to Enter and Survey

3. (1) Whenever it appears to the President that land in any locality is likely to be needed for any purpose specified in section 5 (1), a notification to that effect shall be published in the Gazette and the Collector shall cause public notice of the substance of the notification to be given at convenient places in that locality, and thereupon any officer either generally or specially authorised by the Minister in that behalf and his servants and workmen may – (a) enter upon and survey and take levels of any land in that locality; (b) dig or bore into the soil;

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5. (1) Whenever any particular land is needed – (a) for any public purpose; (b) by any person, corporation or statutory board, for any work or an undertaking which, in the opinion of the Minister, is of public benefit or of public utility or in the public interest; or (c) for any residential, commercial or industrial purposes, the President may, by notification published in the Gazette, declare the land to be required for the purpose specified in the notification. (2) Such a notification shall state – (a) the town subdivision or mukim in which the land is situated; (b) the lot number of the land, its approximate area and all other particulars necessary for identifying it; and

(c) do all other acts necessary to ascertain whether the land is suitable for such purpose;

(c) if a plan has been made of the land, the place and time where and when the plan may be inspected.

(d) set out the boundaries of the land proposed to be taken and the intended line of the work, if any, proposed thereon;

(3) The notification shall be conclusive evidence that the land is needed for the purpose specified therein as provided in subsection (1). . . .

Notice to Persons Interested

8. (1) The Collector shall then cause notices to be posted at convenient places on or near the land to be taken stating – (a) that the Government intends to acquire the land; and (b) that claims to compensation for all interests in the land may be made to him. (2) The Collector shall also serve notice to the same effect on all persons known or believed to be interested in the land, or to be entitled to act for persons so interested, and residing or having agents authorised to receive service on their behalf within Singapore: Provided that, if any such person resides elsewhere and has no such agent, the notice may be sent to him by registered post if his address can be ascertained after reasonable inquiry. . . . Power to Require Statements As to Names and Interests

9. (1) The Collector may also require any such person to deliver to him within a time to be specified, being not less than 15 days, a statement in writing containing, so far as may be practicable, the name of every other person possessing any interest in the land or any part thereof as co-owner, mortgagee, lessee, sub-lessee, tenant or otherwise, and of the nature of that interest, and of the rents and profits, if any, received or receivable on account thereof for 3 years next preceding the date of the statement. . . .

(b) the compensation which in his opinion should be allowed for the land; and (c) the apportionment of the compensation among all the persons known or believed to be interested in the land, of whom or of whose claims he has information, whether or not they have respectively appeared before him. . . . Taking Possession Power to Take Possession

16. (1) When the Collector has made an award under section 10, he may take possession of the land by posting thereupon an appropriate notice. (2) Upon taking possession of the land under subsection (1), the Collector shall also serve a copy of the notice upon the persons interested in the land. Power to Take Possession in Cases of Urgency

17. (1) In cases of urgency, whenever the Minister directs him to do so, the Collector, though no such award had been made, may on the expiration of 7 days from the date of the notice under section 8, take possession of any land needed for any of the purposes specified in section 5 (1). (2) The Minister may, in his discretion, direct the Collector to take immediate possession of any land which is intended to be acquired under the provisions of this Act without the publication of a notification under section 5 (1); but such a notification shall be published not later than 7 days after the Collector has taken possession of the land.

Inquiry into Measurements, Value and Claims, and Award by Collector

Notice to Registrar of Deeds and the Lodging of an Instrument with Registrar of Titles

Inquiry and Award by Collector

18. Immediately on taking possession of any land under section 16 or 17, the Collector shall –

10. (1) On the day so fixed, or on any other day to which the inquiry has been adjourned, the Collector shall proceed to inquire into the objections, if any, which any person interested has stated, pursuant to a notice given under section 8, to the measurements made under section 7 and into the value of the land and into the respective interests of the persons claiming the compensation, and shall, as soon as possible after the conclusion of the inquiry, make an award under his hand of – (a) the area of the land;

(a) in the case of land registered under the provisions of the Registration of Deeds Act, give notice to the Registrar of Deeds who shall make an entry in the books of the registry that the land has vested in the State, and upon that entry being made, the land shall vest in the State free from encumbrances; or (b) in the case of land registered under the provisions of the Land Titles Act, lodged in accordance with section 126 (2) of that Act, an instrument of

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acquisition in the prescribed form with the Registrar of Titles who shall, upon a request by the Collector, endorse on the relevant folio of the land register a notification to the effect that the land has become vested in the State as State land free from encumbrances and has ceased to be subject to the provisions of the Land Titles Act, and upon that endorsement being made, the land shall vest in the State free from encumbrances.

PART III: REFERENCE TO AN APPEALS BOARD AND PROCEDURE THEREON

(e) if, in consequence of the acquisition, he is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to that change; and (f) if, in consequence of the acquisition, any reissue of title is necessary, the fees or costs relating to survey, issue and registration of title, stamp duty and such other costs or fees which may reasonably be incurred. . . . Matters to Be Disregarded in Determining Compensation

... Award to Be Final and Conclusive

31. Except as expressly provided in this Act, where – (a) no valid notice of appeal has been lodged within the time limited by this Act against an award; (b) an appeal has been deemed to have been withdrawn under section 24; or (c) an award has been determined on appeal, the award as made or agreed under this Act or determined on appeal, as the case may be, shall be final and conclusive for the purposes of this Act. . . . Matters to Be Considered in Determining Compensation

33. (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Board shall, subject to subsections (2), (3) and (4), take into consideration the following matters and no others: (a) the market value – . . . (b) any increase in the value of any other land of the person interested likely to accrue from the use to which the land acquired will be put; (c) the damage, if any, sustained by the person interested at the time of the Collector’s taking possession of the land by reason of severing that land from his other land; (d) the damage, if any, sustained by the person interested at the time of the Collector’s taking possession of the land by reason of the acquisition injuriously affecting his other property,

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whether movable or immovable, in any other manner;

34. In determining the amount of compensation to be awarded for land acquired under this Act, the Board shall not take into consideration – (a) the degree of urgency which has led to the acquisition; (b) any disinclination of the person interested to part with the land acquired; (c) any damage sustained by the person interested which, if caused by a private person, would not be a good cause of action; (d) any damage which is likely to be caused to the land acquired after the date of the publication of the notification under section 5 by or in consequence of the use to which it will be put; (e) any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired; (f) any outlay on additions or improvements to the land acquired, which was incurred after the date of the publication of the notification under section 5, unless the additions or improvements were necessary for the maintenance of any building in a proper state of repair, and were carried out with the approval of the Commissioner of Lands; (g) oral or documentary evidence of any conveyance, assignment, transfer or other disposition affecting the acquired land, unless the instrument has been duly stamped and registered in the Registry of Land Titles and Deeds and filed with the Chief Assessor of Property Tax 6 months prior to the date of the publication of the notification under section 5; or

(h) evidence of sales of comparable properties, unless the Board is satisfied that the sales are made bona fide and not for speculative purposes and the onus of proving that the transactions are made bona fide and not for speculative purposes shall lie with the appellant. Rules As to Amount of Compensation

35. (1) Where the applicant has made a claim to compensation pursuant to any notice under section 8, the amount awarded to him shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 10. (2) Where the applicant has refused to make such a claim or has omitted without sufficient reason, to be allowed by the Board, to make such a claim, the amount awarded by the Board may be less than and shall in no case exceed the amount awarded by the Collector. (3) Where the applicant has omitted for a sufficient reason, to be allowed by the Board, to make such a claim, the amount awarded to him by the Board may be less than or may exceed the amount awarded by the Collector. . . .

PART VI: TEMPORARY OCCUPATION OF LAND

Temporary Occupation of Land

42. (1) Whenever it appears to the President that any land is required for temporary occupation and use for a public purpose, he may direct the Collector to procure the occupation and use of that land for such term as may be determined, not exceeding 3 years from the commencement of the occupation. (2) The Collector shall thereupon give notice in writing to the persons interested in that land of the purpose for which it is needed, and shall for the occupation and use thereof for such term as aforesaid and for the materials, if any, to be taken therefrom pay to them such compensation, either in a gross sum of money or by monthly or other periodical payments, as is agreed upon in writing between him and those persons respectively. (3) In case the Collector and the persons interested differ as to the sufficiency of the compensation or the apportionment thereof, the Collector shall refer the difference to the decision of the Board.

Power to Enter and Take Possession

43. (1) On payment of such compensation or on executing such agreement or on making a reference under section 42, the Collector may enter upon and take possession of the land and use or permit the use thereof in accordance with the terms of the notice under section 42 (2). (2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage, if any, done to the land and not provided for by the agreement and shall restore the land to the persons interested therein. (3) If the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of the term, and if the persons interested so require, the President shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose. Difference As to Condition of Land

44. If the Collector and the persons interested differ as to the condition of the land at the expiration of the term or as to the compensation mentioned in section 43 (2) or as to any matter connected with the agreement mentioned in that subsection, the Collector shall refer the difference to the decision of the Board, and on such reference or on a reference under section 42 (3), the Commissioner sitting alone shall decide the difference referred.

PART VII: MISCELLANEOUS

... Police to Enforce Surrender

47. If the Collector is opposed or impeded in taking possession under this Act of any land, he shall apply to the Commissioner of Police who shall enforce the surrender of the land to the Collector. Government Not Bound to Complete Acquisition

48. (1) Except in the case provided for in section 43, the Government shall be at liberty to withdraw from the acquisition of any land or any part thereof of which possession has not been taken. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage,

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if any, done to the land under section 3 or 7 and not already paid for under section 4, and shall pay that amount to the person injured and shall pay to the persons interested all such costs as have been reasonably incurred by them by reason or in consequence of the proceedings for acquisition, together with compensation for the damage, if any, which they may have sustained by reason or in consequence of those proceedings. (3) The provisions of Part III shall apply, so far as may be, to the determination of the compensation payable under this section. (4) When the Government has withdrawn from any acquisition, any costs payable by the Government to any person interested under subsection (2) shall, unless their amount is agreed between the Government and the person interested, be taxed by the Registrar of the Supreme Court in accordance with a procedure to be prescribed by Rules of Court for the time being in force.

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Acquisition of Part of House or Building

49. (1) The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building which is reasonably required for the full and unimpaired use of the house, manufactory or other building, if any person interested desires that the whole of the house, manufactory or building be so acquired: Provided that the person interested may, at any time before the Collector has made an award under section 10, by notice in writing withdraw or modify his expressed desire that the whole of the house, manufactory or building be so acquired. . . . Rules

54. (1) The Minister may make rules generally for carrying out the provisions of this Act, and without prejudice to that general power, may make rules for the guidance of officers in all matters connected with this Act. . . .

IV. AUSTRALIA

Australian Capital Territory (Planning and Land Management) Act Summary: The objective of the 1988 Australian Capital Territory (Planning and Land Management) Act is to provide for the planning and management of land in the Australian Territory. The act establishes the Planning and Land Authority and defines its duties and functions. The law authorizes the creation of the National Capital Plan and the Territory Plan by the Planning and Land Authority. The National Capital Plan is intended to ensure that both Canberra and the Territory are planned according to their uses and overall significance. The Territory Plan is intended to manage territory land in a manner consistent with the National Capital Plan. The act also authorizes declaring specific portions of Territory land as national land under the National Capital Plan. Select provisions are reproduced in the chapter. Omitted sections are indicated by an ellipsis. The full text of this law can be found at: http://www.comlaw.gov.au/ComLaw/Legislation/ ActCompilation1.nsf/0/739480EF5B92EF7ECA256F 80000E9B91?OpenDocument&mostrecent=1 EXCERPTS FROM PARTS II–VII PART II ESTABLISHMENT, FUNCTIONS AND POWERS OF AUTHORITY

... [The National Capital Authority has the power to prepare and amend the National Capital Plan. The Minister may give the Authority general directions as to the performance of its functions.] PART III THE NATIONAL CAPITAL PLAN

Division 1 – Object and Effect of National Capital Plan 9. Object of Plan

The object of the Plan is to ensure that Canberra and the Territory are planned and developed in accordance with their national significance.

10. Matters to Be Covered in Plan

(1) The Plan may specify areas of land that have the special characteristics of the National Capital to be Designated Areas. (2) The Plan: (a) shall define the planning principles and policies for giving effect to the object of the Plan and, in particular, shall set standards for the maintenance and enhancement of the character of the National Capital and set general standards and aesthetic principles to be adhered to in the development of the National Capital; (b) shall set out the general policies to be implemented throughout the Territory, being policies of: (i) land use (including the range and nature of permitted land use); and (ii) the planning of national and arterial road systems; (c) may set out the detailed conditions of planning, design and development in Designated Areas and the priorities in carrying out such planning, design and development; and (d) may set out special requirements for the development of any area (not being a Designated Area), being requirements that are desirable in the interests of the National Capital. 11. Effect of Plan

(1) An enactment that is inconsistent with the Plan has no effect to the extent of the inconsistency, but an enactment shall be taken to be consistent with the Plan to the extent that it is capable of operating concurrently with the Plan. (2) The Commonwealth, a Commonwealth authority, the Territory or a Territory authority shall not do any act that is inconsistent with the Plan.

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12. Works in Designated Areas to Be Subject to Plan and Approval by the Authority

(3) The plan:

(1) No works shall be performed in a Designated Area unless:

(a) shall define the planning principles and policies for giving effect to the object of the plan; and

(a) the proposal to perform the works has been submitted to the Authority together with such plans and specifications as are required by the Authority;

(b) may include the detailed conditions of planning, design and development of land and the priorities in carrying out such planning, design and development. . . .

(b) the Authority has approved the works in writing; and

[The Territory Plan must be consistent with the National Capital Plan.]

(c) the works are in accordance with the Plan. (2) Subsection (1) does not affect section 5 of the Parliament Act 1974. [The plan does not have retrospective effect.] Division 2 – Preparation of National Capital Plan

... [The Authority will prepare a draft plan and submit it for public consultation and comment. The Authority will then submit the plan to the Minister for certification and approval. The Minister may approve or disapprove the plan in whole or in part. When the Minister approves the plan, it will be published in the newspaper and submitted to Parliament for final approval.]

PART V – LAND MANAGEMENT

... [The Minister may declare specified areas of land in the Territory to be national land used by or on behalf of the Commonwealth. All other land is Territory land.] 29 Administration of Territory Land

(1) The Executive, on behalf of the Commonwealth: (a) has responsibility for the management of Territory Land; and (b) subject to section 9 of the Seat of Government (Administration) Act 1910, may grant, dispose of, acquire, hold and administer estates in Territory Land.

PART IV – THE TERRITORY PLAN

25. Territory Plan

(1) The Assembly shall, as soon as practicable, make laws providing for: (a) establishing a Territory planning authority; and (b) conferring functions on the authority, including the functions of: (i) preparing and administering a plan in respect of land, not inconsistent with the National Capital Plan; and (ii) keeping the plan under constant review and proposing amendments to it when necessary. (2) The object of the plan is to ensure, in a manner not inconsistent with the National Capital Plan, the planning and development of the Territory to provide the people of the Territory with an attractive, safe and efficient environment in which to live and work and have their recreation.

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(2) The Executive shall perform its functions under subsection (1) subject to enactment and in accordance with the principles: (a) that new estates in Territory Land shall be granted only in accordance with procedures that are notified to the public; and (b) that appropriate classes of decisions relating to the administration of estates in Territory Land shall be subject to just and timely review without unnecessary formality. (3) The term of an estate in Territory Land granted on or after Self-Government Day shall not exceed 99 years or such longer period as is prescribed, but the estate may be renewed. (4) The Authority may intervene in any proceedings for review of a decision relating to the administration of an estate in Territory Land. . . . [Where the Commonwealth would be liable for an act done by the Territory under Section 29 or would

receive money for the discharge of liability, the liability vests in the Territory and the Territory will receive any money paid for discharge of the liability. When Territory land becomes national land, the Commonwealth will compensate the Territory in certain situations.]

for a term of no more than five years. If the chairperson is full time, he or she will also be the Chief Executive. Specific rules governing resignation, termination, meetings, appointments, and disclosure of interests have been omitted.]

PART VI – CONSTITUTION AND MEETINGS OF AUTHORITY

PART VII – ADMINISTRATION OF AUTHORITY

... [The Authority will consist of a chairperson and four other members appointed by the Governor General

[The Authority will have a Chief Executive and may hire consultants as it deems necessary. The Authority may delegate its powers to the Executive, or an Authority staff member.]

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Land (Planning and Environment) Act 1991 Summary: Australia’s 1991 Land (Planning and Environment) Act regulates the use of Territory land for both public and private use by using a system of planning and developmental policies. The law sets forth guidelines for varying the Territory plan, subject to the approval of the minister and Legislative Assembly. Factors affecting the Territory plan include cultural heritage and environmental assessments. The act also provides for Territorial land administration in general; this involves the granting, extension, termination, and variation of leases, as well as restrictions on development. Territorial land use administration includes the management of public land, through procedures such as the development of management plans and the granting of licenses. Omitted sections are indicated by an ellipsis. Summarized sections appear within brackets and in italics. The full text of this law can be found at: http://www.legislation.act.gov.au/a/1991-100/ current/pdf/1991-100.pdf

EXCERPTS FROM PARTS 2, 5, AND 6 PART 2. PLANNING

Division 2.1. Preliminary 5. Definitions for pt 2

In this part: [“Background papers” are any documents considered useful to explaining a draft plan variation.] development, in relation to land, means – (a) the erection, alteration or demolition of a building on that land; or (b) the carrying on of work on that land; or (c) the use or change of use of that land; or (d) the use or change of use of a building or works on that land; or (e) the subdivision or consolidation of that land; or

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(f) the display of signs or advertising material on that land. . . . [A draft plan variation is any deviation from the plan established under the Interim Planning Act of 1990.] Division 2.2. Territory Plan – Object and Effect 7. Object

(1) The object of the plan shall be to ensure, in a manner not inconsistent with the national capital plan, that the planning and development of the ACT provides the people of the ACT with an ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation. (2) The plan shall set out the planning principles and policies for giving effect to its object. (3) For giving effect to the object of the plan and the principles and policies referred to in subsection (2), the plan may – (a) set out specific objectives and policies; and (b) specify purposes for which land may be used; and (c) incorporate a register of heritage places known as the heritage places register; and (d) identify land for subdivision 2.3.4, specifying in addition the principles and policies for its development; and (e) for division 5.7 – identify an area of land as public land and reserve it for a purpose specified in section 193; and (f) provide for other matters relevant to the exercise of the powers of the Territory, the Executive or a Territory authority under a Territory law, or the administrative review of the exercise of those powers; and (g) provide for other matters that are necessary or convenient.

8. Effect of Plan

The Territory, the Executive, a Minister or a Territory authority shall not do any act, or approve the doing of any act, that is inconsistent with the plan. . . .

(8) An instrument under subsection (7) is a disallowable instrument. Note: A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act. 163. Leases to Community Organisations

PART 5. LAND ADMINISTRATION

... 160. Application of pt 5

(1) In this section: Community organisation means a body corporation that –

(1) This part applies to the grant of an interest in Territory land by the planning and land authority on behalf of the Executive.

(a) has as its principal purpose the provision of a service, or a form of assistance, to persons living or working in the ACT; and

(2) This part does not apply to a transfer by the Territory of a registered lease of which the Territory is the registered proprietor. . . .

(b) is not carried on for the pecuniary profit or gain of its members; and

161. Granting of Leases

(1) The planning and land authority may grant a lease by – (a) auction; or (b) tender; or (c) ballot; or (d) direct grant. . . . (2) A lease granted under this section may include provisions – (a) requiring the lessee to develop the land comprised in the lease, or any unleased Territory land, in a specified way; or (b) requiring the lessee to give security for the performance of any of his or her obligations under the lease. . . . (5) A lease granted under subsection (1) (d) shall be granted subject to the provisions that are agreed between the planning and land authority and the applicant for the lease.

(c) does not hold a club licence under the Liquor Act 1975. (2) The planning and land authority may grant a lease of territory land to a community organisation without charge or for a charge that is less than the market value of the lease. . . . (6) A community organisation shall not transfer a lease granted under this section and a purported transfer of such a lease is of no effect. (7) This section does not limit the power of the planning and land authority to grant a lease of territory land to a community organisation otherwise than under this section. 164. Special Leases

(1) The planning and land authority may grant a lease of territory land for a charge that is less than the market value of the lease if the authority is satisfied it is desirable and in the public interest to do so to facilitate – (a) the economic development of the ACT; or (b) the development of business in the ACT. . . .

(6) The planning and land authority must not grant a lease of territory land under this section otherwise than in accordance with criteria specified under subsection (7).

(5) The lessee under a lease to which this section applies shall not, for a period of 5 years after the day when the lease is granted –

(7) The Executive may, for this section, in writing –

(b) sublet the land comprised in the lease or any part of it; or

(a) specify criteria for the granting of special leases; or (b) amend or revoke criteria so specified.

(a) assign or transfer the lease; or

(c) part with possession of the land comprised in the lease or any part of it;

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without having obtained the written consent of the planning and land authority and any assignment, transfer, sublease, agreement or arrangement made or entered into in contravention of this subsection shall be of no effect. . . . 171. Grant of Further Residential Leases

(1) This section applies if – (a) the holder of a residential lease of land applies to the planning and land authority for the grant of a further residential lease of the land; and (b) neither the Territory nor the Commonwealth needs the land for a public purpose; and (c) the lessee pays the fee worked out under the determination under subsection (3); and (d) the lessee surrenders the existing lease. (2) The planning and land authority must grant the lessee a further residential lease of the land for a term not longer than 99 years to begin on the day after the day the existing lease is surrendered. . . . 171A. Grant of Further Rural Leases

(1) If –

the planning and land authority for the grant of a further lease of the land for the same purposes; and (b) neither the Territory nor the Commonwealth needs the land for a public purpose; and (c) all rent due under the existing lease is paid; and (d) the lessee pays the fee worked out under the determination under subsection (3); and (e) the lessee surrenders the existing lease. (2) The planning and land authority must grant the lessee a further lease of the land for the same purposes for a term not longer than 99 years to begin on the day after the day the existing lease is surrendered. . . . [The Minister will determine whether subsection 1(d) has been satisfied.] 172A. Grant of Further Lease – Unit Titles

(1) The planning and land authority may grant a further lease of a unit, or the common property, under a units plan only on an application by the owners corporation.

(a) the holder of a rural lease applies to the planning and land authority for the grant of a further rural lease of the same land; and

(2) The planning and land authority may grant a further lease of a unit, or the common property, under a units plan only if –

(b) neither the Territory nor the Commonwealth requires the land for a public purpose; and

(a) the authority grants further leases for all the units and the common property; and

(c) all rent due under the existing lease is paid; and

(b) the further leases are all granted for the same term. . . .

(d) the lessee pays the determined fee; and (e) the lessee surrenders the existing lease; the authority must grant the lessee a further rural lease of that land for a term not exceeding the maximum set out in the determination under subsection (2), and subject to any conditions set out in that determination, to begin on the day immediately following the date of surrender of the existing lease. . . . 172. Grant of Further Leases for Purposes Other Than Residential or Rural

(1) This section applies if – (a) the holder of a lease of Territory land other than a residential lease or a rural lease applies to

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172B. Grant of Further Lease – Community Title

(1) The planning and land authority may grant a further lease of a lot in a community title scheme only on an application by the body corporate of the scheme. (2) The planning and land authority may grant a further lease of a lot in a community title scheme only if – (a) the authority grants further leases for all the lots in the scheme; and (b) the further leases are all granted for the same term. . . .

172C. No Right to Use, Flow and Control of Water

A lease or further lease of Territory land granted under this division after the commencement of this section shall not be taken to confer a right to the use, flow and control of water (including water containing impurities) under the land the subject of the lease. 173. Lessee’s Rights in Relation to Improvements

... (2) This section applies only to the following improvements to land: (a) an improvement undertaken in a way consistent with the law of the Territory, and with any lease over the land, except – (i) an improvement undertaken by the Territory or the Commonwealth (subject to paragraph (b)); or (ii) an improvement acquired by the Territory or the Commonwealth (subject to paragraph (c)); (b) an improvement undertaken by the Territory or the Commonwealth, if the Territory or the Commonwealth has received, or is entitled to receive, payment for that improvement; (c) an improvement acquired by the Territory or the Commonwealth, if the Territory or the Commonwealth has received, or is entitled to receive, payment for the improvement. . . . 174. Determination of Value of Improvements

(1) In this section: assessment day means – [Definitions omitted. “Assessment day” as used in this section is the day on which a lease expires, terminates, or is withdrawn.] (2) If compensation is payable under section 173 in relation to improvements, the planning and land authority shall, as soon as practicable after the assessment day in relation to the land on which the improvements are situated, in writing, determine, in accordance with this section, the market value of the improvements on the land as at the assessment day. . . .

175. Use of Land for Leased Purpose

(1) Territory land in relation to which a lease has been granted, whether before or after the commencement of this part, shall not be used for any purpose other than a purpose authorised by the lease, subject to this section. (2) Notwithstanding the lease of Territory land for residential purposes, the land may also be used – (a) for a home occupation within the meaning of the plan; or (b) for a home business within the meaning of the plan, in accordance with an approval under part 6. (3) Notwithstanding the purpose permitted by a lease of Territory land, the land may be used – (a) for a development of a type prescribed by the regulations, in accordance with an approval under part 6; or (b) for any other activity prescribed by the regulations. . . . 178. Refund on Lease Surrender or Termination

(1) This section applies if a lease of Territory land is surrendered or terminated under this Act. (2) On application by the person surrendering the lease or the person whose lease has been terminated, the planning and land authority may authorise payment of the amount prescribed by regulation to the person. Note: A fee may be determined under s 287 for this provision. (3) The planning and land authority must not authorise the payment of an amount under this section otherwise than in accordance with criteria under subsection (4) for the authorisation of payments. . . . 179. Certificates of Compliance

(1) Subject to subsection (4), if a building and development provision of a lease of Territory land has been fully complied with, the planning and land authority shall, on application by the lessee, issue a certificate of compliance to the effect that the provision has been so complied with. . . . (4) The planning and land authority must not issue a certificate of compliance in relation to a building

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and development provision to which a lease under the Unit Titles Act 2001 is subject unless the other requirements of this section are satisfied and the authority is satisfied – (a) for every other lease in relation to the same subdivision under the Unit Titles Act 2001 that is subject to a building and development provision – that the provision has been complied with, or a certificate of compliance has been issued under this section in relation to that provision; or (b) that the occupier of the unit that is held under the lease will not, as occupier, be substantially inconvenienced by works being carried out, or that are to be carried out, in compliance with a building and development provision to which the lease of the common property or another unit contained in the same subdivision under the Unit Titles Act 2001 is subject. 180. Transfer of Land Subject to Building and Development Provision

(1) If a lease of Territory land contains a building and development provision, the lease, or an interest in the lease, is not capable of being assigned or transferred, either at law or in equity unless – (a) the lessee has died; or (b) the transfer or assignment is made under any of the following orders: (i) an order of the Family Court; (ii) an order of another court having jurisdiction under the Family Law Act 1975 (Cwlth); (iii) an order under the Domestic Relationships Act 1994, part 3.2 adjusting the property interests of the parties in a domestic relationship; or (c) the transfer or assignment happens by operation of, or under, bankruptcy or insolvency; or (d) the lessee has obtained – (i) a certificate of compliance under section 179; or (ii) the consent of the planning and land authority under subsection (2) or (3). (2) The planning and land authority may, in writing, consent to a legal or equitable assignment or transfer of a lease, or an interest in a lease, mentioned in subsection (1) if – (a) the authority –

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(i) is satisfied that the proposed assignee or transferee intends to comply with the building and development provision; and (ii) has been given the security (if any) required by the authority for compliance with the provision by the proposed assignee or transferee; and (b) either – (i) the authority is satisfied that the lessee cannot, for personal or financial reasons, comply with the building and development provision; or (ii) the proposed transferee or assignee (the homebuyer) has a contract with the person (the builder) proposing to transfer or assign the lease and, under the contract, the builder is required to build a home on the leased land for the homebuyer. (3) The planning and land authority may also, in writing, consent to a transfer of a lease, or an interest in a lease, mentioned in subsection (1) if the proposed transfer is the first sale of an individual lease of undeveloped land by the person who provided the infrastructure on, and subdivided, the holding lease of which the individual lease is a subdivision. . . . 181. Mortgage of Leasehold Subject to Building and Development Provision

If a lease contains a building and development provision, the lease, or an interest in the lease, is not capable of being mortgaged unless – (a) the lessee has obtained a certificate of compliance under section 179; or (b) the mortgage is required by the lessee – (i) to enable the lessee to repay money borrowed by him or her for the purpose of acquiring the lease or interest; or (ii) to secure money borrowed by the lessee for the purpose of acquiring the lease or interest; or (iii) to enable the lessee to comply with a building and development provision of the lease. 182. Land Leased to be Held as Undivided Parcel

(1) Subject to section 183, the land comprised in a lease of Territory land must at all times be held and occupied by or under the lessee as one undivided parcel.

(2) Subject to this part, the land comprised in a lease of Territory land may be sublet and the lease and any interest in it may be assigned, transferred or mortgaged. 183. Power of Lessee to Sublet Part of Building or Land in Certain Cases

(1) Any part of a building erected on land comprised in a lease of Territory land may, subject to the lease and any sublease of the land, be sublet separately from the remainder of that building. (2) If a part of a building is sublet separately from the remainder of the building, any part of the parcel of land where the building is erected may be sublet with the part of the building separately from the remainder of the parcel of land, provided that the part of the parcel of land so sublet adjoins that part of the parcel of land where the building is erected. (3) If –

186. Variation of Lease to Pay Out Rent

(1) A lease shall not be varied to reduce the rent payable to a nominal rent unless – (a) the lease is included in a prescribed class of leases; and (b) all amounts payable to the Territory up to the day of variation of the lease for rates and land tax levied in relation to the land comprised in the lease have been paid; and (c) the provisions of the lease requiring the lessee to develop the land comprised in the lease have been complied with up to the day of the variation; and (d) the lessee has paid the Territory an amount decided by the planning and land authority by reference to any policy direction made under subsection (2). . . . 186A. No Variations to Extend Term

(a) a lease of Territory land authorises the use of the land comprised in the lease as a mobile home park; and

The planning and land authority shall not execute a variation of a lease of Territory land to extend the term of the lease.

(b) any part of the land is being used, or intended to be used, for the siting of a mobile home;

Division 5.4. Restrictions on Rural Leases

that part may, subject to the lease and any sublease of the land, be sublet separately from the remainder of the land. . . .

186B. Definitions for div 5.4

In this division: dealing, in relation to a lease, means –

Division 5.3. Variation of Leases

(a) assigning or transferring the lease; or

183A. Effect Qualified

(b) subletting the land comprised in the lease or any part of it; or

This division has effect subject to division 5.4 (Restrictions on rural leases). 184. Application to Surrender and Regrant of Leases

(c) parting with possession of the land comprised in the lease or any part of it. . . . holding period is a period ending –

A reference in this division to the variation of a lease includes a reference to the surrender of a lease and the grant of a new lease to the same lessee, subject to different provisions, over land –

(a) in relation to a long lease – 10 years after the lease is granted; or

(a) that is the whole or part of the land comprised in the surrendered lease; and

long lease means a lease for a term of at least 21 years.

(b) that is not defined land within the meaning of subdivision 2.3.4;

short lease means a lease for a term less than 21 years.

except if a lease is surrendered and a further lease is granted under section 171, section 171A or section 172. . . .

special Pialligo lease means a lease comprising land in block 6, 12, 13, 14, 15, 19, 20 or 52 of section 2 of the district of Majura. . . .

(b) in relation to a short lease – at the end of 1/3 the term of the lease. . . .

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186C. Land Management Agreements

(1) The planning and land authority may – (a) grant a rural lease; or (b) grant a further rural lease; or (c) vary a rural lease; or (d) consent to the assignment or transfer of a rural lease; only if the person to whom the lease is to be granted, assigned or transferred, or the person whose lease is to be varied, (the relevant person) has entered into an agreement that complies with this section with the Territory about managing the rural land subject to the lease. . . . 186D. Dealings with Rural Leases

(1) This section applies to – (a) a rural lease granted under section 161 (Granting of leases) after 15 December 1999 for consideration less than the market value of the lease; and (b) a lease granted under section 171A (Grant of further rural leases) after 15 December 1999 on the payment of an amount worked out on the application of an amount condition mentioned in section 171A (3) (a). (2) However, this section does not apply to a lease mentioned in subsection (1) (b) that was granted on the surrender of a lease for which a discharge amount had been paid. (3) A lessee, or other person with an interest in the lease, may deal with a lease to which this section applies within the holding period only with the written consent of the planning and land authority.

(b) the discharge amount has been paid in relation to the lease; but may not consent otherwise. (6) The validity of a dealing made or entered into with the consent of the planning and land authority under subsection (5) is not affected – (a) by a defect or irregularity in relation to the giving of the consent; or (b) because a ground, or all grounds, for the consent had not arisen. . . . 186G. Index Numbers

(1) In this division: Index number means the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician from time to time. . . . 186H. No Subdivision or Consolidation

The planning and land authority may not consent to the consolidation or subdivision of a lease to which section 186D applies during the holding period. Division 5.5. Consolidation and Subdivision 187AA. Effect Qualified

This division has effect subject to division 5.4 (Restrictions on rural leases). 187. Application – Nominal Rent Leases of Territory Land

This division applies only in relation to the consolidation and subdivision of nominal rent leases.

(4) A dealing in relation to a lease made or entered into without consent has no effect.

187A. Consolidation and Subdivision – Change of Use Charge

(5) The planning and land authority must consent under this section to a dealing if –

(1) The planning and land authority must not execute a consolidation or a subdivision unless the lessee has paid the Territory any change of use charge determined by the authority under subsection (2), subject to any remission or increase under section 187C. . . .

(a) the person to whom – (i) the lease is being assigned or transferred; or (ii) the land comprised in the lease, or part of it, is sublet; or (iii) possession of the land comprised in the lease, or part of it, is being given; is the lessee’s domestic partner or child; or

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187C. Change of Use Charge for Consolidations and Subdivisions

...

Division 5.6. Recovery of Land 188. Termination of Leases

(1) Subject to subsection (6), if a lessee of Territory land contravenes this part or the lease, the planning and land authority may, by written notice served on the lessee by post, terminate the lease. (2) A notice under subsection (1) takes effect on the day 14 days after the day it is served. [The planning and land authority shall serve a copy of the notice to the registrar general or any person having an interest in the land.] (4) Subject to subsection (6), if a person who occupies Territory land under a licence from the Commonwealth or the Territory contravenes this part or the licence, the planning and land authority may, by written notice served on the licensee by post, terminate the licence. (5) A notice under subsection (4) takes effect on the day 7 days after the day it is served. (6) The planning and land authority shall not terminate a lease or a licence under this section unless it has –

(b) a person who has been a licensee of Territory land remains in possession of the land after – (i) the term of the licence has ended; or (ii) the licence has been surrendered or ended. (2) The Executive may, by written notice to the person (the unlawful occupier), demand that the unlawful occupier give possession of the land to the Executive within the reasonable period stated in the demand. . . . Subdivision 5.7.2. Public Land 192. Recommendations to Planning and Land Authority

The conservator may, in writing, recommend to the planning and land authority that the plan be varied to provide for – (a) the identification of an area of land as public land and its reservation for a purpose referred to in section 193; or (b) in relation to an area already identified in the plan as public land –

(a) by written notice served on the lessee or licensee by post –

(i) the variation of its boundaries to reduce or increase the size or the area, or to alter the shape of the area; or

(i) informed the lessee or licensee that it is considering terminating the lease or licence; and

(ii) the variation of the purpose for which it is reserved; or

(ii) specified the grounds on which it is considering taking that action; and

(iii) the cessation of its designation as public land.

(iii) invited the lessee or licensee to notify the authority in writing within 21 days after the date of the notice of any reasons why the lessee or licensee considers that the lease or licence should not be terminated; and (b) taken into account any reasons for not terminating the lease or licence notified to the authority by the lessee or licensee in accordance with the notice served on him or her under paragraph (a).

Subdivision 5.7.3. Management of Public Land 193. Reserved Areas

Public land may be reserved by the plan under section 7 (3) (f) for any of the following purposes: (a) a wilderness area; (b) a national park; (c) a nature reserve;

189. How Land May Be Recovered

(1) This section applies if – (a) a person who has been a lessee of Territory land remains in possession of the land after –

(d) a special purpose reserve; (e) an urban open space; (f) a cemetery or burial ground;

(i) the term of the lease has ended; or

(g) a lake;

(ii) the lease has been surrendered or ended; or

(h) a sport and recreation reserve.

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194. Management

209. Grant of Leases

An area of public land shall be managed in accordance with –

(1) On the written recommendation of the conservator, the planning and land authority may grant a lease of an area, or part of an area, of public land except if that area is reserved under the plan as a wilderness area.

(a) the management objectives applying to the area; and (b) the plan of management (if any) for the area. . . . Subdivision 5.7.4. Plans of Management 196. Content

A plan of management includes – (a) a description of the area of public land to which it applies; and (b) how the relevant management objectives referred to in section 195 (1) are to be implemented or promoted in that area. . . . [The conservator will prepare a draft management plan and may vary the plan as necessary. At any time, the Minister may issue a directive or establish a panel to review any aspect of the draft plan. The conservator shall then make copies of the plan available to the Legislative Assembly and the public for inspection and comment. The plan shall be revised in accordance with these comments and resubmitted to the Minister, who will then make the revised draft plan available to the appropirate committee of the Legislative Assembly. The Minister will then review the Assembly’s comments and can either approve the plan or resubmit to the conservator with instructions to amend, defer, or withdraw the plan. After these directives are complied with, the plan is resubmitted to the Minister for final approval.] Subdivision 5.7.5. Leases and Licences 208. Leases – Generally

(1) Except as provided by section 209, the planning and land authority shall not grant a lease – (a) of public land; or (b) during the defined period, of land designated, in a draft variation of the plan notified under section 19, to become public land. (2) In subsection (1): defined period, in relation to land designated, in a draft variation of the plan, to become public land, means the period of interim effect, under part 2, of that draft variation.

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(2) On the written recommendation of the conservator, the planning and land authority may during the defined period referred to in section 208 (2), grant a lease of an area, or part of an area, of land designated in a draft variation of the plan to become public land except if it is proposed in that draft variation that the area be reserved as a wilderness area. 210. Licences

(1) The planning and land authority may, on the written recommendation of the conservator, grant a licence to a person to occupy or use an area of unleased public land. Example of when a Licence Might be Given to a Person

to allow a building (including a fitting attached to the building) owned or occupied by the person to encroach onto, over or under an area of unleased public land [The application for a license must specify the land and the time period and purposes for which the license is sought. A license, when granted, applies to the person to whom it is granted and may be subject to conditions.] (4) A person is not required to hold a licence under this section to occupy or use an area of unleased public land if – (a) the person holds a permit under the Roads and Public Places Act 1937 to place an object in, over or across the area; and (b) the area is being occupied or used in accordance with the permit; and (c) for an occupation or use that requires an approval under division 6.2 (Approvals) – (i) the occupation or use has been approved under that division; and (ii) the person is complying with any conditions under section 245 (Conditional approvals) that apply to the approval.

211. Miner’s Rights in Relation to Public Land

216A. Notification of Certain Leases

A miner’s right must not be granted in relation to public land.

(1) This section applies if, during a quarter, the planning and land authority grants a lease –

Division 5.8. Miscellaneous 214. Lessee May Surrender Lease or Part of Lease

(a) by direct grant; or (b) under section 163 (Leases to community organisations), section 164 (Special leases) or section 209 (Grant of leases). . . .

(1) A person who holds a lease of Territory land may, at any time, with the consent of the planning and land authority, surrender the lease or any part of the land comprised in the lease. . . .

217. Licences in Relation to Land That is Not Public Land

215. Reduction of Rent and Relief from Provisions of Lease

(1) A person may apply to the planning and land authority for a licence to occupy or use an area of unleased Territory land that is not public land.

(1) The planning and land authority may approve – (a) a reduction of the rent payable under a lease of Territory land, or of the amount payable, in relation to any occupation of Territory land; or (b) the grant of relief, to a lessee or occupier of Territory land, from compliance, completely or partly, with any provision to which the person’s lease or occupation is subject. . . .

[The application for a license must specify the land and the time period and purposes for which the license is sought. A license, when granted, applies to the person to whom it is granted and may be subject to conditions.] (5) A person is not required to hold a licence under this section to occupy or use an area of unleased Territory land that is not public land if – (a) the person holds a permit under the Roads and Public Places Act 1937 to place an object in, over or across the area; and

216. Access to Leased Land from Roads and Road Related Areas

(b) the area is being occupied or used in accordance with the permit; and

(1) The planning and land authority may grant a lease of Territory land only if satisfied that the lessee will, during the term of the lease, have –

(c) for an occupation or use that requires an approval under division 6.2 (Approvals) –

(a) direct access to the leased land from a road or road related area; or (b) access to the leased land from a road or road related area by way of an access road or track, or in another way, that the lessee may use without charge and for all purposes at any hour of the day or night. (2) A way of access to leased land provided by the planning and land authority because of subsection (1) (b) –

(i) the occupation or use has been approved under that division; and (ii) the person is complying with any conditions under section 245 (Conditional approvals) that apply to the approval. 218. Reservation of Minerals

A reservation of minerals contained in a lease of Territory land must be read as a reservation of all minerals and mineral substances in or on the land, . . . . 219. Rights to Extract Minerals

(a) must not interfere with a building, garden or stockyard on the land at the time the way of access is provided; and

(1) The planning and land authority may, by a lease or other agreement, grant a person the right to extract minerals from specified Territory land.

(b) must be located in a way that causes as little damage or inconvenience to the lessee as possible. . . .

(2) The provisions of a lease or other agreement entered under subsection (1) are the provisions agreed between the parties. . . .

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PART 6. APPROVALS AND ORDERS

Division 6.1. Preliminary

... 223. Meaning of “Variation” for pt 6

(ii) is unoccupied – give notice by post to the lessee of the adjoining place at the address of the lessee last-known to the authority; and (b) publish notice of the making of each application in a daily newspaper. . . .

(1) In this part, variation, of a lease, includes – (a) the surrender of a lease and the granting of a new lease subject to different provisions to the same lessee over all or part of the land comprised in the surrendered lease; and (b) a consolidation; and (c) a subdivision. . . . Division 6.2. Approvals

229A. Direction That Applications Be Submitted to Minister

(1) The Minister may, in writing, direct the planning and land authority to refer to the Minister an application that has not been decided by the authority. . . . [If the Minister issues a directive under subsection (1), the planning and land authority must take no further action on the application.]

Subdivision 6.2.1. General 225. Offence – Development

229B. Minister May Decide Some Applications

(1) A person shall not, without reasonable excuse, undertake a development otherwise than in accordance with an approval.

(1) This section applies in relation to an application referred to the Minister under section 229A.

Maximum penalty: 50 penalty units. (2) A Territory authority shall not, without reasonable excuse, undertake a development except in accordance with an approval.

(2) The Minister may decide to consider the application if, in the Minister’s opinion – (a) the application raises a major policy issue; or

...

(b) the application seeks approval for a development that may have a substantial effect on the achievement or development of objectives of the Territory plan; or

[This section describes the application requirements for development.]

(c) the approval or refusal of the application would provide a substantial public benefit. . . .

226. Application to Undertake Development

227. Register of Applications, Approvals, Orders and Lease and Development Conditions

... [The planning and land authority keeps a register of all applications, approvals, comments, and other documents pertaining to land development that are available for public inspection.] ... 229. Notice of Application

(1) The planning and land authority shall – (a) if a place other than unleased land adjoining the place to which an application relates – (i) is occupied – give notice by post of the making of the application to the lessee of the adjoining place at the address of the adjoining place; or

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232. Duty of Applicants

(1) The planning and land authority may direct an applicant – (a) to give the notice of the application that the authority would, apart from this section, be required to give; and (b) to give notice to any other person. . . . 233. More Information

(1) The planning and land authority may, by written notice, require an applicant to give to the authority, within the period specified in the notice (of not less than 28 days), either orally or in writing, the further information relating to the application that is specified in the notice. . . .

Division 6.3. Orders Subdivision 6.3.1. Making of Orders

... [This section concerns the issuing of the planning and land authority of orders compelling or restraining a person or persons from doing something that is controlled on the land. The authority may receive an application from an interested party asking for an order, which they can issue, not issue, or issue as a less onerous order. The authority can also propose and issue orders on their own initiative, without an application from an interested party. The order, once issued, binds each person to whom it is directed and any future tenants or owners and operates until it is revoked.]

a significant threat or damage that arises because of a controlled activity, such a prohibition notice can be issued. These notices remain effective until canceled. An injunction can also be issued by the Supreme Court where a person is acting or plans to act in violation of the prohibition notice.] Subdivision 6.3.4. Other Matters

... [The Environmental Minister may declare an animal or plant to be a pest and arrange for the preparation of a plan to control the animal or plant.] Division 6.4. Inspection and Seizure Powers

... Subdivision 6.3.2. Rectification Work 259. Definitions for sdiv 6.3.2

Subdivision 6.4.2. Inspection

...

...

rectification work means –

[Inspections are done in order to determine whether a controlled activity is being conducted in a certain place without approval or contrary to an order. An inspector can enter with the owner’s consent, pursuant to a warrant, or with force if there are reasonable grounds for urgency. While inside, an inspector can inspect, document, take samples, and seize anything relevant to the investigation.] ...

(a) work in relation to a place where a controlled activity is being conducted to ensure compliance with the approval for the activity; or (b) the conduct of an activity required under an order that was not carried out within the period stated in the order. . . . [This section describes who can be directed and authorized by the planning and land authority to carry out rectification work. Liability for the cost of the work falls to the individual who was directed to carry out the work, and it can be deferred by written application to the authority, subject to approval.] Subdivision 6.3.3. Prohibition Notices and Injunctions

... [Where the planning and land authority believes that issuing a notice is necessary to prevent or diminish

[Schedules 1–5 have been removed. Schedule 1 sets forth the management objectives for certain kinds of public land, such as parks and wilderness preserves. Schedule 2 defines the criteria for assessing the heritage significance of a particular place. Schedule 3 determines what the content of preliminary environmental impact assessments should be. Schedule 4 states the specific decisions that are reviewable by the Administrative Appeals Tribunal. Finally, Section 5 sets out the activities that are subject to orders and penalties. Also omitted are the Dictionary and Endnotes.]

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SOUTH AUSTRALIA

South Australia Development Act 1993 Summary: The South Australia Development Act of 1993 is a comprehensive act providing for planning and regulation of development within the State. The act regulates the use, management, maintenance, and conservation of land and buildings. It defines and addresses general “development,” “major development,” and “Crown development by State agencies.” Authority is vested with the governor to appoint a minister to carry out the policies and provisions of the act, as well as several advisory committees to assist the minister with the administration of such policies. The minister is to prepare and maintain a planning strategy on a statewide, regional, and local level. Development plans encompassing geographical parts of the state should promote the provisions of the planning strategy. All proposed development must be approved under this act prior to commencement. Select provisions of the act have been reproduced. Omitted sections are indicated by an ellipsis.

(c) to provide for the creation of Development Plans –

The full version of this law can be found at: http://www.parliament.sa.gov.au/Catalog/ legislation/Acts/D/1993.55.un.htm

(f) to enhance the amenity of buildings and provide for the safety and health of people who use buildings; and

(i) to enhance the proper conservation, use, development and management of land and buildings; and (ii) to facilitate sustainable development and the protection of the environment; and (iia) to encourage the management of the natural and constructed environment in an ecologically sustainable manner; and (iii) to advance the social and economic interests and goals of the community; and (d) to establish and enforce cost-effective technical requirements, compatible with the public interest, to which building development must conform; and (e) to provide for appropriate public participation in the planning process and the assessment of development proposals; and

(g) to facilitate – The Parliament of South Australia enacts as follows: PART 1 – PRELIMINARY

...

(i) the adoption and efficient application of national uniform building standards; and (ii) national uniform accreditation of buildings products, construction methods, building designs, building components and building systems.

3 Objects. The object of this Act is to provide for

proper, orderly and efficient planning and development in the State and, for that purpose – (a) to establish objectives and principles of planning and development; and (b) to establish a system of strategic planning governing development; and

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4 Definitions

(1) In this Act, unless the contrary intention appears – . . . the Advisory Committee means the Development Policy Advisory Committee established under this Act; . . . .

authorised officer means a person appointed to exercise the powers of an authorised officer under this Act; . . . .

(including development on or under water) but does not include an act or activity that is excluded by regulation from the ambit of this definition;

the Building Rules means any codes or regulations under this Act (or adopted under this Act) that regulate the performance, standard or form of building work and includes any standard or document adopted by or under those codes or regulations, or referred to in those codes or regulations;

Development Assessment Commission means the Development Assessment Commission established under this Act; development authorisation means any assessment, decision, permission, consent, approval, authorisation or certificate required by or under this Act or any other Act prescribed by the regulations for the purposes of this definition;

Building Rules Assessment Commission means a committee of the Development Assessment Commission established in accordance with the regulations; . . . .

Development Plan means a Development Plan under this Act; . . . .

council means a municipal or district council; . . . .

DR – see subsection (6);

Crown means the Crown in right of the State or in any of its other capacities;

EIS – see subsection (4);

development means – (a) building work; or (b) a change in the use of land; or (c) the division of an allotment; or (d) the construction or alteration (except by the Crown, a council or other public authority (but so as not to derogate from the operation of paragraph (e))) of a road, street or thoroughfare on land (including excavation or other preliminary or associated work); or (da) the creation of fortifications; or (e) in relation to a State heritage place – the demolition, removal, conversion, alteration or painting of, or addition to, the place, or any other work that could materially affect the heritage value of the place; or (f) in relation to a local heritage place – the demolition, removal, conversion, alteration of, or addition to, the place, or any other work (not including painting but including, in the case of a tree, any tree-damaging activity) that could materially affect the heritage value of the place; or (fa) in relation to a significant tree – any treedamaging activity; or (g) prescribed mining operations on land; or (h) an act or activity in relation to land (other than an act or activity that constitutes the continuation of an existing use of land) declared by regulation to constitute development,

Environment Protection Authority means the Environment Protection Authority established under the Environment Protection Act 1993; . . . . Major Developments Panel means the Major Developments Panel established under section 46A; . . . . PER – see subsection (5); the Planning Strategy means the Planning Strategy formulated under this Act; . . . relevant authority means a body determined to be a relevant authority under section 34, subject to the operation of Divisions 2, 3 and 3A of Part 4, and Part 12; . . . . 6 – Concept of Change in the Use of Land

(1) For the purpose of determining whether a change in the use of land has occurred, the commencement or revival of a particular use of the land will, subject to subsection (2), be regarded as a change in the use of the land if – (a) the use supersedes a previous use of the land; or (b) the commencement of the use or the revival of the use follows upon a period of non-use; or (c) the use is additional to a previously established use of the land which continues despite the commencement of the new use. (2) The revival of a use of land after a period of discontinuance will be regarded as the continuation of an existing use unless – (a) the period intervening between the discontinuance and revival of the use exceeds two years; or

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(b) during the whole or a part of the period intervening between its discontinuance and revival, the use was superseded by some other use; or (c) the Development Assessment Commission or a council has made a declaration under subsection (3) and the declaration remains unrevoked. (3) Where – (a) a particular use of land has been discontinued for a period of six months or more (being a period that extends up to the date on which the Development Assessment Commission or a council acts under this subsection); and (b) the revival of that use would in the opinion of the Development Assessment Commission or council be inconsistent with the relevant Development Plan and have an adverse effect on the locality in which the land is situated, the Development Assessment Commission or council may, by notice in writing served on the owner and the occupier of the land, declare that a revival of the use will be treated, for the purposes of this Act, as a change in the use of the land. (4) The owner or occupier may, within one month after service of a notice under subsection (3), or such extended period as may be allowed by the Court, appeal to the Court against the declaration. (5) On an appeal under subsection (4), the Court may confirm or revoke the declaration. (6) For the purposes of this section, a particular use of land will be disregarded if the extent of the use is trifling or insignificant. . . .

PART 2 – ADMINISTRATION

Division 1 – Constitution of State Bodies Subdivision 1 – The Advisory Committee

(c) a person with wide experience in building design or construction; (d) a person with wide experience in environmental conservation; (e) a person with wide experience in commerce and industry; (f) a person with wide experience in agricultural development; (g) a person with wide experience in housing or urban development; (h) a person with wide experience in planning or providing community services; (i) a person with wide experience of the utilities and services that form the infrastructure of urban development. (3) In making appointments to the Advisory Committee the Governor must have regard to the need for the Committee to be sensitive to cultural diversity in the population of the State. (4) At least one member of the Advisory Committee must be a woman and at least one member must be a man. . . . 9 – Functions of the Advisory Committee

(1) The Advisory Committee has the following functions: (a) to advise the Minister on any matter relating to planning or development that should, in the opinion of the Advisory Committee, be brought to the Minister’s attention; (b) to advise the Minister on any matter relating to the design or construction of buildings that should, in the opinion of the Advisory Committee, be brought to the Minister’s attention; (c) to advise the Minister (on its own initiative or at the request of the Minister) on –

8 – The Development Policy Advisory Committee

(i) the administration of this Act;

(1) The Development Policy Advisory Committee (the Advisory Committee) is established.

(ii) the policies that govern, or should govern, the administration of this Act;

(2) The Advisory Committee consists of the following members appointed by the Governor:

(iii) proposals to make regulations under this Act, or to make amendments to this Act;

(a) a person who has wide experience in urban and regional planning, or a related discipline; (b) two persons with wide experience of local government;

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(iv) proposals to amend Development Plans; (d) to perform other functions assigned to the Advisory Committee under this Act or by the Minister.

(2) The Advisory Committee should, in the performance of its functions, take into account the provisions of the Planning Strategy. Subdivision 2 – The Development Assessment Commission 10 – The Development Assessment Commission

(1) The Development Assessment Commission is established. (2) The Development Assessment Commission is a body corporate. (3) The Development Assessment Commission consists of the following members appointed by the Governor: (a) a Presiding Member; (b) a Deputy Presiding Member; (c) a person with practical knowledge of, and experience in, local government chosen from a panel of three such persons submitted to the Minister by the Local Government Association of South Australia; (d) a person with practical knowledge of, and experience in, urban or regional development, commerce, industry, building safety or landscape design; (e) a person with practical knowledge of, and experience in, environmental conservation or management, or the management of natural resources; (f) a person with practical knowledge of, and experience in, the provision of facilities for the benefit of the community. (4) The Presiding Member and Deputy Presiding Member must have qualifications and experience in urban and regional planning, building, environmental management, or a related discipline that are, in the opinion of the Governor, appropriate to the Presiding Member’s functions and duties under this Act. (5) At least one member of the Development Assessment Commission must be a woman and at least one member must be a man. . . .

(a) to participate in the assessment of development proposals where appropriate; (b) to report to the Minister (on its own initiative or at the request of the Minister) on matters relevant to the development of land; (c) to make recommendations (on its own initiative or at the request of the Minister) as to the regulations that should be made under this Act; (d) to perform other functions assigned to the Development Assessment Commission under this Act. (2) Except where the Development Assessment Commission makes or is required to make a recommendation or report, is required to give effect to an order of a court or tribunal constituted by law, or has a discretion in relation to the granting of a development authorisation, the Development Assessment Commission is, in the exercise and discharge of its powers, functions or duties, subject to the direction and control of the Minister. . . . Division 2 – Authorised Officers 18 – Appointment of Authorised Officers

(1) The Minister or a council – (a) may appoint a person to be an authorised officer for the purposes of this Act; and (b) must appoint a person who holds the qualifications prescribed by the regulations to be an authorised officer for the purposes of this Act if required to do so by the regulations. . . . 19 – Powers of Authorised Officers to Inspect and Obtain Information

(1) An authorised officer may – (a) enter and inspect any land or building – (i) where the authorised officer reasonably suspects that a provision of this Act is being, or has been breached; or (ii) in the case of an authorised officer who holds prescribed qualifications – for the purpose of inspecting any building work; or

11 – Functions of the Development Assessment Commission

(iii) for the purposes of determining that the land or building is safe; or

(1) The Development Assessment Commission has the following functions:

(iv) for any other reasonable purpose connected with the administration or operation of this Act;

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(b) subject to subsection (2), where reasonably necessary – (i) break into or open any part of, or anything in or on, the land or building; or (ii) pull down or lay open any building or building work; (c) require any person to produce any documents (which may include a written record reproducing in an understandable form information stored by computer, microfilm or other process) as reasonably required in connection with the administration or enforcement of this Act; (d) examine, copy or take extracts from any documents or information so produced or require a person to provide a copy of any such document or information; (e) carry out tests, make measurements or take photographs, films or video recordings as reasonably necessary in connection with the administration or enforcement of this Act; (f) require a person whom the authorised officer reasonably suspects to have committed, or to be committing or about to commit, any breach of this Act to state the person’s full name and usual place of residence and to produce evidence of the person’s identity; (g) require a person who the authorised officer reasonably suspects has knowledge of matters, in respect of which information is reasonably required for the administration or enforcement of this Act, to answer questions in relation to those matters; (h) give any directions reasonably required in connection with the exercise of a power conferred by any of the above paragraphs or otherwise in connection with the administration or enforcement of this Act. . . .

Division 4 – Annual Report 21 – Annual Report

(1) The Minister must, on or before 30 September in each year, prepare a report on the administration of this Act during the preceding financial year. (2) The Minister must, within six sitting days after completing the report, cause copies to be laid before both Houses of Parliament.

PART 3 – PLANNING SCHEMES

Division 1 – The Planning Strategy 22 – The Planning Strategy

(1) In this section – the appropriate Minister means the Minister to whom the Governor has from time to time, by notice in the Gazette, assigned the functions of appropriate Minister for the purposes of this section. (2) The appropriate Minister must ensure that a Planning Strategy for development within the State is prepared and maintained. (3) The Planning Strategy may incorporate documents, plans, policy statements, proposals and other material designed to facilitate strategic planning and co-ordinated action on a State-wide, regional or local level. (3a) The Planning Strategy will be taken to include – (a) the Objectives for a Healthy River Murray under the River Murray Act 2003 (as in force from time to time); and (b) the objectives of the Adelaide Dolphin Sanctuary Act 2005, and the appropriate Minister may, as the appropriate Minister thinks fit, make textual alterations to the Planning Strategy to incorporate those objectives into the Planning Strategy.

Division 3 – Delegations 20 – Delegations

(1) The Minister, the Advisory Committee, the Development Assessment Commission or another authority established under this Act, or a council, may delegate a power or function vested or conferred under this Act.

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(4) The appropriate Minister must, in relation to any proposal to create or alter the Planning Strategy – (a) prepare a draft of the proposal; and (b) by public advertisement, give notice of the place or places at which copies of the draft are

available for inspection (without charge) and purchase and invite interested persons to make written representations on the proposal within a period specified by the Minister. (4a) Subsection (4) does not apply with respect to an alteration of the Planning Strategy pursuant to subsection (3a). (5) The appropriate Minister must – (a) make appropriate provision for the publication of the Planning Strategy; and

(b) that an assessment or decision under this Act (including an assessment or decision under Division 2 of Part 4) is inconsistent with the Planning Strategy. Division 2 – Development Plans Subdivision 1 – Creation of Plans 23 – Development Plans

(1) Development Plans will be prepared and published for the purposes of this Act.

(b) ensure that copies of the Planning Strategy are reasonably available for inspection (without charge) and purchase by the public at places determined by the Minister; and

(2) A Development Plan may relate to any geographical part of the State (but no more than one plan may relate to a particular part of the State).

(c) ensure that notice of any alteration to the Planning Strategy is published in the Gazette within a reasonable time after the alteration is made.

(3) A Development Plan should seek to promote the provisions of the Planning Strategy and may set out or include –

(6) The appropriate Minister must, on or before 30 September of each year in respect of a preceding financial year, prepare a report on – (a) the implementation of the Planning Strategy; (b) any alteration to the Planning Strategy (including the general effect or implications of any such alteration); (c) community consultation on the content, implementation, revision or alteration of the Planning Strategy; (f) such other matters as the Minister thinks fit. (7) The appropriate Minister must, within six sitting days after completing the report, cause copies to be laid before both Houses of Parliament. (8) The Planning Strategy is an expression of policy formed after consultation within government and within the community and does not affect rights or liabilities (whether of a substantive, procedural or other nature). (9) The Planning Strategy is not to be taken into account for the purposes of any application, assessment or decision under Part 4 (other than Division 2 of that Part). (10) No action can be brought on the basis – (a) that a Development Plan, or an amendment to a Development Plan, approved under this Act is inconsistent with the Planning Strategy; or

(a) planning or development objectives or principles relating to – (i) the natural or constructed environment and ecologically sustainable development; (ii) social or socio-economic issues; (iii) urban or regional planning; (iv) the management or conservation of land, buildings, heritage places and heritage areas; (v) management, conservation and use of natural and other resources; (vi) economic issues; (b) provisions enabling the transfer of development rights between sites; (c) material prescribed by the regulations; (d) such other material relating to planning or development as may be appropriate (4) A Development Plan may designate a place as a place of local heritage value if – (a) it displays historical, economic or social themes that are of importance to the local area; or (b) it represents customs or ways of life that are characteristic of the local area; or (c) it has played an important part in the lives of local residents; or

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(d) it displays aesthetic merit, design characteristics or construction techniques of significance to the local area; or

(and the declaration may be made on the basis that certain trees located at the same place are excluded from the relevant group).

(e) it is associated with a notable local personality or event; or

(5) A Development Plan may adopt, wholly or partially and with or without modification, any plan, policy, standard, document or code prepared or published under this or any other Act, or by a body prescribed by the regulations (either as in force at the time the Plan is made or as in force from time to time).

(f) it is a notable landmark in the area; or (g) in the case of a tree (without limiting a preceding paragraph) – it is of special historical or social significance or importance within the local area. (4a) A Development Plan may – (a) declare a tree to be a significant tree if – (i) it makes an important contribution to the character or amenity of the local area; or

(6) A Development Plan is a public document of which a court or tribunal will take judicial notice, without formal proof of its contents. (7) A Development Plan is created in the same manner as a Development Plan is amended (see subdivision 2).

(ii) it is indigenous to the local area and its species is listed under the National Parks and Wildlife Act 1972 as a rare or endangered native species; or

Subdivision 2 – Amendments to Development Plans

(iii) it represents an important habitat for native fauna; or

24 – Council or MinisterMay Amend a Development Plan

(iv) it is part of a wildlife corridor or a remnant area of native vegetation; or

(1) An amendment to a Development Plan may be prepared –

(v) it is important to the maintenance of biodiversity in the local environment; or

(a) where it relates to the area, or part of the area, of a council –

(vi) it is a notable visual element to the landscape of a local area; (b) declare a group of trees to be significant trees if – (i) as a group they make an important contribution to the character or amenity of the local area; or (ii) they are indigenous to the local area and, in respect of each tree, its species is listed under the National Parks and Wildlife Act 1972 as a rare or endangered native species; or (iii) as a group they represent an important habitat for native fauna; or (iv) as a group they form part of a wildlife corridor or a remnant area of native vegetation; or (v) as a group they are important to the maintenance of biodiversity in the local environment; or (vi) as a group they are a notable visual element to the landscape of a local area,

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(i) by the council for the relevant area; or (ii) by the Minister acting at the request of the council; or (iii) where the Minister has requested the council to proceed with an amendment and to prepare a Statement of Intent within a specified time and the council fails to do so, or the Minister and the council cannot reach an agreement on a Statement of Intent within three months after a date specified by the Minister – by the Minister; or (iv) where the Minister considers that the council has demonstrated undue delay in the preparation of a Plan Amendment Report in accordance with the requirements of section 25(3) and (4) – by the Minister; or (iva) where a Plan Amendment Report prepared by the council has lapsed under section 25, or the council has, after commencing the processes associated with making an amendment set out in section 25, subsequently decided not to proceed with the amendment after all – by the Minister; or

(v) where the council has failed to comply with the requirements of subdivision 3 – by the Minister; or (b) where it relates to the areas, or parts of the areas, of two or more councils – (i) by the Minister on the basis that he or she considers that the amendment is reasonably necessary to promote orderly and proper development within the relevant areas and that, after consultation with the relevant councils, the Minister considers that it is appropriate for the Minister to undertake the amendment; or (ii) by the relevant councils with the approval of the Minister (and, in such a case, section 25 will apply with any necessary modifications); or (c) where it relates to land that does not lie within the area of a council – by the Minister; or (d) where the same amendment, or substantially the same amendment, is to be made to two or more Development Plans – by the Minister; or (e) where the purpose of the amendment is to establish a State Heritage Area and impose development controls in relation to that area – by the Minister; or

(i) where the Minister considers that an amendment to a Development Plan is appropriate having regard to issues surrounding the consideration or approval of a development or project under Division 2 of Part 4 – by the Minister. (2) The Minister must, in relation to the preparation of an amendment under subsection (1)(e) or (f), consult with the Minister responsible for the administration of the Heritage Act 1993 and the State Heritage Authority. (3) The Minister must, in relation to the preparation of an amendment by a council or the Minister under subsection (1) that relates to a Development Plan or Development Plans that relate (wholly or in part) to any part of the Murray-Darling Basin, consult with the Minister for the River Murray. . . . 27 Parliamentary Scrutiny

(1) If the Minister approves an amendment under this subdivision, the Minister must, within 28 days, refer the amendment to the Environment, Resources and Development Committee of the Parliament (together with, in the case of an amendment approved under section 25, copies of the certificates of the chief executive officer of the relevant council required under that section).

(f) where the purpose of the amendment is to impose controls in relation to a place that is entered, either on a provisional or permanent basis, in the State Heritage Register – by the Minister; or

(3) The Environment, Resources and Development Committee must, after receipt of an amendment under subsection (1) –

(fa) where the purpose of the amendment is to promote the objects of the River Murray Act 2003 or the Objectives for a Healthy River Murray under that Act within the Murray-Darling Basin – by the Minister; or

(b) resolve to suggest amendments to the relevant Development Plan (as amended); or

(fb) where the purpose of the amendment is to promote the objects or objectives of the Adelaide Dolphin Sanctuary Act 2005 – by the Minister; or (g) where the Minister considers that an amendment to a Development Plan is appropriate because of a matter which in the opinion of the Minister is of significant social, economic or environmental importance – by the Minister; or (h) where the Minister considers that an amendment to a Development Plan is necessary to ensure or achieve consistency with the Planning Strategy – by the Minister; or

(a) resolve that it does not object to the amendment; or

(c) resolve to object to the amendment. . . . (4) If, at the expiration of 28 days from the day on which the amendment was to the Environment, Resources and Development Committee, the Committee has not made a resolution under subsection (3), it will be conclusively presumed that the Committee does not object to the amendment and does not itself propose to suggest any amendments to the Development Plan. . . . 28 – Interim Development Control

(1) Where the Governor is of the opinion that it is necessary in the interests of the orderly and proper

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development of an area of the State that an amendment to a Development Plan should come into operation without delay, the Governor may, at the same time as, or at any time after, a Plan Amendment Report in relation to the amendment is released for public consultation under this subdivision, and without the need for prior consultation with any council or other authority, by notice in the Gazette, declare that the amendment will come into operation on an interim basis on a day specified in the notice. . . . Subdivision 3 – Review of Plans by Councils 30 – Review of Plans by Council

(1) A council must carry out periodic reviews for the purpose of determining – (a) the appropriateness of any Development Plan that applies in relation to its area (or a part of its area); and (b) the consistency of any such Development Plan with the Planning Strategy. (2) A council must give public notice of a review to be carried out under this section and the notice must contain an invitation to interested persons to make written submissions to the council on the subject of the review within two months of the date of the notice or such longer period as may be allowed by the notice. (3) A council must give any person who makes written submissions in response to an invitation under subsection (2) an opportunity to appear personally or by representative before the council or a council committee and to be heard on those submissions. (4) The Advisory Committee may, at the request of a council, furnish advice on any matters arising in the course of a review under this section. (5) The council must prepare a report on the review and send a copy of the report to the Minister (and the council will not be taken to have completed the review until the report is received by the Minister). (5a) The council must make copies of the report prepared under subsection (5) available for inspection (without charge) by the public at the principal office of the council. (6) The first review to be carried out by a council under this section must be completed within four years after the commencement of this section, and

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each subsequent review must be completed within three years of the completion of the previous review or, if the Minister allows an extension of time on the application by the council, within five years of the completion of the previous review. (7) A failure of a council to comply with this section cannot be taken to affect the validity of a Development Plan that applies in relation to the area (or a part of the area) of the council.

Subdivision 4 – Supplementary Provision 31 – Copies of Plans to Be Made Available to the Public

(1) The Minister must make appropriate provision for the publication and distribution of Development Plans under this Act. (2) The Minister must ensure that copies of every Development Plan, and of every authorised amendment to a Development Plan, are reasonably available for inspection (without charge) and purchase by the public at places determined by the Minister. (3) A council must make copies of a Development Plan published under subsection (1) that applies in relation to any part of its area available for inspection (without charge) and purchase by the public at an office of the council. (4) The Minister must, within a reasonable time after an amendment is made to a Development Plan, ensure that a consolidation of the Development Plan, as amended, is prepared and that copies of the consolidation are made available for inspection (without charge) and purchase by the public at places determined by the Minister. PART 4 – DEVELOPMENT ASSESSMENT

Division 1 – General Scheme Subdivision 1 – Approvals 32 – Development Must Be Approved under This Act

Subject to this Act, no development may be undertaken unless the development is an approved development.

33 – Matters Against Which a Development Must Be Assessed

(ii) any encroachment of a lot or unit over other land has been dealt with in a satisfactory manner;

(1) A development is an approved development if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of, each of the following matters (insofar as they are relevant to the particular development):

(iii) where land is to be vested in a council or other authority – the council or authority consents to the vesting;

(a) the provisions of the appropriate Development Plan (provisional development plan consent); (b) the provisions of the Building Rules (provisional building rules consent); (c) in relation to a proposed division of land (otherwise than by strata plan under the Community Titles Act 1996 or the Strata Titles Act 1988) – the requirement that the following conditions be satisfied (or will be satisfied by the imposition of conditions under this Act): (i) the allotments resulting from the division may be lawfully used for the purposes proposed by the applicant; (ii) open space will be provided, or a payment will be made in accordance with the requirements imposed under this Act; (iii) adequate provision is made for the creation of appropriate easements and reserves for the purposes of drainage, electricity supply, water supply and sewerage services; (iv) the requirements of the South Australian Water Corporation relating to the provision of water supply and sewerage services are satisfied; (iva) where land is to be vested in a council or other authority – the council or authority consents to the vesting; (v) requirements set out in regulations made for the purposes of this provision are satisfied; (d) in relation to a division of land by strata plan under the Community Titles Act 1996 or the Strata Titles Act 1988 – the requirement that the following conditions be satisfied (or will be satisfied by the imposition of conditions under this Act): (i) each lot or unit that would be created or affected by the development is appropriate for separate occupation;

(iv) a building or item intended to establish a boundary (or part of a boundary) of a lot or lots or a unit or units is appropriate for that purpose; (v) the division of the land by strata plan is, having regard to the relevant Development Plan, appropriate; (vi) open space will be provided, or a payment will be made in accordance with the requirements imposed under this Act; (vii) the requirements of the South Australian Water Corporation relating to the provision of water supply and sewerage services are satisfied; (viia) any building situated on the land complies with the Building Rules; (viii) requirements set out in the regulations made for the purposes of this provision are satisfied; (e) the requirement that any encroachment of a building over, under, across or on a public place (and not otherwise dealt with above) has been dealt with in a satisfactory manner; (f) such other matters as may be prescribed. . . . 35 – Special Provisions Relating to Assessment Against a Development Plan

(1) If a proposed development is of a kind described as a complying development under the regulations or the relevant Development Plan, the development must be granted a provisional development plan consent (subject to such conditions or exceptions as may be prescribed by the regulations or the Development Plan). . . . 36 – Special Provisions Relating to Assessment Against the Building Rules

(1) If the regulations provide that a form of building work complies with the Building Rules, any such building work must be granted a provisional building rules consent (subject to such conditions or exceptions as may be prescribed by the regulations or the Development Plan). . . .

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44 – General Offences

(1) A person must not undertake development contrary to this Division. . . . (2) A person must not undertake development contrary to a development authorisation under this Division. . . .

essary for the proper assessment of development1 or a project2 of major environmental, social or economic importance, by notice in the Gazette, declare that this section applies, or applies to the extent specified in the notice, to – (a) a development or project specified in the notice; or

(3) A person who has the benefit of a development must ensure that the development is used, maintained and operated in accordance with –

(b) a kind of development or project specified in the notice (either in the State generally, or in a specified part of the State); or

(a) any development authorisation under this Division; and (b) any plans, drawings, specifications or other documents submitted to a relevant authority for the purposes of this Division that are relevant to any such approval. . . .

(c) development generally within a specified part of the State3 . . . . (5) If the Minister makes a declaration under subsection (1) then, subject to the regulations and the declaration – (a) Division 1 does not apply to a development within the ambit of the declaration; and

(4) A person must not contravene, or fail to comply with, a condition imposed under this Division. . . .

(b) any application under Division 1 that relates to a development within the ambit of the declaration automatically lapses and any relevant documentation that has been lodged with a relevant authority under that Division must be transmitted to the Minister in accordance with the regulations; and

45 – Offences Relating Specifically to Building Work

(1) A person must not perform building work, or cause it to be performed, except in accordance with technical details, particulars, plans, drawings and specifications approved in accordance with this Division. . . .

(c) any development authorisation previously given under Division 1 in relation to a development within the ambit of the declaration ceases to have effect; and

(2) A person must, in performing any building work, comply with the Building Rules (unless modified under this Part), and any other requirements imposed by or under this Division in respect of that work. . . .

(d) a person must not undertake a development within the ambit of the declaration without the approval of the Governor under subdivision 2; and

(3) Insofar as any charge for an offence against a preceding subsection relates to a failure to comply with the Building Rules (including the Building Rules as modified under this Act), it is a defence to prove that the failure to comply was only of a minor nature and had no adverse effect on the structural soundness or safety of the building in respect of which the relevant building work was performed. . . .

(e) unless section 48(2)(a) applies, a development or project within the ambit of the declaration becomes, according to a determination of the Major Developments Panel under this section, subject to the processes and procedures prescribed by this subdivision with respect to the preparation and consideration of an EIS, a PER or a DR4 . . . . 1

Division 2 – Major Developments or Projects Subdivision 1 – Preparation of Statements and Reports

2

3

46 Declaration by Minister

(1) The Minister may, if of the opinion that a declaration under this section is appropriate or nec-

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4

Development has a defined meaning under this Act. A project is an activity or circumstance that does not require approval under this Act (because it is not within the ambit of the definition of development under this Act), but that may require approval under another Act. A development or project within the ambit of a declaration under subsection (1) will be known as a major development or project for the purposes of this section. In the case of a development, the principal purpose for the preparation of an EIS, PER or DR is to assist the

46A – The Major Developments Panel

(1) For the purposes of section 46, the Major Developments Panel is a panel constituted by the following persons when a major development or project is referred to the Major Developments Panel under section 46(7): (a) the Presiding Member of the Development Assessment Commission (ex officio), who will be the presiding member of the panel; (b) a member of the Environment Protection Authority appointed by the Minister; (c) a person with practical knowledge of, and experience in, industry, commerce or economic development appointed by the Minister; (d) a person with wide experience in environmental conservation appointed by the Minister; (e) a person selected by the Minister from a panel of three persons submitted to the Minister by the Local Government Association of South Australia; (f) a person with qualifications or experience relevant to the assessment of the particular development or project selected by the Minister from a list of persons established (and revised from time to time) by the Minister for the purposes of the panel. . . . 46B – EIS Process – Specific Provisions

(1) This section applies if an EIS must be prepared for a proposed development or project.

(b) the extent to which the expected effects of the development or project are consistent with the provisions of – (i) any relevant Development Plan; and (ii) the Planning Strategy; and (iii) any matters prescribed by the regulations; (c) if the development or project involves, or is for the purposes of, a prescribed activity of environmental significance as defined by the Environment Protection Act 1993, the extent to which the expected effects of the development or project are consistent with – (i) the objects of the Environment Protection Act 1993; and (ii) the general environmental duty under that Act; and (iii) relevant environment protection policies under that Act; (ca) if the development or project is to be undertaken within the Murray-Darling Basin, the extent to which the expected effects of the development or project are consistent with – (i) the objects of the River Murray Act 2003; and (ii) the Objectives for a Healthy River Murray under that Act; and (iii) the general duty of care under that Act; . . .

(a) require the proponent to prepare the EIS; or

(d) the proponent’s commitments to meet conditions (if any) that should be observed in order to avoid, mitigate or satisfactorily manage and control any potentially adverse effects of the development or project on the environment;

(b) determine that the Minister will arrange for the preparation of the EIS.

(e) other particulars in relation to the development or project required –

(2) The Minister will, after consultation with the proponent –

(3) The EIS must be prepared in accordance with guidelines determined by the Major Developments Panel under this subdivision. (4) The EIS must include a statement of – (a) the expected environmental, social and economic effects of the development or project; Governor in his or her assessment of the development under subdivision 2. In the case of a project, the principal purpose for the preparation of an EIS or PER is to identify issues of significance relevant to whether the project should proceed and, if it does proceed, to identify the conditions that should apply.

(i) by the regulations; or (ii) by the Minister. . . . 46C – PER Process – Specific Provisions

(1) This section applies if a PER must be prepared for a proposed development or project. (2) The Minister will, after consultation with the proponent – (a) require the proponent to prepare the PER; or (b) determine that the Minister will arrange for the preparation of the PER.

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(3) The PER must be prepared in accordance with guidelines determined by the Major Developments Panel under this subdivision.

46D – DR Process – Specific Provisions

(4) The PER must include a statement of –

(2) The Minister will, after consultation with the proponent –

(a) the expected environmental, social and economic effects of the development or project; (b) the extent to which the expected effects of the development or project are consistent with the provisions of –

(1) This section applies if a DR must be prepared for a proposed development.

(a) require the proponent to prepare the DR; or (b) determine that the Minister will arrange for the preparation of the DR.

(ii) the Planning Strategy; and

(3) The DR must be prepared in accordance with guidelines determined by the Major Developments Panel under this subdivision.

(iii) any matters prescribed by the regulations;

(4) The DR must include a statement of –

(i) any relevant Development Plan; and

(c) if the development or project involves, or is for the purposes of, a prescribed activity of environmental significance as defined by the Environment Protection Act 1993, the extent to which the expected effects of the development or project are consistent with – (i) the objects of the Environment Protection Act 1993; and (ii) the general environmental duty under that Act; and (iii) relevant environment protection policies under that Act; (ca) if the development or project is to be undertaken within the Murray-Darling Basin, the extent to which the expected effects of the development or project are consistent with –

(a) the expected environmental, social and economic effects of the development; (b) the extent to which the expected effects of the development are consistent with the provisions of – (i) any relevant Development Plan; and (ii) the Planning Strategy; and (iii) any matters prescribed by the regulations; (c) if the development involves, or is for the purposes of, a prescribed activity of environmental significance as defined by the Environment Protection Act 1993, the extent to which the expected effects of the development are consistent with – (i) the objects of the Environment Protection Act 1993; and

(i) the objects of the River Murray Act 2003; and

(ii) the general environmental duty under that Act; and

(ii) the Objectives for a Healthy River Murray under that Act; and

(iii) relevant environment protection policies under that Act;

(iii) the general duty of care under that Act; . . . .

(ca) if the development is to be undertaken within the Murray-Darling Basin, the extent to which the expected effects of the development are consistent with –

(d) the proponent’s commitments to meet conditions (if any) that should be observed in order to avoid, mitigate or satisfactorily manage and control any potentially adverse effects of the development or project on the environment; (e) other particulars in relation to the development or project required – (i) by the regulations; or (ii) by the Minister. . . .

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(i) the objects of the River Murray Act 2003; and (ii) the Objectives for a Healthy River Murray under that Act; and (iii) the general duty of care under that Act; . . . . (d) the proponent’s commitments to meet conditions (if any) that should be observed in order to

avoid, mitigate or satisfactorily manage and control any potentially adverse effects of the development on the environment; (e) other particulars in relation to the development required – (i) by the regulations; or (ii) by the Minister. . . . 47 – Amendment of EIS, PER or DR

(1) An EIS, a PER or a DR, and the relevant Assessment Report, may be amended at any time in order to – (a) correct an error; or (b) take account of more accurate or complete data or technological or other developments not contemplated when the document was prepared; or (c) take account of an alteration to the original proposal; or (d) update the document on account of the length of time that has passed since the document was prepared (or last updated); or (e) make such other provision as may be necessary or appropriate given the content or purpose of an EIS, PER, DR or Assessment Report. . . . Division 3 – Crown Development by State Agencies 49 – Crown Development

(1) In this section – the Crown means the Crown in right of the State; public infrastructure means – (a) the infrastructure, equipment, structures, works and other facilities used in or in connection with the supply of water or electricity, gas or other forms of energy, or the drainage or treatment of waste water or sewage; (b) roads and their supporting structures and works; (c) ports, wharfs, jetties, railways, tramways and busways; (d) schools, hospitals and prisons; (e) all other facilities that have traditionally been provided by the State (but not necessarily only by the State) as community or public facilities;

State agency means – (a) the Crown or a Minister of the Crown; (b) an agency or instrumentality of the Crown (including a Department or administrative unit of the State); (c) any other prescribed person or prescribed body acting under the express authority of the Crown, but does not include a person or body excluded from the ambit of this definition by regulation. (2) Subject to this section, if – (a) a State agency proposes to undertake development (other than in partnership or joint venture with a person or body that is not a State agency); or (b) a State agency proposes to undertake development for the purposes of the provision of public infrastructure (whether or not in partnership or joint venture with a person or body that is not a State agency); or (c) a person proposes to undertake development initiated or supported by a State agency for the purposes of the provision of public infrastructure and specifically endorsed by the State agency for the purposes of this section, the State agency must – (d) lodge an application for approval containing prescribed particulars with the Development Assessment Commission for assessment by the Development Assessment Commission; and (e) if the land in relation to which the development is proposed is within the area of a council – give notice containing prescribed particulars of the proposal to that council in accordance with the regulations. (3) No application for approval is required (either under this section or any other provision of this Act), and no notice to a council is required under subsection (2), if the development is of a kind excluded from the provisions of this section by regulation. (4) The Development Assessment Commission may request the State agency to provide additional documents or information (including calculations and technical details) in relation to the application.

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(5) A council may report to the Development Assessment Commission on any matters contained in a notice under subsection (2). (6) Where a notice is given to a council under subsection (2), and a report from the council is not received by the Development Assessment Commission within two months of the date of the notice, it will be conclusively presumed that the council does not intend to report on the matter. (7) The Development Assessment Commission must assess an application lodged with it under this section. (7a) The regulations may provide that where an application relates to a proposed development of a prescribed class, the Development Assessment Commission must refer the application, together with a copy of any relevant information provided by the State agency, to a body prescribed by the regulations for comment and report within the time prescribed by the regulations. (7b) A prescribed body may, before it provides a report under subsection (7a), request the State agency – (a) to provide additional documents or information (including calculations and technical details) in relation to the application; and (b) to comply with any other requirements or procedures of a prescribed kind. (7c) If an application is referred to a prescribed body under subsection (7a) and a report from the prescribed body is not received by the Development Assessment Commission within a period determined under the regulations, it will be conclusively presumed that the prescribed body does not intend to report on the matter. (7d) If an application is for a development that involves construction work where the total amount to be applied to the work will, when all stages are completed, exceed $4 000 000, other than an application for a variation to an approved development that, in the opinion of the Development Assessment Commission, is of a minor nature, the Development Assessment Commission must – (a) by public advertisement, invite interested persons to make written submissions to it on the proposal within a period of at least 15 business days; and

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(b) allow a person who has made a written submission to it within that period and who, as part of that submission, has indicated an interest in appearing before it, a reasonable opportunity to appear personally or by representative before the Development Assessment Commission to be heard in support of his or her submission; and (c) give due consideration in its assessment of the application to any submissions made by interested persons as referred to in paragraph (a) or (b). (7e) The Development Assessment Commission will then prepare a report to the Minister on the matter. (8) If it appears to the Development Assessment Commission that the proposal is seriously at variance with – (a) the provisions of the appropriate Development Plan (so far as they are relevant); or (b) any code or standard prescribed by the regulations for the purposes of this provision, specific reference to that fact must be included in the report. (9) If a council has, in relation to any matters referred to the council under subsection (2), expressed opposition to the proposed development in its report under subsection (5), a copy of the report must be attached to the Development Assessment Commission’s report (unless the council has, since providing its report, withdrawn its opposition). (9a) If a prescribed body has provided a report under subsection (7a), a copy of the report must also be attached to the Development Assessment Commission’s report. (10) The Development Assessment Commission must, unless the Minister grants an extension of time, furnish its report within the time prescribed by the regulations. (11) Where a request is made under subsection (4), any period between the date of request and the date of compliance is not to be included in the calculation of the period under subsection (10). (12) The Minister may, after receipt of the report of the Development Assessment Commission under

this section (and after taking such action (if any) as the Minister thinks fit) – (a) approve the development; or (b) refuse to approve the development. (13) An approval may be given – (a) for the whole or part of a proposed development; (b) subject to such conditions as the Minister thinks fit. (14) An approval under this section will be taken to be given subject to the condition that, before any building work is undertaken, the building work be certified by a private certifier, or by some person determined by the Minister for the purposes of this provision, as complying with the provisions of the Building Rules to the extent that is appropriate in the circumstances. (14aa) A person acting under subsection (14) must – (a) seek and consider the advice of the Building Rules Assessment Commission before giving a certificate in respect of building work that would be at variance with the performance requirements of the Building Code; and (b) take into account the criteria, and comply with any requirement, prescribed by the regulations before giving a certificate in respect of building work that would otherwise involve a variance with the Building Rules, and if the person gives a certificate that involves building work that is at variance with the Building Rules then the person must, subject to the regulations, specify the variance in the certificate. (14a) A person engaged to perform building work for a development approved under this section must –

a variance with the Building Rules), and any other requirements imposed under this section. . . . (15) If – (a) a council has, in a report under this section, expressed opposition to a development that is approved by the Minister (and the council has not, since providing its report, withdrawn its opposition); or (b) the Minister approves a development that is, according to the report of the Development Assessment Commission, seriously at variance with a Development Plan, or a prescribed code or standard, the Minister must, as soon as practicable, prepare a report on the matter and cause copies of that report to be laid before both Houses of Parliament. (16) If the Minister approves a development under this section, no other procedure or requirement relating to the assessment of the development under this Act applies and no other development authorisation (including a certificate or approval under Part 6) is required under this Act, although the Minister may, if necessary for the purposes of any other Act, issue any other development authorisation under this Act (which will then be taken, for the purposes of that other Act, to have been issued by a relevant authority under this Act). (16a) Despite a preceding subsection, if the Minister directs that an EIS, PER or DR be prepared with respect to a development otherwise within the ambit of this section then – (a) this section ceases to apply to the development; and (b) the State agency must not undertake the development without the approval of the Governor under section 48; and

(a) ensure that the building work is performed in accordance with technical details, particulars, plans, drawings and specifications certified for the purposes of subsection (14); and

(c) unless section 48(2)(a) applies, the development becomes, according to a determination of the Major Developments Panel, subject to the processes and procedures prescribed by Division 2 with respect to the preparation and consideration of an EIS, a PER or a DR.

(b) comply with the Building Rules (subject to any certificate under subsection (14) that provides for

(17) No appeal lies against a decision of the Minister under this section. . . .

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South Australia Development Regulations 1993 Summary: The South Australia Development Regulations of 1993 is a list of specific regulations passed in accordance with the South Australia Development Act of 1993. The regulations, which are primarily procedural, are intended to facilitate the administration of the various provisions of the act. These include requirements for proposed development plans, development application procedures, notice requirements, land division requirements, and regulations governing “major developments.” Select examples are reproduced. Omitted sections are indicated by an ellipsis. The full text of this law can be found at: http://www.parliament.sa.gov.au/Catalog/ legislation/Regulations/D/1993.243.un.htm

PART 3 DEVELOPMENT PLANS

9 Statement of Intent

Pursuant to section 25(1) of the Act, a Statement of Intent in respect of a proposed amendment to a Development Plan must include the following matters: (a) Issues – an explanation of the reasons for the preparation of the amendment, and a description of the changes in circumstances leading to the need for amendment and the range of issues to be addressed in the Plan Amendment Report; (b) Planning Strategy Policies – an identification of the relevant Planning Strategy policies and a statement confirming that the Plan Amendment Report will be consistent with those policies; (ba) Region-Wide Policies – an identification of any Development Plan policies which apply across the region which the amendment will need to address, and a statement confirming that these policies will only be changed to the extent (if any) necessary to ensure consistency with the policies contained in the Planning Strategy; (c) Investigations – an outline of the investigations which will be undertaken and the form that those investigations will take in order to address the social,

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economic and environmental issues of the proposed amendment; (d) Agency Consultation – a list of the government Departments or agencies, and councils, which will be consulted during the investigation and consultation stage; (e) Public Consultation – a description of any public or interest group consultation (including consultation required under the Act and these regulations) which is proposed to be undertaken during the preparation or exhibition of the amendment; (f) Planning Procedures – the identification of the personnel who will be directly involved in the investigation, consultation, exhibition and authorisation stages, and confirmation that the professional advice required under the Act will be provided; (g) Related Policies – an indication of how the proposed policies which form the basis of the amendment will relate to other planning issues outside the scope of the amendment, and how those policies relate to policies in Development Plans for adjoining areas; (h) Document Production – a description of the nature and extent of the responsibility of officers and consultants in relation to the preparation of the draft text and maps so that such items can easily be consolidated into the Development Plan if the amendment is approved; (i) Timetable – an outline of a timetable for the proposed investigation, amendment and public consultation program (ensuring that the program is completed within reasonable time limits and including specific periods for the purposes of paragraphs (a), (b) and (c) of section 25(19) of the Act). . . . 14 – Prescribed Plans Etc

The following documents are prescribed for the purposes of section 29(1)(b) of the Act: (a) a coastal management plan (or part of a coastal management plan) approved by the Governor under the Coast Protection Act 1972;

(b) an environment protection policy (or part of an environment protection policy) under the Environment Protection Act 1993; (c) a management plan (or part of a management plan) for a park or reserve adopted under the National Parks and Wildlife Act 1972; (d) the list or amendment to the list of places entered, either on a provisional or permanent basis, in the State Heritage Register under the Heritage Act 1993; (e) any regulation relating to the development of land under the Electricity Act 1996; (f) a management plan for aquaculture (or part of a management plan for aquaculture) prepared or adopted under the Fisheries Act 1982 or the Crown Lands Act 1929; (g) the State Water Plan or a plan prepared under Part 7 of the Water Resources Act 1997 (or a part of any such plan). . . . PART 4 – APPLICATIONS FOR DEVELOPMENT APPROVAL

development, and proceed to deal with the application according to that determination. (2) If the relevant authority is of the opinion that an application relates to a kind of development that is described as non-complying under the relevant Development Plan, and the applicant has not identified the development as such, the relevant authority must, by notice in writing, inform the applicant of that fact. 17 – Non-complying Development

(1) Where a person applies for consent in respect of a Development Plan for a non-complying development, the applicant must provide a brief statement in support of the application. . . . (5) The statement of effect must include – (a) a description of the nature of the development and the nature of its locality; and (b) a statement as to the provisions of the Development Plan which are relevant to the assessment of the proposed development; and

15 – Application to Relevant Authority

(c) an assessment of the extent to which the proposed development complies with the provisions of the Development Plan; and

(1) Subject to these regulations, an application in relation to a proposed development for the purposes of sections 32 and 33 of the Act –

(d) an assessment of the expected social, economic and environmental effects of the development on its locality; and

(a) must be lodged with the council for the area in which the proposed development is to be undertaken; and

(e) any other information specified by the relevant authority when it resolves to proceed with an assessment of the application (being information which the relevant authority reasonably requires in the circumstances of the particular case),

(b) must be in a form which complies with the requirements of section 39(1) of the Act and include the particulars required to be supplied by that form; and (c) must be accompanied by three copies of the plans, drawings, specifications and other documents and information relating to the proposed development (or such additional or lesser number of copies as the relevant authority may require) required under Schedule 5 (and prepared in accordance with the requirements of that Schedule). . . . 16 – Nature of Development

(1) If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the

and may include such other information or material as the applicant thinks fit. (6) A statement of effect is not required if the proposed development consists (wholly or substantially) of – (a) the alteration of a building; or (b) the construction of a new building which is to be used in a manner which is ancillary to, or in association with, the use of an existing building and which would facilitate the better enjoyment of the existing use of the existing building; or (c) the division of land where the number of allotments to result from the division is equal to or less than the number of existing allotments,

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and the relevant authority considers that the proposed development is of a minor nature. . . . 23 – Contravening Development

(1) An application for consent or approval may be made under these regulations notwithstanding that the development has been commenced or undertaken, or is continuing, in contravention of the Act. (2) Subject to section 85(14) of the Act, a relevant authority which has received an application under these regulations may, by notice in writing to the applicant, decline to deal with the application until any proceedings under the Act have been concluded. . . . 28 – Special Provision Relating to Fire Authorities

(1) If relevant authority, in assessing an application for provisional building rules consent, considers that – (a) a proposed alternative solution within the meaning of the Building Code requires assessment against a performance requirement of the Building Code which provides for fire fighting operations of a fire authority; or (b) the proposed development is at variance with a performance requirement of the Building Code which provides for fire fighting operations of a fire authority; or (c) special problems for fire fighting could arise due to hazardous conditions of a kind described in Section E of the Building Code, then the relevant authority must refer the application to the relevant fire authority for comment and report unless the fire authority indicates to the relevant authority that a referral is not required. . . . (4) A relevant authority must provide to the Building Rules Assessment Commission a copy of any report received from a fire authority under subregulation (1) that relates to an application that is referred to the Building Rules Assessment Commission under the Act. . . .

(b) identify the land on which the development is proposed; and (c) where applicable, state that the proposed development is a non-complying development under the relevant Development Plan; and (d) indicate where and when the relevant application may be inspected, and with whom, and the time by which, any relevant representations may be lodged. (2) A notice under section 38(5)(c) of the Act may be given by publishing a copy of the notice in a newspaper circulating generally throughout the area of the State in which the relevant land is situated on at least one occasion. 34 – Public Inspection of Certain Applications

(1) For the purposes of section 38 of the Act, the relevant authority must, in respect of any application for consent in respect of the Development Plan for a Category 2 or 3 development, ensure that copies of – (a) the application; and (b) any supporting plans, drawings, specifications or other documents or information provided to the relevant authority under section 39 of the Act; and (c) if applicable, any statement of effect that has been prepared in accordance with these regulations, are reasonably available for inspection (without charge) by the public at the principal office of the relevant authority for the period commencing on the day on which notice of the application is first given under these regulations and ending on a day by which written representations must be lodged under regulation 35. . . .

PART 9 – SPECIAL PROVISIONS RELATING TO LAND DIVISION

Division 1 – Preliminary

33 – Giving of Notice

49 – Interpretation

(1) Any notice required under section 38(4) or (5) of the Act must –

In this Part –

(a) describe the nature of the proposed development; and

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council means, in relation to any division of land that is not wholly within the area of a council, the Development Assessment Commission.

Division 2 – Prescribed Requirements – General Land Division

(b) if the relevant plan delineates five allotments or less –

50 – Prescribed Requirements

(i) to a total width in excess of 15 metres; or

The requirements set out in this Division are prescribed for the purposes of sections 33(1)(c)(v) and 51(1) of the Act.

(ii) by an area in excess of 23 square metres from the corner allotment abutting a junction of two or more roads shown on the relevant plan for the purpose of improving visibility; or

51 – Width of Roads and Thoroughfares

(1) Subject to subregulations (2) and (4), the width of any proposed road within the relevant division of land must be not less than 12.4 metres or more than 35 metres. (2) Subject to section 38 of the Roads (Opening and Closing) Act 1991, the width of any proposed road which is likely to be used regularly or extensively by commercial vehicles must be not less than 20 metres.

(c) in any case – where a building suitable for occupation exists on any part of the land considered necessary for road widening purposes, if the plan makes some other provision for road widening which will accord with the objectives of this regulation. 53 – Requirement As to Forming of Roads

(3) Subject to subregulation (4), the width of every proposed thoroughfare, not being a road, must be not less than two metres.

(1) Subject to subregulation (2), the roadway of every proposed road on a plan of division must be formed to a width specified by the council, and in a manner satisfactory to the council.

(4) The council may dispense with a width prescribed by subregulation (1) or (3) (and specify a different width) if it is of the opinion that the width so prescribed is not necessary for the safe and convenient movement of vehicles or pedestrians, or for underground services.

(2) The council must not, when specifying a width for a roadway to be formed under subregulation (1), specify a width in excess of 7.4 metres unless, in the opinion of the council, that specification is necessary in view of the volume or type of traffic that is likely to traverse that road.

(5) Subject to subregulation (6), the width of the road at the head of every cul-de-sac must be at least 25 metres for a length of not less than 25 metres, or such other dimensions as may be acceptable to the council.

(3) Adequate provision must be made for the turning of vehicles at the head of a cul-de-sac.

(6) The council may dispense with a requirement under subregulation (5) if it appears to the council that the cul-de-sac is likely to become a through road. 52 – Road Widening

(1) Subject to subregulation (2), where an existing road abuts land which is proposed to be divided and the council considers that the road should be widened in order to provide a road of adequate width having regard to existing and future requirements of the area, the proposed division of land must make provision for that widening.

(4) The council may dispense with the requirements under subregulation (3) if it is of the opinion that the cul-de-sac is likely to become a through road. (5) Subject to subregulation (6), every footpath, water-table, kerbing, culvert and drain of every proposed road must be formed in a manner satisfactory to the council. (6) The council may dispense with a requirement under subregulation (5). 54 – Construction of Roads, Bridges, Drains and Services

(2) The abutting road referred to in subregulation (1) cannot be required to be widened –

(1) The roadway of every proposed road within the relevant division must be constructed and where required by the council, paved and sealed with bitumen, tar or asphalt or other material approved by the council.

(a) if the relevant plan delineates more than five allotments – by more than 15 metres; or

(2) Any bridge, culvert, or underground drain or inlet which is reasonably necessary for a proposed

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road in accordance with recognised engineering design practice must be constructed. (3) Any footpath, water-table, kerbing, culvert or drain of a proposed road required to be formed by the council must be constructed. (4) Any drain which is necessary in accordance with recognised engineering practice for the safe and efficient drainage of the land and for the safe and efficient disposal of stormwater and effluent from the land must be provided and constructed. (5) Electrical services must be installed in accordance with recognised engineering practice, and where relevant, in accordance with any requirement imposed under regulation 30. 55 – Supplementary Provisions

(1) The manner of forming any proposed road, footpath, water-table, kerbing, culvert or drain required under this Division must be in conformity with a road location and grading plan signed by a licensed surveyor and approved by the council prior to the commencement of the work. (2) Subject to subregulation (4), all work referred to in regulations 53 and 54 must be carried out in a manner satisfactory to the council and in conformity with detailed construction plans and specifications signed by a professional engineer or, at the discretion of the council, a licensed surveyor, and approved by the council prior to the commencement of the work. (3) In subregulation (2) – professional engineer means a person who is – (a) a corporate member of the Institution of Engineers, Australia, who has appropriate experience and competence in the field of civil engineering; or (b) a person who is registered on the National Professional Engineers Register administered by the Institution of Engineers, Australia, and who has appropriate experience and competence in the field of civil engineering. (4) Before the roadway of any proposed road is sealed, the applicant must satisfy the council that all connections for water supply and sewerage services to any allotment delineated on the plan which, in the opinion of the Chief Executive of the South Australian Water Corporation are necessary and

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need to be laid under the surface of the proposed road, have been made. . . .

PART 10 – MAJOR DEVELOPMENTS OR PROJECTS

61 – Declaration by the Minister (Section 46)

(1) If the Minister makes a declaration under section 46(1) or (4) of the Act that relates to – (a) a particular development or project; or (b) a specified part of the State, then the Minister must, within five business days after the relevant notice is published in the Gazette – (c) where paragraph (a) applies – send a copy of the notice to the council or councils for the area or areas in which the proposed development or project is to be undertaken; (d) where paragraph (b) applies – send a copy of the notice to the council or councils for the specified part of the State. (2) For the purposes of section 46(5)(b) of the Act, a relevant authority must transmit to the Minister any relevant documentation (including the application and any accompanying documentation or information lodged by the proponent with the relevant authority under Division 1 of Part 4 of the Act) – (a) in the case of the Development Assessment Commission or a regional development assessment panel – within 10 business days after the relevant notice is published in the Gazette; (b) in the case of a council – within 10 business days after the receipt of a copy of the notice required by subregulation (1). (3) A relevant authority must, at the time that documents are transmitted to the Minister under subregulation (2), also transmit to the Minister any fees that have been paid by the proponent under Schedule 6 (less any amount that the Minister determines should be retained by the relevant authority). (4) Pursuant to subsection (6)(e) of section 46 of the Act (but subject to subregulation (5)), if an application lodged with the Minister under that section will require an assessment against the Building Rules, the application must, unless otherwise

directed by the Minister, be accompanied by three copies of the plans, drawings, specifications and other documents and information relating to the proposed development (or such additional or lesser number of copies as the Minister may require) required under Schedule 5 (prepared in accordance with the requirements of that Schedule). (5) If – (a) an application lodged with the Minister under section 46 of the Act will require an assessment against the Building Rules; and (b) the Minister indicates that it will be recommended to the Governor that the assessment against the Building Rules be referred to the council for the area in which the proposed development is to be undertaken, or be undertaken by a private certifier or by some other person, then, unless otherwise directed by the Minister – (c) the application lodged with the Minister need only be accompanied by one copy of the plans, drawings, specifications and other documents and information required by subregulation (4); and (d) the applicant must, at an appropriate time, provide two copies of those documents and that information to the council, private certifier or other person who is to undertake the assessment against the Building Rules (and if the council, private certifier or other person requires additional copies then the applicant must also comply with that requirement). 62 – Reference of Matters to Major Developments Panel

(1) The Minister must, when referring a matter to the Major Developments Panel under section 46(7) of the Act, provide to the panel – (a) a copy of the declaration published under section 46(1) of the Act; and (b) a copy of any relevant documentation or information received by the Minister under section 46(5) and (6) of the Act. (2) The Minister may also provide to the Major Developments Panel any comments or other information as the Minister thinks fit. (3) The Minister should, when referring a matter to the Major Developments Panel, specify the time within which the panel should deal with the referral.

63 – Prescribed Criteria

(1) The following criteria are prescribed for the purposes of section 46(9) of the Act: (a) the character of the receiving environment; (b) the potential social, economic and environmental impacts of the development or project; (c) the resilience of the environment to cope with change; (d) the degree of confidence in the prediction of impacts resulting from the development or project; (e) the extent to which undesirable impacts which may occur are likely to be irreversible; (f) the extent to which impacts, and requirements for monitoring and assessing impacts, will be ongoing; (g) the presence of other statutory assessment or policy frameworks which provide other procedures or processes to address any issues of concern. (2) For the purposes of taking into account the criteria prescribed by subregulation (1), consideration must be given to – (a) the extent of impacts by an analysis of their – (i) type; (ii) size; (iii) scope; (iv) intensity; (v) duration; and (b) the nature of impacts by an analysis of – (i) the degree to which the impacts are predictable; (ii) the resilience of the environment to cope with change; (iii) the degree to which the impacts can be reversed; (iv) the degree to which the impacts can be managed or mitigated; (v) the degree to which performance criteria can be applied in the circumstances of the case; and (c) the significance of impacts by an analysis of – (i) the degree to which the impacts adversely affect environmentally sensitive areas;

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(ii) the degree to which the impacts are acceptable considering the nature of the impacts; and (d) other factors determined to be relevant by the Major Developments Panel. . . . 63C – Procedures to be Observed by the Major Developments Panel

(1) A quorum at a meeting of the Major Developments Panel consists of four members (and no business may be transacted at a meeting of the panel unless a quorum is present). (2) In the absence of the presiding member of the Major Developments Panel at a meeting of the panel, his or her deputy will preside or, if the deputy is also absent, a member chosen by those present will preside. (3) A decision carried by a majority of the votes cast by members present at a meeting is a decision of the Major Developments Panel. (4) Each member present at a meeting of the Major Developments Panel is entitled to one vote on a matter arising for decision and, if the votes are equal, the member presiding at the meeting is entitled to a second or casting vote. (5) A conference between members constituting a quorum by telephone or audio-visual means is a valid meeting of the Major Developments Panel if – (a) a notice of the conference is given to all members in the manner determined by the Major Developments Panel for that purpose; and (b) the system of communication allows a participating member to communicate with any other participating member during the conference. (6) A member of the Major Developments Panel who has a personal interest or a direct or indirect pecuniary interest in a matter before the panel

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(other than an indirect interest that exists in common with a substantial class of persons) must not take part in the deliberations or decisions of the panel in relation to that matter. (7) The Major Developments Panel must have accurate minutes kept of its proceedings. . . . 70 – Criteria Relevant to Development at Variance with Building Rules

(1) For the purposes of sections 49(14aa)(b) and 49A(15)(b) of the Act, the following are prescribed criteria when considering a variance with the Building Rules: (a) that the provisions of the Building Rules are inappropriate to the particular building or building work, or that the proposed building work fails to conform with the Building Rules only in minor respects; and (b) that the variance is justifiable having regard to the objects of the relevant Development Plan or the performance requirements of the Building Code and would achieve the objects of this Act as effectively, or more effectively, than if the variance were not to be allowed. (2) Despite subregulation (1), if in considering a matter under section 49(14) or 49A(14) of the Act an inconsistency exists between the Building Rules and a Development Plan in relation to a State heritage place or a local heritage place – (a) the Development Plan prevails and the Building Rules must not be applied to the extent of the inconsistency; but (b) the person acting under that subsection must ensure, so far as is reasonably practicable, that standards of building soundness, occupant safety and amenity are achieved that are as good as can reasonably be achieved in the circumstances. . . .

V. EUROPE

DENMARK

Denmark Planning Act Summary: Denmark’s 2002 Planning Act, reproduced here in part, provides for decentralized, municipality-based planning, overseen by twelve regional authorities, leaving the state with veto power. The act’s goal is to create a unified system of planning that takes into account the interests of society, such as quality of living conditions, and of environmental well-being. Denmark seeks to attain these goals by comprehensive municipal planning, detailed local planning, and permits for construction and changes in land use in rural zones. The act requires that each municipality have a municipal plan with clear objectives and framework, including provisions allotting land for various purposes, such as garden and recreational areas. The English version of the act provided here was translated by David Breuer. Provisions omitted from the act are indicated by an ellipsis. The act is available in the Danish at: www.mim.dk

MINISTRY OF THE ENVIRONMENT SPATIAL PLANNING DEPARTMENT THE PLANNING ACT IN DENMARK

Consolidated Act No. 763 of 11 September 2002

Appeal. Only the legal issues in planning decisions may be appealed. Purpose of the Act

The Planning Act ensures that the overall planning synthesizes the interests of society with respect to land use and contributes to protecting the country’s nature and environment, so that sustainable development of society with respect for people’s living conditions and for the conservation of wildlife and vegetation is secured. Spatial planning is especially intended to ensure that:

r the whole country and the individual counties and municipalities develop appropriately, based on overall planning and economic considerations; r valuable buildings, settlements, urban environments and landscapes are created and conserved;

r the open coasts continue to comprise an important natural and landscape resource; r air, water, soil and noise pollution are prevented; and

r the public is involved in the planning process as much as possible.

The Planning Act

Decentralization of Responsibility

Denmark has a simple and clear spatial planning system that strongly decentralizes the delegation of responsibility. The municipal councils are responsible for comprehensive municipal planning, detailed local planning and permits for construction and changes in land use in rural zones. The 12 regional planning authorities are responsible for regional planning. The Minister for the Environment may influence decentralized planning through national planning initiatives. The state may veto the planning of municipalities and regional planning authorities to uphold national interests. Planning decisions may be appealed to the Nature Protection Board of

The municipal councils, county councils and the Greater Copenhagen Authority have substantial responsibility for spatial planning. During each 4-year election period, the regional planning authorities revise the regional plan. During the first half of the election period, each municipal council publishes a political strategy for municipal planning and determines the extent to which the municipal plan should be changed. Local plans are prepared when needed. Large development projects require a local plan before being initiated.

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Public Participation

PART 2: NATIONAL PLANNING

...

§2. The Minister for the Environment is responsible for the overall national spatial planning and for producing the investigations necessary for this. . . .

Special Rules for Coastal Zones and Retail Trade

The Planning Act contains special rules for planning in coastal zones and for planning for retail trade.

r The aim is to keep Denmark’s coastal areas as free as possible of development and installations that do not need to be located near the coast. r Planning for retail trade is intended to promote a diverse supply of retail shops in Denmark’s numerous small and medium-sized towns. . . . Environmental Impact Assessment

Large development projects that are likely to have significant effects on the environment are subject to environmental impact assessment and a public hearing before being initiated. The rules on environmental impact assessment in the Planning Act comprise Denmark’s implementation of a European Union directive. The regional planning authority usually conducts the assessment and prepares a supplement to the regional plan with an accompanying environmental impact assessment statement. PART 1: PURPOSE

§1. This Act shall ensure that the overall planning synthesizes the interests of society with respect to land use and contributes to protecting the country’s nature and environment, so that sustainable development of society with respect for people’s living conditions and for the conservation of wildlife and vegetation is secured. Subsection 2. This Act especially aims towards: (1) appropriate development in the whole country and in the individual counties and municipalities, based on overall planning and economic considerations; (2) creating and conserving valuable buildings, settlements, urban environments and landscapes; (3) that the open coasts shall continue to comprise an important natural and landscape resource; (4) preventing pollution of air, water and soil and noise nuisance; and (5) involving the public in the planning process as much as possible.

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§3. To ensure the protection of national planning interests, including ensuring the quality of planning, the Minister for the Environment may establish regulations governing the use of authority granted by this Act and the content of planning in accordance with this Act. . . .

PART 2A: PLANNING IN COASTAL AREAS

§5a. The country’s coastal areas shall be kept as free as possible of development and installations that do not need to be located near the coast. . . .

PART 2B: PLANNING OF RETAIL TRADE

§5c. Planning shall: (1) promote a diverse supply of retail shops in small and medium-sized towns and in individual districts of large cities; (2) ensure that areas are designated for retail trade purposes in locations to which people have good access via all forms of transport, including especially walking, bicycling and public transport; and (3) promote a societally sustainable structure of retail trade that limits the distance people need to transport themselves in order to shop. §5d. The areas designated for retail trade purposes shall be located in the centre of a town. In large cities and in coherent urban areas in Greater Copenhagen, areas for retail trade purposes may be designated in the centre of a city district. . . .

PART 3: REGIONAL PLANNING

... §5g. The Greater Copenhagen Authority shall be the regional planning authority in Greater Copenhagen, cf. the Greater Copenhagen Authority Act. The Bornholm Municipal Council shall be the regional planning authority in Bornholm. In the rest of Denmark, the county council shall be the regional planning authority.

§6. Greater Copenhagen and each county in the rest of Denmark shall have a regional plan. Bornholm shall have a consolidated regional and municipal plan. A regional plan or the regional and municipal plan for Bornholm shall cover a period of 12 years. Subsection 2. Regional planning and the regional and municipal planning for Bornholm may not contradict regulations or decisions made in accordance with §3. Subsection 3. Based on an overall assessment of development in Greater Copenhagen, the county or Bornholm, the regional plan or the regional and municipal plan for Bornholm shall include guidelines for: (1) the designation of areas as urban zones and summer cottage areas; (2) the location of large public institutions, major transport facilities and other large technical facilities; (3) the location of enterprises, etc. that require special siting to prevent pollution; ... (6) administering agricultural interests, including designating and protecting especially valuable agricultural areas; (7) the location of afforestation areas and areas where afforestation is not desired; (8) the administration of conservation-worthy assets and natural qualities worthy of conservation in the open country, including the designation and protection of nature reserves with special natural qualities; (9) the location of low-lying areas that can be reestablished as wetlands; (10) the location of areas to be used for recreation; (11) the use of land for the exploitation of stone, gravel and other natural resources in the ground; (12) the use and protection of water resources, including the designation of particularly valuable drinking-water abstraction areas, valuable drinking-water abstraction areas and drinkingwater abstraction areas of limited value, vulnerable drinking-water abstraction areas and priority drinking-water areas and the setting of priorities among them;

(13) the quality of water in and use of watercourses, lakes and coastal waters; and (14) the realization of regulations or decisions made in accordance with §3 of this Act. Subsection 4. In Greater Copenhagen, regional planning shall be carried out based on an assessment of development in the area as a whole, and the Greater Copenhagen Authority shall further establish guidelines for: (1) the distribution of future construction activity in urban zones and the chronological order for this; (2) water supply and wastewater removal; and (3) the number and location of allotment gardens, cf. §6d. . . . Subsection 8. The report that covers the part of the regional plan or the regional and municipal plan for Bornholm that includes guidelines for the size of shops shall include information on the special reasons based on planning considerations for the establishment of any shop sizes exceeding 3000 m of gross floor space for general goods or 1500 m of gross floor space for specialty goods. . . . §6d. The regional plan for Greater Copenhagen shall contain guidelines for the designation of land for allotment gardens ensuring that the quantity and location of land are in accordance with the development conditions in the region and ensuring that land has been designated for allotment gardens that can replace allotment gardens that are expected to be abolished. Subsection 2. Allotment gardens shall mean the plots of gardening land that are governed by the Allotment Gardens Act. . . . [Subsection 2, omitted here, allows Minister for the Environment to create rules regarding public announcement of certain decisions.] §9. County councils, the Greater Copenhagen Authority and municipal councils shall strive to implement the guidelines of the regional plan or the regional and municipal plan for Bornholm for matters subject to §6, subsections 3 and 4, including exercising the authority conferred by legislation. Their planning and development activity may not contradict the regional planning for these matters. §10. A county council may provide loans to finance:

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(1) the acquisition by the municipality of real property in accordance with §8 of the Betterment Charge Act, cf. Consolidated Act No. 549 of 9 July 1991; and (2) the acquisition of real property, the establishment of structures or buildings and other measures intended to realize regional and municipal planning. . . . [Subsections 2–7, omitted here, concern loans and financing provided by county council.] PART 4: MUNICIPAL PLANNING

(9) the chronological order for developing areas for urban use and into summer cottage areas. Subsection 6. The municipal plan may contain guidelines for other matters significant for land use and development in the municipality, including designating conservation-worthy buildings. . . . §11c. The municipal council shall produce a framework for the content of local plans that ensures that land for allotment gardens near urban areas has been designated such that the quantity and location of land are in accordance with the development conditions and the opportunities to designate allotment garden areas in the municipality. . . .

§11. Each municipality, except for Bornholm, cf. subsection 9, shall have a municipal plan. Subsection 2. The municipal plan must not contradict the regional planning for matters subject to §6, subsections 3 and 4 or for regulations or decisions made in accordance with §3. Subsection 3. A municipal plan shall establish a general structure for a whole municipality and a framework for the local plans for the specific parts of the municipality. Subsection 4. The general structure shall indicate the overall objectives for development and land use in the municipality, including the development of housing and workplaces, transport services, the supply of services, and allotment of garden areas and other recreational areas. Subsection 5. A framework for the content of local plans for the specific parts of the municipality shall be established for: (1) the distribution of construction according to type and use; (2) matters related to development, including a framework for conserving settlements or urban environments; (3) urban renewal in existing urban communities;

PART 5: LOCAL PLANNING

§13. The municipal council may produce local plans in accordance with the stipulations in Part 6. A local plan may not contradict the municipal plan or the regional and municipal plan for Bornholm, regional planning for matters subject to §6, subsections 3 and 4 or regulations or decisions made in accordance with §3. Subsection 2. A local plan shall be produced before large areas are parcelled out and before major development projects, including demolition, are carried out, and also when it is necessary to ensure the implementation of the municipal plan. . . . [Subsection 4, omitted here, is regarding the Municipal Council’s ability to require that security be provided by a property owner when requesting to transfer property from a rural zone to an urban zone.] ... §15. A local plan shall contain information on the purpose of the plan and its legal effects. Subsection 2. A local plan may contain provisions on:

(4) the supply of public and private services;

(1) transferring areas covered by the plan to an urban zone or a summer cottage area;

(5) institutions and technical facilities, including heat supply;

(2) the use of the area, including reserving specific areas for public use;

(6) recreational areas, including allotment garden areas, cf. §11c;

(3) the size and extent of properties;

(7) transport services; (8) the transfer of areas to urban zones or summer cottage areas; and

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(4) roads and paths and other matters related to traffic, including the rights of access to traffic areas and with the intent of separating different kinds of traffic;

(5) the location of tracks, pipes and transmission lines, including electric power lines;

(18) insulating existing residential housing against noise;

(6) the location of buildings on lots, including the ground level at which a building shall be constructed;

(19) banning major construction projects in existing buildings, so that such projects may only be carried out with a permit from the municipal council or if they are required by a public authority in accordance with legislation; and

(7) the extent and design of buildings, including provisions that regulate the density of residential housing; (8) the use of individual buildings; (9) the design, use and maintenance of undeveloped areas, including provisions that regulate the ground, fences, conservation of plants and other matters pertaining to plants, and the lighting of roads and other traffic areas; (10) conserving landscape features in connection with the development of an area allocated to urban or summer cottage development; (11) the production of or connection with common facilities located within or without the area covered by the plan as a condition for starting to use new buildings; (12) providing noise-abatement measures such as plantings, sound baffles, walls or similar construction as a condition for starting to use new buildings or changing the use of an undeveloped area; (13) establishing landowners’ associations for new areas with detached houses, industrial or commercial areas or areas for leisure houses, including compulsory membership and the right and obligation of the association to take responsibility for establishing, operating and maintaining common areas and facilities; (14) conserving existing buildings, so that buildings may only be demolished, converted or otherwise altered with a permit from the municipal council; (15) keeping an area free from new construction if buildings may be exposed to collapse, flood or other damage that may endanger users’ life, health or property; (16) cessation of the validity of expressly mentioned negative easements if the continued validity of the easement will contradict the purpose of the local plan, and if the easement shall not lapse as a result of §18; (17) combining flats in existing residential housing;

(20) the establishment of allotment associations for new allotment garden areas, including mandatory membership and the association’s right and duty to adopt provisions that shall be subject to approval by the municipal council on the termination or annulment of contracts governing the right of use and on the relinquishment of the right to use allotment gardens. [Subsection 3, omitted here, is regarding information required in a local plan for area converted to urban use or summer cottage construction.] ... §16. A local plan shall be accompanied by a report describing how the plan relates to the municipal plan and other planning for the area. . . . [Subsections 2–5, omitted here, are regarding specifics and requirements of the report that accompanies a local plan.] §17. When a local plan proposal is published in accordance with §24, properties that are covered by the proposal may not be developed or otherwise used in a way that creates a risk that the content of the final plan will be forestalled. [Subsections 2–4, omitted here, give exceptions to section 17. Subsection 2 specifies what to do when provisions of section 20 do not apply.] PART 6: PRODUCING AND REPEALING PLANS

... [Part 6, omitted completely, deals with procedural side of the act.] PART 6A: LOCAL AGENDA 21

§33a. Before the end of the first half of the local election period, county and municipal councils shall publish a report on their strategy for the contribution of the county or municipality to sustainable development in the twenty-first century with information on how this work will be carried out

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in a holistic, interdisciplinary and farsighted manner and how the public, enterprises, organizations and associations will be involved in this work (Local Agenda 21). The strategy shall contain the county or municipal council’s political objectives for the future work within the following priority areas: 1. reducing the negative effects of human activity on the environment; 2. promoting sustainable urban development and regeneration; 3. promoting biological diversity; 4. involving the general public and business in Local Agenda 21 work; and 5. promoting interaction between decisions on environmental, transport, business, social, health, educational, cultural and economic factors. . . .

PART 7: ZONING AND RURAL ZONE ADMINISTRATION

§34. The entire country shall be divided into urban zones, summer cottage areas and rural zones. Subsection 2. Urban zones shall be: (1) areas allocated to urban development as part of an urban development plan; (2) areas allocated as construction zones for urban development by a building by-law; (3) areas allocated to urban development or public use by a town planning by-law; and (4) areas transferred to an urban zone by a local plan. Subsection 3. Summer cottage areas shall be: (1) areas allocated to summer cottage development by a building by-law or a town planning by-law; and (2) areas transferred to a summer cottage area by a local plan. Subsection 4. Rural zones shall be the areas not included under subsections 2 and 3. . . . PART 8: SUMMER COTTAGE AREAS

... [Subsections 2–3, omitted here, deal with granting exemptions from the ban in section 40. According to

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these sections, states cannot appeal against the municipal council’s decision regarding granting the exemptions. Subsection 3–5, also omitted, give the specifics regarding who has right to permanent residence in summer cottage areas when a pensioner dies.] PART 9: EASEMENTS

... PART 10: ZONE TRANSFER

§45. The municipal council may decide to transfer areas from an urban zone or summer cottage area to a rural zone in accordance with the municipal plan. Subsection 2. The municipal council may also, after application from the owner concerned, transfer land from an urban zone or summer cottage area to a rural zone if the land borders on a rural zone and if the transfer is unobjectionable based on planning considerations. . . . [Subsections 2–5, omitted here, deal with compensation for expenses a landowner incurs, the amount of compensation, and procedural requirements for securing compensation.] PART 11: EXPROPRIATION, TAKING OVER PROPERTY, ETC

§47. The municipal council may expropriate real property that is privately owned or private rights to real property when the expropriation is materially important in ensuring the implementation of urban development in compliance with the municipal plan or in realizing a local plan or town planning by-law. . . . [Subsections 2–3, omitted here, concerns the situation when municipality is required to take over property in accordance with section 49. According to Section 50, also omitted, the valuation authority determines amount of compensation.] PART 12: SUPERVISION

§51. The municipal council shall ensure compliance with this Act, the regulations established in accordance with this Act and the provisions of local plans and the by-laws and plans, etc. in force in accordance with §68, subsection 2, cf., however, subsection 2 . . . [Section 51a omitted.]

PART 13: ADMINISTRATIVE PROVISIONS, ETC

... [In subsection 2, omitted here, the Minister for the Environment establishes regulations to fulfill international agreements. Also, according to section 54, omitted here, the minister can establish regulations regarding fees covering expenses for administering this act.] PART 14: APPEALS AND LEGAL PROCEEDINGS

... [Part 14, omitted here, deals with what decisions can be appealed and how, as well as other regulations regarding this process.] PART 15: LEGALIZATION AND PENALTIES

§63. The current owner of a property shall be responsible for rectifying an illegal situation. If the infringement comprises illegal use of the property, the user shall also be subject to the same responsibility. . . . [Subsections 2–3, omitted here, are registering an order to rectify an illegal situation at the owner’s expense and handling the order that is not obeyed within time limit.] §64. Unless a higher penalty is applicable in accordance with other legislation, a fine shall be imposed

on anyone who: (1) infringes the provisions of a local plan or one of the by-laws or plans, etc. in force in accordance with §68, subsection 2; (2) infringes §35, subsection 1, §39 or §40, subsection 1; (3) does not comply with conditions associated with a permit or exemption, etc. granted in accordance with this Act or with the instructions or plans prepared in accordance with this Act, or does not comply with the stipulations of the municipal council in accordance with §37, subsection 2; or (4) fails to comply with an order or a ban issued in accordance with this Act or the instructions or plans prepared in accordance with this Act, including an order to rectify an illegal situation. . . . [Subsections 2–3, omitted here, are on imposing fines and penalizing companies.]

PART 16: PROVISIONS GOVERNING COMING INTO FORCE AND TRANSITIONAL MEASURES . . .

[Part 16, omitted here, is regarding when the act will go into force and consequences on other acts when it does.]

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ENGLAND

Town and Country Planning Act of 1990 Summary: Summary: The English Town and Country Planning Act is a comprehensive tool for the regulation of development in urban, suburban, and rural areas throughout England and Wales. Though an extensive and detailed statute, this excerpt focuses on the statute’s basic foundation, namely the establishment of unitary development plans and specific development controls. The provisions regulate both private and public land in general, though sections relating to public lands exclusively have been excluded. The statute begins by designating local councils as planning authorities for their respective areas. Their power to act is derived from the Secretary of State, who retains oversight power over all development planning and regulation. The procedure for creating unitary development plans is outlined followed by regulations specifically controlling development. Excluded but relevant sections include provisions for compensation requirements (Parts IV and V), rights of owners to require purchase of interests (Part VI), enforcement procedures (Part VII), and special provisions (Part VIII) including tree preservation requirements (Part VIII, Chapter I) and requirements for proper maintenance of land affecting amenity of neighborhoods(Part VIII, Chapter II). Omitted provisions are indicated by an ellipsis. In some cases a brief description of the omitted provisions is provided in brackets. The text of this act is available at: http://www.opsi. gov.uk/acts/acts1990/Ukpga 19900008 en 1.htm

planning authorities derive their authority to act from the Secretary of State.] ... PART II: DEVELOPMENT PLANS CHAPTER I UNITARY DEVELOPMENT PLANS: METROPOLITAN AREAS INCLUDING LONDON

Preliminary Application of Chapter I to Greater London and Metropolitan Counties

10. This Chapter applies, subject to section 28, to the area of any local planning authority in Greater London or a metropolitan county (other than any area in such a county which is part of a National Park). Surveys Etc.

[This section requires the survey of planning areas and specifies the types of data to be collected as part of the complete survey.] ... Preparation and Adoption of Unitary Development Plans Preparation of unitary development plan

12. – (1) The local planning authority shall, within such period (if any) as the Secretary of State may direct, prepare for their area a plan to be known as a unitary development plan. (2) A unitary development plan shall comprise two parts.

PART I: PLANNING AUTHORITIES

[Part I designates the appropriate local councils as planning authorities for their respective jurisdictions. This includes the authorization of the Secretary of State to create joint planning boards covering areas including two or more local councils. The local

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(3) Part I of a unitary development plan shall consist of a written statement formulating the authority’s general policies in respect of the development and other use of land in their area (including measures for the improvement of the physical environment and the management of traffic).

(4) Part II of a unitary development plan shall consist of – (a) a written statement formulating in such detail as the authority think appropriate (and so as to be readily distinguishable from the other contents of the plan) their proposals for the development and other use of land in their area or for any description of development or other use of such land; (b) a map showing those proposals on a geographical basis; (c) a reasoned justification of the general policies in Part I of the plan and of the proposals in Part II of it; and (d) such diagrams, illustrations or other descriptive or explanatory matter in respect of the general policies in Part I of the plan or the proposals in Part II of it as the authority think appropriate or as may be prescribed. (5) A unitary development plan shall also contain such other matters as may be prescribed or as the Secretary of State may in any particular case direct. (6) In formulating the general policies in Part I of a unitary development plan the authority shall have regard – (a) to any strategic guidance given by the Secretary of State to assist them in the preparation of the plan; (b) to current national and regional policies; (c) to the resources likely to be available; and (d) to such other matters as the Secretary of State may direct the authority to take into account. (7) The proposals in Part II of a unitary development plan shall be in general conformity with Part I. (8) Part II of a unitary development plan may designate any part of the authority’s area as an action area, that is to say, an area which they have selected for the commencement during a prescribed period of comprehensive treatment by development, redevelopment or improvement (or partly by one and partly by another method) and if an area is so designated that Part of the plan shall contain a description of the treatment proposed by the authority. (9) In preparing a unitary development plan the authority shall take into account the provisions of any scheme under paragraph 3 of Schedule 32 to

the [1980 c. 65.] Local Government, Planning and Land Act 1980 relating to land in their area which has been designated under that Schedule as an enterprise zone. Publicity in Connection with Preparation of Unitary Development Plan

13. – (1) When preparing a unitary development plan for their area and before finally determining its contents the local planning authority shall take such steps as will in their opinion secure – (a) that adequate publicity is given in their area to the matters which they propose to include in the plan; (b) that persons who may be expected to desire an opportunity of making representations to the authority with respect to those matters are made aware that they are entitled to an opportunity of doing so; and (c) that such persons are given an adequate opportunity of making such representations. (2) The authority shall consider any representations made to them within the prescribed period. (3) Where the local planning authority have prepared a unitary development plan, before adopting it they shall – (a) make copies of it available for inspection at their office and at such other places as may be prescribed; and (b) send a copy to the Secretary of State. (4) Each copy made available for inspection under subsection (3) shall be accompanied by a statement of the time within which objections to the plan may be made to the authority. (5) The copy of a unitary development plan sent to the Secretary of State under subsection (3) shall be accompanied by a statement – (a) of the steps which the authority have taken to comply with subsections (1) and (2); and (b) of the authority’s consultations with, and their consideration of the views of, other persons. (6) If, on considering the statement submitted with and the matters contained in a unitary development plan and any other information provided by the local planning authority, the Secretary of State is not

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satisfied that the purposes of paragraphs (a) to (c) of subsection (1) have been adequately achieved by the steps taken by the authority in compliance with that subsection, he may, within 21 days of the receipt of the statement, direct the authority not to take further steps for the adoption of the plan without taking such further action as he may specify in order better to achieve those purposes and satisfying him that they have done so. (7) A local planning authority who are given directions by the Secretary of State under subsection (6) shall – (a) immediately withdraw the copies of the unitary development plan made available for inspection as required by subsection (3); and (b) notify any person by whom objections to the plan have been made to the authority that the Secretary of State has given such directions.

Withdrawal of Unitary Development Plan

14. – (1) A unitary development plan may be withdrawn by the local planning authority at any time before it is adopted by the authority or approved by the Secretary of State and shall be withdrawn by the authority if the Secretary of State so directs. (2) Where a unitary development plan is withdrawn the authority shall –

Adoption of Unitary Development Plan by Local Planning Authority

15. – (1) After the expiry of the period given for making objections to a unitary development plan or, if such objections have been duly made during that period, after considering those objections, the local planning authority may, subject to the following provisions of this section and to sections 17 and 18, by resolution adopt the plan either as originally prepared or as modified to take account – (a) of those objections; (b) of any other objections made to the plan; (c) of any other considerations which appear to the authority to be material. (2) A unitary development plan shall not be adopted unless Part II of the plan is in general conformity with Part I. (3) Where an objection to a unitary development plan has been made by the Minister of Agriculture, Fisheries and Food and the local planning authority do not propose to modify the plan to take account of the objection, the authority – (a) shall send the Secretary of State particulars of the objection and a statement of their reasons for not modifying the plan to take account of it; and (b) shall not adopt the plan unless the Secretary of State authorises them to do so.

(a) withdraw the copies made available for inspection and sent to the Secretary of State under section 13(3); and

(4) Subject to the following provisions of this Chapter and to section 287, a unitary development plan shall become operative on the date on which it is adopted.

(b) give notice that the plan has been withdrawn to every person who has made an objection to it.

Local Inquiries

(3) In determining the steps to be taken by a local planning authority to secure the purposes of paragraphs (a) to (c) of subsection (1) of section 13, the authority and the Secretary of State may take into account any steps taken to secure those purposes in connection with any unitary development plan which the authority have previously withdrawn. (4) Where a unitary development plan is withdrawn the copies of the plan shall be treated as never having been made available under section 13(3).

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16. – (1) For the purpose of considering objections to a unitary development plan the local planning authority may, and shall in the case of objections made in accordance with regulations under this Chapter, cause a local inquiry or other hearing to be held by a person appointed by the Secretary of State or, in such cases as may be prescribed by regulations under this Chapter, by the authority themselves. (2) Subsections (2) and (3) of section 250 of the [1972 c. 70.] Local Government Act 1972 (power to summon and examine witnesses) shall apply to an inquiry held under this section as they apply to an inquiry under that section.

(3) The [1971 c. 62.] Tribunals and Inquiries Act 1971 shall apply to a local inquiry or other hearing held under this section as it applies to a statutory inquiry held by the Secretary of State, but as if in section 12(1) of that Act (statement of reasons for decisions) the reference to any decision taken by the Secretary of State were a reference to a decision taken by a local planning authority. (4) Regulations made for the purposes of this section may – (a) make provision with respect to the appointment and qualifications for appointment of persons to hold a local inquiry or other hearing under this section, including provision enabling the Secretary of State to direct a local planning authority to appoint a particular person or one of a specified list or class of persons; (b) make provision with respect to the remuneration and allowances of a person appointed for that purpose. (5) No local inquiry or other hearing need be held under this section if all persons who have made objections have indicated in writing that they do not wish to appear. Secretary of State’s Powers Concerning Plans

[The Secretary of State retains oversight authority under this statute (see section 13). This authority includes the power to direct reconsideration of proposals and order submission, at his or her discretion, and prior to local adoption, of all or part of the unitary development plan for approval. He or she may then approve or reject all or part of the submitted plan and shall provide a statement of the reasons governing his decision. In addition, the Secretary of State retains the power to conduct local inquiries, examinations, and consultation.] ... Alteration of Plans

[This section provides for the alteration of plans as well as the procedures to be followed for such alteration.] ... Joint Plans

[This section provides for the possibility of joint plans, plans prepared by two or more local planning authorities.] ...

Supplementary

... Default powers. [This section provides that if the local planning authority fails to perform its duties or follow the procedures outlined in this statute, its powers will be divested and returned to the Secretary of State.] ... Meaning of “Development Plan” in Greater London and Metropolitan Counties

27. For the purposes of this Act and any other enactment relating to town and country planning, the [1961 c. 33.] Land Compensation Act 1961 and the [1980 c. 66.] Highways Act 1980, the development plan for any district in Greater London or a metropolitan county (whether the whole or part of the area of a local planning authority) shall be taken as consisting of – (a) the provisions of the unitary development plan for the time being in force for that area or the relevant part of it, together with a copy of the local planning authority’s resolution of adoption or the Secretary of State’s notice of approval or, where part of the plan has been adopted and the remainder approved, copies of the resolution and the notice; and (b) any alteration to that plan, together with a copy of the authority’s resolution of adoption, or the Secretary of State’s notice of approval, of the alteration or, where part of the alteration has been adopted and the remainder approved, copies of the resolution and the notice. Commencement of Chapter I: Transitional Provisions

28. – (1) Subject to subsection (2), the provisions of this Chapter shall come into force in the area of any local planning authority in Greater London or a metropolitan county (other than any area in that county which is part of a National Park) on such day as may be appointed in relation to that area by an order made by the Secretary of State. (2) Subsection (1) does not apply in any area in relation to which an order has been made before the commencement of this Act under section 4(1) of the [1985 c. 51.] Local Government Act 1985 (commencement of Part I of Schedule 1 to that Act) and in any such area the provisions of this Chapter

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shall come into force at the commencement of this Act or, if later, on the day appointed by the order.

Meaning of “development plan” outside Greater London and the metropolitan counties

(3) Until a unitary development plan becomes operative under this Chapter for such an area as is mentioned in subsection (1) (or where parts of such a plan become operative on different dates until every part has become operative) –

54. – (1) Subject to subsection (4), for the purposes of this Act and any other enactment relating to town and country planning, the [1961 c. 33.] Land Compensation Act 1961 and the [1980 c. 66.] Highways Act 1980, the development plan for any district outside Greater London and the metropolitan counties (whether the whole or part of the area of a local planning authority) shall be taken as consisting of –

(a) if it is the area of a local planning authority in a metropolitan county, Part I of Schedule 2 (which provides for existing plans to continue in force and applies some of the provisions of Chapter II) shall apply in relation to it; (b) if it is the area of a local planning authority in Greater London, Part II of that Schedule (which makes similar provision) shall apply in relation to it; and (c) Part III of that Schedule shall apply in relation to it for the purpose of making continuing provision for the transitional matters for which provision was made immediately before the commencement of this Act by Schedule 7 to the 1971 Act (old development plans etc.). (4) The power to make orders under this section may be exercised so as to make different provision for different cases, including different provision for different areas.

(a) the provisions of the structure plan for the time being in force for that area or the relevant part of that area, together with the Secretary of State’s notice of approval of the plan; (b) any alterations to that plan, together with the Secretary of State’s notices of approval of them; (c) any provisions of a local plan for the time being applicable to the district, together with a copy of the authority’s resolution of adoption or, as the case may be, the Secretary of State’s notice of approval of the local plan; and (d) any alterations to that local plan, together with a copy of the authority’s resolutions of adoption or, as the case may be, the Secretary of State’s notices of approval of them.

Application of Chapter II to Non-metropolitan Areas

(2) References in subsection (1) to the provisions of any plan, notices of approval, alterations and resolutions of adoption shall, in relation to a district forming part of the area to which they are applicable, be respectively construed as references to so much of those provisions, notices, alterations and resolutions as is applicable to the district.

29. Subject to the transitional provisions in Schedule 2, this Chapter applies only to the area of any local planning authority outside Greater London and the metropolitan counties and to any part of a National Park in such a county.

(3) References in subsection (1) to notices of approval shall, in relation to any plan or alteration made by the Secretary of State under section 51, be construed as references to notices of the making of the plan or alteration.

[With some differences, the planning procedures for non-metropolitan areas are similar to the procedures above for Greater London and metropolitan counties.] ...

(4) This section has effect subject to Part III of Schedule 2 (old development plans).

CHAPTER II: STRUCTURE AND LOCAL PLANS: NON-METROPOLITAN AREAS PRELIMINARY

Supplementary

...

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(5) Any reference in the Land Compensation Act 1961 to an area defined in the current development plan as an area of comprehensive development shall be construed as a reference to an action area for which a local plan is in force.

PART III: CONTROL OVER DEVELOPMENT

Meaning of Development Meaning of “Development” and “New Development.”

the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class.

55. – (1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development,” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

(3) For the avoidance of doubt it is hereby declared that for the purposes of this section –

(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land –

(b) the deposit of refuse or waste materials on land involves a material change in its use, notwithstanding that the land is comprised in a site already used for that purpose, if –

(a) the carrying out for the maintenance, improvement or other alteration of any building of works which – (i) affect only the interior of the building, or (ii) do not materially affect the external appearance of the building, and are not works for making good war damage or works begun after 5th December 1968 for the alteration of a building by providing additional space in it underground; (b) the carrying out on land within the boundaries of a road by a local highway authority of any works required for the maintenance or improvement of the road; (c) the carrying out by a local authority or statutory undertakers of any works for the purpose of inspecting, repairing or renewing any sewers, mains, pipes, cables or other apparatus, including the breaking open of any street or other land for that purpose; (d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such; (e) the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used; (f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section,

(a) the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used;

(i) the superficial area of the deposit is extended, or (ii) the height of the deposit is extended and exceeds the level of the land adjoining the site. (4) For the purposes of this Act mining operations include – (a) the removal of material of any description – (i) from a mineral-working deposit; (ii) from a deposit of pulverised fuel ash or other furnace ash or clinker; or (iii) from a deposit of iron, steel or other metallic slags; and (b) the extraction of minerals from a disused railway embankment. (5) Without prejudice to any regulations made under the provisions of this Act relating to the control of advertisements, the use for the display of advertisements of any external part of a building which is not normally used for that purpose shall be treated for the purposes of this section as involving a material change in the use of that part of the building. (6) In this Act “new development” means any development other than development of a class specified in Part I or Part II of Schedule 3; and Part III of that Schedule has effect for the purposes of Parts I and II.

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Time When Development Begun

56. – (1) Subject to the following provisions of this section, for the purposes of this Act development of land shall be taken to be initiated – (a) if the development consists of the carrying out of operations, at the time when those operations are begun; (b) if the development consists of a change in use, at the time when the new use is instituted; (c) if the development consists both of the carrying out of operations and of a change in use, at the earlier of the times mentioned in paragraphs (a) and (b).

(c) development of any class prescribed for the purposes of this subsection. (6) In subsection (5) “general development order” means a development order (within the meaning of section 59) made as a general order applicable (subject to such exceptions as may be specified in it) to all land in England and Wales. Requirement for Planning Permission Planning Permission Required for Development

57. – (1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.

(2) For the purposes of the provisions of this Part mentioned in subsection (3) development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out.

(2) Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at the end of that period, of its use for the purpose for which it was normally used before the permission was granted.

(3) The provisions referred to in subsection (2) are sections 85(2), 86(6), 87(4), 91, 92 and 94.

(3) Where by a development order planning permission to develop land has been granted subject to limitations, planning permission is not required for the use of that land which (apart from its use in accordance with that permission) is its normal use.

(4) In subsection means –

(2)

“material

operation”

(a) any work of construction in the course of the erection of a building; (b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building; (c) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b); (d) any operation in the course of laying out or constructing a road or part of a road; (e) any change in the use of any land which constitutes material development. (5) In subsection (4)(e) “material development” means any development other than – (a) development for which planning permission is granted by a general development order for the time being in force and which is carried out so as to comply with any condition or limitation subject to which planning permission is so granted; (b) development falling within any of paragraphs 1, 2, 3 and 5 to 8 of Schedule 3 (as read with Part III of that Schedule); and

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(4) Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose for which (in accordance with the provisions of this Part of this Act) it could lawfully have been used if that development had not been carried out. (5) In determining for the purposes of subsections (2) and (3) what is or was the normal use of land, no account shall be taken of any use begun in contravention of this Part or of previous planning control. (6) For the purposes of this section a use of land shall be taken to have been begun in contravention of previous planning control if it was begun in contravention of Part III of the 1947 Act, Part III of the 1962 Act or Part III of the 1971 Act. (7) Subsection (1) has effect subject to Schedule 4 (which makes special provision about use of land on 1st July 1948). Granting of Planning Permission: General

58. – (1) Planning permission may be granted – (a) by a development order;

(b) by the local planning authority (or, in the cases provided in this Part, by the Secretary of State) on application to the authority in accordance with a development order; (c) on the adoption or approval of a simplified planning zone scheme or alterations to such a scheme in accordance with section 82 or, as the case may be, section 86; or (d) on the designation of an enterprise zone or the approval of a modified scheme under Schedule 32 to the [1980 c. 65.] Local Government, Planning and Land Act 1980 in accordance with section 88 of this Act. (2) Planning permission may also be deemed to be granted under section 90 (development with government authorisation). (3) This section is without prejudice to any other provisions of this Act providing for the granting of permission. Development Orders Development Orders: General

59. – (1) The Secretary of State shall by order (in this Act referred to as a “development order”) provide for the granting of planning permission. (2) A development order may either – (a) itself grant planning permission for development specified in the order or for development of any class specified; or (b) in respect of development for which planning permission is not granted by the order itself, provide for the granting of planning permission by the local planning authority (or, in the cases provided in the following provisions, by the Secretary of State) on application to the authority in accordance with the provisions of the order. (3) A development order may be made either – (a) as a general order applicable, except so far as the order otherwise provides, to all land, or (b) as a special order applicable only to such land or descriptions of land as may be specified in the order.

ally or subject to such conditions or limitations as may be specified in the order. (2) Without prejudice to the generality of subsection (1), where planning permission is granted by a development order for the erection, extension or alteration of any buildings, the order may require the approval of the local planning authority to be obtained with respect to the design or external appearance of the buildings. (3) Without prejudice to the generality of subsection (1), where planning permission is granted by a development order for development of a specified class, the order may enable the Secretary of State or the local planning authority to direct that the permission shall not apply either – (a) in relation to development in a particular area, or (b) in relation to any particular development. (4) Any provision of a development order by which permission is granted for the use of land for any purpose on a limited number of days in a period specified in that provision shall (without prejudice to the generality of references in this Act to limitations) be taken to be a provision granting permission for the use of land for any purpose subject to the limitation that the land shall not be used for any one purpose in pursuance of that provision on more than that number of days in that period. Development Orders: Supplementary Provisions

61. – (1) A general development order may make different provision with respect to different descriptions of land. (2) For the purpose of enabling development to be carried out in accordance with planning permission, or otherwise for the purpose of promoting proper development in accordance with the development plan, a development order may direct that any pre 1947 Act enactment, or any regulations, orders or byelaws made at any time under any such enactment –

Permission Granted by Development Order

(a) shall not apply to any development specified in the order, or

60. – (1) Planning permission granted by a development order may be granted either uncondition-

(b) shall apply to it subject to such modifications as may be so specified.

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(3) In subsection (2) “pre 1947 Act enactment” means – (a) any enactment passed before 6th August 1947 (the date of the passing of the 1947 Act), and (b) any enactment contained in the [1980 c. 66.] Highways Act 1980 which – (i) is an enactment derived from the [1959 c. 25.] Highways Act 1959, and (ii) re-enacts (with or without modifications) any such enactment as is mentioned in paragraph (a). Applications for Planning Permission Form and Content of Applications for Planning Permission

land or to carry out any development of land, and to applications for such permission, shall be construed accordingly. (4) Any planning permission granted in accordance with subsection (3) may be granted – (a) so as to take effect from the date on which the buildings or works were constructed or carried out or the use was instituted, or (b) in the case of buildings or works constructed or carried out or a use instituted in accordance with planning permission granted for a limited period, so as to take effect from the end of that period. (5) Subsection (3) shall not affect the construction of section 65, 71(1) or 197 or Part V.

62. Any application to a local planning authority for planning permission –

Applications to Determine Whether Planning Permission Required

(a) shall be made in such manner as may be prescribed by regulations under this Act; and

64. – (1) If any person who proposes to carry out any operations on land, or to make any change in the use of land –

(b) shall include such particulars and be verified by such evidence as may be required by the regulations or by directions given by the local planning authority under them. Applications in Connection with Existing Buildings and Uses

63. – (1) An application for planning permission may relate to buildings or works constructed or carried out, or a use of land instituted, before the date of the application. (2) Such an application may be – (a) in respect of buildings or works constructed or carried out, or a use instituted, without planning permission or in accordance with planning permission granted for a limited period; or (b) for permission to retain buildings or works, or continue the use of land, without complying with some condition subject to which a previous planning permission was granted. (3) Any power to grant planning permission to develop land under this Act shall include power to grant planning permission for the retention on land of buildings or works constructed or carried out, or for the continuance of a use of land instituted, as mentioned in subsection (2); and references in the planning Acts to planning permission to develop

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(a) wishes to have it determined whether the carrying out of those operations, or the making of that change, would constitute or involve development of the land, and (b) if so, whether an application for planning permission in respect of it is required under this Part (having regard to the provisions of any development order, enterprise zone scheme or simplified planning zone scheme), he may apply to the local planning authority to determine that question. (2) An application under subsection (1) may be made either as part of an application for planning permission or without any such application. (3) The provisions of sections 59, 69(1), (2) and (5), 70, 74, 77, 78 and 79 shall, subject to any necessary modifications, apply in relation to any application under this section, and to the determination of it, as they apply in relation to applications for planning permission and to the determination of such applications. Publicity for Applications Publication of Notices of Applications for Planning Permission for Designated Development

65. – (1) A development order may designate any class of development as development to which this

section is to apply; and a class of development which is for the time being so designated is in this section referred to as “development of a designated class.”

(6) If an applicant has cause to rely on subsection (5) his certificate under subsection (2)(b) must state the relevant circumstances.

(2) An application for planning permission for development of a designated class shall not be entertained by the local planning authority unless it is accompanied –

(7) The notice mentioned in subsection (2)(a) or required by subsection (3) shall (in addition to any other matters required to be contained in it) name a place within the locality where a copy of the application for planning permission, and of all plans and other documents submitted with it, will be open to inspection by the public at all reasonable hours during such period as may be specified in the notice.

(a) by a copy of a notice of the application, in such form as may be prescribed by a development order, and by such evidence as may be so prescribed that the notice has been published in a local newspaper circulating in the locality in which the land to which the application relates is situated; and (b) by a certificate signed by or on behalf of the applicant stating – (i) that he has complied with subsection (3) and when he did so, or (ii) that he has been unable to comply with it because he has not such rights of access or other rights in respect of the land as would enable him to do so, and that he has taken such reasonable steps as are open to him (specifying them) to acquire those rights but has been unable to acquire them. (3) In order to comply with this subsection a person must – (a) post on the land a notice, in such form as may be prescribed by a development order, stating that the application for planning permission is to be made; and (b) leave the notice in position for not less than seven days in a period of not more than one month immediately preceding the making of the application to the local planning authority. (4) The notice mentioned in subsection (3) – (a) must be posted by affixing it firmly to some object on the land, and (b) must be sited and displayed in such a way as to be easily visible and legible by members of the public without their going on the land. (5) An applicant shall not be treated as unable to comply with subsection (3) if the notice is, without any fault or intention of his, removed, obscured or defaced before the seven days referred to in subsection (3)(b) have elapsed, if he has taken reasonable steps for its protection and, if need be, replacement.

(8) That period shall not be less than 21 days beginning with the date on which the notice is published or, as the case may be, first posted. (9) An application for planning permission for development of a designated class shall not be determined by the local planning authority before the end of the period of 21 days beginning with the date of the application. Notification of Applications to Owners and Agricultural Tenants

66. – (1) Without prejudice to section 65, a local planning authority shall not entertain any application for planning permission unless it is accompanied by one of the following certificates signed by or on behalf of the applicant – (a) a certificate stating that, at the beginning of the period of 21 days ending with the date of the application, no person (other than the applicant) was the owner of any of the land to which the application relates; (b) a certificate stating that the applicant has given the requisite notice of the application to all the persons (other than himself) who at the beginning of that period were owners of any of the land to which the application relates, and setting out – (i) the names of those persons, (ii) the addresses at which notice of the application was given to them respectively, and (iii) the date of service of each such notice; (c) a certificate stating – (i) that the applicant is unable to issue a certificate in accordance with paragraph (a) or (b), (ii) that he has given the requisite notice of the application to such one or more of the persons

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mentioned in paragraph (b) as are specified in the certificate (setting out their names, the addresses at which notice of the application was given to them respectively, and the date of the service of each such notice), and (iii) that he has taken such steps as are reasonably open to him (specifying them) to ascertain the names and addresses of the remainder of those persons but has been unable to do so; (d) a certificate stating – (i) that the applicant is unable to issue a certificate in accordance with paragraph (a), and (ii) that he has taken such steps as are reasonably open to him (specifying them) to ascertain the names and addresses of the persons mentioned in paragraph (b) but has been unable to do so. (2) Any such certificate as is mentioned in paragraph (c) or (d) of subsection (1) must also contain a statement that the requisite notice of the application, as set out in the certificate, has on a date specified in the certificate been published in a local newspaper circulating in the locality in which the land in question is situated. (3) The date specified in a certificate under subsection (2) must not be earlier than the beginning of the period mentioned in subsection (1)(a). (4) In addition to any other matters required to be contained in a certificate issued for the purposes of this section, every such certificate must contain a statement – (a) that none of the land to which the application relates constitutes or forms part of an agricultural holding; or (b) that the applicant has given the requisite notice of the application to every person (other than himself) who, at the beginning of the period mentioned in subsection (1)(a), was a tenant of any agricultural holding any part of which was comprised in the land to which the application relates.

(6) Where an application for planning permission is accompanied by such a certificate as is mentioned in subsection (1)(b), (c) or (d), or by a certificate containing a statement in accordance with subsections (4)(b) and (5), the local planning authority shall not determine the application before the end of the period of 21 days beginning with the date appearing from the certificate to be the latest of the dates of service of notices as mentioned in the certificate, or, if later, the date of publication of a notice as mentioned in the certificate. (7) In this section – “owner,” in relation to any land, means a person who for the time being is – (a) the estate owner in respect of the fee simple in the land, or (b) entitled to a tenancy of the land granted or extended for a term of years certain of which not less than seven years remain unexpired; and “agricultural holding” has the same meaning as in the [1986 c. 5.] Agricultural Holdings Act 1986. . . . Registers of applications, etc.

69. – (1) Every local planning authority shall keep, in such manner as may be prescribed by a development order, a register containing such information as may be so prescribed with respect to applications for planning permission made to that authority. (2) The register shall contain – (a) information as to the manner in which such applications have been dealt with, and (b) such information as may be prescribed by a development order with respect to simplified planning zone schemes relating to zones in the authority’s area.

(5) Such a statement as is mentioned in subsection (4)(b) must set out –

(3) A development order may make provision for the register to be kept in two or more parts, each part containing such information relating to applications for planning permission made to the authority as may be prescribed by the order.

(a) the name of each person to whom the applicant has given notice of the application,

(4) A development order may also make provision –

(b) the address at which notice was given to him, and

(a) for a specified part of the register to contain copies of applications and of any plans or drawings submitted with them; and

(c) the date of service of that notice.

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(b) for the entry relating to any application, and everything relating to it, to be removed from that part of the register when the application (including any appeal arising out of it) has been finally disposed of (without prejudice to the inclusion of any different entry relating to it in another part of the register). (5) Every register kept under this section shall be available for inspection by the public at all reasonable hours. Determination of Applications Determination of Applications: General Considerations

70. – (1) Where an application is made to a local planning authority for planning permission – (a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or (b) they may refuse planning permission. (2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. (3) Subsection (1) has effect subject to sections 65, 66 and 67 and to the following provisions of this Act, to sections 66, 67, 72 and 73 of the [1990 c. 9.] Planning (Listed Buildings and Conservation Areas) Act 1990 and to section 15 of the [1976 c. 83.] Health Services Act 1976. Consultations in Connection with Determinations Under s. 70

71. – (1) In determining any application for planning permission for development of a class designated under section 65, the local planning authority shall take into account any representations relating to that application which are received by them before the end of the period of 21 days beginning with the date of the application. (2) Where an application for planning permission is accompanied by such a certificate as is mentioned in subsection (1)(b), (c) or (d) of section 66 or subsection (3) of section 67, or by a certificate containing a statement in accordance with subsection (4)(b) and (5) of section 66, the local planning authority –

(a) in determining the application, shall take into account any representations relating to it which are made to them, before the end of the period mentioned in subsection (6) of section 66, by any person who satisfies them that he is an owner of any land to which the application relates or that he is the tenant of an agricultural holding any part of which is comprised in that land; and (b) shall give notice of their decision to every person who has made representations which they were required to take into account in accordance with paragraph (a); and in the case of an application to which section 67 applies the reference in paragraph (a) to section 66(6) is a reference to that section as it applies by virtue of section 67(11). (3) Before a local planning authority grant planning permission for the use of land as a caravan site, they shall, unless they are also the authority with power to issue a site licence for that land, consult the local authority with that power. (4) In this section – “agricultural holding” has the same meaning as in section 66; “owner” has the same meaning as in section 66 or, as the case may be, section 67; and “site licence” means a licence under Part 1 of the [1960 c. 62.] Caravan Sites and Control of Development Act 1960 authorising the use of land as a caravan site. Conditional Grant of Planning Permission

72. – (1) Without prejudice to the generality of section 70(1), conditions may be imposed on the grant of planning permission under that section – (a) for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission; (b) for requiring the removal of any buildings or works authorised by the permission, or the discontinuance of any use of land so authorised, at the end of a specified period, and the carrying out of

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any works required for the reinstatement of land at the end of that period. (2) A planning permission granted subject to such a condition as is mentioned in subsection (1)(b) is in this Act referred to as “planning permission granted for a limited period.” (3) Where – (a) planning permission is granted for development consisting of or including the carrying out of building or other operations subject to a condition that the operations shall be commenced not later than a time specified in the condition; and (b) any building or other operations are commenced after the time so specified, the commencement and carrying out of those operations do not constitute development for which that permission was granted. (4) Subsection (3)(a) does not apply to a condition attached to the planning permission by or under section 91 or 92. (5) Part I of Schedule 5 shall have effect for the purpose of making special provision with respect to the conditions which may be imposed on the grant of planning permission for development consisting of the winning and working of minerals, and subsection (2) has effect subject to paragraph 1(6)(a) of that Schedule. Determination of Applications to Develop Land Without Compliance with Conditions Previously Attached

73. – (1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. (2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and – (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and

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(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application. (3) Special provision may be made with respect to such applications – (a) by regulations under section 62 as regards the form and content of the application, and (b) by a development order as regards the procedure to be followed in connection with the application. (4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun. Directions etc. as to Method of Dealing with Applications

74. – (1) Provision may be made by a development order for regulating the manner in which applications for planning permission to develop land are to be dealt with by local planning authorities, and in particular – (a) for enabling the Secretary of State to give directions restricting the grant of planning permission by the local planning authority, either indefinitely or during such period as may be specified in the directions, in respect of any such development, or in respect of development of any such class, as may be so specified; (b) for authorising the local planning authority, in such cases and subject to such conditions as may be prescribed by the order or by directions given by the Secretary of State under it, to grant planning permission for development which does not accord with the provisions of the development plan; (c) for requiring that, before planning permission for any development is granted or refused, local planning authorities prescribed by the order or by directions given by the Secretary of State under it shall consult with such authorities or persons as may be so prescribed; (d) for requiring the local planning authority to give to any applicant for planning permission,

within such time as may be prescribed by the order, such notice as may be so prescribed as to the manner in which his application has been dealt with; (e) for requiring the local planning authority to give any applicant for any consent, agreement or approval required by a condition imposed on a grant of planning permission notice of their decision on his application, within such time as may be so prescribed; (f) for requiring the local planning authority to give to the Secretary of State, and to such other persons as may be prescribed by or under the order, such information as may be so prescribed with respect to applications for planning permission made to the authority, including information as to the manner in which any such application has been dealt with. (2) Subsection (1) is subject to the provisions of section 71 of this Act and sections 67(7) and 73(1) of the [1990 c. 9.] Planning (Listed Buildings and Conservation Areas) Act 1990. Effect of Planning Permission

75. – (1) Without prejudice to the provisions of this Part as to the duration, revocation or modification of planning permission, any grant of planning permission to develop land shall (except insofar as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it. (2) Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used. (3) If no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed. . . . Secretary of State’s Powers as Respects Planning Applications and Decisions

[The Secretary of State retains oversight authority of planning applications and decisions.] ... Deemed Planning Permission Development with Government Authorisation

90. – (1) Where the authorisation of a government department is required by virtue of an enactment in

respect of development to be carried out by a local authority, or by statutory undertakers who are not a local authority, that department may, on granting that authorisation, direct that planning permission for that development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction. (2) On granting a consent under section 36 or 37 of the [1989 c. 29.] Electricity Act 1989 in respect of any operation or change of use that constitutes development, the Secretary of State may direct that planning permission for that development and any ancillary development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction. (3) The provisions of this Act (except Parts V and XII) shall apply in relation to any planning permission deemed to be granted by virtue of a direction under this section as if it had been granted by the Secretary of State on an application referred to him under section 77. (4) For the purposes of this section development is authorised by a government department if – (a) any consent, authority or approval to or for the development is granted by the department in pursuance of an enactment; (b) a compulsory purchase order is confirmed by the department authorising the purchase of land for the purpose of the development; (c) consent is granted by the department to the appropriation of land for the purpose of the development or the acquisition of land by agreement for that purpose; (d) authority is given by the department – (i) for the borrowing of money for the purpose of the development, or (ii) for the application for that purpose of any money not otherwise so applicable; or (e) any undertaking is given by the department to pay a grant in respect of the development in accordance with an enactment authorising the payment of such grants; and references in this section to the authorisation of a government department shall be construed accordingly. (5) In subsection (2) “ancillary development,” in relation to development consisting of the extension

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of a generating station, does not include any development which is not directly related to the generation of electricity by that station; and in this subsection “extension” and “generating station” have the same meanings as in Part I of the [1989 c. 29.] Electricity Act 1989. Duration of Planning Permission

which is granted (or deemed to be granted) subject to a condition that the development to which it relates must be begun before the expiration of a specified period after the completion of other development consisting of the winning and working of minerals which is already being carried out by the applicant for the planning per mission;

General Condition Limiting Duration of Planning Permission

(e) to any planning permission granted by an enterprise zone scheme;

91. – (1) Subject to the provisions of this section, every planning permission granted or deemed to be granted shall be granted or, as the case may be, be deemed to be granted, subject to the condition that the development to which it relates must be begun not later than the expiration of –

(f) to any planning permission granted by a simplified planning zone scheme; or

(a) five years beginning with the date on which the permission is granted or, as the case may be, deemed to be granted; or

(g) to any outline planning permission, as defined by section 92. . . . Other Controls over Development Orders Requiring Discontinuance of Use or Alteration or Removal of Buildings or Works

(b) such other period (whether longer or shorter) beginning with that date as the authority concerned with the terms of planning permission may direct.

102. – (1) If, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity) –

(2) The period mentioned in subsection (1)(b) shall be a period which the authority consider appropriate having regard to the provisions of the development plan and to any other material considerations.

(a) that any use of land should be discontinued or that any conditions should be imposed on the continuance of a use of land; or

(3) If planning permission is granted without the condition required by subsection (1), it shall be deemed to have been granted subject to the condition that the development to which it relates must be begun not later than the expiration of five years beginning with the date of the grant. (4) Nothing in this section applies – (a) to any planning permission granted by a development order; (b) to any planning permission granted under section 63 on an application relating to buildings or works completed, or a use of land instituted, before the date of the application; (c) to any planning permission granted for a limited period; (d) to any planning permission for development consisting of the winning and working of minerals

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(b) that any buildings or works should be altered or removed, they may by order – (i) require the discontinuance of that use, or (ii) impose such conditions as may be specified in the order on the continuance of it, or (iii) require such steps as may be so specified to be taken for the alteration or removal of the buildings or works, as the case may be. (2) An order under this section may grant planning permission for any development of the land to which the order relates, subject to such conditions as may be specified in the order. (3) Section 97 shall apply in relation to any planning permission granted by an order under this section as it applies in relation to planning permission granted by the local planning authority on an application made under this Part.

(4) The power conferred by subsection (2) includes power, by an order under this section, to grant planning permission, subject to such conditions as may be specified in the order – (a) for the retention, on the land to which the order relates, of buildings or works constructed or carried out before the date on which the order was submitted to the Secretary of State under section 103; or (b) for the continuance of a use of that land instituted before that date. (5) Any planning permission granted in accordance with subsection (4) may be granted –

on reasonable terms, to secure the provision of such accommodation in advance of the displacement. (7) Subject to section 103(8), in the case of planning permission granted by an order under this section, the authority referred to in sections 91(1)(b) and 92(4) is the local planning authority making the order. (8) The previous provisions of this section do not apply to the use of any land for development consisting in the winning or working of minerals except as provided in Schedule 9, and that Schedule shall have effect for the purpose of making provision as respects land which is or has been so used.

(a) so as to take effect from the date on which the buildings or works were constructed or carried out, or the use was instituted, or

Confirmation by Secretary of State of s. 102 Orders

(b) in the case of buildings or works constructed or a use instituted in accordance with planning permission granted for a limited period, so as to take effect from the end of that period.

103. – (1) An order under section 102 shall not take effect unless it is confirmed by the Secretary of State, either without modification or subject to such modifications as he considers expedient. . . .

(6) Where the requirements of an order under this section will involve the displacement of persons residing in any premises, it shall be the duty of the local planning authority, in so far as there is no other residential accommodation suitable to the reasonable requirements of those persons available

Power of the Secretary of State to make s. 102 Orders

104. – (1) If it appears to the Secretary of State that it is expedient that an order should be made under section 102, he may himself make such an order. . . .

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ESTONIA

Estonia Planning Act Summary: Estonia’s 2003 Planning Act sets forth the objectives and required procedures for national, county, comprehensive, and more detailed plans. Comprehensive plans are prepared for rural areas, while detailed plans are prepared for towns. All levels of planning set forth in the act aim to achieve sustainable development; direct development toward designated development areas; designate areas for environmental, cultural, or historic preservation; and direct the creation of infrastructure. The act seeks to achieve its objectives through organized planning procedures that dictate where settlement and development will take place within towns, cities, states, and the nation. The act requires a cooperative approach between all levels of government. Provisions within the act indicate that city planning can be used to prevent criminal activity and encourage planning that does so. Omitted provisions of the act, mostly detailed procedural elements, are indicated by an ellipsis.

PLANNING ACT

Passed 13 November 2002. (RT 1 I 2002, 99, 579), entered into force 1 January 2003 CHAPTER 1 GENERAL PROVISIONS

§ 1. Scope of Application and Purpose of Act

(1) This Act regulates relations between the state, local governments and other persons in the preparation of plans. (2) The purpose of this Act is to ensure conditions which take into account the needs and interests of the widest possible range of members of society for balanced and sustainable spatial development, spatial planning, land use and building. (3) For the purposes of this Act, spatial planning (hereinafter planning) is democratic and functional

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long-term planning for spatial development which co-ordinates and integrates the development plans of various fields and which, in a balanced manner, takes into account the long-term directions in and needs for the development of the economic, social, cultural and natural environment. (4) The provisions of this Act also apply to buildings which are movables and to their owners or possessors. § 2. Plans

A plan prepared in the process of planning is a document which consists of a text and maps. The types of plan are as follows: (1) national spatial plan, which is prepared with the aim of defining the prospective development of the territory of the state and the settlement systems located therein in a generalised and strategic manner; (2) county plan, which is prepared with the aim of defining the prospective development of the territory of a county in a generalised manner and determining the conditions for the development of settlement systems and the location of the principal infrastructure facilities; (3) comprehensive plan, which is prepared with the aim of determining the general directions in and conditions for the development of the territory of a rural municipality or city, and of setting out the bases for the preparation of detailed plans for areas and in the cases where detailed planning is mandatory and for the establishment of land use provisions and building provisions for areas where detailed planning is not mandatory; (4) detailed plan, which is prepared with the aim of establishing land use provisions and building provisions for cities and towns and for other areas and in other cases where detailed planning is mandatory.

§ 3. Principles of Planning

(1) Planning activities are public. Public disclosure is mandatory in order to ensure the involvement of all interested persons and the timely provision of information to such persons and to enable such persons to defend their interests in the process of planning. (2) The preparation of detailed plans is mandatory for areas located in cities and towns and for existing or planned, clearly delimited built-up parts of small towns and villages in the following cases: . . . In the event of land areas being divided into plots. (3) Land use provisions, building provisions and restrictions arising from law may be established for immovable property on the basis of the following plans: 1) on the basis of an adopted detailed plan where preparation of a detailed plan is mandatory; 2) on the basis of an adopted comprehensive plan where preparation of a detailed plan is not mandatory. § 4. Administration of Planning Activities

(1) Administration and supervision of planning activities at national level is within the competence of the Ministry of the Environment, while administration and supervision of planning activities in a county is within the competence of the county governor. (2) Administration of planning activities within the administrative territory of a rural municipality or city is within the competence of the local government. The local government shall: 1) ensure that there are plans which serve as the basis for land use and building; 2) ensure, as a prerequisite for adoption of a plan, that the interests of interested persons are taken into consideration in a balanced manner; 3) ensure that adopted plans are adhered to. § 5. Building Regulation of Rural Municipality or City

The relevant local government shall establish the building regulation for a rural municipality or city in order to:

(1) establish the general principles and rules for planning and building in the rural municipality or city or parts thereof; (2) determine the division of the internal functions of the local government in administration in the field of planning and building.

CHAPTER 2 TYPES OF PLAN

§ 6. National Spatial Plan

(1) The national spatial plan is prepared for the entire territory of the state. (2) The objectives of the national spatial plan are to: 1) define the principles of and directions in sustainable and balanced spatial development; 2) create the spatial bases for the regional development of the state; 3) direct the development of settlement systems; 4) direct the creation of a national transport network and the development of technical infrastructures; 5) create the basis for a system ensuring the preservation of various types of ecosystems and landscapes and balancing the impact of settlement systems and economic activities which is comprised of natural and semi-natural biotic communities (hereinafter green network); 6) establish objectives for county plans. § 7. County Plan

(1) A county plan is prepared either for the whole territory of a county or for a part thereof. (2) A county plan may be prepared: 1) for the territories or parts of the territories of several counties if there is mutual agreement between the county governments concerned; 2) as a thematic plan to specify or amend the county plan in force in accordance with the objectives specified in subsection (3) of this section. (3) The objectives of a county plan are to: 1) define the principles for and directions in the spatial development of the county; 2) balance state and local needs and interests with regard to spatial development;

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3) create the bases for sustainable and balanced development and involve them in spatial development, taking balanced account of the needs for development of the economic, social, cultural and natural environment in the preparation of the plan; 4) direct the development of settlement systems; 5) designate the areas and cases outside cities and towns where preparation of a detailed plan is mandatory, unless they have been designated by an adopted comprehensive plan; . . . 7) plan measures to ensure the preservation of natural resources, valuable arable land, landscapes and natural biotic communities, and the functioning of the green network; 8) define general provisions for the use of land and water areas; 9) define the land use provisions for areas above mineral resources or earth material; 10) determine the location of roads, railway lines, waterways, utility network routes, airports, ports, sites for the final disposal of waste and other technical infrastructure; 11) take account, in planning, of protected areas and of the provisions for their use and, where necessary, to make proposals for the amendment of such provisions, the establishment of new protected areas or termination of the protection regime; 12) designate recreation areas and define the provisions for their use;

1) for the territories or parts of the territories of several rural municipalities or cities if there is mutual agreement between the local governments concerned; . . . (3) The objectives of a comprehensive plan are to: 1) form the principles for the spatial development of the rural municipality or city; 2) assess the potential economic, social and cultural impact of the proposed spatial development and the potential impact on the natural environment and, on the basis thereof, to establish conditions for sustainable and balanced spatial development; 3) determine general use and building provisions for land and water areas; 4) designate the areas and cases outside cities and towns where preparation of a detailed plan is mandatory; . . . 6) designate built-up areas of cultural and environmental value, valuable arable land, landscapes and natural biotic communities, and to establish the provisions for their protection and use; 7) establish the conditions to ensure the functioning of the green network; 8) define the location of roads, streets, railways, ports and airports and the general principles of traffic management; . . . 10) define the location of principal utility network routes and technical infrastructure; 11) designate recreation and leisure areas;

13) designate national defence areas of national importance.

12) specify the reach of shores and banks of waterbodies, and building exclusion zones; . . .

(4) An adopted county plan serves as the basis for the preparation of comprehensive plans for rural municipalities and cities and, in the absence of an adopted comprehensive plan, for the preparation of detailed plans and the issue of design provisions for rural municipalities and cities.

13) make proposals, where necessary, for specification, amendment or termination of the protection regime for areas or objects placed under protection;

...

15) take account of general national defence needs and, where necessary, to designate national defence areas and specify the boundaries of national defence areas designated by the county plan;

§ 8. Comprehensive Plan

(1) A comprehensive plan is prepared for the whole territory of the rural municipality or city or for parts thereof. (2) A comprehensive plan may be prepared:

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14) make proposals, where necessary, for placing areas and objects under protection;

16) make proposals to prevent, by way of planning, the risk of criminal activity in urban areas;

17) address in the plan land use provisions and building provisions arising from Acts and other legislation. . . . § 9. Detailed Plan

(1) A detailed plan is prepared for a part of the territory of a rural municipality or city and it serves as the basis for building activities and land use in the short term. (2) The objectives of a detailed plan are to: 1) divide the areas being planned into plots; 2) determine the building rights of a plot; 3) delimit the area that can be occupied by buildings, meaning that share of a plot on which buildings permitted by the building rights of the plot may be erected; . . . 5) determine the principles for planting vegetation and providing public services and amenities; . . . 8) establish environmental provisions for implementation of the plan and, where necessary, to designate buildings in the case of which the preparation of the building design documentation requires environmental impact assessment to be carried out; 9) make proposals, where necessary, for specification, amendment or termination of the protection regime for areas or individual objects placed under protection; 10) make proposals, where necessary, for placing areas and objects under protection; 11) designate, where necessary, built-up areas of cultural and environmental value and to establish the conditions for their protection and use; . . . 15) establish requirements and conditions to prevent the risk of criminal activity; . . .

CHAPTER 3 PREPARATION OF PLAN AND PUBLIC PARTICIPATION

the plan may be directed by specialists with higher education in an appropriate field to whom either the ministry, county governor or local government administering preparation of the plan assigns the task of preparing the plan. . . . § 16. Co-operation in Preparation of Plans

... (4) Plans shall be prepared in the following manner: 1) a national spatial plan shall be prepared in cooperation between the county governors, county local government associations and ministries; 2) a county plan shall be prepared in co-operation between the local governments of the planning area, the county governors of counties neighbouring on the planning area, the Ministry of the Environment and other ministries whose area of government covers matters treated in the planning; 3) a comprehensive plan shall be prepared in cooperation between the local governments neighbouring on the planning area and the county governor concerned; 4) a detailed plan shall be prepared in cooperation between the owners of the immovables located in the planning area and the owners or possessors of existing or planned utility networks in order to ensure that the planning area is supplied by utility networks. § 17. Concertation of Plans

(1) Concertation for a national spatial plan shall be sought from ministries, county governors and county local government associations. . . . § 18. Acceptance and Public Display of Plans

(1) A local government shall make a decision on acceptance of a plan and shall organise the public display of the plan. . . .

...

CHAPTER 4 SUPERVISION OF PREPARATION OF PLANS: ADOPTION AND REPEAL OF PLANS

§ 13. Right to Prepare Plans

§ 23. Supervision of Preparation of Plan

(1) A national spatial plan, county plan or comprehensive plan may be prepared or the preparation of

(1) Supervision provided for in this Act over the preparation of county plans, comprehensive plans

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and detailed plans shall be exercised before the plans are adopted. Supervision shall be exercised by: 1) the Ministry of the Environment, with regard to county plans; 2) county governor, with regard to comprehensive plans and detailed plans. . . . (3) The supervisory authority is entitled to: 1) monitor the legal compliance of a plan; 2) monitor the compliance of a plan with a more general plan which has been adopted; 3) grant consent for the amendment of a more general plan which has been adopted, upon the adoption of a plan which include a proposal to amend the more general plan submitted to the supervisory authority; 4) monitor compliance with national interests in planning if no more general plan has been adopted for the planning area; 5) hear persons who have presented written objections concerning a plan during the public display thereof and the county government or local government administering preparation of the plan, and to present an opinion concerning the objections if they have not been taken into consideration in planning. . . .

(3) Detailed plans with regard to the preparation of which supervision is not exercised and comprehensive plans or detailed plans approved in the course of supervision shall be adopted by local governments. . . . CHAPTER 5 TRANSFER OF IMMOVABLES TO IMPLEMENT ADOPTED PLANS

... CHAPTER 6 SPECIFICATIONS FOR PLANNING OF OBJECTS OF NATIONAL IMPORTANCE

§ 32. Definition of Object of National Importance

For the purposes of this Act, the following are objects of national importance: 1) Defence Forces training areas of national importance; 2) military airfields of national importance; 3) international civil airports; 4) power stations with energy production exceeding one third of the national electricity consumption; 5) national landfills for the final disposal of hazardous waste; 6) national radioactive waste storage facilities;

§ 24. Adoption of Plans

(1) National spatial plans submitted by the Minster of the Environment shall be adopted by the Government of the Republic. (2) A county plan approved by the Minister of the Environment shall be adopted by the county governor.

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7) ports of national importance with a national defence purpose. . . . ... CHAPTER 7 IMPLEMENTATION OF ACT

...

GERMANY

German Federal Building Code Summary: Select provisions of Germany’s 1997 Federal Building Code are reproduced here. The code demonstrates a focus on urban planning for organized, efficient, equitable, and sustainable land use. Much of the responsibility for creating and implementing plans for sustainable development is placed on municipalities under this code, but local plans must reflect established state and federal plans. In planning, the municipalities must take environmental considerations into account. The code requires that plans take the form of legally binding land-use plans, created by municipalities. The plans must include designations of specific areas for preservation and infrastructural purposes. Strictly procedural elements have been omitted from the code. Omissions are indicated by an ellipsis.

CHAPTER ONE GENERAL URBAN PLANNING LEGISLATION

Part One Urban Land-Use Planning Subdivision One General Provisions Section 1 The Scope, Definition and Principles of Urban Land-Use Planning

(1) The function of urban land-use planning [Bauleitplanung] is to prepare and control the use of land within a municipality, for buildings or for other purposes, in accordance with this Act. (2) Urban land-use plans comprise the preparatory land-use plan [Fl¨achennutzungsplan] and the legally binding land-use plan [Bebauungsplan]. (3) It is the responsibility of municipalities to prepare land-use plans [Bauleitpl¨ane] as soon as and to the extent that these are required for urban development and regional policy planning.

(4) Land-use plans shall be brought into line with the aims of comprehensive regional planning. (5) Land-use plans shall safeguard sustainable urban development and a socially equitable utilisation of land for the general good of the community, and shall contribute to securing a more humane environment and to protecting and developing the basic conditions for natural life. In the preparation of land-use plans, attention is to be paid in particular to the following: 1. the general requirement for living and working conditions which are conducive to good health, and the safety of the population at home and at work, 2. the housing requirements of the population – whilst avoiding unbalanced population structures, increasing property ownership among broader sections of the population, especially by supporting low-cost housing, and population development, 3. the social and cultural needs of the population, in particular those of families, the young and the elderly and those with handicaps, as well as to the requirements of the education system and the need for sports, leisure and recreational facilities, 4. the preservation, renewal and development of existing local centres [Ortsteile] and to the shaping of the town- and landscape, 5. the requirements relating to the preservation and maintenance of historic monuments and to local centres, streets and public spaces of historical, artistic or architectural importance which warrant preservation, 6. the requirements of Churches and religious organisations under public law for worship and pastoral care,

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7. the requirements of environmental protection pursuant to section 1a and through the use of renewable energy sources, nature protection and the preservation of the countryside [Landschaftspflege], in particular of the ecological balance in nature, and of water, the air, the ground including its mineral deposits, and the climate, 8. economic requirements, including maintaining the structural role of medium-sized companies, in the interests of local, close-to-the-consumer supply to the population, the requirements of agriculture and forestry, of transport including local public transport, of the postal and telecommunications services, public utilities – in particular power supply and water, waste disposal and sewerage, and the protection of natural resources and the preservation, protection and creation of employment, 9. defence and civil defence requirements, 10. the results of other urban planning measures adopted by the municipality. (6) In preparing land-use plans, public and private interests are to be duly weighed. Section 1a Consideration for Environmental Concerns

(1) Land shall be used sparingly and with due consideration; the extent to which it is sealed by development shall be kept to a minimum. (2) In the course of the weighing process pursuant to Section 1 para. 6, the following matters shall be considered: 1. the content of landscape and other plans, in particular those produced under water, waste and pollution control legislation. 2. the avoidance of, and counterbalances for, the impact expected to be suffered by nature and the landscape (provisions of the Federal Nature Conservation Act on intrusions), 3. assessment of the calculated and described impact of a development project on the environment corresponding to the respective stage of planning (environmental impact assessment), to the extent that the admissibility under building and planning law of specific development projects within the sense of the appendix to Section 3 of the Environmental Impact Assessment Act is to be

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established by reference to environmental impact assessment, and 4. the preservation aims and the purpose of protection for areas of Community importance and of European bird sanctuaries within the meaning of the Federal Nature Conservation Act; in cases where these may be seriously impaired, the provisions of the Federal Nature Conservation Act on the permissibility or execution of such intrusions and the requirement to obtain an opinion from the Commission shall be applied (assessment according to the Flora-Fauna-Habitat Directive). (3) Counterbalances for the impact to be expected on nature and on the landscape as a consequence of intrusions is set out in the form of appropriate representations as spaces for counterbalances pursuant to Section 5 and as designations as spaces forcounterbalances and counterbalancing measures pursuant to Section 9. The representations and designations required under sentence 1 may also be made in respect of some other location than that at which the intrusion takes place provided that this is compatible with ordered urban development and the aims of regional planning, of nature protection and of conservation of the countryside. In place of the representations and designations called for in sentence 1 or sentence 2, contractual agreements pursuant to Section 11 may be entered into or other suitable measures taken to provide counterbalances on land made available by the municipality. Counterbalancing measures are not required in the case of an intrusion which was carried out or was permissible prior to a planning decision being taken. Section 2 The Preparation of Land-Use Plans, Power to Prepare Statutory Instruments

... Section 3 Public Participation

... Section 4 Participation by Public Agencies

... Section 4a Informing Neighbouring Municipalities and Public Agencies Across National Borders

...

Subdivision Two The Preparatory Land-Use Plan [Fl¨achennutzungsplan] Section 5 The Content of the Preparatory Land-Use Plan

(1) The preparatory land-use plan shall represent in basic form the type of land uses arising for the entire municipal territory in accordance with the intended urban development which is proposed to correspond to the anticipated needs of the municipality. The preparatory land-use plan may exclude spaces and representations of other kinds, provided that the basic intention to be represented in accordance with sentence 1 is not affected, and the municipality intends to produce this representation at some later date; the grounds for this exclusion are to be included in the explanatory report. (2) The preparatory land-use plan may in particular show: 1. the areas designated for development according to general land-use types (general land-use areas [Baufl¨achen]), according to specific land-use types [Baugebiete] and according to the general level of built development; building land for which no central sewerage provisions have been made should be marked; 2. the existence within the municipal area of facilities and infrastructure for public and private provision of goods and services, in particular buildings and amenities serving the community and institutions for public needs, and in addition schools and churches and any other buildings or amenities which serve church related, social, health-care and cultural purposes, and sports areas and playgrounds; 3. spaces for supra-local transport and the main local communications routes; 4. spaces for public utility use, for waste and sewage disposal, for tipping and for mains water supply and main sewers; 5. green spaces, such as parks, allotment gardens, sports grounds, playgrounds, campsites and bathing areas, cemeteries; 6. spaces to which use restrictions apply, or for protective measures against harmful environmental effects within the meaning of the Federal Control of Pollution Act [BundesImmissionsschutzgesetz];

7. water bodies, docks and areas of water designated for supply and distribution purposes, and spaces to be kept clear in the interests of flood control and to control drainage; 8. spaces for earth deposits, excavation and for quarrying for stone, earth and other minerals; 9. a) agricultural land and b) woodland; 10. spaces for measures for the protection, preservation and development of topsoil, of the natural environment and of the landscape. (2a) Spaces for counterbalancing measures within the meaning of Section 1a para. 3 within the territory covered by a preparatory land-use plan may be assigned either wholly or in part to those areas in which intrusion harmful to nature and to the landscape is to be expected. (3) The preparatory land-use plan shall mark: 1. spaces which, when built upon, will require special physical provisions to counter external forces, or for which special physical safeguarding measures are required as protection against the elements; 2. spaces which have mining below the surface, or which have been designated for the extraction of minerals; 3. spaces designated for building where the ground has been severely contaminated by hazardous materials. (4) Any plans or other arrangements for use which have been determined under other statutory provisions, and any assemblies of physical structures protected as monuments under federal state law [Landesrecht] are to be included as a matter of course. Where designations of this kind are in prospect, these shall be noted in the preparatory land-use plan. (5) The preparatory land-use plan shall be accompanied by an explanatory statement. Section 6 Approval of the Preparatory Land-Use Plan

... Section 7 Adaptation to the Preparatory Land-Use Plan

...

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Subdivision Three the Legally Binding Land-Use Plan [Bebauungsplan]

Subdivision Four Co-operation with the Private Sector; Simplified Procedure

Section 8 The Purpose of the Legally Binding LandUse Plan

Section 11 The Urban Development Contract

(1) The binding land-use plan contains the legally binding designations for urban development. It forms the basis for further measures required for the implementation of this Act. (2) Binding land-use plans are to be developed out of the preparatory land-use plan. A preparatory land-use plan is not required in cases where a binding land-use plan is sufficient to organise urban development. (3) Preparation, amending, supplementation and revocation of a binding land-use plan may take place simultaneously with the preparation, amending, supplementation and revocation of a preparatory land-use plan (parallel procedure). Public advertising of the legally binding land-use plan may take place in advance of the preparatory land-use plan being adopted where it can be assumed from the current state of planning that the binding land-use plan will be developed from the representations to be contained within the preparatory landuse plan when it is completed. (4) A binding land-use plan may be prepared, amended, supplemented or revoked prior to the completion of the preparatory land-use plan where urgent grounds for this exist, or where the binding land-use plan will not be in conflict with proposed urban development within the territory of the municipality (anticipatory binding land-use plan). Where a preparatory land-use plan remains in force following territorial or substantive changes to a municipality, or following other changes affecting responsibility for the preparation of preparatory land-use plans, an advanced binding land-use plan may be produced before the preparatory land-use plan has been supplemented or amended. Section 9 The Content of the Legally Binding LandUse Plan

... Section 10 The Resolution on the Binding Land-Use Plan

...

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(1) The municipality may enter into urban development contracts. Suitable subjects for urban development contracts include: 1. the preparation and implementation of urban development measures by and at the expense of the contract partner; this shall include reordering plot boundaries, soil remediation and other preparatory measures, and the drawing up of urban development plans; such delegation shall not affect the municipality’s responsibility for the statutory plan adoption procedure; 2. promoting and safeguarding the aims pursued by urban land-use planning, in particular regarding the use of plots, the implementation of counterbalancing measures pursuant to Section 1a para. 3, supplying the housing needs both of groups within society who experience special problems with regard to housing supply and of the local community; 3. the assumption of responsibility for the costs and other expenses which the municipality incurs or has incurred in respect of urban development measures and which are either prerequisites or consequences of the proposed development project; this shall include the provision of building plots. (2) Contractually agreed obligations must be commensurate with the overall circumstances. It is not permissible for an obligation to be placed upon a contract partner if this contract partner would have a claim to the performance offered in return without the said obligation being placed on him. (3) An urban development contract must be made in writing unless regulations exist to prescribe some other form. (4) Nothing here shall affect the admissibility of other urban development contracts. Section 12 The Project and Infrastructure Plan

(1) The municipality may employ a project-based binding land-use plan to determine the admissibility of a development project if on the basis of an implementation plan for the project and the associated infrastructure (the project and infrastructure

plan), drawn up in consultation with the municipality, it is evident that the project developer is prepared and in a position to enter into an obligation prior to a resolution to adopt a binding landuse plan pursuant to Section 10 para. 1 committing him to implement the project within a fixed time-limit and to bear either wholly or in part the costs of planning and of the provision of public infrastructure (the implementation contract). Project-based binding land-use plans pursuant to sentence 1 are subject to the additional provisions contained in paras. 2 to 6. (2) The municipality shall exercise due discretion in coming to a decision on the initiation of a procedure to adopt a binding land-use plan following an application from the project developer.

Section 13 Simplified Procedure

... Part Two Safeguarding Land-Use Planning Subdivision One Prohibitions on Development and the Postponement of Building Applications Section 14 Development Freezes

(1) Once the decision has been taken to prepare a binding land-use plan, the municipality may opt to add a development freeze in order to safeguard the planning for the area to be covered by the proposed plan. . . . Subdivision Two Permission to Subdivide Plots Section 19 Permission to Subdivide Plots

(3) The project and infrastructure plan becomes an integral part of the project-based binding land-use plan. Within the territory covered by a project and infrastructure plan the municipality is not bound in the decisions it takes on the admissibility of projects by designations made pursuant to section 9 or by the ordinance issued on the basis of Section 2 para. 5; Sections 14 to 28, 39 to 79 and 127 to 135c have no application. To the extent that a project-based binding land-use plan also contains designations for public purposes pursuant to Section 9 within the territory covered by the project and infrastructure plan, expropriation may take place in accordance with Section 85 para. 1 no. 1.

(1) The municipality may adopt a resolution to determine in respect of the territory covered by a binding land-use plan within the meaning of Section 30 paras. 1 and 3 that permission shall be required for the subdivision of a plot to be rendered effective. The municipality shall advertise this statute in the customary manner. It may also undertake public advertisement of the statute by applying Section 10 para. 3 sentences 2 to 5 as applicable. . . .

(4) Individual spaces outside the territory covered by the project and infrastructure plan may be incorporated into the project-based binding land-use plan.

(1) The municipality is entitled to exercise a pre-emption right in respect of the purchase of property:

(5) The approval of the municipality is required for any change of developer. Approval may only be denied when there are factual grounds to justify the belief that such a change would jeopardise implementation of the project and infrastructure plan within the time-limit stipulated under para. 1. (6) In the case of the project and infrastructure plan not being implemented within the time-limit stipulated under para. 1, the municipality shall revoke the binding land-use plan. Revocation of the binding land-use plan may not be advanced by the developer as grounds for establishing a claim against the municipality. The simplified procedure provided in Section 13 may be applied in the case of revocation.

Subdivision Three The Municipality’s Statutory Pre-Emption Rights Section 24 General Right of Pre-Emption

1. within the area designated by the legally binding land-use plan to the extent that the spaces concerned are spaces which have been designated in the binding land-use plan for public use or as spaces or measures for counterbalancing or replacement purposes pursuant to Section 1a para. 3, 2. in a land reallocation area, 3. in a formally designated redevelopment area and an urban development zone, 4. within the territory for which a preservation statute is valid, 5. within the areas covered by a preparatory landuse plan to the extent that the land concerned is

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not developed and is situated in outlying areas not covered by a binding land-use plan and has been earmarked in the preparatory land-use plan for use as housing land or as a residential area, . . .

Part Three Control of Land Use for Building or Other Purposes; Compensation Subdivision One Permissibility of Development Projects

... Section 32 Use Restrictions on Spaces for Future Community Use, for Transport, Infrastructure and Green Spaces. Where developed areas are desig-

nated in the binding land-use plan as land for public facilities, as spaces for transport infrastructure or utilities infrastructure or as green spaces, any development projects for these areas which would result in changes to physical structures, and thus the creation of added value, may only be permitted, and dispensations from the designations of the binding land-use plan only granted for them, with the approval of the public agency or the provider of public infrastructure, or if the owner of the property renounces in writing any claim, on behalf or himself and any heirs at law, to reparation for any rise in value should the binding land-use plan be implemented. This applies equally in respect of those parts of a physical structure which do not contravene the binding land-use plan and which are not capable of being put to economic use in isolation, or where in the course of expropriation transfer of ownership of the remaining developed areas may be demanded. Section 33 The Permissibility of Development Projects During Preparation of the Plan

... Section 34 The Permissibility of Development Projects within Built-Up Areas

Section 36 Involvement of the Municipality and the Higher Administrative Authority

... Section 38 Physical Structures of Supra-Local Significance Resulting from Plan Approval Procedures; Waste Disposal Facilities with Public Access

... Section 39 Breaches of Faith

... Section 40 Compensation in Money or by Transference of Title

... Section 41 Compensation on the Establishing of Walking and Driving Rights and Rights of Passage and in Connection with Obligations Regarding Greenery

... Section 43 Compensation and Procedures

... Section 44 Liability to Pay Compensation, Due Date of Payment and the Expiration of Claims to Compensation

... Part Four Land Reallocation Subdivision One Reallocation of Property Rights Section 45 The Purpose of Reallocation

(1) Within the area covered by a binding land-use plan and for the purpose of reorganising or opening up specific new areas for development, it is permissible for both developed and undeveloped land to be reorganised through a process of reallocation in such a manner as to create plots suitable in terms of location, shape and size for built development or for other uses. . . .

... Section 46 Responsibility and Preconditions Section 35 Building in the Undesignated Outlying Area

...

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(1) The ordering and execution of reallocation is the responsibility of the municipality (reallocation department) and shall occur where and as soon as

this is required to implement the binding land-use plan. . . . Part Five Expropriation Subdivision One Legal Requirements for Expropriation Section 85 The Purpose of Expropriation

(1) Expropriation may only take place under this Act in order: 1. to use a plot, or to prepare a plot for use in accordance with the designations contained in the binding land-use plan,

tion 86 para. 2 where and to the extent that, as a result of expropriation, the owner is no longer able to put them to economic use or to utilise them in any other appropriate manner. (5) Demands under paras. 2 to 4 are to be lodged in writing with the expropriation authority or asserted for minuting before the conclusion of the hearing. Subdivision Two Compensation Section 93 Principles Governing Compensation

...

2. in the case of land which is not developed or only developed to a very low level and is not within the area covered by the binding land-use plan but lies within a built-up area, to use this land or to supply it for a use for infill development in accordance with regulations under building law,

Subdivision Three The Expropriation Procedure

3. to procure plots for compensation in the form of land,

(2) The federal state governments may by legal ordinance involve honorary assessors in the decisionmaking process undertaken by the expropriation authority. . . .

4. to replace rights taken away by expropriation with other rights, . . . Section 92 The Scope, Limits and Extent of Expropriation

(1) Permission for expropriation of a plot may only be granted to the extent that the plot is required to achieve the purpose of expropriation. Where the purpose being pursued by expropriation can be achieved by encumbering the plot with a right, expropriation is to be restricted to this. (2) Where a plot is encumbered with a building lease, the owner may demand the withdrawal of ownership in place of the encumbrance. Where it is intended to encumber a plot with another right, the owner may demand the withdrawal of ownership if the encumbrance with the real right is inequitable to him.

Section 104 The Expropriation Authority

(1) Expropriation is administered by the higher administrative authority (the expropriation authority).

Part Six Provision of Local Public Infrastructure Subdivision One General Provisions Section 123 Responsibility for the Provision of Local Public Infrastructure

(1) Responsibility for the improvement of land by the provision of local public infrastructure and road access rests with the municipality unless this duty is incumbent on some other body under other statutory provisions or other obligations under public law. (2) Improvements shall be undertaken at a reasonable cost to meet the requirements of the development and of traffic and be available for use no later than on the completion of the physical structures to be serviced.

(3) Where a plot or a physically or economically cohesive property is to be expropriated only in part, the owner may demand that expropriation be broadened to cover the rest of the plot or the rest of the property where this is no longer capable of being put to building or economic use.

(3) No legal claim exists to provision of local public infrastructure.

(4) The owner may demand that expropriation be broadened to cover those objects referred to in Sec-

Section 124 Infrastructure Contract

(4) The maintenance of local public infrastructure is subject to provisions under federal state law.

...

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Section 125 Ties to the Legally Binding Land-Use Plan

CHAPTER TWO SPECIAL URBAN PLANNING LEGISLATION

(1) The provision of local public infrastructure within the meaning of Section 127 assumes the existence of a legally binding land-use plan. . . .

Part One Urban Redevelopment Measures

Subdivision Two Recoupment Charges for Local Public Infrastructure

... Part Seven Nature Conservation Measures Section 135a Duties on Developers; Implementation by the Municipality; Reimbursement

(1) Measures designated for counterbalancing purposes within the meaning of Section 1a para. 3 shall be implemented by the developer. (2) To the extent that counterbalancing measures at other locations are assigned to plots pursuant to Section 9 para. 1a, the municipality shall implement such measures in place of and at the expense of the developers or owners of the plots and also make available the land required for this purpose where this cannot be secured in any other way. Counterbalancing measures may be carried out prior to construction and to formal assignment. . . . Section 135c The Right to Enact Statutes. The

municipality may adopt statutes to govern: 1. general principles on the nature and characteristics of counterbalancing measures equivalent to the designations of a binding land-use plan, 2. the extent of the reimbursement provided under Section 135a; this shall be subject to Section 128 para. 1 sentence 1 nos. 1 and 2 and sentence 2 as applicable, 3. the procedure for calculating costs and the level of the standard rates pursuant to Section 130, 4. cost-sharing as provided under Section 135b including generalised appraisals of degrees of severity of the anticipated intrusion according to types of biotope and types of use, 5. preconditions for demands for prepayment, 6. the time at which reimbursement becomes due.

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Subdivision One General Provisions Section 136 Urban Redevelopment Measures

(1) Redevelopment measures in town and country planning, for which the public interest requires consistent preparation and speedy execution, are prepared and carried out in accordance with the regulations contained in this Part. (2) Urban redevelopment measures are those measures by means of which an area is substantially improved or transformed with the purpose of alleviating urban deficits. Deficits in respect of urban development occur where: 1. in its existing state of physical development or condition, an area fails to meet the general needs of the people living or working within it in respect of healthy living and working conditions and general safety, or 2. an area is seriously impaired in its ability to meet the requirements placed on it as a consequence of its position and function. (3) In judging whether deficits in urban development exist in either an urban or a rural area, special consideration is to be given to the following: 1. the living and working conditions and the general safety of the people living and working in the area with regard to: a) ventilation in housing and work-places and their exposure to light and sunshine, b) the structural condition of buildings, housing and work-places, c) access to plots, d) the effects of the existing mix of housing and commercial properties, e) the use made of developed and undeveloped spaces in terms of type, extent and condition, f) the impact emanating from properties, commercial premises, institutions or from transport structures, in particular noise, pollution and vibration, g) existing public infrastructure; 2. the ability of the area to function in respect of: a) moving and stationary traffic,

b) the economic situation and the potential of the area for development taking account of its supply function within a wider network, c) the level of infrastructure provision and amenity in the area, the existence of green spaces, sports facilities and playgrounds and public amenities in particular with regard to the social and cultural responsibilities of this area within a wider network. (4) Urban redevelopment measures are undertaken in the interests of public welfare. Their purpose is to contribute towards: 1. the development of built structure throughout the Federal Republic of Germany in accordance with social, hygienic, economic and cultural requirements, 2. supporting improvements to the economic and agricultural structure of the country, 3. ensuring that the settlement pattern meets the requirements of protecting the environment, and the demands of providing healthy living and working conditions for the present population and in the future, or 4. towards preserving, renewing or developing existing local urban districts, improving the townand landscape and satisfying the need to preserve buildings of historical importance. Conflicting public and private interests are to be weighed against each other and given fair consideration. . . . Section 139 Participation and Involvement of Public Agencies

(1) Each within its respective jurisdiction, the federal authorities, including their statutory separate estates, the federal states, the associations of municipalities and other corporations, bodies and foundations under public law shall support the preparation and execution of redevelopment measures as part of urban development. (2) The provisions under Section 4 on the participation and involvement of public agencies apply accordingly. Public agencies shall in addition notify municipalities of any alterations to their intentions. (3) Where an alteration is intended in respect of the aims and purposes of redevelopment or of coordinated measures and plans to be undertaken by

public agencies, the parties concerned shall consult with each other without delay. (4) (repealed) Subdivision Two Preparation and Execution Section 140 Preparation. The preparation of redevelopment measures is the responsibility of the municipality; it comprises:

1. preparatory investigations, 2. the formal designation of the redevelopment area, 3. determining the aims and purposes of redevelopment, 4. urban planning measures; this may include urban land-use planning [Bauleitplanung] or framework development planning as required by the redevelopment, 5. discussion and explanation of the proposed redevelopment, 6. the preparation and forward projection of the social plan, 7. individual infrastructural measures undertaken for public order purposes and also constructional measures to be executed prior to the formal designation of the redevelopment area. . . . Section 142 The Redevelopment Statute

(1) The municipality may by resolution formally designate an area in which a redevelopment measure within urban development is to be implemented as a Redevelopment Area (formally designated redevelopment area). This area is it be demarcated in such a way as to allow the speedy execution of the redevelopment measure. Individual plots of land not affected by the redevelopment measure may be wholly or partly excluded from the redevelopment area. . . . Section 147 Infrastructural Measures. The implementation of infrastructural measures is the responsibility of the municipality; these comprise:

1. land reallocation measures including the acquisition of land, 2. relocating residents and businesses, 3. groundworks,

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4. construction and modification of local public infrastructure, and 5. any other measures required to enable the constructional measures to be implemented. . . .

purposes of the preparation and implementation of redevelopment. . . . Subdivision Five The Termination of Redevelopment

Section 148 Constructional Measures

...

(1) Responsibility for constructional measures remains with the owners of property to the extent that speedy and proper implementation by them can be assured; responsibility remains, however, with the municipality for:

Subdivision Six Financial Support for Urban Development

1. ensuring the construction of and changes to public amenities and consequential developments, and 2. the implementation of any other constructional measures where the municipality is the owner or there is no guarantee that these will be implemented speedily and properly by individual owners. Replacement buildings and installations, public amenities and consequential developments required as a result of the redevelopment may be located outside the formally designated redevelopment area. (2) Constructional measures include: 1. modernisation and refurbishment, 2. reconstruction and replacement buildings, 3. the construction of and changes to public amenities and consequential developments, and 4. the relocation or change or business operations. Constructional measures also include counterbalancing measures pursuant to Section 1a para. 3 where, in accordance with Section 9 para. 1, these are undertaken on the plots on which intrusions damaging to nature or to the landscape are to be expected. . . . Subdivision Three Special Statutory Provisions for Redevelopment

... Subdivision Four Redevelopment Agencies and Other Agents Section 157 The Discharging of Municipality Responsibilities

(1) The municipality may appoint a suitable agent to discharge the responsibilities incumbent on it for

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... Part Two Urban Development Measures Section 165 Urban Development Measures

(1) Urban development measures in town and country planning, for which the public interest requires consistent preparation and speedy execution, shall be prepared and carried out in accordance with the regulations contained in this Part. (2) The purpose of urban development measures within the meaning of para. 1 is to subject local districts or other parts of the municipal territory to development for the first time in a manner which is in keeping with their particular significance for urban development within the municipality, or which is in accordance with the desired development of the federal state district or the region, or to make such areas available for new development within the framework of urban reorganisation. (3) The municipality may by resolution formally designate an area in which urban development measures are to be implemented as an urban development zone, where: 1. the measure conforms with the aims and purposes mentioned in para. 2; 2. implementation of the measure is required in the public interest, in particular in order to meet an increased demand for housing and places of employment, for the construction of public facilities or consequential developments, or in order to return derelict land to productive use, 3. the aims and purposes being pursued by means of an urban development measure are not capable of being achieved through the use of urban development contracts or where, on due consideration of the provisions of Section 166 para. 3, owners of the plots affected by the measure are not prepared to sell their plots to the municipality or to the developer appointed by the municipality

at the price arrived at by application of Section 169 para. 1 no. 6 and para. 4,

for any other measures to improve the agrarian structure.

4. speedy implementation of the measure can be guaranteed within a foreseeable period.

(3) The municipality shall involve the farmland consolidation authority, and any other departments which might be responsible for implementing a measure to improve the agrarian structure, in the preliminary stages leading to preparation of the urban land-use plans as early as possible.

Public and private interests shall be duly weighed. . . . Part Three The Preservation Statute and Urban Development Enforcement Orders Subdivision One The Preservation Statute

... Subdivision Two Urban Enforcement Orders

... Part Four The Social Plan and Hardship Allowances

... Part Five Tenancies and Leases

... Part Six Urban Development Measures in Connection with Measures for the Improvement of the Agrarian Structure Section 187 The Co-ordination of Measures; Urban Land-Use Planning and Measures for the Improvement of Agrarian Structure

(1) In the preparation and implementation of urban development measures account is to be taken of measures for the improvement of the agrarian structure, and in particular of the results of preliminary planning in pursuance of Section 1 para. 2 of the Law on Common Tasks in respect of the “Improvement of the Agrarian Structure and Coastal Defences.” Where measures to improve the agrarian structure may be expected to exert effects on building development within the boundaries of the municipality, the municipality shall determine whether urban land-use plans [Bauleitpl¨ane] should be prepared and whether any other urban development measures should be undertaken. (2) In the course of preparing urban landuse plans, the farmland consolidation authority [Flurbereinigungsbeh¨orde] shall examine whether any need exists in this context to initiate a procedure for the reallocation and consolidation of agricultural land holdings [Flurbereinigung], or

Section 188 Urban Land-Use Planning and the Consolidation of Agricultural Land Holdings

(1) Where notification has been made by the farmland consolidation authority in a municipality of its intention to undertake the reallocation and consolidation of agricultural land holdings on the basis of the Farmland Consolidation Act [Flurbereinigungsgesetz], or where this has already been ordered, the municipality is obliged to prepare urban land-use plans in good time, unless such consolidation cannot be expected to exert any effect on building development within the boundaries of the municipality. (2) The farmland consolidation authority and the municipality are obliged to co-ordinate their proposals for the territory covered by the municipality at the earliest time possible. Plans shall not be changed prior to completion of reallocation and consolidation except where agreement exists between the farmland consolidation authority and the municipality, or where compelling grounds exist for changes to be made. . . .

CHAPTER THREE OTHER PROVISIONS

Part One Valuation

... Part Two General Provisions; Administrative Responsibilities; Administrative Procedures; Planning Safeguards Subdivision One General Provisions

... Section 201 Definition of Agriculture. Within the

meaning of this Act, the term agriculture shall include in particular the cultivation of land, the management of meadows and pastures, including the accommodation of livestock for payment on a

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livery basis where this is based predominantly on internally produced feed, horticultural production, commercial fruitgrowing, wine-growing, commercial bee-keeping and freshwater fishery. Section 202 Protection of Topsoil. Any topsoil which is excavated during the construction or alteration of physical structures, or in the course of any other major changes to the surface of the earth, shall be preserved in a usable condition and protected from destruction or wasteful disposal.

Subdivision Two Administrative Responsibilities

... Section 204 Joint Preparatory Land-Use Plans, Urban Land-Use Planning in the Context of the Formation of Planning Associations and in the Case of Local Government Reorganisation

(1) Adjoining municipalities shall prepare a joint preparatory land-use plan, where their urban development is determined largely by common conditions and requirements, or where a joint preparatory land-use plan would facilitate an equitable balance between their various concerns. A joint preparatory land-use plan shall be prepared in particular in those cases where joint planning is required to satisfy the aims of comprehensive regional planning, or in connection with public transport and traffic installations and other local public infrastructure, including public amenities

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and other consequential facilities. Revocation, amendment or supplementation of a joint preparatory land-use plan may only be undertaken jointly by the municipalities concerned; municipalities may agree to limit this tie to specific territorial or substantive sections of the plan. . . . Section 205 Planning Associations

(1) Municipalities and any other public bodies charged with planning may join together to form a planning association in order to achieve an equitable balance between their varying concerns by means of joint and cooperative urban land-use planning. In accordance with its standing rules, a planning association takes over the responsibilities of the municipalities in charge of urban land-use planning and implementation. . . . Subdivision Three Administrative Procedures Subdivision Four Planning Safeguards Part Three

... CHAPTER FOUR TRANSITIONAL AND CONCLUDING REGULATIONS

... Part Two Concluding Provisions

...

LITHUANIA

Lithuania Law on Territorial Planning Summary: Lithuania’s 1995 Law on Territorial Planning furnishes a comprehensive mechanism for land use planning at every level of government of the Republic of Lithuania. It seeks to formulate rational land use goals by balancing environmental, social, economic, and cultural interests. To do so it establishes three levels of planning. Master plans on the national, county, and local level set priorities, objectives, and strategies. Special plans may be created for geographical areas identified in the master plan, and detailed plans can be drawn up for individual sites. The law requires coordination of all plans and a plan on a lower level must not conflict with one on a higher level. The law provides for the creation of a territorial planning data bank and for public access to all planning data and proposals. It requires public notice and public meetings prior to the adoption of any planning proposals and guarantees the right of administrative and judicial appeal. There are strong provisions for review and enforcement and mechanisms for resolving disputes. In the event of a diminution of land value due to decisions made under this law, there is provision for the compensation of the injured parties. The law is reproduced in part. Omissions from the law are indicated by an ellipsis.

REPUBLIC OF LITHUANIA LAW ON TERRITORIAL PLANNING

December 12, 1995 No I-1120. (As amended by 7 October 1997 No. VIII-435) Vilnius PART I GENERAL PROVISIONS

Article 1. The Purpose of the Law. This Law shall regulate territorial planning in the Republic of Lithuania, also the inter-relationship between natural and legal entities, and public authorities involved in this process.

Article 2. Definitions. As used in this Law, the following terms mean the following:

land use planning – a sum total of measures for organising human activity in a territory, forming a social, economic, and ecological policy and developing a man-made landscape; territorial planning – a process and procedure for regulating the land use planning for defining the intended purpose of the territory and land use, the priorities, the environmental, monument protection and other conditions, for developing a system of land, waters, residential areas, industry and infrastructure, for regulating the population employment, and for determining the rights of natural and legal entities engaged in the development of the territory; master planning – a comprehensive planning for establishing the priorities, objectives and strategy in the use of a territory; special planning – planning aimed at formulating programmes, conditions and solutions of development and management of one or several types of activities and land areas; detailed planning – planning of parts of the municipality territory for establishing the conditions, rights and obligations in using a land plot and developing an activity in it; . . . Article 3. Objectives of Territorial Planning

1. Territorial planning shall have the following objectives: 1) to balance the development of the territory of the Republic of Lithuania; 2) to form an adequate, healthy and harmonious environment for living, work and recreation with the aim of creating better living conditions of equal value on the whole territory of Lithuania;

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3) to form a policy of development of residential areas and infrastructure systems; 4) to reserve (define) territories for the development of infrastructure of residential areas, other spheres of activity, and different types of land; 5) to protect, use rationally and recover natural resources, natural and cultural heritage, recreational resources among them; 6) to maintain an ecological equilibrium or to restore it; 7) to harmonise the interests of natural and legal entities or their groups, also the interests of the public, municipalities and the State regarding the conditions for the use of a territory and land plots also with regard to the type of activity in the territory; 8) to promote investments for the social and economic development.

2. There shall be the following types of territorial planning: 1) general; 2) special; 3) detailed. 3. Planning shall be organised by the Government, public authorities, county governors, municipality boards (mayors), natural and legal entities within the framework of their competence stipulated by laws and other legal acts. . . .

PART II TERRITORIAL PLANNING CHAPTER I GENERAL PLANNING

Article 5. Objects of General Planning. The objects

of general planning shall be: 1) the territory of the Republic of Lithuania; 2) the territory of the county;

2. In setting out the aims for the planning of concrete territories, it is imperative to take account of their specific character (their geographical location, geological conditions, the level of their development, the density of construction etc.), the requirements of urban planning, architecture, technology, nature protection, monument protection and other, also the rights of land and other real estate owners, and the needs of State security and defence. Article 4. Levels and Types of Territorial Planning

... 1. In terms of their importance, the following levels of territorial planning shall be distinguished: 1) the national level of the Republic of Lithuania (for territorial planning and its documents which shall be approved by the Seimas, the Government); 2) the county (for territorial planning and its documents which shall be approved by the county governor or by public authorities); 3) the municipality (for territorial planning and its documents which shall be approved by the municipality); 4) a natural or legal entity (for territorial planning and its documents which shall be approved by a legal entity).

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3) the territory of the municipality or its parts. Article 6. Organisers of General Planning. The

organisers of general planning shall be: 1) the Government; 2) the governor of the county; 3) the municipality board (the mayor). Article 7. Requisite Documents for General Planning

... Article 8. The Process of General Planning

1. The process of general planning of the territories of the Republic of Lithuania, counties, municipalities, towns, townships and villages shall comprise: 1) studies, analysis, forecasting, formulation and approval of the objectives and preliminary solutions of the development. This part shall involve the examination of the quality of life and the environment, the natural framework, geological conditions, also the dynamism of social, economic activities, employment of the population, the use of the territory, its infrastructure facilities, it will also define the development objectives of the territory and preliminary solutions of all the above issues; . . .

(2) The approved master plan shall become valid and shall serve as the basis for [all further planning and land use in the territory] formulating, changing or supplementing documents of general, special or detailed territorial planning of the corresponding or lower level, and for taking in a prescribed manner the land for public needs, for setting aside territories for the state, county and municipality objects intended for public use and for the development of infrastructure.

Article 14. Drafting and Validity of Documents of Special Planning

... CHAPTER III DETAILED PLANNING

Article 15. Objects of Detailed Planning. The fol-

lowing shall be objects of detailed planning: 1. land plots and forest property or their groups; 2. territories of towns, townships or their parts;

Article 9. Formulation, Co-ordination, Approval, Change and Validity of Master Plans

3. village territories.

...

Article 16. Organisers of Detailed Planning. Orga-

nisers of detailed planning shall be: CHAPTER II SPECIAL PLANNING

Article 10. Objects of Special Planning. The follow-

ing may be the objects of special planning: 1) the land stock of the Republic of Lithuania, including forest land, water resources; 2) social, cultural, economic activities on the territory under planning; 3) systems of infrastructure and their parts; 4) protected territories, their systems, natural and immovable cultural properties.

1. land owners; 2. land users; 3. state land managers; 4. municipal councils (mayors). Article 17. Mandatory Character of Detailed Planning

1. Drawing up of detailed plans of territories (objects of detailed planning) indicated in the master plan shall be mandatory.

1) public authorities;

2. Owners, managers and users of land plots and forestry properties or groups thereof, also municipalities (according to the functional purpose of the plots) must draw up detailed plans if at least one of the following acts or actions are intended:

2) county governors;

1) construction, reconstruction or demolition;

3) municipality boards (mayors);

2) development of land plots or their groups, changing of their location, area or boundaries;

Article 11. Organisers of Special Planning. The following shall be organisers of special planning:

4) legal and natural entities.

3) taking of land for public needs; Article 12. Documents of Special Planning

... Article 13. The Process of Special Planning

1. The process of special planning shall comprise:

4) use of mineral resources, change of the manner of use of water resources; 5) change of intended purpose of land use, type of land use and business, or land area composition, also management of territory under green areas;

1) studies, analysis, forecasts, inventorying if necessary, formulation of objectives of the activity and their approval;

6) determination or changing of the territory development regimen or purpose of buildings and structures;

2) drafting, co-ordination, approval, public discussion of the solutions of the document of special planning, appraisal of the social and economic consequences and impact on the environment. . . .

7) forest use and reforestation in all forestry properties, except when carried out by owners of up to 3 hectares of forest land (not in forest tracts) located in territories that are not reservations.

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3. Detailed plans pursuant to which land and other real estate is taken for public needs shall be drafted by public authorities, county governors or municipalities.

CHAPTER IV REGULATION OF TERRITORIAL PLANNING

Article 18. Detailed Planning Documents

1. Territorial planning data bank is a part of a geographical information system comprised of graphic and textual data required for the analysis and evaluation of the territory under planning, for its development forecasts, for drawing up territorial planning documents and substantiating the solutions thereon.

... Article 19. Process of Detailed Planning

1. The process of detailed planning shall comprise: 1) assessment of the present condition of the territory under planning, its resources and their quality, drafting of a plan of the present condition (land cadastre map, plans of the existing structures, green areas, natural and cultural heritage properties, engineering network), analysis and, as necessary, investigation of master plan solutions, evaluation of hygiene standards, and demographic determinants and morbidity rates of the population; 2) preparation and approval of development programmes of the territory under planning (type of the projected activities and their economic basis; development indicators; engineering facilities; water and energy consumption; amount of wastewater and waste; traffic intensity and number of parking places; indicators of population and environmental impacts, assessment of consequences of projected activities and forecast of possible losses, as well as other data related to the peculiarities of the territory under planning); 3) preparation and approval of the principal drawing and explanatory note providing for the solutions (intended purpose of land use and its modifications; boundaries of land plots or land estates being divided or joined; manner of use of the territory; location or manner of location of buildings and structures; urban, natural and cultural heritage, architectural, engineering terms of territory management and use; conditions of use of water resources; location of engineering facilities and network or territories reserved for the facilities and network; easements); . . .

Article 21. Territorial Planning Data Bank and Sources of Information

2. Information required for the drafting of territorial planning documents and for forming the data bank shall be received from data banks serving different purposes and controlled by different entities, from national programmes, statistical data bases of public authorities, the manager of land cadastre, valid detailed, general and special territorial planning documents, also natural and legal entities. 3. The territorial planning data bank shall be comprised of the national, county and municipal territorial planning data banks. . . . Article 22. Code of Territorial Planning Regulations

1. The code of territorial planning regulations is a system of statutory acts, regulations, methods, recommendations, technical standards and requirements adopted by the Government, ministries, departments, Government offices and other public authorities which lay down the basic functional and special requirements of environmental and immovable cultural properties protection, also technical, architectural, urban planning and other requirements for all solutions of territorial planning and designing. 2. The code of regulations shall be managed, prepared for publication and published in the form of a collection by the Ministry of Construction and Urban Planning. Article 23. General Procedure for Co-ordinating and Presenting for Approval Territorial Planning Documents

...

Article 20. Drafting, Co-ordination, Approval and Implementation of Detailed Plans

Article 24. Registration of Territorial Planning Documents

...

...

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PART III TRANSPARENCY OF TERRITORIAL PLANNING

Article 25. Participation of the Public in the Process of Planning

... Article 26. Public Announcement of Territorial Planning Documents

... Article 27. Procedure for Submitting Proposals for Planning

... Article 28. Public Meeting

... Article 29. Transparency of the Approved Master Plans

1) verify whether or not the planning documents preparation, co-ordination, public discussion procedure complies with the legal statutes, whether or not the solutions conform to the code of territorial planning regulations; 2) demand that violations of regulations be rectified and the code of territorial planning regulations be abided by, also demand that additional coordination or expert examination be undertaken, and apply administrative sanctions with regard to persons who refuse to comply with the requirements; 3) deliver justified conclusions regarding the appropriateness of the document approval to the body which approves territorial planning documents; 4) resolve disputes arising in the process of planning and during the implementation of plans, unless the dispute settlement procedure is regulated by other laws.

... PART IV STATE SUPERVISION OF TERRITORIAL PLANNING

Article 32. Territorial Planning and Supervision Specialists

1. State supervision of territorial planning means control of general, detailed and special territorial planning documents preparation, co-ordination and public discussion procedures, also the checking of the solutions as against the requirements of the territorial planning regulations. The general procedure of supervision shall be laid down by the territorial planning supervision regulations approved by the Government. . . .

1. Master and detailed plans may be drawn up by the specialists who have been issued a certificate for general territorial planning in the manner laid down by the Government or by the governmental institution authorised by it, also by legal persons, provided that territorial planning activity is provided for by their charters and the works are directed by a certified specialist of general territorial planning, who shall be held responsible for the conformity of the prepared documents to the requirements prescribed by laws and other legal acts of the Republic of Lithuania as well as the territorial planning standards code. . . .

Article 31. Rights of the Supervisory Bodies. The officers of the body exercising supervision shall be entitled to:

PART V INDEMNIFICATION FOR DAMAGES AND LIABILITY FOR VIOLATIONS OF THE LAW

Article 30. State Supervision of Territorial Planning and Its Bodies

...

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M A LTA

Special Development Areas Act Summary: The 1956 Special Development Areas Act of Malta is essentially a law providing eminent domain powers to the government. It gives the government broad authorization to acquire private land for development for public purposes. It authorizes the minister of public works to designate an area of land as a special development area. The law does not specify what constitutes a special development area other than the declaration by the minister, but it does provide that the area is to be developed for public purposes. The act forbids any additional development within a special development area but allows maintenance of existing structures or continued cultivation of agriculture already present on the land. The law includes enforcement provisions and provides for the payment of compensation to owners of land acquired under this act. The act is reproduced here in its entirety.

SPECIAL DEVELOPMENT AREAS ACT (18TH MAY, 1956)

To make provision for the stabilization of values and the control of land in areas earmarked for special development by the Government. Enacted by ACT IX of 1956, as amended by Legal Notice 4 of 1963; and Act XIII of 1983. Short Title

1. This Act may be cited as the Special Development Areas Act. Interpretation

Amended by: L.N. 4 of 1963. 2. In this Act, unless the context otherwise requires – “building” includes any structure whatsoever; “Director” means the Director of Public Works;

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“Special Development Area” means an area in respect of which a declaration has been made by the Minister under section 3 of this Act. Declaration by Minister that area is a Special Development Area

Amended by: L.N. 4 of 1963. 3. (1) Where the Government has earmarked an area within Malta for public acquisition with a view to its development for a public purpose other than that merely of town planning the Minister responsible for public works may declare such an area to be a Special Development Area for the purposes of this Act. (2) No person shall require any proof of the purpose referred to in subsection (1) of this section other than the declaration of the Minister. (3) Whenever any declaration is made as aforesaid, the Director shall cause a copy of such declaration, together with particulars sufficient for the purpose of identifying the area, to be published in the Government Gazette and to be posted up on the notice-board of the Police Station or each of the Police Stations of the towns or villages where or within the limits of which the area is situated. (4) A copy of the said declaration together with a plan of the area to which the declaration refers shall also be made available for inspection by the public at the Office of Public Works, Valletta, and in the branch offices, if any, of the towns or villages referred to in subsection (2) of this section. (5) A declaration made under this section shall continue in force for a period of five years from the date on which it was made unless it is previously revoked. (6) The Minister may, from time to time, amend, suspend or revoke any declaration previously

made by him. Any such amendments, suspension or revocation shall be notified in the Government Gazette. In the case of amendment of such declaration the provisions of subsections (3) and (4) of this section shall apply as in the case of a new declaration. Effects of Declaration

Amended by: L.N. 4 of 1963.

Director of Public Works May Release Lands and Buildings from the Operation of this Act

5. The Director may at any time by writing under his hand release any one or more individual lands or buildings from the operation of this Act either absolutely or subject to such conditions as he may make and thereupon the provisions of this Act shall consistently with the terms of such release cease to apply to those lands, or buildings.

4. (1) As from the date of publication in the Government Gazette of the declaration made by the Minister as provided in the last preceding section and so long as such declaration continues in force the following provisions of this section shall apply in regard to any land or buildings comprised within the Special Development Area.

Government May Not be Compelled to Acquire Lands or Buildings

(2) No person shall lay out or construct any building or increase the height of any existing building or do any other work in, on, over or under the land or building other than ordinary maintenance works in the case of buildings and ordinary cultivation works in the case of agricultural land without the permission in writing of the Director who may refuse to grant any such permission at his discretion: Provided that in respect of the areas described in paragraphs A and B of the Schedule to this Act the restrictions imposed by this subsection shall be deemed to have had effect as from the 15th and the 28th of November, 1955, respectively.

Provided that, unless such land or building is acquired by the Government or released from the operation of this Act within one year from the date of the publication of the Minister’s declaration made under the provisions of section 3 of this Act, the owner shall thereafter and up to the time the land or building is either acquired by the Government or released be entitled to compensation for the loss which he proves to have actually suffered in consequence of the subjection of the land or building to the restrictions imposed by this Act but the amount of such compensation shall in no case exceed an amount equal to five per centum per annum on the value of the land or building, to be determined as in the case of acquisition after taking into consideration subsection (3) of section 4 of this Act. The compensation shall in default of agreement be fixed by the Land Arbitration Board established under the provisions of the Land Acquisition (Public Purposes) Ordinance.

(3) The value of any such land or building which the Government acquires by absolute purchase shall, for the purposes of the compensation payable under the Land Acquisition (Public Purposes) Ordinance but notwithstanding anything to the contrary contained in that Ordinance, be the value of the land or building as at the date of the publication in the Government Gazette of the declaration made as provided in section 3 of this Act or, in the case of an amendment of such declaration whereby an area to which such declaration refers is extended and in respect of the areas so added, the value at the date of the publication in the Government Gazette of that amendment: Provided that in respect of the areas described in the Schedule to this Act such value of any land or building comprised therein shall be its value as on the 14th of July, 1955.

Amended by: L.N. 4 of 1963. 6. Nothing in this Act shall be construed as requiring the Government to acquire any land or building comprised in a Special Development Area:

Order to Remove Unauthorized Works

Amended by: XIII.1983.4, 5. 7. Any person who lays out or constructs any building or who increases the height of any existing building or does any other work in, on, over or under any land or building comprised in a Special Development Area otherwise than in accordance with subsection (2) of section 4 of this Act shall remove the same within ten days after due notice is given to him for that purpose by the Director; and, in the event of the notice not being complied with, the Director may order the works to be removed at the expense

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of the person by whom the same was done without any compensation to that person and the expense of such removal shall be recoverable from that person as a civil debt and that person shall moreover be guilty of an offence for non-compliance with the said notice and shall be liable on conviction to a fine (ammenda) not exceeding twenty liri (Lm20).

On the North by Marsa Cross Road, Jetties Wharf and Shipwright’s Wharf;

Provisions of this Act Are In Addition to Those of Other Laws

On the West by Valletta Road (Luqa), Marsa Racecourse and a lane leading from Marsa Racecourse to Marsa Cross.

8. This Act shall, except to the extent that it is inconsistent therewith, be in addition to and not in derogation of the provisions of the Land Acquisition (Public Purposes) Ordinance or any other law and nothing herein shall in any way affect the right of the Government to acquire or otherwise deal with any land or property in accordance with those provisions and in particular the right to acquire land or property by any method other than absolute purchase. Schedule

A. An area situated between Marsa, Paola and Luqa and bounded:

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On the East by Paola Hill, Valletta Street (Paola) and Britannia Street (Paola); On the South by Palm Street, the Addolorata Cemetery, Lane ta’ Hal Saflieni and a Government rural tenement known as “Tal-Qtates”;

The area is shown edged purple on a plan which may be seen on demand at the Office of Public Works, Valletta. B. An area situated in Marsa and bounded: On the North by Pinto Road and Spencer Hill; On the West by Marsa Cross Road; On the South and on the East by the Grand Harbour. The area is shown edged purple on a plan which may be seen on demand at the Office of Public Works, Valletta.

Administration of Lands Act (Chapter 448) Summary: The purpose of the 2002 Administration of Lands Act is to bring all real property “administered by the Government” under the direct control of the Maltese Government in fee simple subject to any pre-existing possessory or nonpossessory property interests, lease, or easement. The Government assumed all economic benefits and burdens on the land at the time of the act’s adoption and was authorized to pay any monies owed without further appropriation. The act provided six months for the filing of claims of compensation resulting from its adoption and for the claims’ adjudication in Civil Court, with guaranteed right of appeal. The agreement from the earlier Ecclesiastical Entities (Properties) Act prohibited compensation claims for land governed by that agreement. This act also amends the Land Acquisition (Public Purposes) Ordinance making it possible for the Government to obtain immediate ownership of expropriated property via a Presidential declaration. The full text of this act is available as a PDF at: http://docs.justice.gov.mt/lom/legislation/english/ leg/vol 14/chapt448.pdf

ADMINISTRATION OF LANDS ACT (CHAPTER 448)

lands belonging to foundations and administrations, administered by the Government separate from the administration of other land belonging to the Government shall vest in the Government and the Government shall deal with and administer the land so vested in it in virtue of this Act in the same manner as other land belonging to the Government in absolute property and may dispose of such land accordingly and with effect from such commencement all liabilities of or due in connection with such administration shall become liabilities of or due to the Government by virtue of this Act and any payment so due to be made by the Government shall be a charge on the Consolidated Fund without further appropriation other than this Act. Effect on Emphyteusis, Etc

4. Without prejudice to any consolidation of the directum dominium with the utile dominium happening on the vesting of the land as provided in article 3, the provisions of that article shall not affect any emphyteusis or lease granted in respect of such land or any easement to which such land may be subject, and any such emphyteusis or lease shall for all purposes, be deemed to have been granted by the Government and be treated accordingly.

Short Title

Obligations Tied to Land Vested in Government

1. The short title of this Act is the Administration of Lands Act.

5. With effect from the commencement of this Act, any burthen or charge to which any of the land referred in article 3 may, before the commencement of this Act, be subject to, and any other payment or performance that may, before the date aforesaid, be due in respect of any such assets, shall by virtue of this Act, cease to be such a burthen or charge on, or a payment or performance due in respect of any such land and any sum or other thing or act which but for the provisions of this article would have been due to be paid immediately before the commencement of this Act, shall as from such commencement, be due to be paid or made by the Government, and

Interpretation

2. For the purpose of this Act unless the context otherwise requires the term “land” includes all immovable things as well as all real rights over immovables. Vesting of Land

3. Subject to the other provisions of this Act, with effect from the coming into force of this Act, all

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any payment so due shall be a charge on the Consolidated Fund without any further appropriation other than this Act.

Claims

6. (1) Any person claiming a right of compensation in connection with the vesting of the land referred to in this Act in the Government shall have a right of access, by writ of summons against the Government, in the Civil Court, First Hall for the determination of his interest in or right over the land and the amount of any compensation to which he may be entitled and for the payment of such compensation. (2) An appeal shall lie to the Court of Appeal from the decision of the Civil Court First Hall.

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(3) No action under this article may be filed after the lapse of six months after the coming into force of this Act. (4) All the provisions of the Agreement incorporated in the Ecclesiastical Entities (Properties) Act shall apply with regard to any land which immediately prior to the coming into force of this Act belonged to any foundation or administration in whose regard this Act applies and which, had it not been for the Agreement mentioned above, an ecclesiastical entity could claim any right of compensation therefor, and the Joint Office and the Control Committee established by the said Agreement shall continue to have in respect of the land mentioned in this subarticle the same functions as they have with respect to any other land mentioned in or to which the said Agreement applies.

NETHERLANDS

Netherlands Spatial Planning Act Summary: The Netherlands Spatial Planning Act of 1999 dictates guidelines for planning policies on the national and local level. The act contains provisions requiring the minister to take all steps required to form a national planning policy consisting of “structure outline plans,” which set out the spatial guidelines for development and infrastructure in the planned area. The act also requires provincial and local leaders to establish planning polices for their respective jurisdictions. It further requires, without specifying applicable requirements, that local land use plans and structure plans be created. The act contains enforcement provisions for violations of its requirements. Omitted provisions of the act are indicated by an ellipsis.

and concrete policy decisions that are of importance for the national spatial planning policy as more specifically determined by Order in Council. Such plans shall be prepared by the Ministers concerned, including the Minister. The intention to prepare any such plan shall be notified by the Ministers concerned to the States-General. A copy of such notification shall be sent by the Minister to the Advisory Council for Spatial Planning. The plan shall state the period of time for which it shall be in force. . . .

PART III PROVINCIAL POLICY ON TOWN AND COUNTRY PLANNING

PART I DEFINITIONS

Article 4–1. The Provincial Executive shall take all necessary steps in preparing provincial policy on spatial planning. The Provincial Executive shall first seek the advice of the Provincial Town and Country Planning Commission regarding measures and plans that are of significance for such policy.

Article 1. In the application of this Act shall be understood by the Minister: the Minister charged with spatial planning matters.

2. The Provincial Executive shall submit annually to the Provincial Council a report on the policy pursued by them regarding spatial planning.

SPATIAL PLANNING ACT

...

PART II GOVERNMENT POLICY ON TOWN AND COUNTRY PLANNING

Article 2–1. The Minister shall take all necessary steps in preparing national policy on spatial planning. The results shall be published within the constraints of the Act on Open Government. . . . Article 2a–1. The Council of Ministers, having sought the advice of the State Town and Country Planning Commission, shall adopt plans for certain aspects of the national policy on spatial planning. Such plans may comprise national structure outline plans, national structure policy sector plans

Article 4a–1. The Provincial Executive may adopt

a regional spatial plan for the entire area of the province or for one or more parts thereof in which the future development of the plan area covered by the plan is outlined, and may also revise an adopted regional spatial plan. The Provincial Executive shall thereby state to what extent the proposed policy has taken account of or will lead to adaptation of the provincial environment policy or the provincial hyrological management policy and to what extent and within which period of time it intends to revise the current provincial environment policy or the current provincial hyrological management policy. A regional spatial plan shall underpin

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revisions within the meaning of Article 37 fifth paragraph. –2. The Provincial Executive shall be charged with the preparation of the regional spatial plan. To this end the Provincial Executive shall seek the advice of the Provincial Town and Country Planning Commission and shall consult with all municipal authorities concerned with the plan. . . . –8. It shall be stated in or with the regional spatial plan to what extent the Provincial Executive must implement the plan in accordance with the rules to be issued with the plan and within what limits as laid down in the plan it may derogate from the plan without prejudice to the decisions of essential interest embodied in the plan. . . .

PART IV MUNICIPAL POLICY ON TOWN AND COUNTRY PLANNING

Chapter 1 Involvement of the Population in the Preparation of Municipal Spatial Plans

Article 6. – 1. The Municipal Council shall adopt a regulation containing rules relating to the manner in which residents and interested natural and legal persons in the municipality can be involved in the preparation or revision of spatial plans. . . .

and any structures to be found thereon. Such regulations may restrict the most suitable use of such land and structures only for the most urgent cause and may not contain any requirements regarding the structure of agricultural enterprises. By land shall be understood also water. –2. The Municipal Council may adopt a local land use plan, within the meaning of the preceding paragraph, for any area of the municipality that forms part of any built-up area, or for any part thereof. . . . Article 12. – 1. A local land use plan may for a period to be thereby determined: a. indicate provisional uses; b. state provisional use rules within the meaning of Article 10. . . . Article 14. – 1. A local land use plan may state a prohibition on certain work, not being construction work, or the carrying out of work without or not in compliance with a written authorisation issued by the Mayor and Aldermen (a construction permit) in an area designated by the plan where such prohibition is required: a. to prevent terrain being rendered less suitable for the realisation of the use designated by the plan; b. for the maintenance and protection of a realised use within the meaning of subparagraph a. . . .

Chapter 2 Structure Plans

Article 7. – 1. The Municipal Council may adopt a structure plan for the territory of the municipality setting out the future development of the municipality. –2. The Municipal Council, in cooperation with bordering municipalities, may adopt a structure plan for the territory of the municipalities concerned setting out the future development of those municipalities. . . . Chapter 3 Local Land Use Plans

Article 10. – 1. The Municipal Council shall adopt a local land use plan for any area of the municipality that does not form part of any built-up area in which, where the interests of proper spatial planning so require, the use of such land is indicated and, where necessary, in connection with such use regulations shall be issued regarding the use of such land

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PART V MEASURES OF A HIGHER AUTHORITY CONCERNING MUNICIPAL SPATIAL PLANNING MEASURES

Article 37. – 1. The Minister, following consultation with the Provincial Executive and the Municipal Council and having sought the advice of the State Town and Country Planning Commission, may,. to the extent that the creation or revision of spatial planning measures would be advanced by a proper implementation of Government policy, order the Municipal Council to adopt or revise a local land use plan. . . . Chapter 1 Co-ordination of Decision-making on Large Projects of National Importance

Article 39. To the extent that any plan within the meaning of Article 2a encompasses concrete policy decisions on major projects of national importance the limits or restrictions determined by such policy

decisions shall be taken into account in any further decision-making on such projects. . . .

PART VI DEVELOPMENT ORDERS

of the Commission. Each Minister may appoint the maximum number of members determined by Order in Council. The head of the State Town and Country Planning Agency shall ex officio be a member of the Council. . . .

Article 42. – 1. The Municipal Council shall adopt a regulation containing the conditions under which the municipality shall provide support for the development of land that in the near future shall be eligible for building (development order).

–4. Sub-commissions may be instituted and defined by Order in Council and in such cases the advice of such sub-commissions shall replace that of the State Town and Country Planning Commission. . . .

–2. A development order shall contain inter alia rules relating to the following matters:

Article 52. – 1. There shall be a State Town and Country Planning Agency for the purpose inter alia and in such manner as further determined by Order in Council of:

a. the cases in which and the manner in which the taking of public benefit measures shall be done independently of the disposal of land to the municipality; b. the share of the costs of public benefit measures that shall be charged to the land that shall benefit from such measures and the manner in which such costs shall be assessed to the land in question. . . . Article 43. – 1. A development order shall be subject to the approval of the Provincial Executive. . . .

PART VII CONSTRUCTION PERMITS

Article 44. – 1. A construction permit may only and shall be refused where: a. the work or activities would not be in compliance with a local land use plan or the requirements stipulated by virtue of such plan; b. a permit pursuant to the Monuments Act or a provincial or municipal monuments regulation is required for the work or activities and such permit has not been issued. . . .

PART IX SPATIAL PLANNING BODIES AND ADVISORY COUNCILS

Article 51. – 1. There shall be a State Town and Country Planning Commission for the purpose of consultation on matters pertaining to spatial planning. The Commission shall also be charged with advising the Minister and if required other Ministers on matters pertaining to spatial planning. 2. The Chairman of the Commission shall be appointed by the Crown. The Ministers designated by Order in Council shall appoint the members

a. providing support for the Minister in the task set out in Article 2; b. conducting research and furnishing advice in the interests of spatial planning; c. actively supervising compliance with this Act and with the regulations issues pursuant to this Act. –2 Spatial Planning Inspectors shall form part of the Agency. –3 The organization of the Agency shall be further determined by Order in Council. –4 The Mayor and Aldermen shall provide the Inspector within, whose jurisdiction their municipality lies with all information sought by the Inspector on the implementation of this Act and of regulations pertaining to spatial planning. Article 53. – 1. There shall be a Provincial Town and Country Planning Commission in each province for the purpose of consultation on matters pertaining to spatial planning. Such commission shall also be charged with advising the provincial authority on implementation of the task imposed by or pursuant to this Act. . . . Article 54. – 1. There shall be an Advisory Council for Spatial Planning that shall advise the Government upon request or at its own initiative on matters pertaining to spatial planning. Article 55. The Advisory Council for Spatial Planning shall comprise: a. representatives of organisations designated by the Crown;

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b. administrative and technical experts on spatial planning; c. experts on provincial and municipal administration. . . . PART X ENFORCEMENT AND CRIMINAL MEASURES

with Article 21 paragraph three, Article 28 paragraph four or Article 29 paragraph eight shall be punishable with a custodial sentence not exceeding a period of six months or a category three fine. Article 61. The criminal offences within the meaning of Articles 59 and 60 shall be characterised as summary offences. . . .

... Article 59. Violation of any rule forming part of a local land use plan shall, to the extent that such violation is expressly characterised as criminal, be punishable with a custodial sentence not exceeding a period of six months or a category three fine. Article 60. Violation of Article 45 paragraph two, alternatively of the rules laid down in accordance

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PART XI FINAL PROVISIONS

... Article 66. – 1. This Act shall not apply to water control works where immediate implementation by the authorised water control authority is judged to be necessary to counteract urgent and threatened danger or to prevent further damage. . . .

SCOTLAND

Town and Country Planning (Scotland) Act of 1997 1997 Chapter 8 Summary: The Scottish Town and Country Planning Act is a comprehensive tool for the regulation of development throughout Scotland. Although it is an extensive and detailed statute, this excerpt focuses on the statute’s basic foundation, namely the establishment of the planning structure and local development plans and specific development controls. The provisions regulate both private and public land in general, though sections relating to public lands exclusively have been excluded. The statute begins by designating local councils as planning authorities for their respective areas. Their power to act is derived from the Secretary of State, who retains oversight power over all development planning and regulation. The procedure for creating structure and local development plans is outlined, followed by regulations specifically controlling development. The statute follows the general format of the English Town and Country Planning Act with some modifications. Note the development planning provisions in Part II more closely mirror the development planning specific to the English nonmetropolitan areas. Omitted provisions of the statute are indicated by an ellipsis. In some cases, omitted provisions are briefly described within brackets. The full text of this act is available at: http://www. opsi.gov.uk/acts/acts1997/1997008.htm#aofs

PART I ADMINISTRATION

Planning Authorities 1. – (1) The planning authority for the purposes of this Act shall be the local authority and the district of the planning authority shall be the area of the local authority.

(2) In any enactment or instrument made under or by virtue of an enactment, a reference to a planning authority shall, unless otherwise provided, or unless the context otherwise requires, be construed as a reference to a local authority. . . .

PART II DEVELOPMENT PLANS

Surveys

[This section requires the survey of planning areas and specifies the types of data to be collected as part of the complete survey.] ... Structure Plans Structure Plans: Continuity of Old and Preparation of New Plans

6. – (1) Each structure plan approved by the Secretary of State under the 1972 Act with respect to the district of a planning authority which is in operation immediately before the commencement of this Act shall continue in force after its commencement (subject to any alterations then in operation and to the following provisions of this Part). (2) Where, as a result of the making of an order under section 5, the area in respect of which a planning authority are obliged (whether acting alone or jointly with another authority or authorities) to prepare a structure plan is different from the area in respect of which a structure plan is for the time being in force, they shall prepare and submit to the Secretary of State for his approval a structure plan for their district complying with the provisions of section 7(1), together with a copy of the report of any survey which they have carried out under section 4(2).

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(3) The Secretary of State may direct a planning authority to carry out their duty under subsection (2) within a specified period from the direction, and any planning authority to whom such a direction is made shall comply with it.

use of land in neighbouring districts which may be expected to affect that district, and (c) containing such other matters as may be prescribed.

(4) Where a structure plan area extends to the district of more than one planning authority, and the authorities concerned are unable to agree on a joint structure plan for that area, then, without prejudice to the Secretary of State’s powers under section 22 of this Act and section 62B (power of Secretary of State to establish joint boards) of the Local Government (Scotland) Act 1973, each authority concerned may include in the plan submitted to the Secretary of State alternative proposals in respect of particular matters.

(2) In formulating their policy and general proposals under subsection (1)(a), the planning authority shall secure that the policy and proposals are justified by the results of the survey under section 4(1) of the 1972 Act, any fresh survey under section 4(2) of that Act or any survey instituted by them under section 4 of this Act and by any other information which they may obtain and shall have regard –

(5) Where authorities submit alternative proposals under subsection (4), such proposals shall be accompanied by a statement of the reasoning behind the proposals.

(b) to the resources likely to be available for the carrying out of the proposals of the structure plan.

(6) The planning authority shall send with the structure plan submitted by them under this section a report of the results of their review of the relevant matters under section 4 together with any other information on which the proposals are based. (7) A copy report submitted under subsection (2) shall include an estimate of any changes likely to occur, during such period as the planning authority consider appropriate, in the matters mentioned in section 4(3). (8) Before submitting a structure plan under this section, the planning authority shall consult any other planning authority who are likely to be affected by the plan. Form and Content of Structure Plans

7. – (1) The structure plan for any district shall be a written statement – (a) formulating the planning authority’s policy and general proposals in respect of the development and other use of land in that district (including measures for the conservation of the natural beauty and amenity of the land, the improvement of the physical environment and the management of traffic), (b) stating the relationship of those proposals to general proposals for the development and other

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(a) to current policies with respect to the economic planning and development of the region as a whole, and

(3) A structure plan for any district shall contain or be accompanied by such diagrams, illustrations and descriptive matter as the planning authority think appropriate for the purpose of explaining or illustrating the proposals in the plan, or as may be prescribed, and any such diagrams, illustrations and descriptive matter shall be treated as forming part of the plan. Publicity in Connection with Structure Plans

8. – (1) When preparing a structure plan for their district and before finally determining its content for submission to the Secretary of State, the planning authority shall take such steps as will in their opinion secure – (a) that adequate publicity is given in their district to the report of the survey under section 4 of this Act and to the matters which they propose to include in the plan, (b) that persons who may be expected to desire an opportunity of making representations to the authority with respect to those matters are made aware that they are entitled to an opportunity of doing so, and (c) that such persons are given an adequate opportunity of making such representations. (2) The authority shall consider any representations made to them within the prescribed period.

(3) Where authorities submit alternative proposals in relation to particular matters to the Secretary of State under section 6(4), their duty under subsection (1) is to secure that adequate publicity is given in each of their districts to all the matters which either or any of them propose to include in the plan. (4) Not later than the submission of a structure plan to the Secretary of State, the planning authority shall make copies of the plan as submitted to the Secretary of State available for inspection at their office and at such other places as may be prescribed. (5) Each copy of the plan shall be accompanied by a statement of the time within which objections to the plan may be made to the Secretary of State. (6) A structure plan submitted by the planning authority to the Secretary of State for his approval shall be accompanied by a statement containing such particulars, if any, as may be prescribed – (a) of the steps which the authority have taken to comply with subsection (1), and (b) of the authority’s consultations with, and consideration of the views of, other persons with respect to those matters. (7) If after considering the statement submitted with, and the matters included in, the structure plan and any other information provided by the planning authority, the Secretary of State is satisfied that the purposes of paragraphs (a) to (c) of subsection (1) have been adequately achieved by the steps taken by the authority in compliance with that subsection, he shall proceed to consider whether to approve the plan. (8) If the Secretary of State is not satisfied as mentioned in subsection (7), he shall return the plan to the authority and direct them – (a) to take such further action as he may specify in order better to achieve those purposes, and (b) after doing so, to resubmit the plan with such modifications, if any, as they then consider appropriate and, if so required by the direction, to do so within a specified period. (9) Where the Secretary of State returns the plan to the planning authority under subsection (8), he shall – (a) inform the authority of his reasons for doing so, and

(b) if any person has made an objection to the plan to him, also inform that person that he has returned the plan. (10) A planning authority who are given directions by the Secretary of State under subsection (8) shall immediately withdraw the copies of the plans made available for inspection as required by subsection (4). (11) Subsections (4) to (10) shall apply, with the necessary modifications, in relation to a structure plan resubmitted to the Secretary of State in accordance with directions given by him under subsection (8) as they apply in relation to the plan as originally submitted. Alteration and Replacement of Structure Plans

[This section provides for the alteration and replacement of structure plans as well as the procedures to be followed for such alteration and replacement.] ... Approval or Rejection of Structure Plans and Proposals for Alteration or Replacement

[The Secretary of State retains oversight authority under this statute. This authority includes the power to direct reconsideration of proposals and order submission, at his or her discretion, and prior to local adoption, of all or part of the unitary development plan for his or her approval. The Secretary of State may then approve or reject all or part of the submitted plan and shall provide a statement of the reasons governing his decision. In addition, the Secretary of State retains the power to conduct local inquiries, examinations, and consultation.] ... Local Plans Preparation of Local Plans

11. – (1) Every planning authority shall prepare local plans for all parts of their district, and two or more planning authorities may prepare a joint local plan extending to parts of each of their districts. (2) It shall be the duty of the planning authority – (a) for the purpose of preparing a local plan, to institute a survey of their district or any part of it, in so far as not already done, taking into account the matters which the authority think necessary for the formulation of their proposals, and

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(b) to keep those matters under review during and after the preparation of the local plan. (3) A local plan shall consist of – (a) a written statement formulating in such detail as the planning authority think appropriate the authority’s proposals for the development and other use of land in that part of their district or for any description of development or other use of such land including in either case such measures as the planning authority think fit for the conservation of the natural beauty and amenity of the land, the improvement of the physical environment and the management of traffic, (b) a map showing those proposals, and (c) such diagrams, illustrations and descriptive matter as the planning authority think appropriate to explain or illustrate those proposals, or as may be prescribed, and shall contain such matters as may be prescribed. (4) Different local plans may be prepared for different purposes for the same part of any district. (5) In formulating their proposals in a local plan the planning authority – (a) shall have regard to any information and any other considerations which appear to them to be relevant or which may be prescribed, and (b) shall secure that the local plan conforms generally to the structure plan, as it stands for the time being, whether or not it has been approved by the Secretary of State. (6) Where an area is indicated as an action area in a structure plan which has been approved by the Secretary of State, the planning authority shall (if they have not already done so), as soon as practicable after the approval of the plan, prepare a local plan for that area. Publicity and Consultation

12. – (1) Subject to subsection (6), a planning authority who propose to prepare, alter, repeal or replace a local plan shall take such steps as will in their opinion secure – (a) that adequate publicity is given in their district to any relevant matter arising out of a survey of the district or part of the district carried out under section 4 or 11 and to the proposals,

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(b) that persons who may be expected to wish to make representations to the authority about the proposals are made aware that they are entitled to do so, and (c) that such persons are given an adequate opportunity of making such representations. (2) The planning authority shall consider any representations made to them within the prescribed period. (3) Having prepared the local plan or, as the case may be, the proposals for alteration, repeal or replacement, the planning authority shall before adopting the plan or proposals or submitting it or them for approval under section 18 – (a) make copies available for inspection at their office and at such other places as appear to them to be appropriate, and (b) send a copy to the Secretary of State. (4) Each copy made available for inspection under subsection (3) shall be accompanied by a statement of the time within which objections may be made to the authority. (5) The copy of the plan or proposals sent to the Secretary of State, or made available for inspection, under subsection (3) shall be accompanied by a statement containing such particulars, if any, as may be prescribed – (a) of the steps which the authority have taken to comply with subsection (1), and (b) of the authority’s consultations with, and their consideration of the views of, other persons. (6) If the planning authority propose to alter a local plan and do not consider it appropriate to take the steps referred to in subsection (1), they may instead include, with the copies of those proposals made available for inspection under subsection (3) and with the copy sent to the Secretary of State, a statement of their reasons for not doing so. Alteration of Local Plans

[This section provides for the alteration of local plans as well as the procedures to be followed for such alteration.] ...

Objections: Local Inquiry or Other Hearing

15. – (1) The planning authority may cause a local inquiry or other hearing to be held for the purpose of considering objections to a local plan or to proposals for the alteration, repeal or replacement of a local plan prepared by them.

(a) any such objections as are mentioned in subsection (1) whether or not they have been the subject of a local inquiry or other hearing, (b) any matters arising out of such objections, or (c) any minor drafting or technical matters.

(2) If an objector so requires, the planning authority shall cause such a local inquiry or other hearing to be held in the case of objections made in accordance with regulations.

(3) Where the Secretary of State has, under section 10, approved a structure plan for any area the planning authority shall not adopt any plan or proposals which do not conform to that structure plan.

(3) A local inquiry or other hearing under this section shall be held by a person appointed by the Secretary of State or, in such cases as may be prescribed, by the authority themselves.

(4) After copies of the plan or proposals have been sent to the Secretary of State and before the plan or proposals have been adopted by the planning authority, the Secretary of State may, if it appears to him that the plan or proposals are unsatisfactory, and without prejudice to his power to make a direction under section 18(1), direct the authority to consider modifying the plan or proposals in such respects as are indicated in the direction.

(4) Regulations may – (a) make provision with respect to the appointment and qualifications for appointment of persons to hold a local inquiry or other hearing; (b) include provision enabling the Secretary of State to direct a planning authority to appoint a particular person, or one of a specified list or class of persons; (c) make provision with respect to the allowances of the person appointed. (5) Subsections (4) to (8) of section 265 apply to an inquiry held under this section. (6) The Tribunals and Inquiries Act 1992 shall apply to a local inquiry or other hearing held under this section as it applies to a statutory inquiry held by the Secretary of State, but as if in section 10(1) of that Act (statement of reasons for decisions) the reference to any decision taken by the Secretary of State were a reference to a decision taken by a local authority. . . . Adoption of Proposals

17. – (1) After the expiry of the period for making objections to a local plan or, as the case may be, proposals for the alteration, repeal or replacement of a local plan or, if such objections were duly made within that period, after considering the objections so made, the planning authority may, subject to this section and to section 18, by resolution adopt the plan or the proposals. (2) The planning authority may adopt the plan or the proposals as originally prepared or as modified so as to take account of –

(5) A planning authority to whom such a direction is given shall not adopt the plan or proposals unless they satisfy the Secretary of State that they have made the modifications necessary to conform with the direction or the direction is withdrawn. . . . [Omitted sections provide that if the local planning authority fails to perform its duties or follow the procedures outlined in this statute, its powers will be divested and returned to the Secretary of State.] Meaning of “Development Plan”

24. – (1) For the purposes of this Act, any other enactment relating to town and country planning and the Land Compensation (Scotland) Act 1963, the development plan for any area (whether the whole or part of the district of a planning authority) shall be taken as consisting of – (a) the provisions of the structure plan for the time being in force for that district or the relevant part of that district, together with the Secretary of State’s notice of approval of the plan, (b) any alterations to that plan, together with the Secretary of State’s notices of approval of them, (c) any provisions of a local plan for the time being applicable to the area, together with a copy of the authority’s resolution of adoption or, as the case may be, the Secretary of State’s notice of approval of the local plan, and

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(d) any alterations to that local plan, together with a copy of the authority’s resolutions of adoption or, as the case may be, the Secretary of State’s notices of approval of them. (2) References in subsection (1) to the provisions of any plan, notices of approval, alterations and resolutions of adoption shall, in relation to an area forming part of the district to which they are applicable, be respectively construed as references to so much of those provisions, notices, alterations and resolutions as is applicable to the area. (3) References in subsections (1) and (2) to notices of approval shall in relation to any plan or alteration made by the Secretary of State under section 22 be construed as references to notices of the making of the plan or alteration. (4) This section has effect subject to Schedule 1 (old development plans). (5) For the avoidance of doubt it is provided that, notwithstanding – (a) any changes made to local government areas by the Local Government etc. (Scotland) Act 1994, and (b) any alterations to structure plan areas made by orders under section 5, the structure plans and local plans made prior to the coming into force of the provisions mentioned in paragraphs (a) and (b) shall remain in force until replaced by new plans made under or by virtue of those provisions. (6) Any reference in the Land Compensation (Scotland) Act 1963 to an area defined in a current development plan as an area of comprehensive development shall be construed as a reference to an action area for which a local plan is in force or, as the case may be, to a comprehensive development area.

PART III

CONTROL OVER DEVELOPMENT

Meaning of Development Meaning of “Development”

26. – (1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land. (2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land – (a) the carrying out of works for the maintenance, improvement or other alteration of any building being works which – (i) affect only the interior of the building, or (ii) do not materially affect the external appearance of the building, and are not works for making good war damage within the meaning of the War Damage Act 1943 or works begun after 7th December, 1969 for the alteration of a building by providing additional space in it underground; (b) the carrying out by a local roads authority on land within the boundaries of a road of any works required for the maintenance or improvement of the road; (c) the carrying out by a local authority or statutory undertakers of any works for the purpose of inspecting, repairing or renewing any sewers, mains, pipes, cables or other apparatus, including the breaking open of any road or other land for that purpose; (d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;

Status of Development Plans

(e) the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used;

25. Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.

(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the

General

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buildings or the other land, for any other purpose of the same class;

engineering operations over that land; and in this subsection –

(g) the demolition of any description of building specified in a direction given by the Secretary of State to planning authorities generally or to a particular planning authority.

“fish farming” means the breeding, rearing or keeping of fish or shellfish (which includes any kind of crustacean or mollusc);

(3) For the avoidance of doubt it is hereby declared that for the purposes of this section – (a) the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used; (b) the deposit of refuse or waste materials on land involves a material change in its use, notwithstanding that the land is comprised in a site already used for that purpose, if – (i) the superficial area of the deposit is extended, or (ii) the height of the deposit is extended and exceeds the level of the land adjoining the site. (4) For the purposes of this Act building operations include – (a) demolition of buildings, (b) rebuilding, (c) structural alterations of or additions to buildings, and (d) other operations normally undertaken by a person carrying on business as a builder. (5) For the purposes of this Act mining operations include –

“inland waters” means waters which do not form part of the sea or of any creek, bay or estuary or of any river as far as the tide flows; and “tank” includes any cage and any other structure for use in fish farming. (7) Without prejudice to any regulations under this Act relating to the control of advertisements, the use for the display of advertisements of any external part of a building which is not normally used for that purpose shall be treated for the purposes of this section as involving a material change in the use of that part of the building. Time When Development Begun

27. – (1) Subject to the following provisions of this section, for the purposes of this Act development of land shall be taken to be initiated – (a) if the development consists of the carrying out of operations, at the time when those operations are begun; (b) if the development consists of a change in use, at the time when the new use is instituted; (c) if the development consists both of the carrying out of operations and of a change in use, at the earlier of the times mentioned in paragraphs (a) and (b).

(a) the removal of material of any description – (i) from a mineral-working deposit, (ii) from a deposit of pulverised fuel ash or other furnace ash or clinker, or (iii) from a deposit of iron, steel or other metallic slags, and (b) the extraction of minerals from a disused railway embankment. (6) Where the placing or assembly of any tank in any part of any inland waters for the purpose of fish farming there would not, apart from this subsection, involve development of the land below, this Act shall have effect as if the tank resulted from carrying out

(2) For the purposes of the provisions of this Part mentioned in subsection (3) development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out. (3) The provisions referred to in subsection (2) are sections 52(2), 53(6), 54(4), 58, 59 and 61. (4) In subsection means –

(2)

“material

operation”

(a) any work of construction in the course of the erection of a building, (b) any work of demolition of a building,

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(c) the digging of a trench which is to contain the foundations, or part of the foundations, of a building, (d) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (c), (e) any operation in the course of laying out or constructing a road or part of a road, or (f) any change in the use of any land which constitutes material development. (5) In subsection (4)(f) “material development” means any development other than – (a) development for which planning permission is granted by a general development order for the time being in force and which is carried out so as to comply with any condition or limitation subject to which planning permission is so granted, (b) development of a class specified in paragraph 1 or 2 of Schedule 11, and (c) development of any class prescribed for the purposes of this subsection. (6) In subsection (5) “general development order” means a development order (within the meaning of section 30(2)) made as a general order applicable (subject to such exceptions as may be specified in it) to all land in Scotland. Requirement for Planning Permission Development Requiring Planning Permission

28. – (1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land. (2) Where planning permission to develop land has been granted for a limited period, planning permission is not required for the resumption, at the end of that period, of its use for the purpose for which it was normally used before the permission was granted. (3) Where by a development order planning permission to develop land has been granted subject to limitations, planning permission is not required for the use of that land which (apart from its use in accordance with that permission) is its normal use. (4) Where an enforcement notice has been served in respect of any development of land, planning

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permission is not required for the use of that land for the purpose for which (in accordance with the provisions of this Part) it could lawfully have been used if that development had not been carried out. (5) In determining for the purposes of subsections (2) and (3) what is or was the normal use of land, no account shall be taken of any use begun in contravention of this Part or of previous planning control. (6) For the purposes of this section a use of land shall be taken to have been begun in contravention of previous planning control if it was begun in contravention of Part II of the 1947 Act or Part III of the 1972 Act. (7) Subsection (1) has effect subject to Schedule 2 (which contains exemptions for certain uses of land on 1st July 1948). Granting of Planning Permission: General

29. – (1) Planning permission may be granted – (a) by a development order, (b) by the planning authority (or, where this Part so provides, by the Secretary of State) on application to the authority in accordance with regulations or a development order, (c) on the adoption or approval of a simplified planning zone scheme or alterations to such a scheme in accordance with section 49 or, as the case may be, section 53, or (d) on the designation of an enterprise zone or the approval of a modified scheme under Schedule 32 to the Local Government Planning and Land Act 1980 in accordance with section 55 of this Act. (2) Planning permission may also be deemed to be granted under section 57 (development with government authorisation). (3) This section is without prejudice to any other provisions of this Act providing for the granting of permission. Development Orders Development Orders: General

30. – (1) The Secretary of State shall by regulations or by order provide for the granting of planning permission.

(2) An order under this section (in this Act referred to as a “development order”) may itself grant planning permission for development specified in the order, or for development of any class so specified, and may be made either – (a) as a general order applicable, except so far as it otherwise provides, to all land, but which may make different provision with respect to different descriptions of land, or (b) as a special order applicable only to such land or descriptions of land as may be specified in the order.

generality of references in this Act to limitations) be taken to be a provision granting permission for the use of land for any purpose subject to the limitation that the land shall not be used for any one purpose in pursuance of that provision on more than that number of days in that period. (5) For the purpose of enabling development to be carried out in accordance with planning permission, or otherwise for the purpose of promoting proper development in accordance with the development plan, a development order may direct that any enactment passed before 13th August 1947, or any regulations, orders or byelaws made at any time under any such enactment –

(3) In respect of development for which planning permission is not granted by a development order, regulations or an order may provide for the granting of planning permission by the planning authority (or, where this Part so provides, by the Secretary of State) on an application made to the planning authority in accordance with the regulations or the order.

Applications for Planning Permission

Permission Granted by Development Order

Form and Content of Applications for Planning Permission

31. – (1) Planning permission granted by a development order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order. (2) Without prejudice to the generality of subsection (1), where planning permission is granted by a development order for the erection, extension or alteration of any buildings, the order may require the approval of the planning authority to be obtained with respect to the design or external appearance of the buildings.

(a) shall not apply to any development specified in the order, or (b) shall apply to it subject to such modifications as may be so specified.

32. Any application to a planning authority for planning permission – (a) shall be made in such manner as may be prescribed by regulations or by a development order, and (b) shall include such particulars and be verified by such evidence as may be required by the regulations or the development order or by directions given by the planning authority under the regulations or order.

(3) Without prejudice to the generality of subsection (1), where planning permission is granted by a development order for development of a specified class, the order may enable the Secretary of State or the planning authority to direct that the permission shall not apply either –

Planning Permission for Development Already Carried Out

(a) in relation to development in a particular area, or

(2) Subsection (1) applies to development carried out –

(b) in relation to any particular development. (4) Any provision of a development order by which permission is granted for the use of land for any purpose on a limited number of days in a period specified in that provision shall (without prejudice to the

33. – (1) On an application made to a planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application.

(a) without planning permission, (b) in accordance with planning permission granted for a limited period, or (c) without complying with some condition subject to which planning permission was granted.

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(3) Planning permission for such development may be granted so as to have effect from – (a) the date on which the development was carried out, or (b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period.

(a) applications for planning permission, (b) applications for an approval required by a development order, and (c) applications for any consent, agreement or approval required by a condition imposed on a grant of planning permission. (3) If any person knowingly or recklessly –

Publicity for Applications Publication of Notices of Applications

34. – (1) Subject to subsection (2), regulations or a development order may provide, either in relation to applications generally or in relation to applications of a class or classes prescribed in the regulations or order, that – (a) any such application shall have been notified to such persons or classes of person, and in such manner, as may be so prescribed; (b) any such application shall have been advertised, either in a local newspaper or on the land to which the application relates, or both, in such a manner and for such a period or on such a number of occasions as may be so prescribed; (c) any newspaper advertisement required by virtue of paragraph (b) shall be placed by the planning authority to whom the application is made; (d) the planning authority may recover from the applicant the cost incurred by them in arranging any such advertisement; (e) any such application shall be accompanied by such certificates as to compliance with the requirements of provisions made under paragraphs (a) and (b) as may be so prescribed; (f) the applicant shall furnish, at such time and to such persons as may be so prescribed, such information with respect to the application as may be so prescribed; (g) no such application shall be entertained unless such further conditions as to payment as may be so prescribed have been complied with;

(a) issues a notification, (b) makes advertisement (other than newspaper advertisement), or (c) supplies a certificate, which purports to comply with provisions made under subsection (1) but which contains a statement which is false or misleading in a material particular, he shall be guilty of an offence. (4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. (5) A planning authority shall not entertain any application for planning permission unless any requirements imposed by virtue of this section have been satisfied. (6) Proceedings for an offence under this section may be brought at any time within the period of 2 years following the commission of the offence. Notice Etc. of Applications to Owners and Agricultural Tenants

35. – (1) Regulations or a development order shall make provision – (a) as to the notice of any application for planning permission to be given to any person (other than the applicant) who at the beginning of the period of 21 days ending with the date of the application was – (i) the owner of, or

(h) no such application shall be determined until after the expiry of any period which may be so prescribed.

(ii) the tenant of any agricultural holding any part of which was comprised in, any of the land to which the application relates, and

(2) The applications mentioned in subsection (1) are –

(b) requiring any applicant for such permission to issue a certificate as to the interests in the land

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to which the application relates or the purpose for which it is used, and provide for publicising such applications and for the form, content and service of such notices and certificates. (2) The regulations or order may require an applicant for planning permission to certify, in such form as may be prescribed by the regulations or the order, or to provide evidence, that any requirements of the regulations or the order have been satisfied. (3) Regulations or an order making any provision by virtue of this section may make different provision for different cases or different classes of development. (4) A planning authority shall not entertain any application for planning permission unless any requirements imposed by virtue of this section have been satisfied. (5) If any person – (a) issues a certificate which purports to comply with any requirement imposed by virtue of this section and contains a statement which he knows to be false or misleading in a material particular, or (b) recklessly issues a certificate which purports to comply with any such requirement and contains a statement which is false or misleading in a material particular, he shall be guilty of an offence. (6) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. (7) In this section – “agricultural holding” has the same meaning as in the Agricultural Holdings (Scotland) Act 1991; and “owner” in relation to any land means any person who – (a) under the Lands Clauses Acts would be enabled to sell and convey the land to the promoters of an undertaking and includes any person entitled to possession of the land as lessee under a lease the unexpired period of which is not less than 7 years, or (b) in the case of such applications as may be prescribed by regulations or by a development order,

is entitled to an interest in any mineral so prescribed, and the reference to the interests in the land to which an application for planning permission relates includes any interest in any mineral in, on or under the land. (8) Proceedings for an offence under this section may be brought at any time within the period of 2 years following the commission of the offence. Registers of Applications Etc.

36. – (1) Every planning authority shall keep, in such manner as may be prescribed by regulations or a development order, a register containing such information as may be so prescribed with respect to – (a) applications for planning permission and for approval required by the regulations or order made to that authority, (b) the manner in which such applications have been dealt with, and (c) simplified planning zone schemes relating to zones in the authority’s area. (2) The regulations or the order may make provision for the register to be kept in two or more parts, each part containing such information relating to applications mentioned in subsection (1)(a) as may be prescribed by the regulations or order. (3) The regulations or the order may also make provision – (a) for a specified part of the register to contain copies of applications and of any plans or drawings submitted with them, and (b) for the entry relating to any application, and everything relating to it, to be removed from that part of the register when the application (including any appeal arising out of it) has been finally disposed of (without prejudice to the inclusion of any different entry relating to it in another part of the register). (4) Every register kept under this section shall be available for inspection by the public at all reasonable hours.

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Determination of Applications Determination of Applications: General Considerations

37. – (1) Where an application is made to a planning authority for planning permission – (a) subject to sections 58 and 59, they may grant planning permission, either unconditionally or subject to such conditions as they think fit, or (b) they may refuse planning permission. (2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. (3) Subsection (1) has effect subject to sections 34 and 35 and to the following provisions of this Act, and to sections 59(1), 60 and 65 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997.

(i) to take into account in determining such an application such representations, made within such period, as may be prescribed, and (ii) to give to any person whose representations have been taken into account such notice as may be prescribed of their decision. (3) Regulations or a development order making any provision by virtue of this section may make different provision for different cases or different classes of development. (4) Before a planning authority grant planning permission for the use of land as a caravan site they shall, unless they are also the authority with power to issue a site licence for that land, consult the local authority with that power. (5) In this section “site licence” means a licence under Part 1 of the Caravan Sites and Control of Development Act 1960 authorising the use of land as a caravan site.

(4) The date of the grant or refusal of – (a) planning permission, (b) an approval required by a development order, or (c) any consent, agreement or approval required by a condition imposed on the grant of planning permission, shall be the date on which the planning authority’s decision bears to have been signed on behalf of the authority. Consultations in Connection with Determination of Applications

38. – (1) In determining any application to which section 34(1) applies, the planning authority shall take into account any representations relating to that application which are received by them before the expiry of any period prescribed under subsection (1)(h) of that section. (2) Where an application for planning permission is accompanied by such a certificate as is mentioned in section 35(1)(b), regulations or a development order may – (a) provide that a planning authority shall not determine an application for planning permission before the end of such period as may be prescribed; (b) require a planning authority –

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Power of Planning Authority to Decline to Determine Applications

39. – (1) A planning authority may decline to determine an application for planning permission for the development of any land if – (a) within the period of 2 years ending with the date on which the application is received, the Secretary of State has refused a similar application referred to him under section 46 or has dismissed an appeal against the refusal of a similar application, and (b) in the opinion of the authority there has been no significant change since the refusal or, as the case may be, dismissal mentioned in paragraph (a) in the development plan, so far as material to the application, or in any other material considerations. (2) For the purposes of this section an application for planning permission for the development of any land shall be taken to be similar to a later application only if the development and the land to which the applications relate are in the opinion of the planning authority the same or substantially the same. (3) The reference in subsection (1)(a) to an appeal against the refusal of an application includes an appeal under section 47(2) in respect of an application.

Assessment of Environmental Effects

another planning authority except with the consent of that authority.

40. – (1) The Secretary of State may by regulations make provision about the consideration to be given, before planning permission for development of any class specified in the regulations is granted, to the likely environmental effects of the proposed development.

(3) Subject to paragraph 1(6)(a) of Schedule 3, a planning permission which is granted subject to such a condition as is mentioned in subsection (1)(b) is in this Act referred to as “planning permission granted for a limited period.”

(2) The regulations –

(4) Where –

(a) may make the same provision as, or provision similar or corresponding to, any provision made, for the purposes of any Community obligation of the United Kingdom about the assessment of the likely effects of development on the environment, under section 2(2) of the European Communities Act 1972, and (b) may make different provisions for different classes of development. (3) Where a draft of regulations made in exercise both of the power conferred by this section and the power conferred by section 2(2) of the European Communities Act 1972 is approved by resolution of each House of Parliament, no statutory instrument containing such regulations shall be subject to annulment by virtue of section 275(3). Conditional Grant of Planning Permission

41. – (1) Without prejudice to the generality of section 37(1) to (3), conditions may be imposed on the grant of planning permission under that section – (a) for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the planning authority to be expedient for the purposes of or in connection with the development authorised by the permission; (b) for requiring the removal of any buildings or works authorised by the permission, or the discontinuance of any use of land so authorised, at the end of a specified period, and the carrying out of any works required for the reinstatement of land at the end of that period. (2) Conditions may not be imposed by a planning authority under subsection (1)(a) for regulating the development or use of any land within the area of

(a) planning permission is granted for development consisting of or including the carrying out of building or other operations subject to a condition that the operations shall be commenced not later than a time specified in the condition, and (b) any building or other operations are commenced after the time so specified, the commencement and carrying out of those operations do not constitute development for which that permission was granted. (5) Subsection (4)(a) does not apply to a condition attached to the planning permission by or under section 58 or 59. (6) Part I of Schedule 3 shall have effect for the purpose of making special provision with respect to the conditions which may be imposed on the grant of planning permission for development consisting of the winning and working of minerals. Determination of Applications to Develop Land Without Compliance with Conditions Previously Attached

42. – (1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. (2) On such an application the planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and – (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly;

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(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.

such time as may be prescribed by the regulations or the order, such notice as may be so prescribed as to the manner in which his application has been dealt with;

(3) Special provision may be made with respect to such applications –

(e) for requiring the planning authority to give any applicant for any consent, agreement or approval required by a condition imposed on a grant of planning permission notice of their decision on his application, within such time as may be so prescribed;

(a) by regulations under section 32 as regards the form and content of the application, and (b) by a development order as regards the procedure to be followed in connection with the application. (4) This section does not apply if the previous permission was granted subject to a condition as to the time within which the development to which it related was to be begun, and that time has expired without the development having been begun. Directions Etc. As to Method of Dealing with Applications

43. – (1) Provision may be made by regulations or a development order for regulating the manner in which applications for planning permission to develop land are to be dealt with by planning authorities, and in particular – (a) for enabling the Secretary of State to give directions restricting the grant of planning permission by the planning authority, either indefinitely or during such period as may be specified in the directions, in respect of any such development, or in respect of development of any such class, as may be so specified; (b) for authorising the planning authority, in such cases and subject to such conditions as may be prescribed by the regulations or the order, or by directions given by the Secretary of State under the regulations or the order, to grant planning permission for development which does not accord with the provisions of the development plan; (c) for requiring the planning authority, before granting or refusing planning permission for any development, to consult such authorities or persons as may be prescribed by the regulations or the order or by directions given by the Secretary of State under the regulations or the order; (d) for requiring the planning authority to give to any applicant for planning permission, within

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(f) for requiring the planning authority to give to the Secretary of State and to such other persons as may be prescribed by or under the regulations or the order, such information as may be so prescribed with respect to applications for planning permission made to the authority, including information as to the manner in which any such application has been dealt with. (2) Paragraphs (d) and (f) of subsection (1) shall apply in relation to applications for an approval required by regulations under this Act or a development order as they apply in relation to applications for planning permission. Effect of Planning Permission

44. – (1) Without prejudice to the provisions of this Part as to the duration, revocation or modification of planning permission, any grant of planning permission to develop land shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it. (2) Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used. (3) If no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed. . . . Secretary of State’s Powers in Relation to Planning Applications and Decisions

[The Secretary of State retains oversight authority of planning applications and decisions.] ...

Deemed Planning Permission Development with Government Authorisation

57. – (1) Where the authorisation of a government department is required by virtue of an enactment in respect of development to be carried out by a local authority, or by statutory undertakers who are not a local authority, that department may, on granting that authorisation, direct that planning permission for that development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction. (2) On granting a consent under section 36 or 37 of the Electricity Act 1989 in respect of any operation or change of use that constitutes development, the Secretary of State may direct that planning permission for that development and any ancillary development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction. (3) The provisions of this Act (except Part XI) shall apply in relation to any planning permission deemed to be granted by virtue of a direction under this section as if it had been granted by the Secretary of State on an application referred to him under section 46. (4) For the purposes of this section development is authorised by a government department if – (a) any consent, authority or approval to or for the development is granted by the department in pursuance of an enactment, (b) a compulsory purchase order is confirmed by the department authorising the purchase of land for the purpose of the development, (c) consent is granted by the department to the appropriation of land for the purpose of the development or the acquisition of land by agreement for that purpose, (d) authority is given by the department – (i) for the borrowing of money for the purpose of the development, or (ii) for the application for that purpose of any money not otherwise so applicable, or (e) any undertaking is given by the department to pay a grant in respect of the development in accordance with an enactment authorising the payment of such grants, and references in this section to the

authorisation of a government department shall be construed accordingly. (5) In subsection (2) “ancillary development,” in relation to development consisting of the extension of a generating station, does not include any development which is not directly related to the generation of electricity by that station; and in this subsection “extension” and “generating station” have the same meanings as in Part I of the Electricity Act 1989. Duration of Planning Permission General Condition Limiting Duration of Planning Permission

58. – (1) Subject to the provisions of this section, every planning permission granted or deemed to be granted shall be granted or, as the case may be, be deemed to be granted subject to the condition that the development to which it relates must be begun not later than the expiration of – (a) 5 years beginning with the date on which the permission is granted or, as the case may be, deemed to be granted, or (b) such other period (whether longer or shorter) beginning with that date as the authority concerned with the terms of the planning permission may direct. (2) The period mentioned in subsection (1)(b) shall be a period which the authority consider appropriate having regard to the provisions of the development plan and to any other material considerations. (3) If planning permission is granted without the condition required by subsection (1), it shall be deemed to have been granted subject to the condition that the development to which it relates must be begun not later than the expiration of 5 years beginning with the date of the grant. (4) Nothing in this section applies to – (a) any planning permission granted by a development order, (b) any planning permission for any development carried out before the grant of planning permission, (c) any planning permission granted for a limited period,

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(d) any planning permission for development consisting of the winning and working of minerals or involving the depositing of mineral waste which is granted (or deemed to be granted) subject to a condition that the development to which it relates must be begun before the expiration of a specified period after – (i) the completion of other development consisting of the winning and working of minerals already being carried out by the applicant for the planning permission, or (ii) the cessation of depositing of mineral waste already being carried out by the applicant for the planning permission, (e) any planning permission granted by an enterprise zone scheme, (f) any planning permission granted by a simplified planning zone scheme, or (g) any outline planning permission, within the meaning of section 59. Outline Planning Permission

59. – (1) In this section “outline planning permission” means planning permission granted, in accordance with the provisions of regulations or a development order, with the reservation for subsequent approval by the planning authority or the Secretary of State of matters not particularised in the application (“reserved matters”). (2) Subject to the provisions of this section, where outline planning permission is granted for development consisting of or including the carrying out of building or other operations, it shall be granted subject to conditions to the effect – (a) that, in the case of any reserved matter, application for approval must be made before – (i) the expiration of 3 years from the date of the grant of outline planning permission, (ii) the expiration of 6 months from the date on which an earlier application for such approval was refused, or (iii) the expiration of 6 months from the date on which an appeal against such refusal was dismissed, whichever is the latest, and

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(b) that the development to which the permission relates must be begun not later than – (i) the expiration of 5 years from the date of the grant of outline planning permission, or (ii) if later, the expiration of 2 years from the final approval of the reserved matters or, in the case of approval on different dates, the final approval of the last such matter to be approved. (3) Only one application for approval may be made in a case to which subsection (2)(a) applies after the expiration of the 3 year period mentioned in subsection (2)(a)(i). (4) If outline planning permission is granted without the conditions required by subsection (2), it shall be deemed to have been granted subject to those conditions. (5) The authority concerned with the terms of an outline planning permission may in applying subsection (2) substitute, or direct that there be substituted, for the periods of 3 years, 5 years and 2 years referred to in that subsection such other periods respectively (whether longer or shorter) as they consider appropriate. (6) The authority may also specify, or direct that there be specified, separate periods under subsection (2)(a) in relation to separate parts of the development to which the planning permission relates; and, if they do so, the condition required by subsection (2)(b) shall then be framed correspondingly by reference to those parts, instead of by reference to the development as a whole. (7) In considering whether to exercise their powers under subsections (5) and (6), the authority shall have regard to the provisions of the development plan and to any other material considerations. . . . Other Controls over Development Orders Requiring Discontinuance of Use or Alteration or Removal of Buildings or Works

71. – (1) If, having regard to the development plan and to any other material considerations, it appears to a planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity) – (a) that any use of land should be discontinued or that any conditions should be imposed on the continuance of a use of land, or

(b) that any buildings or works should be altered or removed, they may by order – (i) require the discontinuance of that use, or (ii) impose such conditions as may be specified in the order on the continuance of it, or (iii) require such steps as may be so specified to be taken for the alteration or removal of the buildings or works, as the case may be. (2) An order under this section may grant planning permission for any development of the land to which the order relates, subject to such conditions as may be specified in the order. (3) Section 65 shall apply in relation to any planning permission granted by an order under this section as it applies in relation to planning permission granted by the planning authority on an application made under this Part. (4) The planning permission which may be granted by an order under this section includes planning permission, subject to such conditions as may be specified in the order, for development carried out before the date on which the order was submitted to the Secretary of State under this section. (5) Planning permission for such development may be granted so as to have effect from – (a) the date on which the development was carried out, or (b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period. (6) Where the requirements of an order under this section will involve the displacement of persons

residing in any premises, it shall be the duty of the planning authority, in so far as there is no other residential accommodation suitable to the reasonable requirements of those persons available on reasonable terms, to secure the provision of such accommodation in advance of the displacement. (7) In the case of planning permission granted by an order under this section, the authority referred to in sections 58(1)(b) and 59(5) is the planning authority making the order. (8) The previous provisions of this section do not apply to the use of any land for development consisting of the winning or working of minerals or involving the deposit of refuse or waste materials except as provided in Schedule 8, and in that Schedule – (a) Part I shall have effect for the purpose of making provision as respects land which is or has been so used, and (b) Part II shall have effect as respects the registration of old mining provisions. Confirmation by Secretary of State of Section 71 Orders

72. – (1) An order under section 71 shall not take effect unless it is confirmed by the Secretary of State, either without modification or subject to such modifications as he considers expedient. . . . Power of the Secretary of State to Make Section 71 Orders

73. – (1) If it appears to the Secretary of State that it is expedient that an order should be made under section 71, he may himself make such an order. . . .

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S L O VA K I A

Slovakia Act No. 237 Summary: Slovakia Act No. 237 of June 2000 amends Act No. 50/1976 Coll. on territorial planning and building order (Building Act). Ecological stability and sustainable development are established as national priorities. The amendments pertaining to territorial planning address the functional use of land and the comprehensive design of spatial arrangements. Comprehensive planning documentation must be produced for a territory, and four types of territorial plans are identified: the Territorial Development Conception of Slovakia, regional territorial plans, municipal territorial plans, and zonal territorial plans. Each type of plan addresses environmental preservation, landscape concerns, and historical and social values of a territory. The Territorial Development Conception encompasses the entire Slovak republic, providing a national framework for development of regions and municipalities. The remaining plans detail the principles and regulations for lesser regions, and they allow for collaboration, such as two or more municipalities creating a “common territorial plan.” This act outlines planning tasks and activities, including monitoring land use and evaluating data to ensure compliance, and planning requirements, such as urban planning studies, general building schemes, and territorial forecasts. The forecasts provide options for “long-term spatial arrangement and functional use of territory,” and they define the content, goals, and scope of the territorial planning authority’s proposal. Slovakia places an emphasis on “state of the art” knowledge of social, natural, and technical sciences as well as the state of the environment in territory decision making. These amendments incorporate a focus on coordination of construction and other activities that impact the environment. The later amendments detail the procedure by which plans are to be proposed and approved, the review process, and the structure of territorial proceedings.

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The full text of this act is available at: http://www. lifeenv.gov.sk/minis/legislativa/sp/237-2000.rtf SLOVAK ACT NO. 237 PART I

The National Council of the Slovak Republic has decided upon the following act: Article 1

(1) The territorial planning shall continually and comprehensively design the spatial arrangement and the functional use of a territory, defines its principles, propose material and time coordination of activities influencing the environment, ecological stability, cultural and historical values of a territory, territorial development and landscape creation in compliance with principles of sustainable development. (2) The territorial planning shall create conditions for permanent harmony of all activities over territory with particular regard to the care for environment, achievement of the ecological stability and provision of sustainable development, protective use of natural resources and conservation of natural, civilization and cultural values. Article 2

(1) The territorial planning shall include these tasks and activities: a) it shall determine the regulations of spatial arrangement and functional use of territory; b) it shall determine necessary interventions into territory for sanitation, reconstruction or recultivation purposes and it defines the manner of its further use; c) it shall define protected territories, protected objects, rest areas and protective zones (hereinafter

“protected parts of the country”), be they not established under special regulations, and it shall provide the protection of all protected parts of the country; d) it shall define the principles and conditions for material and time co-ordination of locally concentrated construction by one or more builders; e) it shall assess and evaluate territorial and technical effects of prepared constructions and other measures on the territory and propose their scope, which underlies their environmentally sound and safe use; f) it shall regulate the location of constructions and define technical, urban planning, architectonic and environmental requirements for their planning and execution;

c) territorial planning activity; d) decision making in territorial proceedings. (3) The territorial planning activity shall be: a) procurement and elaboration of territorial planning materials and their update; b) procurement, elaboration, hearing and approval of territorial planning documentation and its update; (4) The territorial planning activity shall be carried out according to the newest knowledge of social, natural and technical sciences and knowledge of the state of environment in compliance with procedures and methods of this Act; . . . Article 3

g) it shall define the principles of the use of natural resources, conditions of territory and overall environment in order that the activities shall not exceed the bearable loading of the territory and to create and maintain the ecological stability of the landscape;

Territorial Planning Materials

h) it shall create materials for creation of construction conceptions and technical facilities in a territory;

d) technical materials. . . .

i) it shall propose the order of construction and the use of a territory; j) it shall propose territorial and technical and organizational measures necessary for improvement of the environment, achievement of the ecological stability and provision of sustainable development. (2) The tasks of territorial planning shall be provided through: a) monitoring, evaluation and recording of data and information about the territory, especially by 1. permanent monitoring of spatial arrangement and functional use of the territory; 2. regular evaluation of regulations for spatial arrangement and functional use of the territory applied; 3. monitoring of the ecological stability and bearable loading of the territory; b) operation of territorial planning information system and construction information system;

Territorial planning materials shall be: a) an urban planning study; b) a general building scheme; c) a territorial forecast; Article 6

Territorial Forecast

(1) The territorial forecast designs the options for long-term spatial arrangement and functional use of a territory. It shall be processed on the basis of analysis and evaluation of technical conditions, environmental conditions, economic conditions and social conditions of the territory, as well as on the basis of the analysis and evaluation of the territorial system of ecological stability, trends of territorial development and care for the environment. (2) The territorial forecast is procured by the territorial planning authority. The content, goals and scope of territorial forecast shall be defined in the assignment. The territorial planning authority shall discuss the assignment with affected state administration authorities and affected municipalities. . . . Article 7

... (4) The technical material for overall territory of the Slovak Republic is the Strategy of territorial development of Slovakia, which shall establish the

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basic principles, priorities and goals of long-term territorial development and care for the environment based on the conditions of the territory, state of the environment, the needs of its protection and landscape creation and on the basis of evaluation of spatial requirements of sustainable development strategy, strategy of the state environmental policy, environmental action programmes and sector conceptions; it shall contain also research, analysis, and evaluation for processing of the Territorial Development Conception of Slovakia. . . . SECTION 3 TERRITORIAL PLANNING DOCUMENTATION

Article 8

the Slovak republic and establish the framework for national social, economic, environmental and cultural requirements on the territorial development, care for environment and the landscape creation of the Slovak republic and its regions. Territorial planning material for its elaboration shall be the Territorial Development Strategy of Slovakia. (2) The Territorial Development Conception of Slovakia shall establish in particular: a) the arrangement and the hierarchy of the settlement structure and nodes of residential and commercial agglomerations in international and national contexts; b) development of main urbanization axes over the territory of the Slovak republic;

(1) Territorial planning documentation shall comprehensively design spatial arrangement and functional use of the territory, harmonize interests and activities determining territorial development, environment and ecological stability, and lay down regulations of spatial arrangement and functional use. Territorial and planning documentation shall be elaborated for national level, regional level, for municipalities and their parts.

Article 10

(2) Territorial planning documentation shall consist of:

Regional Territorial Plan

a) the Territorial Development Conception of Slovakia; b) a regional territorial plan; c) a municipal territorial plan; d) a zonal territorial plan. (3) Territorial planning documentation shall be a basic tool for territorial development and care for environment of the Slovak republic for regions and municipalities. Sector conceptions of central bodies of state administration and municipality development conceptions and other programs related to economic, social or cultural development shall be in compliance with obligatory parts of territorial planning documentation (Article 13). Article 9

Territorial Development Conception of Slovakia

(1) Territorial Development Conception of Slovakia shall be processed for the whole territory of the Slovak republic. It shall design spatial arrangement and functional use of the territory of

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c) principles of territorial development regulation aimed at the creation of equivalent life conditions at the whole territory of the Slovak republic and the creation of territorial premises to improve environment, to provide ecological stability, to retain cultural and historical heritage and for sustainable development.

(1) The regional territorial plan shall be elaborated for a part of the landscape with several municipalities, in which it is necessary to design specific development plans or to carry out activities with significant impact to the spatial arrangement and functional use of the territory. The regional territorial plan shall take into account obligatory part of the Territorial Development Conception of Slovakia and shall result from guiding part of the Territorial Development Conception of Slovakia. (2) The regional territorial plan shall establish in particular: a) principles and regulations of the settlement structure, spatial arrangement and functional use of the territory from the point of view of its sustainable development and development of urbanization, industry, agriculture, forest management, water management, environment and tourism; b) principles and regulations of public transport and technical facilities arrangement; c) principles and regulations of care for environment, territorial system of ecological stability,

landscape creation, protection of cultural monuments, monument reservations and monument zones; d) principles and regulations of spatial requirements for the protection and use of natural resources and important landscape items; e) mutual links of regional territorial development to its municipalities and relations to neighbouring regions; f) public constructions and protected parts of the country. (3) The territorial planning authority procuring a regional territorial plan shall define boundaries of designed territory in the assignment. Article 11

Municipal Territorial Plan

(1) A municipal territorial plan shall be elaborated for a territory of one municipality or for a territory of two or more municipalities. (2) Cities and municipalities with more than 2,000 citizens shall have municipal territorial plan. Other municipalities shall be obliged to have municipal territorial plan, if a) it is necessary to design the conception of their territorial development, to carry out large new construction or reconstruction in the municipality or to build up public constructions; b) it results from obligatory part of regional territorial plan, and particularly in order to comply with international commitments or in order to build territorial public transport and technical facilities of national importance. (3) If two or more municipalities make an agreement they may have one common municipal territorial plan. (4) If a municipality is under 2,000 citizens and has not its territory designed by a common municipal territorial plan according to Article 3, the municipal territorial plan may be elaborated with the details of zonal territorial plan. In this case the procedure of procurement, elaboration and hearing shall take into account the procedures for municipal territorial plan as well as for zonal territorial plan.

(5) A municipal territorial plan shall define in particular a) principles and regulations of spatial arrangement and functional use of the municipal territory in connection to surrounding territory; b) acceptable, restricted and forbidden functional use of areas; c) principles and regulations of care for environment, territorial system of ecological stability, landscape creation including greenery areas; d) principles and regulations of protection and use of natural resources, cultural and historical values and important landscape items; e) the boundaries of the continually developed territory of the municipality or the territory intended for developing (hereinafter “developed territory” only) and other territory of the municipality; f) principles and regulations of public transport and technical facilities and civic facilities; g) areas for public constructions, areas intended for sanitation and for protected parts of the landscape; . . . Article 12

Zonal Territorial Plan

(1) The zonal territorial plan shall be elaborated for a part of the municipality, if approved municipal territorial plan establishes that a) the zonal territorial plan for a specific part of the municipality is to be provided; b) a land or a construction for public purposes is to be specified. (2) The zonal territorial plan shall define in particular a) principles and regulations of detailed spatial arrangement and functional use of lands, buildings and public transport and technical facilities of the territory; b) principles and regulations of construction locations to particular lands, to urban areas and developing conditions for particular building lands; c) lands located at the developed territory of a municipality, buildings at building plots and the portion of potential development and loading capacity of territory use;

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d) vacant lands as building plots including definition of lands, that may be not invariably classified as building plots according to the territorial plan; e) protected parts of the landscape; f) principles and regulations of essential equipment for constructions and the connection to public transport and technical facilities of the territory; g) principles and regulations of integrating buildings into surrounding developed area, historical reservations, monument zones and into the remaining landscape; h) location of greenery, important landscape items, and other items of the territorial system of ecological stability at particular lands; i) material and time co-ordination of new construction and sanitation of existing buildings; j) lands for public constructions, building prohibition and for carrying out the sanitation. Article 13

Obligatory Part and Guiding Part of Territorial Planning Documentation

(1) Territorial planning documentation shall be divided to an obligatory part and a guiding part. The principles and regulations governing the requirements particularly of sector conceptions regarding the spatial arrangement and functional use of the territory of the Slovak republic and its regions in compliance with principles of sustainable development, protection of the environment, natural and cultural heritage, are defined in the Territorial Development Conception of Slovakia as obligatory. . . . (2) The following regulations and principles shall be approved in the obligatory part of territorial planning documentation: a) in the region of settlement structure, spatial arrangement and functional use of the region territory, the territorial system of ecological stability, care for environment, landscape creation, protection and protective use of natural resources, protection of historical monuments, monument reservations, monument zones and significant landscape items, arrangement of public transport and technical facilities, establishment of areas for public constructions and protected parts of the landscape;

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b) in the municipality, spatial arrangement and functional use of the municipal territory, the boundaries of developed municipality territory, public transport, civil and technical facilities, establishment of areas for public constructions, carrying out of the sanitation and for protected parts of the landscape, protection and use of natural resources, cultural and historical values and significant landscape items, territorial system of ecological stability, care for environment, landscape creation including greenery areas; c) in the zone, detailed spatial arrangement and functional use of lands, buildings and public transport and technical facilities, siting of constructions on particular lands, into urban areas and developing conditions for particular building plots, essential equipment for constructions and the connection to public transport and technical facilities of the territory, integrating of the buildings into surrounding developed area, monument reservations, monument zones and into the remaining landscape. (4) The following shall be defined in obligatory part of territorial planning documentation: a) public constructions and protected parts of the landscape in the region; b) areas for public constructions, for carrying out of the sanitation, and for protected parts of the country in the municipality; c) lands located in developed territory of the municipality and lands for public constructions and for carrying out of the sanitation in the zone. . . . Article 17

(1) The territorial planning authorities shall procure the territorial planning documentation in compliance with the needs of territorial development and the care for environment in an adequate and economical scope. Municipal territorial plans and zonal territorial plans shall always be provided for building of new municipalities, for siting of public constructions and substantial reconstruction, completion of construction or sanitation of existing municipalities or the parts thereof for purposes to improve environment, secure the ecological stability and sustainable development. . . .

Article 18

(3) If the design of territorial planning documentation extends to the territories of two or more regions, the regional offices shall make an agreement on who shall procure the documentation. The Ministry shall decide on territorial planning authority which shall procure territorial planning documentation in the case of not concluded agreement. . . . Article 22

Proposal for Territorial Planning Documentation

(1) The territorial planning authority, that procures the territorial planning documentation, shall notify the public on the discussion about the proposal for territorial planning documentation in a manner and form that is appropriate in the place. The proposal for the territorial planning documentation shall be available during 30 days for a public view. The public shall be entitled to raise the comments on the proposal within 30 days from the day of the announcement. . . . Article 23

(3) The municipality shall publish obligatory parts of the territorial planning documentation by: a) displaying on the official table for at least 30 days as well as in other manner, that is appropriate in the place; b) the delivery to state administration authorities affected. (4) The municipality shall individually notify on the approval of the zonal territorial plan persons, with whom it discussed the proposal for territorial plan separately. (5) The territorial planning documentation approved shall be within defined scope obligatory or guiding material for the elaboration and approval of further territorial planning documentation, for territorial decision making and for elaboration of the construction documentation. . . . SECTION 7 TERRITORIAL PLANNING DOCUMENTATION UPDATE

... Article 34.

Proposal for the Zonal Territorial Plan

Participants in Territorial Proceedings

(1) The municipality shall publish the proposal for zonal territorial plan for at least 30 days on the office board and invite natural and legal persons to raise the comments in the manner and form that is appropriate in the place. Before the expiration of a period designated for comments, the municipality shall call for a public discussion involving the community citizens and shall secure the expert interpretation of the provider there. . . .

(1) The participants of territorial proceeding shall be the proponent, municipality and the entity, that is entitled to this position on the grounds of special regulations.

SECTION 6 OBLIGATORY CHARACTER OF TERRITORIAL PLANNING DOCUMENTATION

(2) The participants of territorial proceedings concerning the siting of a construction, use of a territory, building prohibition and protective zone shall be natural and legal persons, too, of which property and other rights to lands or buildings, as well as to adjacent lands and buildings including flats may be directly affected by the decision. . . .

Article 27

Article 39a.

(1) The Government shall declare obligatory parts of territorial and planning documentation approved by the Government in the regulation. Obligatory parts of military district territorial plan shall not be published.

Decision on Construction Siting

(2) The municipality shall approve the territorial planning documentation and declare the obligatory parts thereof in a generally binding regulation.

(1) Decision on construction siting shall define the building plot, the location of construction upon it, and it shall define conditions for construction siting, requirements for the content of project documentation and the period of decision validity. Construction siting shall be indicated in the graphical annex to the territorial decision.

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(2) The following requirements shall be defined in conditions for construction siting: a) nature and landscape protection and provision of care for environment; b) provision of urban design and architectonic design compliance with surrounding environment, with special regard to vertical and positional siting of the construction, including spacing from the land boundaries and from adjacent buildings, construction elevation, access and use of the construction by the persons with limited capability of movement and orientation, connection to technical facilities network, connection to surface roads, portion of developed and vacant area of the building plot including requirements for arranging of its vacant areas;

b) creation or removal of public gardens, parks, decorative gardens and other greenery if they are in relation to grading, greenery removal, construction of walkways and other reinforced areas, location of small garden architecture and technical service equipment for lighting and greenery maintenance; c) creation or removal of sport grounds, parking and storage areas; d) partition and merging of lands, if conditions thereof are not defined in zonal territorial plan, project of land consolidation, other decision or provision; e) mining works, similar works and related works if special regulations do not set otherwise. . . .

c) requirements resulting from protected parts of landscape or their vicinity;

Article 39c

d) requirements resulting from opinions of state administration authorities affected; . . .

(1) Decision on the protected part of the landscape shall establish its boundaries, forbid or restrict certain activities due to protection of public interest and define the requirements for its protection, particularly the activities which are not to be carried out in the territory and activities which may be carried out if meeting the defined conditions.

Article 39b

Decision on the Use of Territory

(1) A new use of the territory shall be permitted by a decision on the use of territory; it shall define conditions and period of validity of the use. (2) The conditions of the new use of the territory shall include particularly the method of territory conditioning, arrangement, forestation, drainage, connection to surface roads, connection to networks and facilities of technical equipment of the territory, and method of providing the requirements, which result from the vicinity of protected parts of landscape and from opinions of state administration authorities affected and from a definition of requirements for the protection of existing buildings and greenery. (3) Decision on the use of territory shall be requested for: a) carrying out of grading that substantially changes territorial system of ecological stability, landscape appearance, the use of important landscape items or runoff coefficients in the territory, particularly for excavation or filling of ditches, land-fill, for embankments and amelioration;

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Decision on the Protected Part of Landscape

(2) The conditions of the decision according to paragraph (1) shall define the method of protection, particularly the prohibition, the restriction or the method of execution of constructions, grading, mining works, planting of trees and spraying of trees, soil fertilisation, operation of high frequency devices and the requirements of affected state administration authorities shall be inter alia provided there. . . . Article 39d

Decision on Building Prohibition

(1) Decision on building prohibition shall define a territory, in which construction activities shall be temporarily forbidden or restricted, particularly if this activity could obstruct or exclude a future use of the territory or its organization according to the prepared territorial plan. (2) Building prohibition shall be determined only for the essential time period, no longer than five years from the date of decision on building prohibition entering into force.

Land Use Planning and Building Order Act Summary: The1976 Slovokia Planning Regulation is a national law that states the aims and objectives of land use planning, and the means by which the government achieves the desired goals, which include efficient and organized use of available space. It begins by outlining the organizational structure of land use planning authority and the methods the land use officials use to conduct their planning. The statute then establishes guidelines for building orders (or permits), lists sanctions for failure to comply with land use procedures, explains the method for appropriation of private lands for public use, explains how the government accounts for the protection of special interests, and explains how land use planning is documented through information systems and record keeping. There are a few provisions in the regulation that indicate an interest in protecting the environment. The section on offences, omitted here, provides specific fines for violations of the regulation’s building requirements. Omissions from the text of the regulation are indicated by an ellipsis.

PART ONE LAND-USE PLANNING SECTION 1 THE AIMS AND OBJECTIVES OF LAND-USE PLANNING

Article 1

(1) Land-use planning systematically and comprehensively addresses the functional use of land, lays down the principles for its organisation and coordinates, both materially and chronologically, construction and other activities which influence land development. (2) Land-use planning creates the conditions ensuring the permanent harmony of all natural, civilisational and cultural values in an area of land, with particular regard to care for the environment and the protection of its main components – land, water and the atmosphere.

Article 2

(1) Land-use planning includes these tasks and activities: a) it determines the limits of land-use, b) it regulates the functional and spatial arrangement of land, c) it determines the necessary interventions to land for sanitation, reconstruction or recultivation purposes and determines the manner of its further use, d) it defines protected areas, protected buildings, quiet areas and protective zones, unless they originate under other regulations, and ensures the protection of all protected areas, protected buildings, peaceful areas and protective zones, e) it determines the principles and conditions for the material and chronological co-ordination of locally concentrated construction by one or several developers, f) it assesses and evaluates the technical effects on land of buildings and other measures on the land and proposes the essential scope of buildings and measures which condition their full use, g) it regulates the location of buildings, determines the land-technical, urban planning and architectonic principles for the conception and realisation of projects, h) proposes the use of resources and reserves of the land for the socially most effective development of the land, i) creates the necessary materials for the creation of overall construction plans and the technical provision of an area, j) proposes the order of construction and the use of land, k) proposes the technical and organisational measures necessary to achieve an optimal arrangement and use of land. (2) land-use planning is based on knowledge from the natural, technical and social sciences, from

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research and analyses of the area in question, and from other materials which have been produced for the area in question. (3) land-use planning materials, land-use planning documentation and land decision are the basic tools of land-use planning SECTION 2 LAND-USE PLANNING MATERIALS

Article 3

Types of Land-use Planning Materials

Land-use planning materials comprises mainly: a) an urban study, b) a general building scheme, c) land technical materials, d) other materials. Article 4

Urban Study

(1) The urban study covers partial problems in the area in question. It is produced as a basis for landuse decision-making in areas with complex technical, urban or architectural conditions, if it is necessary to widen or verify the solution proposed by the land-use planning documentation, or if the landuse planning documentation has not been produced in a way which fits the purpose of the task in question. (2) The urban study is usually procured by the land-use planning authority. However, anyone interested in the procurement of the urban study may procure it or contribute financially to its procurement. (3) The content and scope of the urban study is determined in its commission, for which consent is given by the land-use planning authority which guarantees state or communal interests. If it is to be used as a basis for land-use decision-making, the construction office must make a statement. Article 5

and recreational areas. It is produced if a more detailed treatment of a certain settlement component is proposed in the land-use planning documentation; it forms the basis of land-use decisionmaking and the production of other categories or levels of land-use planning documentation. . . . Article 7

Land Technical Materials

(1) Land technical materials, as specifically focused and systematically compiled and updated sets of data characterising the state and conditions prevailing in an area, are produced for the whole territory of the Slovak Republic and for selected territorial units. (2) Land technical materials are used in particular for: a) the production of land-use planning documentation, b) the assessment and creation of an overall capital investment plan, c) the continuous monitoring of changes in the conditions of land, its organisation and use, d) land-use decision-making, if not included in the appropriate land-use planning documentation. (3) Land technical materials are procured by the Ministry of the Environment of the Slovak Republic (hereafter referred to as “the Ministry”), which ensures that they are continually amended and supplemented as appropriate. Upon commission from the Ministry some land technical materials may be procured by other land-use planning authorities. . . . SECTION 3 LAND-USE PLANNING DOCUMENTATION

Article 8

Categories of Land-Use Planning Documentation

Land-use planning documentation consists of a) a land-use forecast,

General Building Scheme

The general building scheme addresses in detail questions relating to the territorial development of individual components of settled areas, especially dwellings, industry, agriculture, transport, technical networks and services, civic facilities, green areas

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b) a land-use plan, c) a land-use project. Article 9

The Land-Use Forecast

(1) The land-use forecast lays down or verifies the options for the long-term urban development of the area, and, if applicable, its individual urban functions. In this it draws particularly from the analysis of the technical and economic conditions of the land, from demographic and sociological considerations, and from trends in the technical and economic development of the area. (2) The land-use forecast for the territory of the Slovak Republic is produced for the whole territory of the state, taking into account international connections as an overall plan for the territorial development of the Slovak Republic. Article 10

located several settlements, or for a large area in which special interests are involved (mining, industry, agriculture, recreation, etc.). Article 14

Land-Use Planning Documentation for the Settlement Formation

Land-use planning documentation for the settlement is produced for the whole area of the settlement formation, including its area of interest, for a group of settlement formations and for areas around tourism and recreation centres. A settlement formation is a unit of settlement which forms an enclosed formation spatially separated from other units of settlement.

The Land-Use Plan

The land-use plan addresses the functional definition and arrangement of land areas and determines the basic principles of the organisation of land, the procedures to be followed in its use and terms of construction. Article 11

The Land-Use Project

The land-use project addresses the manner of use of land areas determined for locally and temporally concentrated construction and the manner in which they shall be built upon and determines the conditions for the material and temporal co-ordination of construction.

Article 15

Land-Use Planning Documentation for the Zone

Land-use planning documentation for the zone is produced for self-contained parts of a settlement formation, especially for its industrial, dwelling, central and historical parts and parts of a recreational or landscape unit, or for the whole area of a small settlement formation, with the aim of providing detailed directions and limits for the functional and spatial arrangement of the location of buildings. . . . SECTION 6 BINDING NATURE OF LAND-USE PLANNING DOCUMENTATION

Article 12

Article 29

Levels of Land-Use Planning Documentation

(1) The land-use planning documentation contains binding and directive parts of the proposed development. The basic principles of the arrangement of the territory and the limits of its use are binding and are determined in the directions for the functional and spatial arrangement of the territory; the other parts of the proposal are for guidance. . . .

Land-use planning documentation (Article 8) is produced a) for the territory of the Slovak Republic, b) for the greater territorial unit, c) for the settlement formation, d) for the zone.

Article 30. The land-use planning authority which Article 13

Land-Use Planning Documentation for the Greater Territorial Unit

Land-use planning documentation for the greater territorial unit is produced for an area in which are

procured the land-use planning documentation shall systematically monitor whether the technical land, economic and social conditions which formed the basis upon which the plans for the organisation of the area were proposed have changed. In the event of changes in these conditions, or if it is necessary to

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site public buildings, the land-use planning authority shall procure supplements or amendments to the land-use planning documentation. . . . SECTION 7 LAND-USE PROCEEDINGS

... LAND-USE DECISION

Article 39. In the land-use decision the building

office shall delineate the area for the proposed purpose and shall prescribe the conditions which are to ensure the interests of the public in the area, especially conformance with the aims and objectives of land-use planning, the material and temporal coordination of individual building and other measures in the area and above all care for the environment including architecturally and urbanistically valuable objects in the area and shall rule on the objections brought by the participants of the proceedings. In the decision on the siting of a building the building office in justified cases may reserve the right to request submission of more detailed materials, project documentation or parts thereof; in accordance with these it may then prescribe further conditions which must be included in the building permission. . . .

PART TWO BUILDING ORDER

...

Article 62

(1) In the building proceedings the building office shall examine in particular: a) whether the documentation fulfils the terms of the land-use decision, b) whether the documentation meets requirements concerning the interests of public, especially the protection of the environment, and meets the general technical requirements for construction, . . . SECTION 5 PERMISSION FOR LAND MODIFICATIONS, WORKS AND FACILITIES

Article 71

(1) Permission from the building office is required, unless it falls under the remit of other authorities under separate regulations, for the following operations: a) land modifications which in essence change the appearance of the environment or drainage conditions, b) mining and similar or related works, c) informational, advertising or promotional structures if they are placed in places visible from public places and if they are connected to a building or a plot of land. . . . PART FOUR APPROPRIATION Article 108

SECTION 3 PRODUCTS FOR BUILDINGS

Subject and Purposes of Appropriation

Article 47

(1) Land, buildings and the rights to them necessary for the erection or carrying out of buildings or measures in the public interest as set out under paragraph 2, may be appropriated or the ownership rights to land and buildings may be restricted by a ruling of the building office (hereafter referred to as “appropriation”).

(1) The builder (contractor) of the building must use for construction only products which have such characteristics that during the period of anticipated existence of the building under normal maintenance, they ensure the required mechanical strength and stability, fire safety, hygienic standards, protection of health and the environment, safety of use, protection against noise and energy.

(2) Appropriation may be carried out only in the public interest for: a) public buildings according to land-use planning documentation,

SECTION 4 PERMITTING BUILDINGS, CHANGES TO BUILDINGS AND MAINTENANCE WORK

...

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b) the creation of hygienic, safety and other protective zones and protected areas and for the creation of conditions for their protection,

c) the sanitation of a settlement formation or sanitation modifications to it in accordance with the approved land-use planning documentation, d) the creation of conditions for essential access to the land and building, e) the creation of conditions for the siting or proper operation of facilities of the state observation network which ascertains the state of the environment, f) the construction and administration of motorways, highways and local communication networks including elements of their protective zones under separate regulations, g) the construction of an energy works for the production or distribution of electricity under separate regulations, h) the construction of gas facilities under separate regulations, i) the construction of military buildings and military premises determined separately under separate regulations, j) purposes of the winning of minerals from deposits under separate regulations, k) the construction or operation of water works under separate regulations, l) the building of railways and the exercise of activities in the area of a railway right of way and in the protective zone of a railway under separate regulations, m) the preservation and proper use of a historical monument under separate regulations, n) the construction of pipelines for fuels and oil under separate regulations. . . .

PART FIVE BUILDING OFFICES, SPECIAL BUILDING OFFICES AND COMMUNES SECTION ONE BUILDING OFFICES AND COMMUNES

Article 117

b) Article 57 paragraphs 1 and 2, c) Article 71 paragraph 1 letter c), d) Article 77 for permission issued under Article 71 paragraph 1 letter c). . . . SECTION THREE COMMUNES

Article 122

(1) Communes execute these functions: a) they monitor all construction activities and make sure they take place in conformity with the objectives of land-use planning, b) they supervise the condition of buildings, c) they check whether the buildings and changes to them, land modifications, works and facilities under this Act are carried out without permission or in contravention of the provisions of this Act. (2) If the commune finds that buildings and changes to them, land modifications, works and facilities are being carried out without permission or in contravention of it, it shall discuss these transgressions with the developer; if this discussion does not lead to a conclusion, it shall issue a decision on the cessation of building and shall notify the relevant building office of this fact. Appeals against the decision on the cessation of building do not have a delaying effect. SECTION FOUR RESERVATION AND TRANSFER OF THE POWERS OF THE BUILDING OFFICE

Article 123. The administrative authority superior

to the building office may reserve the power of the building office in individual technically complex or unusual buildings or for measures with greater or more widespread effects on the environment in their area. . . . PART SIX PROTECTION OF SPECIAL INTERESTS

Article 125

(1) The building office is the district office.

Ensuring the Interests of the Defence of the State

(2) Communes carry out the powers of a building office in the scope of:

(1) In fulfilling the tasks of land-use planning the interests of the defence and security of the state must be taken into account. . . .

a) Article 55 paragraph 2,

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Protection of Elements of the Environment and Other Special Interests Article 126

(1) If the proceedings under this Act concern interests protected by regulations on the protection of human health, on the creation and protection of healthy living conditions, of waters, on the protection of natural health-restoring spas and natural health-giving springs, on the protection of agricultural land, on forests and forestry, on measures for the protection of the atmosphere, on the protection and use of mineral wealth, on cultural monuments, on the state protection of nature, on protection from fire, on state professional supervision over the safety in the workplace, on waste, on the veterinary service and influences on the environment, the building office or other authority shall rule only after agreement or with the consent of the relevant state authority, which may make its consent conditional upon the fulfilment of terms corresponding to the above regulations. . . . (4) The relevant state authority may in its opinion in the process of the assessment of the effects on the environment under separate regulations state that this opinion also supersedes its statement or opinion on the assessed objective in the proceedings which follow according to this Act.

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Article 127

(1) If in the proceedings or the procedure according to this Act an unanticipated find of culturally valuable items, structural details or protected elements of nature is made, or if archaeological finds are made, the building office shall prescribe after agreement with the appropriate authority defending the interests in question the terms for the protection of the interests of the state historical monuments commission and the state nature protection and archaeological finds commission. . . . PART EIGHT JOINT PROVISIONS

... Article 138

Co-Operation Between State Authorities, Communes and Participation of Legal Persons

(1) State authorities, communes and other authorities which proceed and rule under this Act shall take care from the beginning of preparation of land-use planning documentation, preparation of land-use decisions, building permissions, and other decisions and measures to ensure the most effective protection of the agricultural and forestry land stock and shall co-operate with authorities ensuring its protection. . . .

VI. LATIN AMERICA

L A N D C O N Q U E R E D B Y S PA I N

Laws of the Indies Summary: The 1573 Laws of the Indies are reproduced here in part. These laws were part of Spain’s effort to regulate discovery and settlement of land in the West Indies through specific planning and development requirements to be supervised by the governor. Specific development guidelines include directives regarding urban lot sizes, settlement population requirements, town common areas, plazas, the spatial layouts of towns, and aesthetic consideration for buildings. The laws state that the principal objective in discovery and settlement is to preach the Gospels to the natives and that the natives are not to be harmed or displaced by settlement. They require that persons who discover new lands take possession in Spain’s name and immediately execute rituals to indicate that Spain is the rightful owner. The laws also require the discoverer to divide the area into a province, county, and specific area of settlement, leaving room for population growth, and to name the areas of land discovered and settled. Under the laws, a significant amount of land must be reserved for various religious purposes, such as for churches and monasteries. The laws encourage expansion of the Spanish population to undiscovered areas surrounding settled regions, specifically to those that are fertile, temperate, in close proximity to water, and rich in fauna. Enforcement provisions are included with some mandates; for example, if someone who is responsible for populating a town with Spaniards does not achieve the required population and infrastructure, he or she would be fined the amount of a thousand gold pesos. Axel Mundigo Dora Crouch and Ramon Trias translated the laws into English. Omitted provisions are indicated by an ellipsis. The full text of the English translation of the laws is available at: http://www.arc.miami.edu/Law% 20of%20Indies.html

ORDINANCES FOR THE DISCOVERY, THE POPULATION AND THE PACIFICATION OF THE INDIES

Don Felipe etc.– To the Viceroys, presidents, audiencias and governors of our new Indies and to all those others concerned let it be known: That in order that the discoveries and new settlements and pacification of the land and provinces that are to be discovered, settled, and pacified in the Indies be done with greater facility and in accordance with the service to God Our Lord, and for the welfare of the natives, among other things, we have prepared the following ordinances. 1. No person, regardless of state or condition, should, on his own authority make a new discovery by sea or land, or enter a new settlement or hamlet in areas already discovered. If he were found without our license and approval or by those who had our power to give it, he would face a death penalty and loss of all his possessions to our coffers. And, we order to all our viceroys, audiencias, and governors and other justices of the Indies, that they give no license to make new discoveries without previous consultation with us and only after having obtained our permission; but we do consent that in areas already discovered, they can give license to build towns as necessary, adhering to the order that in so doing they must keep to the laws of February regarding settlements in discovered lands, [and] then they should send us a description. 2. Those who are in charge of governing the Indies, whether spiritually or temporally, should inform themselves diligently whether within their districts, including lands and provinces bordering them, there is something to be discovered and pacified, of the wealth and quality, [and] of the peoples and nations who inhabit there; but do this without

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sending to them war personnel nor persons who can cause scandal. They [the governors] should inform themselves by the best means available; and likewise, they should obtain information on the persons who are best suited to carry out discoveries – and with those who are best fit for this purpose, they [the governors] should inform themselves by the best means available; and likewise, they should obtain information on the persons who are best suited to carry out discoveries – and with those who are best fit for this purpose, they [the governors] should confer and make arrangements, offering them the honors and advantages that justly, without injury to the natives, can be given them – and – before carrying out what has been arranged or has been learned, give narratives to the viceroy and the audiencias and also send them to the Council, which, after looking at the case, will issue a license to proceed with the discovery, which should be carried out in the following order: 3. Having made, within the confines of the province, a discovery by land, pacified it, [and] subjected it to our obedience, find an appropriate site to be settled by Spaniards- and if not, [arrange] for the vassal Indians so they be secure. 4. If the boundaries of the settlement are populated, utilizing commerce and ransom, go with vassal Indians and interpreters to discover those lands, and with churchmen and Spaniards, carrying offerings and ransoms and peace, try to learn about the place, the contents and quality of the land, the nation(s) to which the people there belong, who governs them, and carefully take note of all you can learn and understand, and always send these narratives to the Governor so that they reach the Council [Consejo de Indias]. 5. Look carefully at the places and ports where it might be possible to build Spanish settlements without damage to the Indian population. . . . 13. Persons who participate in discoveries, whether by land or by sea, should take possession, in our name, of all lands and provinces they might reach and, upon setting foot on to land, perform the necessary ceremonies and writs, thus providing public evidence and faithful testimony. 14. Once the discoverers arrive at newly discovered provinces or lands, together with the officials, they should name each land, each province,

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and the mountains and principal rivers they might encounter as well as the settlements and towns they might find or that they may begin. 15–31. (These ordinances instruct the Spaniards on the formal issues of encountering, greeting, teaching, and punishing the native Indian population.)

CITY PLANNING ORDINANCES

32. Before discoveries are duly recognized, no new population settlements are permitted, whether in the discovered areas or in those still to be discovered, but in those parts which are already discovered, pacified, and subjected to our mandate, population settlements, both of Spaniards and of Indians, should be ordered having permanence and giving perpetuity to both groups as specified in the fourth and fifth books [of the Laws of the Indies], especially in those parts dealing with population settlements and with land allotments. 33. Having populated and settled the newly discovered area, pacified it, and subjected it to our mandate, efforts should be made to discover and populate adjacent areas that are being discovered for the first time. 34. In order to populate those areas that are already discovered, pacified, and under our mandate, as well as areas that might be discovered and pacified in the course of time, the following sequence should be adhered to: choose the province, county, and place that will be settled, taking into consideration the health of the area, which will [be] known from the abundance of old men or of young men of good complexion, natural fitness and color, and without illness; and in the abundance of healthy animals of sufficient size, and of healthy fruits and fields where no toxic and noxious things are grown, but that it be good climate, the sky clear and benign, the air pure and soft, without impediment or alterations and of good temperature, without excessive heat or cold, and having to decide, it is better that it be cold. 35. And they should be in fertile areas with an abundance of fruits and fields, of good land to plant and harvest, of grasslands to grow livestock, of mountains and forests for wood and building materials for homes and edifices, and of good and plentiful water supply for drinking and irrigation.

36. And that they should be populated by Indians and natives to whom we can preach the gospels since this is the principal objective for which we mandate that these discoveries and settlements be made. 37. And they should have good access and outlet by sea and by land, and also good roads and passage by water, in order that they may be entered and departed easily with commerce, while bringing relief and establishing defenses. 38. Once the region, province, county, and land are decided upon by the expert discoverers, select the site to build a town and capital of the province and its subjects, without harm to the Indians for having occupied the area or because they agree to it of good will. 39. The site and position of the towns should be selected in places where water is nearby and where it would be possible to demolish neighboring towns and properties in order to take advantage of the materials that are essential for building; and, [these sites and positions should be suitable] also for farming, cultivation, and pasturation, so as to avoid excessive work and cost, since any of the above would be costly if they were far. 40. Do not select sites that are too high up because these are affected by winds, and access and service to these are difficult, nor in lowlands, which tend to be unhealthy; choose places of medium elevation that enjoy good winds, especially from the north and south, and if there were mountains or hills, these should be in the west or in the east, and [if] there should be a need to build in high places, do it in areas not subjected to fogs; take note of the terrain and its accidental features and in case that there should be a need to build on the banks of a river, it should be on the eastern bank, so when the sun rises it strikes the town first, then the water. 41. Do not select sites for towns in maritime locations because of the danger that exists of pirates and because they are not very healthy, and because in these [locations] there are less people able to work and cultivate the land, nor is it possible to instill in them these habits. Unless the site is in an area where there are good and principal harbors, among these, select for settlement only those that are necessary for the entry of commerce and for the defense of the land. . . .

89. The persons who were placed in charge of populating a town with Spaniards should see to it that, within a specified term, assigned for its establishment, it should have at least thirty neighbors, each one with his own house, ten cows, four oxen or two oxen and two young bulls and a mare, and it should have [also] a clergyman who can administer sacraments and provide the ornaments to the church as well as the necessary implements for the divine service; if this is not accomplished, he should lose everything already built or formed and he will incur a fine of a thousand gold pesos. 90. The aforesaid stipulations and territory should be divided as follows: Separate first the land that is needed for the house plots [solares] of the town, then allocate sufficient public land and grounds for pasture where the cattle that the neighbors are expected to bring with them can obtain abundant feed, plus another portion for the natives of the area. The rest of the grounds and territory should be divided into four parts: one is for the person in charge of building the town, the other three should be subdivided into thirty lots for the thirty neighbors of the town. . . . 102. Having chosen a site for a new settlement, as a colony, a frontier town, a town proper, a district seat, or a village, the Council and the Indies governor will not be satisfied by the mere fact of possession and continuity of rule and order from the start and will make them responsible for its development. 103. After the governor sites a new settlement of the proper hierarchy, the city or people who settle it will also settle with each of the persons that had registered or comes to register for the new settlement, and the person responsible for the town must select urban lots, farm, and pasture lands for the person willing to populate the town, who shall receive the amount of peonias and caballerias on which he is willing and able to build as long as no one is awarded more than five peonias nor three caballerias if given the latter. 104. A peonia is an urban lot 46 feet wide and 92 feet deep, land that will yield 156 bushels of either wheat or barley, 15.6 bushels of corn, land sized for two days of plowing for a vegetable garden, land sized for eight days of plowing to plant unirrigated trees, and pasture land for ten fertile sows, twenty

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cows, five mares, one hundred sheep, and twenty goats. 105. A caballeria is an urban lot 92 feet wide and 184 feet deep, and the rest is equivalent to five peonias which is land that will yield 780 bushels of wheat or barley for bread, 78 bushels of corn, land sized for ten days of plowing for a vegetable garden, land sizes for forty days of plowing to plant unirrigated trees, pasture land for fifty fertile sows, one hundred cows, twenty mares, five hundred sheep, and one hundred goats. 106. The caballeria, both the urban lots and the pasture and farm lands should be clearly marked and surveyed in a defined area and the peonias, both the urban lots and farm lands shall be marked and divided, and the pasture land will be common to all. 107. Those who accept settlement in the caballerias and peonias must build in their urban lots and live in their homestead and select the planting cycle of their farmlands and plant them and populate the pastures with cattle within the assigned time period and shall declare what will be accomplished within each period or they will lose their lots, lands and a monetary fine for the state, and must publicly accept these terms by way of a performance bond. . . . 110. Having made the discovery, selected the province, county, and area that is to be settled, and the site in the location where the new town is to be built, and having taken possession of it, those placed in charge of its execution are to do it in the following manner. On arriving at the place where the new settlement is to be founded – which according to our will and disposition shall be one that is vacant and that can be occupied without doing harm to the Indians and natives or with their free consent – a plan for the site is to be made, dividing it into squares, streets, and building lots, using cord and ruler, beginning with the main square from which streets are to run to the gates and principal roads and leaving sufficient open space so that even if the town grows, it can always spread in the same manner. Having thus agreed upon the site and place selected to be populated, a layout should be made in the following way: 111. Having made the selection of the site where the town is to be built, it must, as already stated, be in an elevated and healthy location; [be] with means of fortification; [have] fertile soil and with

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plenty of land for farming and pasturage; have fuel, timber, and resources; [have] fresh water, a native population, ease of transport, access and exit; [and be] open to the north wind; and, if on the coast, due consideration should be paid to the quality of the harbor and that the sea does not lie to the south or west; and if possible not near lagoons or marshes in which poisonous animals and polluted air and water breed. 112. The main plaza is to be the starting point for the town; if the town is situated on the sea coast, it should be placed at the landing place of the port, but inland it should be at the center of the town. The plaza should be square or rectangular, in which case it should have at least one and a half its width for length inasmuch as this shape is best for fiestas in which horses are used and for any other fiestas that should be held. 113. The size of the plaza shall be proportioned to the number of inhabitants, taking into consideration the fact that in Indian towns, inasmuch as they are new, the intention is that they will increase, and thus the plaza should be decided upon taking into consideration the growth the town may experience. [The Plaza] shall be not less that two hundred feet wide and three hundred feet long, nor larger than eight hundred feet long and five hundred and thirty feet wide. A good proportion is six hundred feet long and four hundred wide. 114. From the plaza shall begin four principal streets: One [shall be] from the middle of each side, and two streets from each corner of the plaza; the four corners of the plaza shall face the four principal winds, because in this manner, the streets running from the plaza will not be exposed to the four principal winds, which would cause much inconvenience. 115. Around the plaza as well as along the four principal streets which begin there, there shall be portals, for these are of considerable convenience to the merchants who generally gather there; the eight streets running from the plaza at the four corners shall open on the plaza without encountering these porticoes, which shall be kept back in order that there may be sidewalks even with the streets and plaza. 116. In cold places, the streets shall be wide and in hot places narrow; but for purposes of defense in

areas where there are horses, it would be better if they are wide. 117. The streets shall run from the main plaza in such manner that even if the town increases considerably in size, it shall not result in some inconvenience that will make ugly what needed to be rebuilt, or endanger its defense or comfort. 118. Here and there in the town, smaller plazas of good proportion shall be laid out, where the temples associated with the principal church, the parish churches, and the monasteries can be built, [in] such [manner] that everything may be distributed in a good proportion for the instruction of religion. 119. For the temple of the principal church, parish, or monastery, there shall be assigned specific lots; the first after the streets and plazas have been laid out, and these shall be a complete block so as to avoid having other buildings nearby, unless it were for practical or ornamental reasons. 120. The temple of the cathedral [principal church] where the town is situated on the coast shall be built in part so that it may be seen on going out to sea and in a place where its buildings may serve as a means of defense for the port itself. 121. Next, a site and lot shall be assigned for the royal council and cabildo house and for the custom house and arsenal, near the temple, located in such a manner that in times of need the one may aid the other; the hospital for the poor and those sick of noncontagious diseases shall be built near the temple and its cloister; and the hospital for the sick with contagious diseases shall be built in such a way that no harmful wind blowing through it may cause harm to the rest of the town. If the latter be built in an elevated place, so much the better. 122. The site and building lots for slaughter houses, fisheries, tanneries, and other business which produce filth shall be so placed that the filth can easily be disposed of. 123. It shall be of considerable convenience if those towns that are laid out away from seaports, inland, be built if possible on the shore of a navigable river, and attempts should be made to place the town on the side from which the cold north wind blows and that buildings that cause filth be placed on the side of the river or sea below the town. 124. The temple in inland places shall not be placed on the square but at a distance and shall be separated

from any other nearby building, or from adjoining buildings, and ought to be seen from all sides so that it can be decorated better, thus acquiring more authority; efforts should be made that it be somewhat raised from ground level in order that it be approached by steps, and near it, next to the main plaza, the royal council and cabildo and customs houses shall be built. [These shall be built] in a manner that would not embarrass the temple but add to its prestige. The hospital for the poor who are not affected by contagious diseases shall be built near the temple and near its cloister, and the [hospital] for contagious diseases shall be built in an area where the cold north wind blows, but arranged in such a way that it may enjoy the south wind. 125. The same plan shall be observed in any inland place without shore, taking considerable care to ascertain the availability of those conveniences that are required. 126. In the plaza, no lots shall be assigned to private individuals; instead, they shall be used for the buildings of the church and royal houses and for city use, but shops and houses for the merchants should be built first, to which all the settlers of the town shall contribute, and a moderate tax shall be imposed on goods so that these buildings may be built. 127. The other building lots shall be distributed by lottery to the settlers, continuing with the lots closer to the main plaza, and the lots that are left shall be held by us for assignment to those who shall later become settlers, or for the use that we may wish to make of them, and so that this may be ascertained better, the town shall maintain a plan of what is being built. 128. Having made the plan of the town and having distributed building lots, each of the settlers shall set up his tent on his plot if he should have one. For this purpose the captains should persuade settlers to carry them, and those who did not bring one should make their huts of easily available local materials, so that they may have shelter, and everyone as soon as possible shall make a palisade or ditch encircling the plaza so that they may not be harmed by Indians or natives. 129. Within the town, a common shall be delimited, large enough that although the population may experience a rapid expansion, there will always be sufficient space where the people may go to for

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recreation and take their cattle to pasture without them making any damage. 130. Adjoining the common there shall be assigned pasture ground for the work oxen and for the horses as well as for the cattle for slaughter and for the usual number of cattle that the settlers must have according to these Ordinances, and in a good number so they can be admitted to pasture in the public lands of the Council; and the rest [of the adjoining land] shall be assigned as farm lands, which will be distributed by lottery in such a number that the [farm lots] would be as many in number as the lots in the town; and if there should be irrigated lands, lots shall be cast for them and they shall be distributed in the same proportion to the first settlers according to their lots; the rest shall remain for ourselves so that we may assign it to those who may become settlers. 131. In the farmlands that may be distributed, the settlers should immediately plant the seeds they brought with them and those they might have obtained at the site; to this effect it is convenient that they go well provided; and in the pasture lands, all the cattle they brought with them or gathered should be branded so that they may soon begin to breed and multiply. 132. Having planted their seeds and made arrangements for the cattle in such number and with good diligence in order to obtain abundant food, the settlers shall begin with great care and efficiency to establish their houses and to build them with good foundations and walls; to this effect they shall go provided with molds or planks for building them, and all the other tools needed for building quickly and at small cost. 133. They shall arrange the building lots and edifices placed thereon in such a manner that when

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living in them they may enjoy the winds of the south and north as these are the best; throughout the town arrange the structures of the houses generally in such a way that they may serve as defense or barrier against those who may try to disturb or invade the town, and each house in particular shall be so built that they may keep therein their horses and work animals and shall have yards and corrals as large as possible for health and cleanliness. 134. They shall try as far as possible to have the buildings all of one type for the sake of the beauty of the town. 135. The faithful executors and architects as well as persons who may deputed for this purpose by the governor shall be most careful in overseeing that the above [ordinances] be executed; and they shall hurry in their labor and building so that the town may be completed in a short time. . . . 148. The Spaniards to whom the Indians are entrusted [encomendados], should seek with great care that these Indians be settled into towns, and that, within these, churches be built so that the Indians can be instructed into Christian doctrine and live in good order. Because we order you to see to it that these Ordinances, as presented above, be incorporated, complied with, and executed, and that you make what in them is contained be complied with and executed, and never take action or move against them, nor consent that others take action or move against either their content or form, under penalty of our Lord. Dated in the Woods of Segovia, the thirteenth of July, in the year fifteen hundred and seventy-three, I the King; the Licendiado Otalaza; the Licendiado Diego Gasca de Alazar; the Licenciado Gamboa, the Doctor Gomez de Santill´an.

ARGENTINA

Constitution of Argentina Summary: The amendment to the Constitution of Argentina carried out in 1994 was a major landmark in the evolution of environmental policy and law in Argentina. Article 41 contains the explicit recognition of a right to enjoy a healthy environment, an obligation to restore or remediate environmental harm in accordance with the law, and an authorization for the enforcement of its principles. It requires the integration of national and provincial legislation; the nation is to create a framework of standard minimum requirements and the provinces are to establish complementary requirements that meet their specific needs. Finally, the law also expressly prohibits entry of any hazardous waste into the national territory. The following excerpt from the Constitution of Argentina has been translated by Juan Rodrigo Walsh, who is currently senior partner at Estudio Walsh, Consultores Ambientales, and has held office in the environmental administration of the City of Buenos Aires, in addition to directing an environmental journal published by La Ley and ´ Ambiente y Recursos Naturales (FARN) Fundacion between 1994 and 2003. For more information on land use law in Argentina, see Juan Rodrigo Walsh, “The Constitution and General Environmental Law as the Framework for Comprehensive Land

Use Regulation in Argentina,” The Law of Land Use and Sustainable Development, Cambridge University Press, 2006. Article 41. All inhabitants of the Nation shall enjoy

the right to a healthy and balanced environment, apt for human development so that productive activities may satisfy the needs of present generations without compromising those of future generations. They have a duty to preserve the environment. Environmental harm will generate, on a priority basis, an obligation to restore or remediate such impairment, in accordance with the law. Authorities will provide for the protection of this right, the rational use of natural resources, preservation of natural and cultural heritage and biological diversity, information and environmental education. It is the Duty of the Nation to establish norms that contain the minimum requirements for protection and the duty of the Provinces to state such norms as may be necessary to complement them, without such minimum standards altering local jurisdictions. Entry of actual or potentially hazardous and radioactive waste to the national territory is forbidden.

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General Environmental Law Summary: Article 41 of the Constitution of Argentina requires the national government to establish a framework of minimum requirements to protect the environment. The General Environment Law, specifically Articles 2 and 4, satisfy this requirement. Article 2 lists a series of environmental and sustainable development objectives that national policy must comply with, including the promotion of sustainable use of natural resources, conservation of biological diversity, and establishment of mechanisms to minimize environmental risks. Article 4 extends the national objectives to the provinces and municipalities, asserting the supremacy of the national policy and mandating conformance in provincial and municipal regulations or, where conformance is lacking, preemption by the national law. Article 4, which lists the several integrated principles of the law, rests on an underlying proactive policy of environmental management that considers how activities will affect the “possibilities of present and future generations.” It also calls for collaboration among the several levels of government and private parties in environmental conservation, mitigates responsibility for management of transboundary resources, and imposes financial responsibility on those who create environmental degradation for its prevention and remediation. The following excerpts from the General Environment Law were translated by Juan Rodrigo Walsh, who held office in the environmental administration of the City of Buenos Aires between 1994 and 2003. For more information on land use law in Argentina, see Juan Rodrigo Walsh, “The Constitution and General Environmental Law as the Framework for Comprehensive Land Use Regulation in Argentina,” The Law of Land Use and Sustainable Development, Cambridge University Press, 2006.

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GENERAL ENVIRONMENT LAW, ARTICLES 2 AND 4

Article 2 of the General Environment Law requires that national environmental policy must comply with the following objectives:

a) Ensure the preservation, conservation and improvement of the quality of environmental resources, both natural and cultural, when carrying out different human activities; b) Promote the improvement in the quality of life for present and future generations in a priority fashion; c) Promote social participation in the decision making process; d) Promote the rational and sustainable use of natural resources; e) Maintain the balance and dynamics of ecological systems; f) Ensure the conservation of biological diversity g) Prevent the negative or dangerous effects that human activities may generate in the environment to ensure ecological, economic and social sustainability of development; h) Promote changes in social behaviour and values that may lead to sustainable development, by means of formal and informal environmental education; i) Organize and integrate environmental information and ensure free access to environmental information by the population; j) Establish a federal system for inter jurisdictional coordination for the implementation of environmental policies at a regional and national scale; k) Establish procedures and adequate mechanisms for the minimization of environmental risks, and

for the prevention and mitigation of environmental emergencies and for the restoration of impairment and damages caused by environmental contamination. Article 4. states that . . . interpretation of the General Environment Law and of any other legislation whereby Environmental Policies are implemented, must be subject to compliance with the following principles:

Principle of Congruence: All provincial and municipal legislation dealing with environmental matters must be amended so as to be in accordance with the principles and rules established in the present law. In the event that such legislation does not conform, this law shall prevail over any other legislation which may contradict these minimum standards.

diate and ultimate objectives projected on a temporal schedule in order to facilitate the adaptation of all activities related to such goals. Principle of Responsibility: The generator of present or future degrading effects upon the environment is responsible for the costs of preventive and corrective remediation actions, notwithstanding the existence of corresponding environmental liability regimes. Principle of Subsidiarity: The Federal State through all competent administrative bodies is obliged to collaborate and where necessary participate on a complementary basis with the actions of private parties in the preservation and protection of the environment.

Principle of Prevention: Causes and sources of environmental problems shall be dealt with on a priority basis and in an integral fashion, seeking to prevent any negative environmental aspects that may occur.

Principle of Sustainability: Economic and Social Development and use of natural resources must be carried out with an adequate management of the environment, without affecting the possibilities of present and future generations.

Precautionary Principle: Where danger of a grave and imminent or irreversible environmental harm exists, lack of information or scientific certainty shall not be a reason to postpone the adoption of cost-effective measures to avoid environmental degradation.

Solidarity Principle: The Nation and the Provinces will be responsible for the prevention and mitigation of adverse trans-boundary environmental effects caused by their own actions, as also the minimization of environmental risks for shared ecological systems.

Principle of Inter-generational Equity: Persons responsible for environmental protection must ensure an appropriate use and enjoyment of the environment for present and future generations.

Principle of Cooperation: Shared natural resources and ecological systems will be used in an equitable and rational fashion. Management and mitigation of trans-boundary environmental emergencies will be carried out jointly by the jurisdictions involved. . . .

Progressive Principle: Environmental goals must be achieved in a gradual fashion by means of interme-

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The City of Buenos Aires City Constitution Summary: The City of Buenos Aires attained full autonomy after the 1994 Constitutional Amendment. In 1996, a constitutional assembly formally granted the city its own charter, or constitution, placing the capital on an equal footing with Argentina’s provinces. The 1996 Constitution requires the city to develop environmental management and planning policies and integrate them with economic, social, and cultural development; establish a framework plan with which all land use regulation and public works must conform; and conduct an environmental impact assessment and public hearing for all public and private activities likely to have a significant effect on the environment. The following excerpts from the City Constitution were translated by Juan Rodrigo Walsh, who held office in the environmental administration of the City of Buenos Aires between 1994 and 2003. For more information on land use law in Argentina, see Juan Rodrigo Walsh, “The Constitution and General Environmental Law as the Framework for Comprehensive Land Use Regulation in Argentina,” The Law of Land Use and Sustainable Development, Cambridge University Press, 2006.

ARTICLES 27, 29, 30, 81, AND 89

Article 27. of the City Constitution states among

other aims, that: “The City will develop policies for environmental management and planning, in conjunction with policies regarding economic, social and cultural development that take into account its metropolitan context. The City must implement a territorial and environmental planning process on an ongoing and participative basis that promotes:

r Preservation and restoration of essential ecological processes and natural resources within its domain . . . r Preservation and restoration of natural architectural and urban heritage in addition to visual qualities and protection from noise . . .

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r Protection and enhancement of public spaces with free public access and, in particular, the recovery of coastal areas which guarantee common use . . . r Preservation and enhancement of green spaces, forested areas and parks, natural parks and ecological reserves, and the preservation of biological diversity . . .

r Protection, remediation, pollution control and maintenance of the Rio de la Plata’s coastal areas, the Matanza-Riachuelo Basin, lesser watercourses and acuifers . . . r Regulation of land uses, siting of human activities and habitation and safety conditions for every public or private urban area . . . r Provision of community equipment, services and infrastructure on a socially equitable basis . . .

r Road and pedestrian safety, air quality and energy efficiency in traffic and transport . . . r Rational use of materials and energy in habitat development . . .

r Minimization of volumes and risk in the generation, recovery, treatment and disposal of wastes . . . ” Article 29. states that: “The City will establish an

Urban and Environmental Plan with the interdisciplinary participation of academic, professional and civil society organizations, in accordance with the special majority contemplated under Article 81, that shall constitute the framework to which all land use regulations and public works must conform.” Article 30. completes the conceptual framework for a land use regime with the introduction of a compulsory requirement for EIA with a public hearing “. . . [f]or all private or public endeavors liable to have a relevant effect on the environment.” Article 81. establishes a qualified majority (abso-

lute majority of all Legislators) for approval of key legislation such as the Planning Code (C´odigo de

Planeamiento Urbano), Building, and Environmental Codes. The Urban and Environmental plan must be proposed by the Executive Branch, and is also subject to a “double reading.” Article 89. requires a double approval process for the Urban Planning Code, Environmental and Building Codes and for the Urban Environment Plan in addi-

tion to approval for disaffection of public assets. The procedure provides for initial approval of a bill, a public hearing within 30 days, finalized by a second session where all objections and claims made during the public hearing must be given due consideration. These objections are not binding on the Legislature, but do require that reasons must be given for the ultimate decision, one way or another.

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BRAZIL

Constitution of the Federative Republic of Brazil, 1988 Summary: The Constitution of the Federative Republic of Brazil contains several provisions establishing a framework for development regulations and planning authority. It reserves the power to the national government to establish broad directives for urban development. However, the several levels of government, from the national to the municipal, have concurrent power over numerous land use areas from promoting housing construction and improvements to environmental protection to regulating exploitation of resources within their respective territories. Article 30 reserves the power of urban planning and land management directly to the municipalities. Articles 182 and 183 outline the broad urban development policy to apply to all municipalities. Articles 184–191 regulate rural lands to maintain productivity, environmental preservation, and exploitation in favor of the economic interests of landowners and workers. Finally, Article 225 defines Brazil’s overarching environmental policy with which regulations at all levels of government must comply. Key articles are reproduced in this chapter. Omitted provisions are indicated by an ellipses. . . . SELECTED ARTICLES

Article 21. The Union shall have the power to: . . .

XIX. establish a national system for the management of hydric resources and define criteria for the concession of the right to their use;

Article 23. The Union, the states, the Federal Dis-

trict and the municipalities, in common, have the power: . . . VI. to protect the environment and to fight pollution in any of its forms; VII. to preserve the forests, fauna and flora; . . . IX. to promote housing construction programs and the improvement of housing and basic sanitation conditions; . . . XI. to register, monitor and control the concessions of rights to research and exploit hydric and mineral resources within their territories; Sole paragraph – A supplementary law shall establish rules for the cooperation between the Union and the states, the Federal District and the municipalities aiming at the attainment of balanced development and well-being on a nationwide scope. Article 24. The Union, the states and the Federal

District have the power to legislate concurrently on: . . . VI. forests, hunting, fishing, fauna, preservation of nature, defense of the soil and natural resources, protection of the environment and control of pollution; VII. protection of the historic, cultural and artistic heritage, as well as of assets of touristic interest and landscapes of outstanding beauty;

XX. establish directives for urban development, including housing, basic sanitation and urban transportation; . . .

VIII. liability for damages to the environment, to consumers, to assets and rights of artistic, aesthetic, historical, and touristic value, as well as to remarkable landscapes; . . .

XXV. establish the areas and conditions for the exercise of placer mining activities in associative form.

Paragraph 1 – Within the scope of concurrent legislation, the competence of the Union shall be limited to the establishment of general rules.

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Paragraph 2 – The competence of the Union to legislate upon general rules does not exclude the supplementary competence of the states

the owner of unbuilt, underused or unused urban soil provide for adequate use thereof, subject, successively, to:

Paragraph 3 – If there is no federal law or general rules, the states shall exercise full legislative competence to provide for their peculiarities.

I. compulsory parceling or construction;

Paragraph 4 – The supervenience of a federal law over general rules suspends the effectiveness of a state law to the extent that the two are contrary.

III. expropriation with payment in public debt bonds issued with the prior approval of the Federal Senate, redeemable within up to ten years, in equal and successive annual installments, ensuring the real value of the compensation and the legal interest.

Article 25. The states are organized and governed by the Constitutions and laws they may adopt, in accordance with the principles of this Constitution. . . .

Paragraph 3 – The states may by means of a supplementary law, establish metropolitan regions, urban agglomerations and micro-regions, formed by the grouping of adjacent municipalities, in order to integrate the organization, the planning and the operation of public functions of common interest. Article 30. The municipalities have the power to: . . .

VIII. promote, wherever pertinent, adequate territorial ordaining, by means of planning and control of use, apportionment and occupation of the urban soil; . . . Article 182. The urban development policy carried out by the municipal government, according to general guidelines set forth in the law, is aimed at ordaining the full development of the social functions of the city and ensuring the well-being of its inhabitants.

Paragraph 1 – The master plan, approved by the City Council, which is compulsory for cities of over twenty thousand inhabitants, is the basic tool of the urban development and expansion policy. Paragraph 2 – Urban property performs its social function when it meets the fundamental requirements for the ordainment of the city as set forth in the master plan. Paragraph 3 – Expropriation of urban property shall be made against prior and fair compensation in cash. Paragraph 4 – The municipal government may, by means of a specific law, for an area included in the master plan, demand, according to federal law, that

II. rates of urban property and land tax that are progressive in time;

Article 183. An individual who possesses an urban

area of up to two hundred and fifty square meters, for five years, without interruption or opposition, using it as his or as his family’s home, shall acquire domain of it, provided that he does not own any other urban or rural property. Paragraph 1 – The deed of domain and concession of use shall be granted to the man or woman, or both, regardless of their marital status. Paragraph 2 – This right shall not be recognized for the same holder more than once. Paragraph 3 – Public real estate shall not be acquired by prescription. Article 184. It is within the power of the Union to expropriate on account of social interest, for purposes of agrarian reform, the rural property which is not performing its social function, against prior and fair compensation in agrarian debt bonds with a clause providing for maintenance of the real value, redeemable within a period of up to twenty years computed as from the second year of issue, and the use of which shall be defined in the law.

Paragraph I – Useful and necessary improvements shall be compensated in cash. Paragraph 2 – The decree declaring the property as being of social interest for agrarian reform purposes empowers the Union to start expropriation action. Paragraph 3 – It is incumbent upon a supplementary law to establish special summary adversary proceeding for expropriation action. Paragraph 4 – The budget shall determine each year the total volume of agrarian debt bonds, as well

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as the total amount of funds to meet the agrarian reform programme in the fiscal year. Paragraph 5 – The transactions of transfer of property expropriated for agrarian reform purposes are exempt from federal, state and municipal taxes. Article 185. Expropriation of the following for agrarian reform purposes is not permitted:

I. small and medium-size rural property, as defined by law, provided its owner does not own other property; II. productive property. Sole paragraph – The law shall guarantee special treatment for the productive property and shall establish rules for the fulfillment of the requirements regarding its social function. Article 186. The social function is met when

the rural property complies simultaneously with, according to the criteria and standards prescribed by law, the following requirements: I. rational and adequate use; II. adequate use of available natural resources and preservation of the environment; III. compliance with the provisions that regulate labour relations; IV. exploitation that favours the well-being of the owners and labourers. . . . Article 191. The individual who, not being the owner of rural or urban property, holds as his own, for five uninterrupted years, without opposition, an area of land in the rural zone, not exceeding fifty hectares, making it productive with his labour or that of his family, and having his dwelling thereon, shall acquire ownership of the land.

Sole paragraph – The public real estate shall not be acquired by prescription. Article 225. All have the right to an ecologically bal-

anced environment which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations. Paragraph 1 – In order to ensure the effectiveness of this right, it is incumbent upon the Government to:

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I. preserve and restore the essential ecological processes and provide for the ecological treatment of species and ecosystems; . . . III. define, in all units of the Federation, territorial spaces and their components which are to receive special protection any alterations and suppressions being allowed only by means of law, and any use which may harm the integrity of the attributes which justify their protection being forbidden: IV. demand in the manner prescribed by law, for the installation of works and activities which may potentially cause significant degradation of the environment, a prior environmental impact study, which shall be made public; . . . VI. promote environment education in all school levels and public awareness of the need to preserve the environment; VII. protect the fauna and the flora, with prohibition, in the manner prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty. Paragraph 2 – Those who exploit mineral resources shall be required to restore the degraded environment, in accordance with the technical solutions demanded by the competent public agency, as provided by law. Paragraph 3 – Procedures and activities considered as harmful to the environment shall subject the infractors, be they individuals or legal entities, to penal and administrative sanctions, without prejudice to the obligation to repair the damages caused. Paragraph 4 – The Brazilian Amazonian Forest, the Atlantic Forest, the Serra do Mar, the Pantanal Mato-Grossense and the coastal zone are part of the national patrimony, and they shall be used, as provided by law, under conditions which ensure the preservation of the environment, therein included the use of mineral resources. Paragraph 5 – The unoccupied lands or lands seized by the states through discriminatory actions which are necessary to protect the natural ecosystems are inalienable. Paragraph 6 – Power plants operated by nuclear reactor shall have their location defined in federal law and may not otherwise be installed.

Medida Provisoria No. 2.220 Summary: Brazil’s Medida Provisoria No. 2.220, enacted in 2001, contains a proposed remedy to Brazil’s squatter problem by conferring an interest in land on continuous possessors. The measure allows a person who has possessed a parcel of land for residential purposes for a given continuous period a special use concession to continue possession if that the parcel is that possessor’s only real estate holding. The measure also specifies that the government may exercise the rights it confers to obtain land for infrastructural purposes. Moreover, the Measure creates the National Urban Development Council (CDNU). The council is part of Brazil’s executive structure and is responsible for giving advice regarding the application of Brazilian Law No 10.257, included in this collection. The council is additionally responsible for proposing policies and programs regarding urban development, tracking and evaluating national urban development policy, giving advice regarding policy changes and urban development legislation, and promoting cooperation among the various levels of government involved. Portions of the Medida Provisoria No. 2.220 are reproduced in this chapter, with deletions indicated by an ellipses. . . .

Article 2. In the properties indicated in art. 1, with

more than 250 square meters, which, until June 30, 2001, were occupied by a low income population for housing purposes, for five years, uninterruptedly and without opposition, where it was not possible to identify the land occupied by each possessor, the special use concession for housing purposes will be conferred in a collective form, as long as the possessors are not property owners or concessionaires, in any way, of other urban or rural property. . . . Article 3. The option to exercise the rights estab-

lished in arts. 1 and 2 will also be guaranteed to the occupants, regularly inscribed, in public real estate, of up to two hundred and fifty square meters, of the Federal government, the States, the Federal District and the municipalities, which are located in an urban area, as determined by the regulation. Article 4. In a case where the occupation involves a risk to the lives or to the health of the occupants, the government will guarantee the possessor the exercise of the right established by arts. 1 and 2 in another location. Article 5. The Government is responsible for assur-

MEDIDA PROVISORIA NO. 2.220, SEPTEMBER 4, 2001 (Chapters 1 and 2) CHAPTER I – OF THE SPECIAL USE CONCESSION

Article 1. Whomever, until June 30, 2001, possesses as his or her own, for five years, without interruption and without opposition, up to two hundred and fifty square meters of public real estate located in an urban area, using it for their own residence or that of their family, has the right to concession of special use for housing purposes in relation to the property that is the object of said possession, as long as he is not the owner or concessionaire, in any form, of any other urban or rural real estate. . . .

ing the exercise of the rights established in arts. 1. and 2. in another location in the case of occupation of the real estate: I – for common use of the people; II – destined for an urbanization project; III – of interest for national defense, environmental preservation and protection of natural ecosystems; IV – reserved for construction of reservoirs and related works; or V – located in a communication route. Article 6. The title for special use concession for

housing purposes will be obtained by the administrative route through the competent Public Administrative organ, or, in case of its refusal or omission, by judicial decree. . . .

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Article 8. The right to special use concession for housing purposes is extinguished in the case:

I – the concessionaire uses the real estate for a purpose other than for housing for themselves or for their family; or II – the concessionaire acquires the property or the use concession of another urban or rural real estate. . . . Article 9. It is the responsibility of the competent

public authority to authorize the use to whom, until June 30, 2001, possesses as his own, for five years uninterruptedly and without opposition, up to two hundred and fifty square meters of public real estate located in an urban area, using it for commercial purposes. . . . CHAPTER II – OF THE NATIONAL URBAN DEVELOPMENT COUNCIL

Article 10. Be it created, The National Urban Development Council – CNDU, a deliberative and consultative body, within the structure of the Presidency of the Republic, with the following responsibilities:

I – propose guidelines, instruments, norms and priorities for national urban development policy;

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II – accompany and evaluate the implementation of the national urban development policy, in particular the policies regarding housing, basic sanitation and urban transport and recommend the necessary measures for compliance with their objectives; III – propose the preparation of general norms of urban law and express opinions about the proposals for alterations in relevant urban development legislation; IV – issue guidelines and recommendations about the application of Law no. 10.257, of July 10, 2001, and other normative acts related to urban development; V – promote the cooperation between the federal, state and municipal governments and that of the Federal District, and civil society in the formulation and execution of national urban development policy; and VI – prepare the council’s by-laws. Article 11. The CNDU is composed of its Presi-

dent, by the Assembly and by an Executive Secretary, whose responsibilities will be defined by decree. . . .

City Statute Federal Law No. 10.257 of July 10, 2001 Summary: The Brazilian “City Statute” is a national urban policy law, enacted in 2001. It aims to impliment the chapter on urban policy contained in Brazil’s 1988 Constitution by providing legal support to municipalities to help them combat the difficult social and environmental problems associated with Brazil’s urban space problem. The statute seeks to secure housing for the urban poor through national legislation. It attempts to balance both individual and collective interests in one of the country’s nonrenewable resources: urban land. To achieve maximum utility of space, the statute calls for organized zoning, cooperation between governments, development of infrastructure, and planning on the national, regional, and state levels. Finally, the statute requires a determination of what impact a proposed change will have on a neighborhood before that change is allowed. The statute employs a concentrated effort by legislative, political, and administrative departments to fight the social and environmental problems in an integrated and organized manner. Parts of the statute are reproduced in the chapter. Ellipses identify omitted provisions. An English full text version of Federal Law No. 10.257 is available in pdf format at: http://www.polis.org.br/obras/arquivo 163.pdf

I – guarantee the right to sustainable cities, understood as the right to urban land, housing, environmental sanitation, urban infrastructure, transport and public services, to work and leisure for current and future generations; II – democratic administration by means of participation of the population and of the representative associations of the various segments of the community in the formulation, execution and monitoring of urban development projects, plans and programs; III – cooperation between governments, private initiative and other sectors of society in the urbanization process, in service of the social interest; IV – planning of the development of cities, of spatial distribution of the population and of the economic activities of the Municipality and of the territory under its area of influence, in order to avoid and correct the distortions of urban growth and its negative effects on the environment; V – supply of urban and community equipment, transport and public services adequate for the interests and needs of the population and the local characteristics; VI – ordering and control of land use, in order to avoid: a) the improper use of urban real estate;

CHAPTER I – GENERAL GUIDELINES

Article 1. The provisions of this law will be applied

in the the execution of urban policy, which is the subject of arts. 182 and 183 of the Federal Constitution. Sole paragraph. For all effects, this Law, known as the City Statute, establishes rules of public order and social interest that regulate the use of urban property in favor of the common good, safety and well-being of citizens, as well as environmental equilibrium. Article 2. The purpose of urban policy is to give order to the full development of the social functions of the city and of urban property, through the following general guidelines:

b) the proximity of incompatible or inconvenient uses; c) the sub-division of land, construction or excessive or improper use in relation to urban infrastructure; d) the installation of developments or activities that could become centers that generate traffic, without a provision for corresponding infrastructure; e) the speculative retention of urban real estate, which results in its under utilization or nonutilization; f) the deterioration of urbanized areas; g) pollution and environmental degradation;

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VII – integration and complementarity between urban and rural activities, considering social economic development of the Municipality and of the territory under its area of influence; VIII – adoption of production and consumption of goods and services and of urban expansion compatible with the limits of environmental, social and economic sustainability of the Municipality and of the territory under its area of influence; IX – fair distribution of the benefits and burdens resulting from the urbanization process; X – adaptation of tools of economic, tax and financial policy and of public spending to the objectives of urban development, in order to give priority to investments that generate general well-being and the fruition of the goods by different social segments; XI – recovery of government investments that have caused an appreciation in the value of urban real estate; XII – protection, preservation and recovery of the natural and built environment, and of the cultural, historic, artistic, landscape and archeological heritage; XIII – a hearing with municipal government and the population interested in the processes of implantation of developments or activities with potentially negative effects on the natural or built environment, the comfort or safety of the population; XIV – regularization of land ownership and urbanization of areas occupied by low-income population through the establishment of special urbanization norms, and for land use and occupation and building, considering the social economic situation of the population and the environmental norms; XV – simplification of the legislation concerning sub-divisions, land use, occupation and building regulations, in order to permit a reduction in costs and increase in the supply of lots and housing units; XVI – equality of conditions for public and private agents in the promotion of developments and activities related to the urbanization process, serving the social interest.

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Article 3. It is the responsibility of the the Federal

Government, in addition to its other attributions related to urban policy: I – to establish legislation concerning general norms of urban law; II – to establish legislation about norms for cooperation between the Federal Government, the States, and the Federal District and the municipalities in relation to urban policy, considering the equilibrium of development and of well-being on a national level; III – promote, through its own initiative and in conjunction with the States, the Federal District and the municipalities, housing construction programs and the improvement of housing conditions and basic sanitation; IV – institute guidelines for urban development, including housing, basic sanitation and urban transportation; V – prepare and execute national and regional plans to order territory and economic and social development. CHAPTER II – THE TOOLS OF URBAN POLICY

Section I – The Instruments in General Article 4. For the purposes of this Law, the follow-

ing – and other – tools will be used: I – national, regional and state plans, for organization of territory and economic and social development; II – planning of metropolitan regions, urban and micro-regional conglomerations; III – municipal planning, in particular: a) master plan; b) disciplining of sub-divisions, of land use and occupation; c) environmental zoning; d) multi-annual plans; e) budgetary regulations and annual budget; f) participative budget management; g) sectoral plans, programs and projects; h) economic and social development plans; IV – financial and tax institutes: a) taxes on built property and urban land – IPTU;

b) improvement fees; c) fiscal and financial incentives and benefits; V – legal and political institutes: a) appropriations; b) administrative right-of-ways; c) administrative limits; d) landmarking of buildings or urban real estate; e) establishment of conservation districts;

Section IV – For Appropriation with Payment in Bonds Article 8. Five years after the charging of progres-

sive IPTU, if the property owner has not complied with the obligation to sub-divide, build or use the property, the Municipality can proceed towards an appropriation of the property with payment in public debt notes. . . .

f) establishment of special interest zones;

Section V – Special Usucapion Rights for Urban Property

g) concession of real right to use;

Article 9. Someone who has possession of an urban

h) concession of special use for housing purposes; i) compulsory sub-division, building or utilization; j) special uses for urban property; k) right to the surface; l) right to preemption; m) award with costs of the right to build or change of use; n) transfer of the right to build;

area or building of up to two hundred and fifty square meters, for five years, uninterruptedly and without contestation, who uses it for their residence or that of their family, can establish their dominion, as long as they are not the owner of any other urban or real estate. . . . Article 13. Special usucapion for rural real estate

can be invoked as a matter of defense, with the sentence that recognizes it considered valid title to be registered in the real estate deeds office . . .

o) urban operation through consortiums; p) land ownership regularization; q) free technical and legal assistance for less favored communities and social groups; r) popular referendum and plebiscite; . . . Section II – Of the Sub-division, Building or Compulsory Use Article 5. Specific municipal law for areas included in the master plan can determine the sub-division, building upon or compulsory use of non-built, under utilized or not utilized urban land, and should establish conditions and deadlines for the implementation of the referred to obligations. . . .

Section III – Property Taxes (IPTU) That Are Progressive over Time Article 7. In case of noncompliance with the conditions and deadlines established in the form of the caput of art. 5 of this Law, or if the steps called for in § 5 of art. 5 of this law are not obeyed, the Municipality can proceed to apply the tax over the built property and urban land (IPTU) that are progressive over time, through the increase of the tax rate for the period of five consecutive years. . . .

Section VII – Concerning Surface Rights

The urban property owner will concede to another party the right to the use of the surface of their land, for a specified or unspecified time, through public deed registered in the public deeds office. §1 The surface right includes the right to utilize the land, the sub-soil, or the aerial space related to the land, in the form established in the respective contract, meeting the urban legislation. §2 The surface rights can be offered for free or at cost. §3 The person receiving the surface rights will respond wholly for the fees and taxes on the surface of the property, also accepting responsibility proportional to their effective share of, with the fees and taxes on the area that is object of the concession of the surface rights, except for any contrary disposition in the respective contract. §4 The surface right can be transferred to third parties, obeying the terms of the respective contract. §5 Upon death of the person receiving the surface rights holder, their rights are transferred to their inheritors.

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§6 In case of alienation of the land, or of the surface right, the party receiving the surface rights and the property owner respectively, will have the right of preference, in equal conditions, to the offer of third parties. Article 23. Surface rights are terminated:

I – by the expansion of the deadline; II – by the failure to comply with the contractual obligations assumed by the person assuming the surface rights . . . Section VIII – The right to Preemption Article 25. The right to preemption confers to the

municipal government preference in the purchase of urban real estate subject to alienation at costs between private parties. §1 Municipal law based on the master plan will establish areas in which will apply the right to preemption and will establish a period of enforcement, not greater than five years, renewable from one year after the duration of the initial period of enforcement. §2 The right to preemption is assured during the period of enforcement established in the form of §1, independent of the number of alienations of the real estate in question.

Section X – Of Consortial Urban Operations Article 32. Specific municipal law, based on the

master plan, can limit the area for application of the consortial operations. §1 The consortial urban operation is the totality of the intervention and measures coordinated by the municipal government, with the participation of owners, residents, permanent users and private investors, with the objective of undertaking structural urban transformations, social improvements and environmental benefits in a given area. §2 Urban consortial operations can include: I – the modification of rates and characteristics for the sub-division, use and occupation of land, as well as the alterations of building norms, considering the environmental impacts that stem from them; II – the regularization of construction, reform or expansion not executed in violation of current legislation. Article 33. The specific law that approves the urban consortial operation will include the plan for for urban consortial operation, containing in the minimum:

I – the definition of the area to be affected; II – the basic program for the occupation of the area;

Article 26. The right to preemption will be exercised

III – the program for economic and social servicing of the population directly affected by the operation;

whenever the government needs areas for:

IV – the finalities of the operation;

I – regularization of land ownership;

V – a neighborhood impact study conducted before construction;

II – execution of social interest housing programs and projects; III – establishment of a land reserve; IV – ordering and guidance of urban expansion;

VI – compensation to be demanded from the owners, permanent users and private investors, due to the use of the benefits established in inserts I and II of §II of art. 32 of this Law;

VII – creation of conservation districts or protection of other areas of environmental interest;

VII – the form of control of the operation, which must be shared with representatives from civil society; §1 The resources obtained by the municipal government in the form of insert VI of this article will be exclusively invested in the consortial urban operation itself.

VIII – protection of areas of historic, cultural or landscape interest; . . .

§2 Based on the approval of the specific law indicated in the caput, any licenses and authorizations

V – implantation of urban and community equipment; VI – creation of public spaces for leisure and green areas;

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issued by the municipal government in violation of the consortial urban operation are null. Article 34. The specific law that approves the consortial urban operation can call for the issue by the Municipality of an established number of certificates for potential additional construction, which will be alienated at auction or used directly in payment for work required for the operation itself.

§1 The certificates for potential additional construction will be freely traded, but convertible to the right to build solely in the area that is the object of the operation. §2 Once the request for the license to build is presented, the certificate for additional potential will be used in payment for the area of construction that exceeds the standards established by the land use and occupation legislation, until the limit fixed by the specific law that approves the urban consortial operation. Section XI – Of the Transfer of the Right to Build Article 35. Municipal law, based on the master plan, can authorize the owner of the urban real estate, whether public or private, to exercise in another location, or alienate through public deed, the right to build established in the master plan or in related urban legislation, when the referred to property is considered necessary for the purposes of:

I – implantation of urban and community equipment; II – preeservation when the real estate considered is of historic, environmental, landscape, social or cultural interest; III – serve programs for land ownership regularization, urbanization of areas occupied by low-income population and social interest housing. §1 The same possibility can be conceded to the owner who donates his real estate to the government, or part of it, for the purposes called for in items I to III of the caput. . . . Section XII – Concerning the Neighborhood Impact Study Article 36. Municipal law will define the private

and public developments and activities in urban

areas that will require the previous preparation of a Neighborhood Impact Study (EIV) to obtain the licenses or authorizations to build, expand or operate from the municipal government. Article 37. The EIV will be executed in such a way

as to consider the positive and negative effects of the development or activity concerning the quality of life of the population residing in the area and its proximities, including the analysis, at least, of the following questions: I – population density; II – urban and community equipment; III – land use occupation; IV – real estate appreciation; V – generation of traffic and demand for public transportion; VI – ventilation and illumination; VII – urban landscape and natural and cultural heritage. Sole paragraph. The documents that comprise the EIV will be publicized and will be made available for public consultation, by the competent municipal government agency to anyone interested. Article 38. The preparation of the EIV will not sub-

stitute the preparation and approval of the previous environmental impact statement required under the terms of environmental law.

CHAPTER III – THE MASTER PLAN

Article 39. Urban property fulfills its social function

when it meets the basic requirements for establishing order for the city expressed in the master plan, assuring attending the needs of the citizens concerning quality of life, social justice and development of economic activities, respecting the rights established in art. 2 of this Law. Article 40. The Master Plan, approved by municipal law, is the basic instrument of urban development and expansion policy.

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§1 The master plan is an integral part of the municipal planning process, and the multi-year plan, the budget guidelines and the annual budget should incorporate the rights and priorities established in the plan. §2 The master plan should emcompass the Municipal territory as a whole. . . . CHAPTER IV – DEMOCRATIC ADMINISTRATION OF THE CITY

CHAPTER V – GENERAL PROVISIONS

... §1 The real estate consortium is considered a way to make viable the implementation or urban infrastructure or building plans by means of which the owner transfers his real estate to the municipal government, and after the realization of the work, receives, as payment, real estate units, with suitable urban infrastructure or actual built.

Article 43. To guarantee the democratic administration of the city, the following, and other, instruments should be utilized:

§2 The value of the real estate units to be delivered to the owner will correspond to the value of the real estate before the execution of the work, observing the determinations of §2 of art. 8 of this Law.

I – urban policy counsels, at the national, state and municipal levels;

Article 47. The taxes on urban real estate, as well

II – debates, hearings and public consultations; III – conferences about subjects of urban interest, at the national, state and municipal levels; IV – popular initiative for proposed laws and plans, programs and urban development projects; . . . Article 44. Within the municipal realm, participative budget management indicated in letter f of item III of art. 4 of this law will include conducting debates, hearings and public consultations about the proposals of the multi-annual plan, budget guidelines law and the annual budget, as a mandatory condition for their approval by the City Council. Article 45. The administrative entities of metropolitan regions and urban conglomerations must include the significant participation of the population and of associations that represent various segments of the community, in order to guarantee the direct control of their activities and the complete exercise of citizenship.

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as the fees related to public urban services, will be distinguised as a function of their social interest. Article 48. In the case of social interest housing pro-

grams and projects, developed by public organs or entities with specific activity in this area, the concession contracts of the real right to use of public real estate: . . . II – will constitute a title of mandatory acceptance in a guarantee of for housing financing contracts. . . . CHAPTER I – OF THE SPECIAL USE CONCESSION

Article 1. Whoever, until 30 June, 2001, possesses as

his or her own, for five years, without interruption and without opposition, up to two hundred and fifty square meters of public real estate located in an urban area, using it for their own residence or that of their family, has the right to concession of special use for housing purposes in relation to the property that is the object of said possession, as long he is not the owner or concessionnaire, in any form, of any other urban or rural real estate. . . .

Decree No. 3179 (September 21, 1999) Summary: Brazilian Decree No. 3179 provides monetary fine amounts and confiscation measures for violations of Brazil’s environmental regulations. Violators who damage land or other natural resources are heavily penalized. These strict penalties and enforcement provisions aim to protect Brazil’s delicate natural resources from all crimes against nature. Natural features such as plants, forests, water bodies, and endangered species of animals and plants are protected under this law. The measure, reproduced here in part, specifies the fine for each crime against nature named within the text. Fines vary in amount from R$100 to R$500,000. The penalties increase with repeat offenses and with the severity of the crime; for example, a fine may be significantly increased if the crime committed harms an endangered species. The decree also explains how animals, plants, or other natural articles confiscated as a result of law enforcement are to be reallocated. Omitted portions of the decree are indicated by an ellipsis.

CHAPTER I – PRELIMINARY PROVISIONS

Article 1. Every action or omission that violates the legal rules for use, fruition, promotion, protection and recovery of the environment is considered an environmental administrative violation and will be punished with the sanctions included herein, without prejudice to the application of other penalties provided for in the legislation. . . . CHAPTER II – SANCTIONS APPLICABLE TO THE VIOLATIONS COMMITTED AGAINST THE ENVIRONMENT

Section I – Sanctions Applicable to Violations Against the Fauna

Article 11. To kill, pursue, hunt, catch, use specimens of wild animals, whether native or on migratory routes, without the appropriate permission, license or authorization from the competent

authority or in breach of the permission, license or authorization acquired: Fine of R$ 500.00 (five hundred reals) per unit, increased by the following amounts for each surplus specimen: I – R$ 5,000.00 (five thousand reals) for each unit of a species included in the official list of Brazilian endangered fauna and in Annex I of the CITES – Convention on the International Trade of Endangered Species; and II – R$ 3,000.00 (three thousand reals) for each unit of a species included in the official list of Brazilian endangered fauna and in CITES Annex II. §1. The same fines will be applied to whosoever: I – prevents procreation of fauna without license, authorization or is in breach of the license or authorization acquired; II – modifies, damages or destroys, nests, shelters or natural breeding grounds; or III – sells, puts up for sale, exports or acquires, keeps, maintains in captivity or in warehouses, uses or transports eggs, larvae or specimens of wild fauna, native or on migratory routes, as well as products and objects originating therein, from non-authorized breeding facilities or without due permission, license or authorization from the competent authority. §2. In the case of domestic custody of wild specimens not considered endangered, the competent authority may, considering the circumstances, withhold the application of a fine in accordance to §2 of Article 29 of Law 9605 of 1998. §3. In the case of custody of wild specimens the competent authority should withhold application of the sanctions provided for in this Decree when the agent spontaneously delivers the animals to the competent environmental body. §4. Any specimen belonging to native species, migratory and any other, water or land based, that has all or part of its life cycle taking place within

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the Brazilian territory or in Brazilian jurisdictional waters, is considered to be a wild fauna specimen. . . . Article 18. To cause, by emission of effluents or by dragging materials, the death of water fauna specimens existing in rivers, lakes, dams, lagoon, bays or in Brazilian jurisdictional waters:

Fine of R$ 5,000.00 (five thousand reals) to R$ 1,000,000.00 (one million reals). . . . Section II – Sanctions Applicable to the Violations Against Flora Article 25. To destroy or damage forest considered to be a permanent preservation forest, even if under formation, or to use it infringing protection norms:

Fine of R$ 1,500.00 (one thousand five hundred reals) to R$ 50,000.00 (fifty thousand reals), per hectare or fraction thereof. Article 26. To fell trees in a forest considered to be a permanent preservation forest, without permission from the competent authority:

Fine of R$ 1,500.00 (one thousand five hundred reals) to R$ 5,000.00 (five thousand reals), per hectare or fraction thereof, or R$ 500.00 (five hundred reals) per cubic meter.

or other plant based products, without requiring presentation of the vendor’s license, granted by the competent authority, and without having the copy which should accompany the product until final processing: Simple fine of R$ 100.00 (one hundred reals) to R$ 500.00 (five hundred reals) per unit, stere, kilo, linear or cubic meter. Sole Paragraph. The same fine applies to whosoever sells, puts up for sale, warehouses, carries or keeps timber, fuelwood, charcoal or other plant based products, without a valid license for the whole time of the trip or storage, granted by the competent authority. Article 33. To prevent or jeopardize natural regen-

eration of forests and any other form of vegetation: Fine of R$ 300.00 (three hundred reals) per hectare or fraction thereof. . . . Article 36. To enter into protected areas carrying substances or instruments used for hunting or exploiting forest products or byproducts, without license from the competent authority:

Fine of R$ 1,000.00 (one thousand reals). Article 37. To destroy or damage native or planted

Article 27. To inflict direct or indirect damage on

protected areas and on the areas dealt with in Article 27 of Decree No. 99724, dated June 6, 1990, irrespective of their localization: Fine of R$ 200.00 (two hundred reals) to R$ 50,000.00 (fifty thousand reals). Article 28. To cause a fire in woods or forests:

Fine of R$ 1,500.00 (one thousand five hundred reals) per hectare or fraction thereof. . . . Article 30. To extract stones, sand, lime or any type

of mineral from publicly owned forests or those considered permanent preservation forests, without prior authorization: Simple fine of R$ 1,500.00 (one thousand five hundred reals) per hectare or fraction thereof. . . . Article 32. To receive or acquire, for commercial or industrial purposes, timber, fuelwood, charcoal

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forests or vegetation which fixates dunes or protects mangroves, a special object of preservation: Fine of R$ 1,500.00 (one thousand five hundred reals) per hectare or fraction thereof. Article 38. To exploit legal reserve areas, forests

and succession formations of native origin, whether public or private property, without prior approval of the competent environmental agency as well as the adoption of techniques for the conduction, exploitation, management and replacement of forests. Fine of R$ 100.00 (one hundred reals) to R$ 300.00 (three hundred reals) per hectare or fraction thereof, or per unit, stere, kilo, linear or cubic meter. Article 39. Clearance of legal reserve area:

Fine of R$ 1,000.00 (one thousand reals) per hectare or fraction thereof.

Article 40. To make use of fire in agricultural and pasture areas without authorization from the competent body or in breach of the authorization acquired:

Fine of R$ 1,000.00 (one thousand reals) per hectare or fraction thereof. Section III – Sanctions Applicable to Pollution and Other Environmental Violations Article 41. To cause pollution of any nature to the

extent that it results or could result in damage to human health, or that could cause death of animals or significant destruction of flora: Fine of R$ 1,000.00 (one thousand reals) to R$ 50,000,000.00 (fifty million reals). . . . Article 42. To carry out research, mining or extraction of mineral resources, without the competent authorization, permission, concession or licensing or in breach of the granted authorization, permission, concession or license:

Fine of R$ 1,500.00 (one thousand five hundred reals) per hectare or fraction thereof. Article 44. To build, reform, enlarge, install or put to work, anywhere in the national territory, establishments, works or potentially contaminating services, without license or authorization from the compe-

tent environmental agencies, or contrary to relevant legal and regulatory norms: Fine of R$ 500.00 (five hundred reals) to R$ 10,000,000.00 (ten million reals). . . . Section IV – Sanctions Applicable to the Violations Against Urban Order and Cultural Heritage

... Article 50. To change the appearance or structure of a building or site specially protected by law, administrative act or judicial decision, because of its landscape, or ecological, touristic, artistic, historical, religious, cultural, archaeological, ethnographic or monumental value, without authorization from the competent authority or in breach of the granted authorization:

Fine of R$ 10,000.00 (ten thousand reals) to R$ 200,000.00 (two hundred thousand reals). Article 51. To build on an area on which construction is not permitted, or on its surroundings, because of its landscape, ecological, touristic, artistic, historical, cultural, religious, archaeological, ethnographic or monumental value, without authorization from the competent authority or in breach of the granted authorization:

Fine of R$ 10,000.00 (ten thousand reals) to R$ 100,000.00 (one hundred thousand reals). . . .

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Law No. 9605 (February 12, 1998) Summary: Brazilian Law No. 9605, provided here in part, delineates specific sentencing guidelines for crimes against animals and the environment. It is evident from the existence of this law and from the enforcement provisions increasing penalties when crimes damage the environment that Brazil is prioritizing protection of the national environment and of natural features. The law also specifies penalties for crimes involving property damage or damage to cultural resources. Additionally, the measure directs what is to be done with confiscated natural objects and encourages international cooperation between the government of Brazil and that of other countries to achieve environmental protection. Omitted provisions are indicated by using an ellipsis.

I – recurrence of environmental crimes; II – if the agent committed the crime: . . . e) by affecting Protected Areas or areas subject to a special usage regimen by a Government Act; f) by affecting urban areas or any other human settlements; g) in the moratorium season of fauna; . . . k) within specially protected territory; l) by using cruel methods to kill or capture animals; . . . n) by abusing the rights of environmental licenses, permissions or authorizations; . . . p) by risking the life of endangered species, listed in official reports of competent authorities; . . .

CHAPTER I – GENERAL PROVISIONS

... Article 2. Whosoever, in any way, contributes to the practice of the crimes foreseen in this Law, incurs the stipulated penalties, to the extent of his culpability, as well as the director, the administrator, the member of a board or of a technical agency, the auditor, the manager, the agent or the mandatory of a legal entity who, knowing of the criminal conduct of another, fails to stop its practice, when he could act to avoid it. . . . Article 4. The legal entity can be disregarded when-

CHAPTER III – CONFISCATION OF THE PRODUCT AND THE INSTRUMENT OF ADMINISTRATIVE VIOLATION OR CRIME

Article 25. Upon verification of a violation, its prod-

ucts and instruments will be confiscated, by recording the violation in the respective legal proceedings. §1 – Animals will be released into their habitat or be given to zoos, foundations or similar entities, as long as they remain under the responsibility of qualified technical personnel.

ever its standing becomes an obstacle to the refunding of damages caused to the environmental quality. . . .

§2 – If perishable products or timber are concerned, they will be assessed and donated to scientific institutions, hospitals, prisons and other similar entities.

CHAPTER II – PENALTIES

§3 – Non-perishable fauna products and byproducts shall be destroyed or donated to scientific, cultural or educational institutions.

... Article 15. The circumstances which aggravate the

penalty, when they are not in themselves a crime or are not qualifying a crime, are:

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§4 – The instruments used to commit the violation shall be sold, and their characteristics removed by recycling.

CHAPTER V – CRIMES AGAINST THE ENVIRONMENT

Section I – Crimes Against Fauna Article 29. To kill, pursue, hunt, catch, use spec-

imens of wild animals, whether native or on migratory routes, without the appropriate permission, license or authorization from the competent authority or in breach of the acquired permission, license or authorization: Penalty – detention of six months to one year, and fine. §1 The following incur the same penalties: I –whosoever obstructs procreation of fauna without the appropriate license or authorization or in breach of the acquired license or authorization; II –whosoever modifies, damages or destroys, nests, shelters or natural breeding areas; III –whosoever trades, puts up for sale, exports or acquires, keeps in captivity or in warehouses, uses or transports eggs, larva or specimens of the wild animals, whether native or on migratory routes, as well as products or objects originating therein, from a non-authorized breeding area or without the appropriate permission, license or authorization from the competent authority. . . .

Article 39. To fell trees in a forest considered to be a

permanent preservation forest, without permission from the competent authority: Penalty: detention of one to three years or fine, or both penalties cumulatively. Article 40. To inflict direct or indirect damage to

Protected Areas and to the areas dealt with in Article 27 of Decree No. 99,724, dated June 6, 1990, irrespective of their localization: Penalty: imprisonment from one to five years. §1. Protected Areas are defined as Biological Reserves, Ecological Reserves, Ecological Stations, National, State and Municipal Parks, National, State and Municipal Forests, Environmental Protection Areas, Areas of Relevant Ecological Interest and Extractive Reserves or others to be created by the Government. §2. Occurrence of damage affecting endangered species within the Protected Areas will be considered aggravating circumstances for the purpose of determining the penalty. §3. If the crime is without malice, penalty will be reduced by half. Article 41. To start a fire in woods or forest:

§4 –The penalty is increased by half, if the crime is committed:

Penalty – imprisonment from two to four years and fine.

I –against rare species or species considered endangered, even if only at the site of violation;

Sole Paragraph. If crime is without malice, the penalty is detention from six months to one year and fine. . . .

II –in the period in which hunting is prohibited; . . . III –within a protected area; IV – by using methods or instruments capable of provoking mass destruction. . . . Section II – Crimes Against Flora Article 38. To destroy or damage a forest considered to be a permanent preservation forest, even if under formation, or use it infringing protection norms:

Penalty – detention of one to three years or fine, or both penalties cumulatively. Sole Paragraph. If crime is without malice, the penalty will be reduced by a half.

Article 44. To extract stones, sand, lime or any type

of mineral from publicly owned forests or those considered permanent preservation forests, without prior authorization: Penalty – detention, from six months to one year and fine. . . . Article 46. To receive or acquire, for commercial or industrial purposes, timber, fuelwood, charcoal or other plant based products, without requiring presentation of the vendor’s license, granted by the competent authority, and without having the copy which should accompany the product until final processing:

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Penalty – detention, from six months to a year and fine.

Penalty – imprisonment of one to four years and fine.

Sole Paragraph. The same penalty is incurred by whosoever sells, puts up for sale, stores, transports or keeps timber, fuelwood, charcoal and other plant based products, without a valid license for the whole period of travel or storage, granted by the competent authority. . . .

§1 – If the crime is without malice:

Article 48. To prevent or jeopardize natural regeneration of forests and any other forms of vegetation: Penalty – detention, from six months to one year and fine. . . . Article 50. To destroy or damage native or planted

forests or vegetation which fixates dunes or protects mangroves, a special object of preservation: Penalty – detention, from three months to one year, and fine. . . . Article 52. To enter into Protected Areas carrying substances or instruments used for hunting or exploitation of forest products or byproducts, without license from the competent authority.

Penalty: detention, from six months to one year, and fine. Article 53. For the crimes foreseen in this Section,

the penalty is to be increased by one sixth to one third if: I – a result of the fact is the decrease of natural waters, soil erosion or modification of climatic regime; II – the crime is committed: a) during the period of seed dispersion;

Penalty: detention for six months to one year and fine. §2 – If the crime: I – renders a rural or urban area unsuitable for human occupation; II – causes air pollution that results in departure of the affected area’s inhabitants, even if momentarily, or causes direct damage to the population’s health; III – causes water pollution so that it is necessary to interrupt the public water supply in a community; IV – hinders or prevents public access to beaches; V – occurs due to dumping of solid, liquid or gaseous wastes, or debris, oils, or oily substances contrary to that established in laws or regulations: Penalty – imprisonment of one to five years; §3 – Whosoever does not adopt the precautionary measures required by competent authorities in cases of serious or irreversible environmental damage incurs the same penalties provided for in the previous paragraph. Article 55. To carry out research, mining or extrac-

tion of mineral resources, without the competent authorization, permission, concession or license or in breach of the granted authorization, permission, concession or license: Penalty – detention for six months to one year and fine.

d) during times of flooding or drought;

Sole Paragraph. Whosoever does not recover the researched or exploited area, as established in the authorization, allowance, permission, license, concession or determination of the competent agency will incur the same penalties. . . .

e) during the night, on Sundays and holidays.

Article 60. To build, reform, enlarge, install or put to

b) during the period of vegetation formation; c) against rare or endangered species, even if only endangered at the site of the crime;

Section III – Pollution and Other Environmental Crimes Article 54. To cause pollution of any nature to such

an extent that it results or could result in damage to human health or that it could cause death of animals or significant destruction of flora:

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work, anywhere in the national territory, establishments, works or potentially contaminating services, without license or authorization from the competent environmental agencies, or contrary to relevant legal and regulatory norms: Penalty – detention of one to six months or fine, or both penalties cumulatively.

Section IV – Crimes Against Urban Management and Cultural Heritage Article 62. To destroy, render useless or deteriorate:

I – assets specially protected by law, administrative act or judicial decision; II – a file, record, museum, library, art collection, scientific installation, or the like, protected by law, administrative act or judicial decision: Penalty – one to three years imprisonment and fine. . . . Article 63. To change the appearance or structure of a building or site specially protected by law, administrative act or judicial decision, because of its landscape, or ecological, touristic, artistic, historical, religious, cultural, archaeological, ethnographic or monumental value, without authorization from the competent authority or in breach of the granted authorization:

Penalty – one to three years imprisonment and fine. Article 64. To build on an area on which construc-

tion is not permitted, or its surroundings, because of its landscape, ecological, touristic, artistic, historical, cultural, religious, archaeological, ethnographic or monumental value, without authorization from the competent authority or in breach of the granted authorization: Penalty – detention of six months to one year imprisonment. Article 65. To paint graffiti or defile by any other means urban buildings or monuments:

Penalty – one to three years imprisonment and fine. Article 67. Civil servant granting license, authorization or permission contrary to environmental norms, for activities, works or services, which depend on an authorization act from the Government:

Penalty – detention of one to three years and fine. . . . Article 68. Omission of compliance with an obliga-

tion of relative environmental interest by whosoever has the contractual or legal duty to do so: Penalty – detention of one to three years and fine. . . . Article 69. To prevent or hinder the Government’s

monitoring actions in environmental issues: Penalty – detention of one to three years and fine. CHAPTER VI – ADMINISTRATIVE VIOLATION Article 70. Environmental administrative violation

is considered to be every action or omission, which violates the legal regulations on use, fruition, promotion, protection and recovery of the environment. §1 – The authorities competent to record an environmental violation, and to initiate administrative proceedings, are those employees of environmental agencies, part of SISNAMA – the Brazilian National Environment System, who are designated for monitoring actions, as well as the agents of the Port Authorities of the Ministry of the Navy.

Penalty – detention of three months to one year and fine.

§2 – Any person, who verifies an environmental violation, can notify the authorities mentioned in the previous paragraph, in order that they may exert their functions.

Sole Paragraph. If the act is carried out on a monument or object that is protected because of its artistic, archaeological or historical value, the penalty is detention from six months to one year and fine.

§3 – The environmental authority that has knowledge of an environmental violation is obliged to promote immediate verification, through appropriate administrative proceedings, under penalty of coresponsibility. . . .

Section V – Crimes Against Environmental Administration

Article 73. The amounts collected from payment of

Article 66. Civil servants making a false or deceit-

ful statements, omitting the truth, or withholding information or technical-scientific data in environmental authorization or licensing procedures:

fines due to environmental violations shall revert to the National Environment Fund, created by the Law No. 78,797, dated July 10, 1989, the Naval Fund, created by the Decree No. 20,923, dated January 8, 1932, state or local environment funds, or similar

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funds, according to that determined by the collection agency. Article 74. The fine shall be based on the unit, hectare, cubic meter, kilogram, or other pertinent measure, according to the legal object damaged. Article 75. The amount of the fines dealt with in this Chapter, shall be established at the regulation

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of this Law, and periodically adjusted, based on the indices established in the relevant legislation, where the minimum will be R$ 50.00 (fifty reals) and the maximum R$ 50,000,000.00 (fifty million reals). Article 76. Payment of fines imposed by state and local governments, the Federal District or Territories substitutes federal fines, if the incidence is the same.

MEXICO

Article 27 of the Mexican Constitution Summary: The framers of the Constitution of 1917 provided the foundation for the country’s property system with the inclusion of Article 27 in the Mexican Constitution. On the basis of its interpretation of ownership, the ultimate owner of real property became the state, which conferred property rights on individual owners for a “social function” and assumed the right to impose limitations on private property according to public interest. Article 27 of the Mexican Constitution, reproduced here in abridged form, provides the legal basis for the protection of biological diversity by establishing that the direct ownership of all natural resources, as well as the ownership of the waters of the territorial seas and inland waters, is vested in the nation, which has the right to regulate their use for public benefit. In 1987, the “environmental amendments” to the constitution included an amendment to paragraph 3 of Article 27 granting Congress the specific power to dictate the necessary measures for the development of human settlements and for the preservation and restoration of the environment. This amendment provides a constitutional base for legislative action. The thrust of Article 27 is to regulate land reform. The text gathered the fundamental ideas of the Mexican Revolution of 1910 related to agricultural lands: the abolition of large land holdings and the protection of communal lands and “ejidos” (communal farms). The goal was to end the government’s distribution of land and to provide farm workers with means for its adequate exploitation. However, in spite of giving farmers more control over their lives, it did not improve Mexico’s productivity in the agricultural sector. Agrarian reform came to an abrupt end on January 6, 1992, when Article 27 of the Constitution was amended, repealing the provisions pertaining to land redistribution and removing restrictions on alienation of communal lands and on the use of corporate forms of investments. Omitted portions of Article 27 are indicated by an ellipsis.

The English translation used here is available at: http://www.ilstu.edu/class/hist263/docs/1917const. html#TitleIIIChapterI. The most recent amendments to Article 27 are available in Spanish at: http://www.cddhcu.gob.mx/leyinfo/refcns/ pdfsrcs/27.pdf. Recent amendments, shown in brackets, were translated by Gabriela Pavon. Ms. Pavon received her law degree from Universidad Iberoamericana in Mexico City. She has an LL.M. in environmental law from Pace University in White Plains, New York. Article 27. Ownership of the lands and waters

within the boundaries of the national territory is vested originally in the Nation, which has had, and has, the right to transmit title thereof to private persons, thereby constituting private property. Private property shall not be expropriated except for reasons of public use and subject to payment of indemnity. The Nation shall at all times have the right to impose on private property such limitations as the public interest may demand, as well as the right to regulate, [for public benefit,] the utilization of natural resources which are susceptible of appropriation, in order to conserve them and to ensure a more equitable distribution of public wealth, [to achieve balanced development of the country and to contribute to the social advancement of rural and urban populations]. With this end in view, necessary measures shall be taken to [regulate human settlements and to establish adequate provisions, uses, land, water, and forestry reserves in order to carry out public works and to plan and regulate the settlement, conservation, improvement, and growth of urban centers; to preserve and restore the ecological equilibrium;] to divide up large landed estates; [to arrange, in accordance with the regulations, the organization and collective exploitation of ejidos

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(communal farms) and communities; for the development of small rural landed holdings;] to encourage agriculture, [stockbreeding, forestry, and other economic activities in rural areas,] and to prevent the destruction of natural resources, and to protect property from damage to the detriment of society. . . . In the Nation is vested the direct ownership of all natural resources of the continental shelf and the submarine shelf of the islands; of all minerals or substances, which in veins, ledges, masses or ore pockets, form deposits of a nature distinct from the components of the earth itself, such as the minerals from which industrial metals and metalloids are extracted; deposits of precious stones, rock-salt and the deposits of salt formed by sea water; products derived from the decomposition of rocks, when subterranean works are required for their extraction; mineral or organic deposits of materials susceptible of utilization as fertilizers; solid mineral fuels; petroleum and all solid, liquid, and gaseous hydrocarbons; and the space above the national territory to the extent and within the terms fixed by international law. In the Nation is vested the ownership of the waters of the territorial seas, within the limits and terms fixed by international law; inland marine waters; those of lagoons and estuaries permanently or intermittently connected with the sea; those of natural, inland lakes which are directly connected with streams having a constant flow; those of rivers and their direct or indirect tributaries from the point in their source where the first permanent, intermittent, or torrential waters begin, to their mouth in the sea, or a lake, lagoon, or estuary forming a part of the public domain; those of constant or intermittent streams and their direct or indirect tributaries, whenever the bed of the stream, throughout the whole or a part of its length, serves as a boundary of the national territory or of two federal divisions, or if it flows from one federal division to another or crosses the boundary line of the Republic; those of lakes, lagoons, or estuaries whose basins, zones, or shores are crossed by the boundary lines of two or more divisions or by the boundary line of the Republic and a neighboring country or when the shoreline serves as the boundary between two federal divisions or of the Republic and a neighboring country; those of springs that issue from beaches,

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maritime areas, the beds, basins, or shores of lakes, lagoons, or estuaries in the national domain; and waters extracted from mines and the channels, beds, or shores of interior lakes and streams in an area fixed by law. Underground waters may be brought to the surface by artificial works and utilized by the surface owner, but if the public interest so requires or use by others is affected, the Federal Executive may regulate its extraction and utilization, and even establish prohibited areas, the same as may be done with other waters in the public domain. Any other waters not included in the foregoing enumeration shall be considered an integral part of the property through which they flow or in which they are deposited, but if they are located in two or more properties, their utilization shall be deemed a matter of public use, and shall be subject to laws enacted by the States. In those cases to which the two preceding paragraphs refer, ownership by the Nation is inalienable and imprescriptible, and the exploitation, use, or appropriation of the resources concerned, by private persons or by companies organized according to Mexican laws, may not be undertaken except through concessions granted by the Federal Executive, in accordance with rules and conditions established by law. The legal rules relating to the working or exploitation of the minerals and substances referred to in the fourth paragraph shall govern the execution and proofs of what is carried out or should be carried out after they go into effect, independent of the date of granting the concessions, and their nonobservance will be grounds for cancellation thereof. The Federal Government has the power to establish national reserves and to abolish them. The declarations pertaining thereto shall be made by the Executive in those cases and conditions prescribed by law. In the case of petroleum, and solid, liquid, or gaseous [hydrocarbons or radioactive minerals] no concessions or contracts will be granted nor may those that have been granted continue, and the Nation shall carry out the exploitation of these products, in accordance with the provisions indicated in the respective regulatory law. It is exclusively a function of the general Nation to conduct, transform, distribute, and supply electric power which is to be used for public service. No concessions for this purpose will be granted to

private persons and the Nation will make use of the property and natural resources, which are required for these ends. [In the Nation is also vested the use of nuclear fuels for the production of nuclear energy and the regulation of their use for other purposes. Nuclear energy can only be used for peaceful purposes.] [The Nation shall exercise its sovereign rights and jurisdictions, as determined by Congress, on an exclusive economic region located outside the territorial sea. This exclusive economic region will extend 200 nautical miles, measured from the base line where the territorial sea is measured. In case this extension results in a superposition of exclusive economic regions on other states, such states shall agree on its necessary limits.] Legal capacity to acquire ownership of lands and waters of the Nation shall be governed by the following provisions: I. Only Mexicans by birth or naturalization and Mexican companies have the right to acquire ownership of lands, waters, and their appurtenances, or to obtain concessions for the exploitation of mines or of waters. The State may grant the same right to foreigners, provided they agree before the Ministry of Foreign Relations to consider themselves as nationals in respect to such property, and bind themselves not to invoke the protection of their governments in matters relating thereto; under penalty, in case of noncompliance with this agreement, of forfeiture of the property acquired to the Nation. Under no circumstances may foreigners acquire direct ownership of lands or waters within a zone of one hundred kilometers along the frontiers and of fifty kilometers along the shores of the country. The State, in accordance with its internal public interests and with principles of reciprocity, may in the discretion of the Secretary of Foreign Affairs authorize foreign states to acquire, at the permanent sites of the Federal Powers, private ownership of real property necessary for the direct services of their embassies or legations. II. Religious institutions [formed under Article 130 and its regulatory law, may not acquire, hold, or manage more real property than is actually needed to carry out their purpose, in accordance with the legal requirements and limitations establish by the regulations.]

III. Public or private charitable institutions for the rendering of assistance to the needy, for scientific research, the diffusion of knowledge, mutual aid to members, or for any other lawful purpose, may not acquire more real property than actually needed for their purpose and immediately and directly devoted thereto, [and in accordance with the regulatory law.] IV. Commercial stock companies [may acquire rural lands, but only to the extent necessary to carry out their purpose. Such corporations may not acquire lands used for agriculture, stockbreeding, or forestry in larger extensions than that equivalent to twenty five times the limits set by section XV of this Article. The regulatory law will determine the capital’s structure and the minimum number of partners required for this kind of corporations so lands belonging to the corporation will not exceed the limits set for small landed holdings in relation to each partner. In that case, individual stocks of rural lands will be considered in a cumulative way. Also, the law shall establish under what circumstances foreigners may invest in such corporations. The law will also establish the measures for registration and control that are needed to carry out the duties established in this section.] . . .VI.. . . The States, the Federal District, and all Municipalities in the Republic shall have full legal capacity to acquire and hold all the real property needed to render public services. The federal and state laws, within their respective jurisdictions, shall determine in what cases the occupation of private property shall be considered to be of public utility; and in accordance with such laws, the administrative authorities shall issue the respective declaration. The amount fixed as compensation for the expropriated property shall be based on the value recorded in assessment or tax offices for tax purposes, whether this value had been declared by the owner or tacitly accepted by him by having paid taxes on that basis. The increased or decreased value of such private property due to improvements or depreciation which occurred after such assessment is the only portion of the value that shall be subject to the decision of experts and judicial proceedings. This same procedure shall be followed in the case of property whose value is not recorded in the tax offices. . . . VII. The centers of population which, by law or in fact, possess a communal status shall have legal

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capacity to enjoy common possession of the lands, forests, and waters belonging to them or which have been or may be restored to them. [The law shall protect the integrity of lands of indigenous groups. The law shall protect the land set aside for human settlements in order to observe and to strengthen community life of ejidos and communities and shall regulate the common use of lands, forests, and waters and contribute to the social advancement of its people. The owners of ejidos and communal lands may adopt rules for the use of their productive resources, and the Law shall regulate their property rights and that of each parcel owner. Also, it shall establish the procedures through which the ejidos and communal land owners may get into partnerships between them, with the State, or third parties and transfer the use of their lands; the transfer of individual land rights of the ejidatarios (members of the ejido) to other members of the community; it shall also set the requirements and procedures on how the Assembly of ejidatarios will grant control of the farm to an ejidatario. Where there is a transfer of ownership of the farm, the right of first refusal, established by law, shall be observed. In no event shall an ejidatario own more than 5% of the total land of the ejidos within the same population center. Property rights on lands of individual ejidatarios shall be subject to the limitations established in section XV. . . . The restitution of lands, forests, and waters to population centers shall be carried out as prescribed by the regulatory law]. . . . IX. Divisions or allotments of land among the inhabitants of a given center of population which, although apparently legitimate are not so, due to a mistake or defect, may be annulled at the request of three fourths of the residents holding one fourth so divided, or one fourth of such residents holding three fourths of the lands. . . . XV. [In the United States of Mexico the formation of large landed estates is prohibited.] Small agricultural property is that which does not exceed one hundred hectares of first-class moist or irrigated land or its equivalent in other classes of land.

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To determine this equivalence one hectare of irrigated land shall be computed as two hectares of seasonal land; as four of good quality pasturage (agostadero), and as eight of [forestry lands,] monte (scrubland) or arid pasturage. Also to be considered as small holdings are areas not exceeding one hundred fifty hectares of land used for cotton growing if irrigated from fluvial canals or by pumping; or three hundred, under cultivation, when used for growing bananas, sugar cane, coffee, henequen, rubber, coconuts, grapes, olives, quinine, vanilla, cocao, [agave, nopal,] or fruit trees. Small holdings for stockraising are lands not exceeding the area necessary to maintain up to five hundred heads of cattle or their equivalent in smaller animals under provisions of law, in accordance with the forage capacity of the lands. Whenever, due to irrigation or drainage works or any other works executed by the owners or occupants of a small holding, the quality of the land is [improved,] such holding shall not be subject to agrarian appropriation even if, by virtue of the improvements made, the maximums indicated in this section are [exceeded,] provided that the requirements fixed by law are met. [Whenever a small holding for stockraising is improved and used for agriculture, the area available for this purpose shall not exceed those limits established under paragraph two and three of this section related to the quality of the lands before the improvements.] . . . XVII. The Federal Congress and the State Legislature, within their respective jurisdictions, shall enact laws to fix the maximum area of rural property, and to carry out subdivision of the excess lands, in accordance with the following bases: . . . b. The excess over the fixed area shall be subdivided by the owner within [a year from the day of the notice. Once the term has expired, if the area has not been transferred, it shall be sold through public auction. Under such circumstances and in accordance to the regulations, the right of first refusal shall be followed. Local law shall establish guidelines on what is considered as part of the family patrimony, which cannot be transferred, seized, nor taxed.]

XVIII. All contracts and concessions made by former Governments since the year 1876, which have resulted in the monopolization of lands, waters, and natural resources of the Nation, by a single person or company, are declared subject to revision, and the Executive of the Union is empowered to declare them void whenever they involve serious prejudice to the public interest.

nature is. The law shall establish special independent tribunals with jurisdiction to hear cases related to agrarian justice matters, handled by judges nominated by the President and confirmed by the Senate or, in case the Senate is in recess, by the Permanent Commission.

XIX. [Based on the Constitution, the State shall set guidelines for a speedy and honest agrarian trial, with the purpose of guaranteeing judicial security to property rights of ejidos, common lands, and small properties and to support legal counsel for farm workers.]

XX. [The State shall contribute to the total development of rural areas to create jobs and to guarantee the well-being of farm workers and their participation in the development of the nation and shall promote the best use of the land for agriculture and forestry purposes with public works, credits, training services, and technical assistance. Also, it shall issue regulations to plan and organize agriculture, its industrialization, and commerce, considering them as a matter of public interest.]

[All pending and arising issues between two or more population centers, associated with the limits of ejidos or communal lands, as well as their ownership, are matters of federal jurisdiction, whatever their

The law will establish an agency to administer agrarian justice.]

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The General Law of Social Development Summary: The following are provisions of La Ley General De Desarollo Social, The General Law of Social Development, enacted in Mexico in 2004. This provision aims to create and implement a national policy of social development. The broad goals of the national policy are to contribute to sustainable development and citizen welfare by promoting respect for natural resources, encouraging economic growth, remedying poverty through distribution of resources, creating employment opportunities, and improving education. The law does not provide specific methods of enforcement but states that it is to be carried out by the various levels of government within Mexico, including the federal, state, and local municipal governments. The law has been excerpted and translated from the original Spanish for publication in this book by Michelle L. Greenbaum, a student at Pace University School of Law, under the supervision of Professor John R. Nolon. The original full-text of La Ley General De Desarollo Social is available at: http://www.diputados.gob.mx/leyinfo

IV. To determine the competency of the municipal governments, state governments and of the Federal Government in the substance of social development, as well as the basis for concentration of actions with the social and private sectors; V. To promote the social sector of the economy; VI. To regulate and guarantee the benefits and services contained in the social programs; VII. To determine the basis and encourage the social and private participation in the subject; VIII. To establish mechanisms of evaluation and pursuit of the programs and actions of the National Policy of Social Development, and IX. To promote the establishment of instruments of access to justice, through the citizens’ suit, on the subject of social development. Article 2. Any discriminatory practice in the ser-

vice of the benefits and services contained in the programs of social development is prohibited. Article 3. The social development policy will adhere

TITLE ONE: GENERAL DISPOSITIONS CHAPTER I – PURPOSE

Article 1. This law of public order and social interest is of general observance in all of the national territory, and its objectives are:

I. To guarantee the full exercise of the social rights consecrated in the Constitution of the United States of Mexico, assuring that the entire population has access to social development; II. To determine the obligations of the Government, to establish the institutions responsible for social development and to define the principles and general guidelines to which the national policy of social development should adhere; III. To establish a National System of Social Development in which the municipal governments, states and federal government will participate;

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to the following principles: I. Liberty : The capacity of people to choose the means for their personal development as well as to participate in social development. II. Distributive justice : This guarantees that all people receive the benefits of development in an equitable manner according to their merits, their needs, their possibilities, relative to the rest of the population. III. Solidarity : Collaboration between people, social groups and spheres of interest in a manner that achieves improvement in the quality of life of society. IV. Integration : Articulated and complementary program and acts that combine various social benefits, in the name of the national policy of social development V. Social participation : The right of the people and organizations to individually or collectively

take part in, and be an integral part of, the formulation, execution, and evaluation of the policies, programs and acts of social development. VI. Sustainability : Preservation of the ecological balance, protection of the environment and enjoyment of natural resources to improve the quality of life and productivity of the people, without compromising the needs of future generations. VII. Respect for diversity : Overcoming discrimination and achieving equality by respecting ethnic origin, gender, age, disability, class, health condition, religion, opinion, preferences, marital status, or any other similar condition. VIII. Self-determination and autonomy of the indigenous peoples and their communities: Constitutional recognition of the methods of coexistence and organization, spheres of application of their own rules and regulations, election of their authorities or representatives, means to preserve and enrich their language and culture, means to conserve and improve their habitat, preferential access to their natural resources, election of representatives before local governments, and complete access to the jurisdiction of the state. IX. Transparency : Information regarding social development is public and the government shall guarantee that all such information will be objective, timely, systematic, and truthful. Article 4. This law shall be carried out through the federal executive organizations and agencies and municipal entities within the ambit of their respective competencies, powers, and characteristics.

[Article 5, omitted here, contains a description of the intended effects of the law and definitions of abbreviations used within the text of the law.]

TITLE TWO: THE RIGHTS AND OBLIGATIONS OF THE FOLLOWERS OF SOCIAL DEVELOPMENT CHAPTER I

Article 6. Social development comprises the following rights: education, health, nutrition, housing, the enjoyment of a healthy environment, employment, and social security. The Constitution of the United

States of Mexico does not discriminate among these rights. Article 7. Every person has the right to participate

and to benefit from the social development programs, according to the ruling principles of the Social Development Policy, in terms that are established by the norms of each program. Article 8. Every person or social group in a vulnera-

ble situation has the right to receive aid and support tending to diminish their disadvantage. Article 9. The municipalities, the governments of the states and the Federal Executive, in their respective spheres, will formulate and apply compensatory policies and policies of assistance, as well as opportunities of productive development and income for the benefit of the people, families, and social groups in vulnerable situations, directing the necessary budgeted resources and establishing quantifiable goals. Article 10. The beneficiaries of the social development programs have the following rights and obligations:

I. To receive quality, opportunity, and respectful treatment; II. Access to the necessary information of said programs, their rules of operation, resources, and funding; III. To have personal information kept confidential; IV. To present complaints at the corresponding requests for the failure to fulfill this law; V. To receive the services and presentations of the programs in conformance with their rules of operation, unless they are suspended for duly founded and properly motivated administrative or judicial resolution; VI. To be included in the census; VII. To participate in the social development programs in a corresponding manner; VIII. To distribute socioeconomic information that may be required by the authorities, in the terms that establish the corresponding norms, and IX. To fulfill the rules and regulations of the programs of social development.

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TITLE THREE: THE NATIONAL POLICY OF SOCIAL DEVELOPMENT CHAPTER I – PURPOSE

Article 11. The National Policy of Social Develop-

ment has the following objectives: I. To proportion the conditions that assure the enjoyment of social rights, collective or individual, guaranteed access to social development programs and the equality of opportunities, as well as elimination of discrimination and social exclusion. II. To promote economic development with the sense that creates and conserves employment, raises the level of income and improves its distribution; III. To strengthen regional equality; and IV. To guarantee forms of social participation in the formulation, execution, implementation, evaluation and control of the social development programs.

Article 15. The Federal Executive shall formulate a

national program of social development following the terms and conditions of the Law of Planning. Article 16. Municipal and federal authorities will

inform the public every year about their social development activities using methods most accessible to the public at least 90 days from the approval of their respective annual budgets. Article 17. The municipalities will be the principal

executors of the programs, resources, and federal acts of social development, according to the rules of operation that come from the Federal Executive, except in the cases expressly assigned, to a state agency or federal organization, state or Federal District. CHAPTER III – FINANCING AND SPENDING

Article 12. The National Policy of Social Develop-

[Articles 18 through 28, omitted here, provide that education, disease control, priority zones, nutrition of mothers and children, housing and employment will receive priority. These articles also forbid a decrease in the total amount of funding for social development programs from year to year.]

ment should incorporate planning conforming to this law and the rest in the subject area.

CHAPTER IV – PRIORITY ZONES

CHAPTER II – PLANNING AND PROGRAMMING

Article 13. The planning of social development will

include municipal programs; state plans and programs; institutional programs; regional and special programs; the National Program of Social Development; and the National Plan of Development. Article 14. The national policy of social develop-

ment should include, at least, the following provisions: I. Reduction of poverty through education, health, nutrition, generation of employment and income, self-employment and training;

[Articles 29 through 32, omitted here, contain a description of Priority Attention Zones and how these zones will be selected and benefited.] CHAPTER V – STRENGTHENING THE SOCIAL SECTOR OF THE ECONOMY

[Articles 33 through 35, omitted here, contain a description of how the various levels of government will create employment and stimulate the economy through social development.]

II. Social security and programs of assistance;

CHAPTER VI – DEFINING AND REMEDYING POVERTY

III. Regional development;

Article 36. The guidelines and criteria established

IV. Basic social infrastructure; and V. Strengthening of the social sector of the economy.

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by the National Council of Evaluation for the Policy of Social Development to define, identify and mitigate of poverty are obligatory for the entities and public agencies that participate in the execution of

the programs of social development, and should be based on the information which the National Institute of Statistics, Geography and Information generates, independently from other data which it sees fit, including the following: I. per capita income; II. average level of education achieved in the household; III. access to health care; IV. access to social security; V. quality of housing; VI. access to basic housing infrastructure; VII. access to nutrition; and VIII. sense of community. [Article 37, omitted here, describes guidelines for evaluation.] TITLE FOUR: THE NATIONAL SYSTEM OF SOCIAL DEVELOPMENT CHAPTER I – PURPOSE AND IMPLEMENTATION

Article 38. The National System of Social Development is a permanent mechanism of contribution, collaboration, coordination and agreement of the governments – federal, state and municipal, as well as the social and private sectors – that has these objectives:

I. To integrate the participation of the public, social, and private sectors in the achievement of the objectives, strategies and priorities of the National Policy of Social Development; II. To establish collaboration between the agencies and federal entities in the formulation, execution, and implementation of programs, acts and investments in the subject of social development; III. To promote binding congruency between the programs, activities and investments of the governments of the federal entities and of the municipalities, with the objectives, strategies, and priorities of the National Policy of Social Development; IV. To strengthen participation of people, families, and organizations and in general of the social and private sectors in social development;

V. To coordinate the implementation of the objectives, strategies and priorities of the National Policy of Social Development; and VI. To drive the deconcentration and decentralization of resources and actions for social development, the rendering of accounts and the strengthening of federal pact CHAPTER II – SCOPE

[Articles 39 through 40, omitted here, state that the secretary will design and execute the policies. These articles also describe the role of the various levels of legislatures in the policy.] Article 41. The governments of the states will insti-

tute a system of planning of social development; they will form, approve and apply the respective social development programs, conforming to the this Law, in a manner which coordinates with the Federal Government, guarding the approved public resources in practice with honor, opportunity, transparency and fairness. Article 42. The municipalities will form, approve, and apply their own social development programs, which should be in agreement with those of the states and the federal government.

[Article 43, omitted here, describes the responsibilities of the secretary.] Article 44. It corresponds to the governments of the states in the fields of their competencies, the following authorities:

I. To formulate and execute the state program of social development; II. To coordinate with the Federal Government regarding social actions and programs; III. To come together with the governments of their municipalities regarding social activities and programs; IV. To coordinate actions with organizations on the subject of social development; V. To strengthen the organization and participation of citizens in social development programs; VI. To use federal funds and resources allocated for social matter consistently with legal requirements

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and to inform the administration regarding the use and accomplishments generated; VII. To inform the public about the ongoing actions of the social development; and VIII. To comply with other requirements of this law and regulations. Article 45. Town councils, in the field of their com-

petencies, shall have the following responsibilities: I. To formulate and execute the municipal program of social development; II. To coordinate, with the government of its state, the execution of social development programs; III. To coordinate acts, with municipalities of their own state, on the subject of social development; IV. To coordinate actions of social development with municipalities of other states, with the approval of the corresponding legislatures; V. To use federal funds and resources allocated for social matter consistently with legal requirements and to inform the administration regarding the use and accomplishments generated; VI. To coordinate acts with the social and private sectors in the field of social development; VII. To establish mechanisms for the inclusion of organized social participation in the programs and activities of the social development; VIII. To inform society about ongoing social development activities, and

CHAPTER V – SOCIAL DEVELOPMENT COUNCIL

[Articles 55 through 60, omitted here, state that the Social Development Council will review programs that purport to achieve the goals of the Social Development Policy and describe the functions of this council.] CHAPTER VI – SOCIAL PARTICIPATION

[Articles 61 through 66, omitted here, guarantee the right of citizens to participate in and benefit from the social policy and invite organizations to participate in carrying out the aims of the policy.] CHAPTER VII – CITIZENS’ SUITS

[Articles 67 and 68, omitted here, establish a process through which individuals can bring complaints, through competent authority, regarding the administration of the policy.] CHAPTER VIII – THE SOCIAL CONTROLLER

[Articles 69 through 71, omitted here, provide that the Social Controller will exercise administrative oversight over the execution of the social development law. The information regarding execution of the policy will be provided to this officer so that he or she may investigate complaints and assure that the goals are being achieved.] TITLE FIVE: EVALUATION OF THE SOCIAL DEVELOPMENT POLICY

Chapter I – Evaluation

IX. To comply with other requirements of this law and regulations.

[Articles 72 through 80, omitted here, provide parameters by which social development will be evaluated.]

[Articles 47 through 50, omitted here, describe the purpose, composition, responsibilities and operation of the Commission of Social Development.]

CHAPTER II – THE NATIONAL COUNCIL OF EVALUATION OF SOCIAL DEVELOPMENT

CHAPTER IV – THE INTERSECRETARIAL COMMISSION OF SOCIAL DEVELOPMENT

[Articles 51 through 54, omitted here, state that the intersecretarial commission coordinates with the President, lists the various secretaries who will be involved, and describes their functions.]

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[Articles 81 through 85, omitted here, describe the judicial nature of the National Council of Evaluation of the Social Development Policy and the composition and administration of the council.] TRANSITIONS

[This omitted section deals with transitional procedural matters.]

VII. NORTH AMERICA

U N I T E D S TAT E S

Coastal Zone Management Act Summary: The Coastal Zone Management Act of 1972 (CZMA) and the Coastal Zone Act Reauthorization Amendments of 1990 offer state governments a voluntary partnership with the federal government to protect coastal resources. The U.S. Congress’s findings and declaration of policy encourage the management of development in the coastal zone to preserve wetlands, habitat, shorelines, and floodplains and to prevent pollution of groundwater and the marine environment. To receive federal funding, participating states must create approved coastal zone management programs. Federal agency activity “within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone” must be consistent with the state programs. Under the 1990 amendments, states with approved plans must establish a nonpoint source pollution control plan to identify land-based sources of pollution of coastal waters. The act calls for the coordination of state and local water quality plans. The act encourages state programs for waterfront revitalization. It establishes the National Estuarine Research Reserve System and offers technical aid as well as funding to participating states. The CZMA is administered by the U.S. Department of Commerce through the Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration (NOAA). The full text of the CZMA is available at: http://www.ocrm.nos.noaa.gov/czm/czm act.html or http://www.access.gpo.gov/uscode/title16/ chapter33 .html The federal regulations implementing the CZMA – 15 CFR 923 – are available at: http://www.access.gpo.gov/nara/cfr/waisidx 03/ 15cfr923 03.html The NOAA Coastal Services Center Web site is: http://www.csc.noaa.gov/

An extensive survey of federal legislation on coastal management in the United States can be found in Appendix 6 – “Review of U.S. Ocean and Coastal Law” – of the U.S. Ocean Commission’s Final Report (2005), available at: http://www.oceancommission.gov/documents/ full color rpt/append 6.pdf

UNITED STATES CODE ANNOTATED. TITLE 16: CONSERVATION CHAPTER 33. COASTAL ZONE MANAGEMENT

§ 1451. Congressional findings The Congress finds that – (a) There is a national interest in the effective management, beneficial use, protection, and development of the coastal zone. (b) The coastal zone is rich in a variety of natural, commercial, recreational, ecological, industrial, and esthetic resources of immediate and potential value to the present and future well-being of the Nation. (c) The increasing and competing demands upon the lands and waters of our coastal zone occasioned by population growth and economic development, including requirements for industry, commerce, residential development, recreation, extraction of mineral resources and fossil fuels, transportation and navigation, waste disposal, and harvesting of fish, shellfish, and other living marine resources, have resulted in the loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion. (d) The habitat areas of the coastal zone, and the fish, shellfish, other living marine resources, and wildlife therein, are ecologically fragile and

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consequently extremely vulnerable to destruction by man’s alterations.

coastal zone, coastal states must anticipate and plan for such an occurrence.

(e) Important ecological, cultural, historic, and esthetic values in the coastal zone which are essential to the well-being of all citizens are being irretrievably damaged or lost.

(m) Because of their proximity to and reliance upon the ocean and its resources, the coastal states have substantial and significant interests in the protection, management, and development of the resources of the exclusive economic zone that can only be served by the active participation of coastal states in all Federal programs affecting such resources and, wherever appropriate, by the development of state ocean resource plans as part of their federally approved coastal zone management programs.

(f) New and expanding demands for food, energy, minerals, defense needs, recreation, waste disposal, transportation, and industrial activities in the Great Lakes, territorial sea, exclusive economic zone, and Outer Continental Shelf are placing stress on these areas and are creating the need for resolution of serious conflicts among important and competing uses and values in coastal and ocean waters. (g) Special natural and scenic characteristics are being damaged by ill-planned development that threatens these values. (h) In light of competing demands and the urgent need to protect and to give high priority to natural systems in the coastal zone, present state and local institutional arrangements for planning and regulating land and water uses in such areas are inadequate. (i) The key to more effective protection and use of the land and water resources of the coastal zone is to encourage the states to exercise their full authority over the lands and waters in the coastal zone by assisting the states, in cooperation with Federal and local governments and other vitally affected interests, in developing land and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance. (j) The national objective of attaining a greater degree of energy self-sufficiency would be advanced by providing Federal financial assistance to meet state and local needs resulting from new or expanded energy activity in or affecting the coastal zone. (k) Land uses in the coastal zone, and the uses of adjacent lands which drain into the coastal zone, may significantly affect the quality of coastal waters and habitats, and efforts to control coastal water pollution from land use activities must be improved. (l) Because global warming may result in a substantial sea level rise with serious adverse effects in the

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§ 1452. Congressional declaration of policy The Congress finds and declares that it is the national policy – (1) to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations; (2) to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and esthetic values as well as the needs for compatible economic development, which programs should at least provide for – (A) the protection of natural resources, including wetlands, floodplains, estuaries, beaches, dunes, barrier islands, coral reefs, and fish and wildlife and their habitat, within the coastal zone, (B) the management of coastal development to minimize the loss of life and property caused by improper development in flood-prone, storm surge, geological hazard, and erosion-prone areas and in areas likely to be affected by or vulnerable to sea level rise, land subsidence, and saltwater intrusion, and by the destruction of natural protective features such as beaches, dunes, wetlands, and barrier islands, (C) the management of coastal development to improve, safeguard, and restore the quality of coastal waters, and to protect natural resources and existing uses of those waters,

(D) priority consideration being given to coastaldependent uses and orderly processes for siting major facilities related to national defense, energy, fisheries development, recreation, ports and transportation, and the location, to the maximum extent practicable, of new commercial and industrial developments in or adjacent to areas where such development already exists, (E) public access to the coasts for recreation purposes, (F) assistance in the redevelopment of deteriorating urban waterfronts and ports, and sensitive preservation and restoration of historic, cultural, and esthetic coastal features, (G) the coordination and simplification of procedures in order to ensure expedited governmental decisionmaking for the management of coastal resources, (H) continued consultation and coordination with, and the giving of adequate consideration to the views of, affected Federal agencies, (I) the giving of timely and effective notification of, and opportunities for public and local government participation in, coastal management decisionmaking, (J) assistance to support comprehensive planning, conservation, and management for living marine resources, including planning for the siting of pollution control and aquaculture facilities within the coastal zone, and improved coordination between State and Federal coastal zone management agencies and State and wildlife agencies, and (K) the study and development, in any case in which the Secretary considers it to be appropriate, of plans for addressing the adverse effects upon the coastal zone of land subsidence and of sea level rise; and (3) to encourage the preparation of special area management plans which provide for increased specificity in protecting significant natural resources, reasonable coastal-dependent economic growth, improved protection of life and property in hazardous areas, including those areas likely to be affected by land subsidence, sea level rise, or fluctuating water levels of the Great Lakes, and improved predictability in governmental decisionmaking;

(4) to encourage the participation and cooperation of the public, state and local governments, and interstate and other regional agencies, as well as of the Federal agencies having programs affecting the coastal zone, in carrying out the purposes of this chapter; (5) to encourage coordination and cooperation with and among the appropriate Federal, State, and local agencies, and international organizations where appropriate, in collection, analysis, synthesis, and dissemination of coastal management information, research results, and technical assistance, to support State and Federal regulation of land use practices affecting the coastal and ocean resources of the United States; and (6) to respond to changing circumstances affecting the coastal environment and coastal resource management by encouraging States to consider such issues as ocean uses potentially affecting the coastal zone. § 1453. Definitions For purposes of this title – (1) The term “coastal zone” means the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches. The zone extends, in Great Lakes waters, to the international boundary between the United States and Canada and, in other areas, seaward to the outer limit of State title and ownership under the Submerged Lands Act (43 U.S.C. 1301 et seq.), the Act of March 2, 1917, (48 U.S.C. 749), the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, as approved by the Act of March 24, 1976 (48 U.S.C. 1801 et seq.), (or section 1 of the Act of November 20, 1963 (48 U.S.C. 1705), as applicable. The zone extends inland from the shorelines only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters, and to control those geographical areas which are likely to be affected by or vulnerable to sea level rise. Excluded from the coastal zone are lands the use of which is by law subject solely to the discretion of or which is

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held in trust by the Federal Government, its officers or agents. (2) The term “coastal resource of national significance” means any coastal wetland, beach, dune, barrier island, reef, estuary, or fish and wildlife habitat, if any such area is determined by a coastal state to be of substantial biological or natural storm protective value. (3) The term “coastal waters” means (A) in the Great Lakes area, the waters within the territorial jurisdiction of the United States consisting of the Great Lakes, their connecting waters, harbors, roadsteads, and estuary-type areas such as bays, shallows, and marshes and (B) in other areas, those waters, adjacent to the shorelines, which contain a measurable quantity or percentage of sea water, including, but not limited to, sounds, bays, lagoons, bayous, ponds, and estuaries. (4) The term “coastal state” means a state of the United States in, or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes. For the purposes of this chapter, the term also includes Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territories of the Pacific Islands, and American Samoa. (5) The term “coastal energy activity” means any of the following activities if, and to the extent that (A) the conduct, support, or facilitation of such activity requires and involves the siting, construction, expansion, or operation of any equipment or facility; and (B) any technical requirement exists which, in the determination of the Secretary, necessitates that the siting, construction, expansion, or operation of such equipment or facility be carried out in, or in close proximity to, the coastal zone of any coastal state; (i) Any outer Continental Shelf energy activity. (ii) Any transportation, conversion, treatment, transfer, or storage of liquefied natural gas. (iii) Any transportation, transfer, or storage of oil, natural gas, or coal (including, but not limited to, by means of any deepwater port, as defined in section 1502(10) of Title 33. For purposes of this paragraph, the siting, construction, expansion, or operation of any equipment or

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facility shall be “in close proximity to” the coastal zone of any coastal state if such siting, construction, expansion, or operation has, or is likely to have, a significant effect on such coastal zone. (6) The term “energy facilities” means any equipment or facility which is or will be used primarily – (A) in the exploration for, or the development, production, conversion, storage, transfer, processing, or transportation of, any energy resource; or (B) for the manufacture, production, or assembly of equipment, machinery, products, or devices which are involved in any activity described in subparagraph (A). The term includes, but is not limited to (i) electric generating plants; (ii) petroleum refineries and associated facilities; (iii) gasification plants; (iv) facilities used for the transportation, conversion, treatment, transfer, or storage of liquefied natural gas; (v) uranium enrichment or nuclear fuel processing facilities; (vi) oil and gas facilities, including platforms, assembly plants, storage depots, tank farms, crew and supply bases, and refining complexes; (vii) facilities including deepwater ports, for the transfer of petroleum; (viii) pipelines and transmission facilities; and (ix) terminals which are associated with any of the foregoing. (6a) The term “enforceable policy” means State policies which are legally binding through constitutional provisions, laws, regulations, land use plans, ordinances, or judicial or administrative decisions, by which a State exerts control over private and public land and water uses and natural resources in the coastal zone. (7) The term “estuary” means that part of a river or stream or other body of water having unimpaired connection with the open sea, where the sea water is measurably diluted with fresh water derived from land drainage. The term includes estuary-type areas of the Great Lakes. (8) The term “estuarine sanctuary” means a research area which may include any part or all of an estuary and any island, transitional area, and upland in, adjoining, or adjacent to such estuary, and which constitutes to the extent feasible a natural unit, set aside to provide scientists and students the opportunity to examine over a period of time the ecological relationships within the area.

(9) The term “Fund” means the Coastal Zone Management Fund established under section 1456a(b) of this title.

health care. Such term may also include any other facility or service so financed which the Secretary finds will support increased population.

(10) The term “land use” means activities which are conducted in, or on the shorelands within, the coastal zone, subject to the requirements outlined in section 1456(g) of this title.

(16) The term “Secretary” means the Secretary of Commerce.

(11) The term “local government” means any political subdivision of, or any special entity created by, any coastal state which (in whole or part) is located in, or has authority over, such state’s coastal zone and which (A) has authority to levy taxes, or to establish and collect user fees, or (B) provides any public facility or public service which is financed in whole or part by taxes or user fees. The term includes, but is not limited to, any school district, fire district, transportation authority, and any other special purpose district or authority.

(17) The term “special area management plan” means a comprehensive plan providing for natural resource protection and reasonable coastaldependent economic growth containing a detailed and comprehensive statement of policies; standards and criteria to guide public and private uses of lands and waters; and mechanisms for timely implementation in specific geographic areas within the coastal zone. (18) The term “water use” means a use, activity, or project conducted in or on waters within the coastal zone.

(12) The term “management program” includes, but is not limited to, a comprehensive statement in words, maps, illustrations, or other media of communication, prepared and adopted by the state in accordance with the provisions of this chapter, setting forth objectives, policies, and standards to guide public and private uses of lands and waters in the coastal zone.

§ 1454. Submittal of state program for approval

(13) The term “outer Continental Shelf energy activity” means any exploration for, or any development or production of, oil or natural gas from the outer Continental Shelf (as defined in section 1331(a) of Title 43) or the siting, construction, expansion, or operation of any new or expanded energy facilities directly required by such exploration, development, or production.

The Secretary may make grants to any coastal state for the purpose of administering that state’s management program, if the state matches any such grant according to the following ratios of Federal-to-State contributions for the applicable fiscal year: . . .

(14) The term “person” means any individual; any corporation, partnership, association, or other entity organized or existing under the laws of any state; the Federal Government; any state, regional, or local government; or any entity of any such Federal, state, regional, or local government.

The Secretary may make a grant to a coastal state under subsection (a) of this section only if the Secretary finds that the management program of the coastal state meets all applicable requirements of this chapter and has been approved in accordance with subsection (d) of this section.

(15) The term “public facilities and public services” means facilities or services which are financed, in whole or in part, by any state or political subdivision thereof, including, but not limited to, highways and secondary roads, parking, mass transit, docks, navigation aids, fire and police protection, water supply, waste collection and treatment (including drainage), schools and education, and hospitals and

(c) Allocation of grants to coastal states

Any coastal state which has completed the development of its management program shall submit such program to the Secretary for review and approval pursuant to section 1455 of this title. § 1455. Administrative grants (a) Authorization; matching funds

(b) Grants to coastal states; requirements

Grants under this section shall be allocated to coastal states with approved programs based on rules and regulations promulgated by the Secretary which shall take into account the extent and nature of the shoreline and area covered by the program, population of the area, and other relevant factors. The Secretary shall establish, after consulting with

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the coastal states, maximum and minimum grants for any fiscal year to promote equity between coastal states and effective coastal management.

public beaches and other public coastal areas of environmental, recreational, historical, esthetic, ecological, or cultural value.

(d) Mandatory adoption of State management program for coastal zone

(H) A planning process for energy facilities likely to be located in, or which may significantly affect, the coastal zone, including a process for anticipating the management of the impacts resulting from such facilities.

Before approving a management program submitted by a coastal state, the Secretary shall find the following: (1) The State has developed and adopted a management program for its coastal zone in accordance with rules and regulations promulgated by the Secretary, after notice, and with the opportunity of full participation by relevant Federal agencies, State agencies, local governments, regional organizations, port authorities, and other interested parties and individuals, public and private, which is adequate to carry out the purposes of this chapter and is consistent with the policy declared in section 1452(2) of this title. (2) The management program includes each of the following required program elements: (A) An identification of the boundaries of the coastal zone subject to the management program. (B) A definition of what shall constitute permissible land uses and water uses within the coastal zone which have a direct and significant impact on the coastal waters. (C) An inventory and designation of areas of particular concern within the coastal zone. (D) An identification of the means by which the State proposes to exert control over the land uses and water uses referred to in subparagraph (B), including a list of relevant State constitutional provisions, laws, regulations, and judicial decisions. (E) Broad guidelines on priorities of uses in particular areas, including specifically those uses of lowest priority. (F) A description of the organizational structure proposed to implement such management program, including the responsibilities and interrelationships of local, areawide, State, regional, and interstate agencies in the management process. (G) A definition of the term “beach” and a planning process for the protection of, and access to,

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(I) A planning process for assessing the effects of, and studying and evaluating ways to control, or lessen the impact of, shoreline erosion, and to restore areas adversely affected by such erosion. (3) The State has – (A) coordinated its program with local, areawide, and interstate plans applicable to areas within the coastal zone– (i) existing on January 1 of the year in which the State’s management program is submitted to the Secretary; and (ii) which have been developed by a local government, an areawide agency, a regional agency, or an interstate agency; and (B) established an effective mechanism for continuing consultation and coordination between the management agency designated pursuant to paragraph (6) and with local governments, interstate agencies, regional agencies, and areawide agencies within the coastal zone to assure the full participation of those local governments and agencies in carrying out the purposes of this chapter; except that the Secretary shall not find any mechanism to be effective for purposes of this subparagraph unless it requires that – (i) the management agency, before implementing any management program decision which would conflict with any local zoning ordinance, decision, or other action, shall send a notice of the management program decision to any local government whose zoning authority is affected; (ii) within the 30-day period commencing on the date of receipt of that notice, the local government may submit to the management agency written comments on the management program decision, and any recommendation for alternatives; and

(iii) the management agency, if any comments are submitted to it within the 30-day period by any local government – (I) shall consider the comments; (II) may, in its discretion, hold a public hearing on the comments; and (III) may not take any action within the 30-day period to implement the management program decision.

(11) The management program provides for any one or a combination of the following general techniques for control of land uses and water uses within the coastal zone:

(4) The State has held public hearings in the development of the management program.

(B) Direct State land and water use planning and regulation.

(5) The management program and any changes thereto have been reviewed and approved by the Governor of the State.

(C) State administrative review for consistency with the management program of all development plans, projects, or land and water use regulations, including exceptions and variances thereto, proposed by any State or local authority or private developer, with power to approve or disapprove after public notice and an opportunity for hearings.

(6) The Governor of the State has designated a single State agency to receive and administer grants for implementing the management program. (7) The State is organized to implement the management program. (8) The management program provides for adequate consideration of the national interest involved in planning for, and managing the coastal zone, including the siting of facilities such as energy facilities which are of greater than local significance. In the case of energy facilities, the Secretary shall find that the State has given consideration to any applicable national or interstate energy plan or program. (9) The management program includes procedures whereby specific areas may be designated for the purpose of preserving or restoring them for their conservation, recreational, ecological, historical, or esthetic values. (10) The State, acting through its chosen agency or agencies (including local governments, areawide agencies, regional agencies, or interstate agencies) has authority for the management of the coastal zone in accordance with the management program. Such authority shall include power – (A) to administer land use and water use regulations to control development to ensure compliance with the management program, and to resolve conflicts among competing uses; and (B) to acquire fee simple and less than fee simple interests in land, waters, and other property through condemnation or other means when nec-

essary to achieve conformance with the management program.

(A) State establishment of criteria and standards for local implementation, subject to administrative review and enforcement.

(12) The management program contains a method of assuring that local land use and water use regulations within the coastal zone do not unreasonably restrict or exclude land uses and water uses of regional benefit. (13) The management program provides for – (A) the inventory and designation of areas that contain one or more coastal resources of national significance; and (B) specific and enforceable standards to protect such resources. (14) The management program provides for public participation in permitting processes, consistency determinations, and other similar decisions. (15) The management program provides a mechanism to ensure that all State agencies will adhere to the program. (16) The management program contains enforceable policies and mechanisms to implement the applicable requirements of the Coastal Nonpoint Pollution Control Program of the State required by section 1455b of this title. (e) Amendment or modification of State management program for coastal zone [Omitted.]

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§ 1455a. Coastal resource improvement program

(c) Uses, terms and conditions of grants

(a) Definitions For purposes of this section –

(1) Each grant made by the Secretary under this section shall be subject to such terms and conditions as may be appropriate to ensure that the grant is used for purposes consistent with this section.

(1) The term “eligible coastal state” means a coastal state that for any fiscal year for which a grant is applied for under this section – (A) has a management program approved under section 1455 of this title; and (B) in the judgment of the Secretary, is making satisfactory progress in activities designed to result in significant improvement in achieving the coastal management objectives specified in section 1452(2)(A) through (K) of this title. (2) The term “urban waterfront and port” means any developed area that is densely populated and is being used for, or has been used for, urban residential recreational, commercial, shipping or industrial purposes. (b) Resource management improvement grants The Secretary may make grants to any eligible coastal state to assist that state in meeting one or more of the following objectives: (1) The preservation or restoration of specific areas of the state that (A) are designated under the management program procedures required by section 1455(d)(9) of this title because of their conservation recreational, ecological, or esthetic values, or (B) contain one or more coastal resources of national significance, or for the purpose of restoring and enhancing shellfish production by the purchase and distribution of clutch material on publicly owned reef tracts. (2) The redevelopment of deteriorating and underutilized urban waterfronts and ports that are designated in the state’s management program pursuant to section 1455(d)(2)(C) of this title as areas of particular concern. (3) The provision of access to public beaches and other public coastal areas and to coastal waters in accordance with the planning process required under section 1455(d)(2)(G) of this title. (4) The development of a coordinated process among State agencies to regulate and issue permits for aquaculture facilities in the coastal zone.

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(2) Grants made under this section may be used for – (A) the acquisition of fee simple and other interests in land; (B) low-cost construction projects determined by the Secretary to be consistent with the purposes of this section, including but not limited to, paths, walkways, fences, parks, and the rehabilitation of historic buildings and structures; except that not more than 50 per centum of any grant made under this section may be used for such construction projects; (C) in the case of grants made for objectives described in subsection (b) (2) of this section – (i) the rehabilitation or acquisition of piers to provide increased public use, including compatible commercial activity, (ii) the establishment of shoreline stabilization measures including the installation or rehabilitation of bulkheads for the purpose of public safety or increasing public access and use, and (iii) the removal or replacement of pilings where such action will provide increased recreational use of urban waterfront areas, but activities provided for under this paragraph shall not be treated as construction projects subject to the limitations in paragraph (B); (D) engineering designs, specifications, and other appropriate reports; and (E) educational, interpretive, and management costs and such other related costs as the Secretary determines to be consistent with the purposes of this section. (d) State matching contributions; ratio; maximum amount of grants [Omitted.] (e) Allocation of grants to local governments and other agencies [Omitted.]

(f) Other technical and financial assistance [Omitted.] § 1455b. Protecting coastal waters

(B) those coastal waters that are threatened by reasonably foreseeable increases in pollution loadings from new or expanding sources.

(a) In general

(2) Identifying critical coastal areas

(1) Program development

The identification of, and a continuing process for identifying, critical coastal areas adjacent to coastal waters referred to in paragraph (1)(A) and (B), within which any new land uses or substantial expansion of existing land uses shall be subject to management measures in addition to those provided for in subsection (g) of this section.

Not later than 30 months after the date of the publication of final guidance under subsection (g) of this section, each State for which a management program has been approved pursuant to section 306 of the Coastal Zone Management Act of 1972 shall prepare and submit to the Secretary and the Administrator a Coastal Nonpoint Pollution Control Program for approval pursuant to this section. The purpose of the program shall be to develop and implement management measures for nonpoint source pollution to restore and protect coastal waters, working in close conjunction with other State and local authorities. (2) Program coordination A State program under this section shall be coordinated closely with State and local water quality plans and programs developed pursuant to sections 1288, 1313, 1329, and 1330 of Title 33 and with State plans developed pursuant to the Coastal Zone Management Act of 1972, as amended by this Act. The program shall serve as an update and expansion of the State nonpoint source management program developed under section 1329 of Title 33, as the program under that section relates to land and water uses affecting coastal waters. (b) Program contents Each State program under this section shall provide for the implementation, at a minimum, of management measures in conformity with the guidance published under subsection (g) of this section, to protect coastal waters generally, and shall also contain the following: (1) Identifying land uses The identification of, and a continuing process for identifying, land uses which, individually or cumulatively, may cause or contribute significantly to a degradation of – (A) those coastal waters where there is a failure to attain or maintain applicable water quality standards or protect designated uses, as determined by the State pursuant to its water quality planning processes; or

(3) Management measures The implementation and continuing revision from time to time of additional management measures applicable to the land uses and areas identified pursuant to paragraphs (1) and (2) that are necessary to achieve and maintain applicable water quality standards under section 1313 of Title 33 and protect designated uses. (4) Technical assistance The provision of technical and other assistance to local governments and the public for implementing the measures referred to in paragraph (3), which may include assistance in developing ordinances and regulations, technical guidance, and modeling to predict and assess the effectiveness of such measures, training, financial incentives, demonstration projects, and other innovations to protect coastal water quality and designated uses. (5) Public participation Opportunities for public participation in all aspects of the program, including the use of public notices and opportunities for comment, nomination procedures, public hearings, technical and financial assistance, public education, and other means. (6) Administrative coordination The establishment of mechanisms to improve coordination among State agencies and between State and local officials responsible for land use programs and permitting, water quality permitting and enforcement, habitat protection, and public health and safety, through the use of joint project review, memoranda of agreement, or other mechanisms. (7) State coastal zone boundary modification A proposal to modify the boundaries of the State coastal zone as the coastal management agency of

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the State determines is necessary to implement the recommendations made pursuant to subsection (e) of this section. If the coastal management agency does not have the authority to modify such boundaries, the program shall include recommendations for such modifications to the appropriate State authority. (c) Program submission, implementation

approval,

and

(1) Review and approval Within 6 months after the date of submission by a State of a program pursuant to this section, the Secretary and the Administrator shall jointly review the program. The program shall be approved if – (A) the Secretary determines that the portions of the program under the authority of the Secretary meet the requirements of this section and the Administrator concurs with that determination; and (B) the Administrator determines that the portions of the program under the authority of the Administrator meet the requirements of this section and the Secretary concurs with that determination. (2) Implementation of approved program If the program of a State is approved in accordance with paragraph (1), the State shall implement the program, including the management measures included in the program pursuant to subsection (b) of this section, through – (A) changes to the State plan for control of nonpoint source pollution approved under section 1329 of Title 33, and (B) changes to the State coastal zone management program developed under section 306 of the Coastal Zone Management Act of 1972, as amended by this Act. (3) Withholding coastal management assistance If the Secretary finds that a coastal State has failed to submit an approvable program as required by this section, the Secretary shall withhold for each fiscal year until such a program is submitted a portion of grants otherwise available to the State for the fiscal year under section 306 of the Coastal Zone Management Act of 1972 . . .

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(4) Withholding water pollution control assistance If the Administrator finds that a coastal State has failed to submit an approvable program as required by this section, the Administrator shall withhold from grants available to the State under section 1329 of Title 33, for each fiscal year until such a program is submitted, an amount equal to a percentage of the grants awarded to the State for the preceding fiscal year under that section . . . (d) Technical assistance The Secretary and the Administrator shall provide technical assistance to coastal States and local governments in developing and implementing programs under this section. Such assistance shall include – (1) methods for assessing water quality impacts associated with coastal land uses; (2) methods for assessing the cumulative water quality effects of coastal development; (3) maintaining and from time to time revising an inventory of model ordinances, and providing other assistance to coastal States and local governments in identifying, developing, and implementing pollution control measures; and (4) methods to predict and assess the effects of coastal land use management measures on coastal water quality and designated uses. (e) Inland coastal zone boundaries (1) Review The Secretary, in consultation with the Administrator of the Environmental Protection Agency, shall, within 18 months after November 5, 1990, review the inland coastal zone boundary of each coastal State program which has been approved or is proposed for approval under section 306 of the Coastal Zone Management Act of 1972, and evaluate whether the State’s coastal zone boundary extends inland to the extent necessary to control the land and water uses that have a significant impact on coastal waters of the State. (2) Recommendation If the Secretary, in consultation with the Administrator, finds that modifications to the inland boundaries of a State’s coastal zone are necessary for that

State to more effectively manage land and water uses to protect coastal waters, the Secretary, in consultation with the Administrator, shall recommend appropriate modifications in writing to the affected State. (f) Financial assistance (1) In general Upon request of a State having a program approved under section 306 of the Coastal Zone Management Act of 1972, the Secretary, in consultation with the Administrator, may provide grants to the State for use for developing a State program under this section. (2) Amount The total amount of grants to a State under this subsection shall not exceed 50 percent of the total cost to the State of developing a program under this section. (3) State share The State share of the cost of an activity carried out with a grant under this subsection shall be paid from amounts from non-Federal sources. (4) Allocation Amounts available for grants under this subsection shall be allocated among States in accordance with regulations issued pursuant to section 306(c) of the Coastal Zone Management Act of 1972, except that the Secretary may use not more than 25 percent of amounts available for such grants to assist States which the Secretary, in consultation with the Administrator, determines are making exemplary progress in preparing a State program under this section or have extreme needs with respect to coastal water quality.

(2) Content Guidance under this subsection shall include, at a minimum – (A) a description of a range of methods, measures, or practices, including structural and nonstructural controls and operation and maintenance procedures, that constitute each measure; (B) a description of the categories and subcategories of activities and locations for which each measure may be suitable; (C) an identification of the individual pollutants or categories or classes of pollutants that may be controlled by the measures and the water quality effects of the measures; (D) quantitative estimates of the pollution reduction effects and costs of the measures; (E) a description of the factors which should be taken into account in adapting the measures to specific sites or locations; and (F) any necessary monitoring techniques to accompany the measures to assess over time the success of the measures in reducing pollution loads and improving water quality. (3) Publication [Omitted.] (4) Notice and comment [Omitted.] (5) Management measures

(g) Guidance for coastal nonpoint source pollution control

For purposes of this subsection, the term “management measures” means economically achievable measures for the control of the addition of pollutants from existing and new categories and classes of nonpoint sources of pollution, which reflect the greatest degree of pollutant reduction achievable through the application of the best available nonpoint pollution control practices, technologies, processes, siting criteria, operating methods, or other alternatives.

(1) In general

(h) Authorization of appropriations [Omitted.]

The Administrator, in consultation with the Secretary and the Director of the United States Fish and Wildlife Service and other Federal agencies, shall publish (and periodically revise thereafter) guidance for specifying management measures for sources of nonpoint pollution in coastal waters.

(i) Definitions [Omitted.] § 1456. Coordination and cooperation (a) Federal agencies In carrying out his functions and responsibilities under this chapter, the Secretary shall consult with, cooperate with, and, to the maximum extent

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practicable, coordinate his activities with other interested Federal agencies. (b) Adequate consideration of views of Federal agencies The Secretary shall not approve the management program submitted by a state pursuant to section 1455 of this title unless the views of Federal agencies principally affected by such program have been adequately considered. (c) Consistency of Federal activities with State management programs; Presidential exemption; certification (1) (A) Each Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs. A Federal agency activity shall be subject to this paragraph unless it is subject to paragraph (2) or (3). (B) After any final judgment, decree, or order of any Federal court that is appealable under section 1291 or 1292 of Title 28, or under any other applicable provision of Federal law, that a specific Federal agency activity is not in compliance with subparagraph (A), and certification by the Secretary that mediation under subsection (h) of this section is not likely to result in such compliance, the President may, upon written request from the Secretary, exempt from compliance those elements of the Federal agency activity that are found by the Federal court to be inconsistent with an approved State program, if the President determines that the activity is in the paramount interest of the United States. No such exemption shall be granted on the basis of a lack of appropriations unless the President has specifically requested such appropriations as part of the budgetary process, and the Congress has failed to make available the requested appropriations. (C) Each Federal agency carrying out an activity subject to paragraph (1) shall provide a consistency determination to the relevant State agency designated under section 1455(d)(6) of this title at the earliest practicable time, but in no case later than 90 days before final approval

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of the Federal activity unless both the Federal agency and the State agency agree to a different schedule. (2) Any Federal agency which shall undertake any development project in the coastal zone of a state shall insure that the project is, to the maximum extent practicable, consistent with the enforceable policies of approved State management programs. (3) (A) After final approval by the Secretary of a state’s management program, any applicant for a required Federal license or permit to conduct an activity, in or outside of the coastal zone, affecting any land or water use or natural resource of the coastal zone of that state shall provide in the application to the licensing or permitting agency a certification that the proposed activity complies with the enforceable policies of the state’s approved program and that such activity will be conducted in a manner consistent with the program. At the same time, the applicant shall furnish to the state or its designated agency a copy of the certification, with all necessary information and data. Each coastal state shall establish procedures for public notice in the case of all such certifications and, to the extent it deems appropriate, procedures for public hearings in connection therewith. At the earliest practicable time, the state or its designated agency shall notify the Federal agency concerned that the state concurs with or objects to the applicant’s certification. If the state or its designated agency fails to furnish the required notification within six months after receipt of its copy of the applicant’s certification, the state’s concurrence with the certification shall be conclusively presumed. No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant’s certification or until, by the state’s failure to act, the concurrence is conclusively presumed, unless the Secretary, on his own initiative or upon appeal by the applicant, finds, after providing a reasonable opportunity for detailed comments from the Federal agency involved and from the state, that the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security. (B) After the management program of any coastal state has been approved by the Secretary under section 1455 of this title, any person who submits to

the Secretary of the Interior any plan for the exploration or development of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.) and regulations under such Act shall, with respect to any exploration, development, or production described in such plan and affecting any land or water use or natural resource of the coastal zone of such state, attach to such plan a certification that each activity which is described in detail in such plan complies with the enforceable policies of such state’s approved management program and will be carried out in a manner consistent with such program. No Federal official or agency shall grant such person any license or permit for any activity described in detail in such plan until such state or its designated agency receives a copy of such certification and plan, together with any other necessary data and information, and until –

duct any activity affecting land uses or water uses in the coastal zone of such state which is described in detail in the plan to which such concurrence or finding applies. If such state objects to such certification and if the Secretary fails to make a finding under clause (iii) with respect to such certification, or if such person fails substantially to comply with such plan as submitted, such person shall submit an amendment to such plan, or a new plan, to the Secretary of the Interior. With respect to any amendment or new plan submitted to the Secretary of the Interior pursuant to the preceding sentence, the applicable time period for purposes of concurrence by conclusive presumption under subparagraph (A) is three months.

(i) such state or its designated agency, in accordance with the procedures required to be established by such state pursuant to subparagraph (A), concurs with such person’s certification and notifies the Secretary and the Secretary of the Interior of such concurrence;

State and local governments submitting applications for Federal assistance under other Federal programs, in or outside of the coastal zone, affecting any land or water use of natural resource of the coastal zone shall indicate the views of the appropriate state or local agency as to the relationship of such activities to the approved management program for the coastal zone. . . .

(ii) concurrence by such state with such certification is conclusively presumed as provided for in subparagraph (A), except if such state fails to concur with or object to such certification within three months after receipt of its copy of such certification and supporting information, such state shall provide the Secretary, the appropriate federal agency, and such person with a written statement describing the status of review and the basis for further delay in issuing a final decision, and if such statement is not so provided, concurrence by such state with such certification shall be conclusively presumed; or (iii) the Secretary finds, pursuant to subparagraph (A), that each activity which is described in detail in such plan is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security. If a state concurs or is conclusively presumed to concur, or if the Secretary makes such a finding, the provisions of subparagraph (A) are not applicable with respect to such person, such state, and any Federal license or permit which is required to con-

(d) Application of local governments for Federal assistance; relationship of activities with approved management programs

(e) Construction with other laws Nothing in this chapter shall be construed – (1) to diminish either Federal or state jurisdiction, responsibility, or rights in the field of planning, development, or control of water resources, submerged lands, or navigable waters; nor to displace, supersede, limit, or modify any interstate compact or the jurisdiction or responsibility of any legally established joint or common agency of two or more states or of two or more states and the Federal Government; nor to limit the authority of Congress to authorize and fund projects; (2) as superseding, modifying, or repealing existing laws applicable to the various Federal agencies; nor to affect the jurisdiction, powers, or prerogatives of the International Joint Commission, United States and Canada, the Permanent Engineering Board, and the United States operating entity or entities established pursuant to the Columbia River Basin Treaty, signed at Washington, January 17, 1961, or

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the International Boundary and Water Commission, United States and Mexico.

§ 1456a. Coastal Zone Management Fund

(f) Construction with existing requirements of water and air pollution programs

§ 1456b. Coastal zone enhancement grants

Notwithstanding any other provision of this chapter, nothing in this chapter shall in any way affect any requirement (1) established by the Federal Water Pollution Control Act, as amended [33 U.S.C.A. § 1251 et seq.], or the Clean Air Act, as amended [42 U.S.C.A. § 7401 et seq.], or (2) established by the Federal Government or by any state or local government pursuant to such Acts. Such requirements shall be incorporated in any program developed pursuant to this chapter and shall be the water pollution control and air pollution control requirements applicable to such program. (g) Concurrence with programs which affect inland areas When any state’s coastal zone management program, submitted for approval or proposed for modification pursuant to section 1455 of this title, includes requirements as to shorelands which also would be subject to any Federally supported national land use program which may be hereafter enacted, the Secretary, prior to approving such program, shall obtain the concurrence of the Secretary of the Interior, or such other Federal official as may be designated to administer the national land use program, with respect to that portion of the coastal zone management program affecting such inland areas. (h) Mediation of disagreements In case of serious disagreement between any Federal agency and a coastal state – (1) in the development or the initial implementation of a management program under section 1454 of this title; or

[Omitted.]

(a) “Coastal zone enhancement objective” defined For purposes of this section, the term “coastal zone enhancement objective” means any of the following objectives: (1) Protection, restoration, or enhancement of the existing coastal wetlands base, or creation of new coastal wetlands. (2) Preventing or significantly reducing threats to life and destruction of property by eliminating development and redevelopment in high-hazard areas, managing development in other hazard areas, and anticipating and managing the effects of potential sea level rise and Great Lakes level rise. (3) Attaining increased opportunities for public access, taking into account current and future public access needs, to coastal areas of recreational, historical, aesthetic, ecological, or cultural value. (4) Reducing marine debris entering the Nation’s coastal and ocean environment by managing uses and activities that contribute to the entry of such debris. (5) Development and adoption of procedures to assess, consider, and control cumulative and secondary impacts of coastal growth and development, including the collective effect on various individual uses or activities on coastal resources, such as coastal wetlands and fishery resources. (6) Preparing and implementing special area management plans for important coastal areas. (7) Planning for the use of ocean resources. (8) Adoption of procedures and enforceable policies to help facilitate the siting of energy facilities and Government facilities and energy-related activities and Government activities which may be of greater than local significance.

(2) in the administration of a management program approved under section 1455 of this title; the Secretary, with the cooperation of the Executive Office of the President, shall seek to mediate the differences involved in such disagreement. The process of such mediation shall, with respect to any disagreement described in paragraph (2), include public hearings which shall be conducted in the local area concerned.

(c) Evaluation of State proposals by Secretary

(i) Application fee for appeals [Omitted.]

[Omitted.]

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(9) Adoption of procedures and policies to evaluate and facilitate the siting of public and private aquaculture facilities in the coastal zone, which will enable States to formulate, administer, and implement strategic plans for marine aquaculture. (b) Limits on grants [Omitted.]

(d) Promulgation of regulations by Secretary Within 12 months following November 5, 1990, and consistent with the notice and participation requirements established in section 1463 of this title, the Secretary shall promulgate regulations concerning coastal zone enhancement grants that establish – (1) specific and detailed criteria that must be addressed by a coastal state (including the State’s priority needs for improvement as identified by the Secretary after careful consultation with the State) as part of the State’s development and implementation of coastal zone enhancement objectives; (2) administrative or procedural rules or requirements as necessary to facilitate the development and implementation of such objectives by coastal states; and (3) other funding award criteria as are necessary or appropriate to ensure that evaluations of proposals, and decisions to award funding, under this section are based on objective standards applied fairly and equitably to those proposals. (e) No State contribution required A State shall not be required to contribute any portion of the cost of any proposal for which funding is awarded under this section. (f) Funding [Omitted.] (g) Eligibility; suspension of State for noncompliance [Omitted.] § 1456c. Technical assistance (a) The Secretary shall conduct a program of technical assistance and management-oriented research necessary to support the development and implementation of State coastal management program amendments under section 1456b of this title, and appropriate to the furtherance of international cooperative efforts and technical assistance in coastal zone management. . . . § 1456d. Coastal and Estuarine Land Conservation Program The Secretary shall establish a Coastal and Estuarine Land Conservation Program, for the purpose of protecting important coastal and estuarine areas that have significant conservation, recreation, ecological, historical, or aesthetic values, or that are

threatened by conversion from their natural or recreational state to other uses. . . . § 1457. Public hearings All public hearings required under this chapter must be announced at least thirty days prior to the hearing date. At the time of the announcement, all agency materials pertinent to the hearings, including documents, studies, and other data, must be made available to the public for review and study. As similar materials are subsequently developed, they shall be made available to the public as they become available to the agency. § 1458. Review of performance (a) Evaluation of adherence with terms of grants The Secretary shall conduct a continuing review of the performance of coastal states with respect to coastal management. . . . § 1459. Records and audit [Omitted.] § 1460. Walter B. Jones excellence in coastal zone management awards [Omitted.] § 1461. National Estuarine Research Reserve System (a) Establishment of System There is established the National Estuarine Research Reserve System (hereinafter referred to in this section as the “System”) that consists of – (1) each estuarine sanctuary designated under this section as in effect before April 7, 1986; and (2) each estuarine area designated as a national estuarine reserve under subsection (b) of this section. Each estuarine sanctuary referred to in paragraph (1) is hereby designated as a national estuarine reserve. (b) Designation of national estuarine reserves After April 7, 1986, the Secretary may designate an estuarine area as a national estuarine reserve if – (1) the Governor of the coastal state in which the area is located nominates the area for that designation; and (2) the Secretary finds that – (A) the area is a representative estuarine ecosystem that is suitable for long-term research and

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contributes to the biogeographical and typological balance of the System; (B) the law of the coastal state provides long-term protection for reserve resources to ensure a stable environment for research; (C) designation of the area as a reserve will serve to enhance public awareness and understanding of estuarine areas, and provide suitable opportunities for public education and interpretation; and (D) the coastal state in which the area is located has complied with the requirements of any regulations issued by the Secretary to implement this section. (c) Estuarine research guidelines The Secretary shall develop guidelines for the conduct of research within the System that shall include – (1) a mechanism for identifying, and establishing priorities among, the coastal management issues that should be addressed through coordinated research within the System; (2) the establishment of common research principles and objectives to guide the development of research programs within the System; (3) the identification of uniform research methodologies which will ensure comparability of data, the broadest application of research results, and the maximum use of the System for research purposes; (4) the establishment of performance standards upon which the effectiveness of the research efforts and the value of reserves within the System in addressing the coastal management issues identified in paragraph (1) may be measured; and (5) the consideration of additional sources of funds for estuarine research than the funds authorized under this chapter, and strategies for encouraging the use of such funds within the System, with particular emphasis on mechanisms established under subsection (d) of this section. In developing the guidelines under this section, the Secretary shall consult with prominent members of the estuarine research community. (d) Promotion and coordination of estuarine research The Secretary shall take such action as is necessary to promote and coordinate the use of the System for research purposes including –

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(1) requiring that the National Oceanic and Atmospheric Administration, in conducting or supporting estuarine research, give priority consideration to research that uses the System; and (2) consulting with other Federal and State agencies to promote use of one or more reserves within the System by such agencies when conducting estuarine research. (e) Financial assistance (1) The Secretary may, in accordance with such rules and regulations as the Secretary shall promulgate, make grants – (A) to a coastal state – (i) for purposes of acquiring such lands and waters, and any property interests therein, as are necessary to ensure the appropriate long-term management of an area as a national estuarine reserve, (ii) for purposes of operating or managing a national estuarine reserve and constructing appropriate reserve facilities, or (iii) for purposes of conducting educational or interpretive activities; and (B) to any coastal state or public or private person for purposes of supporting research and monitoring within a national estuarine reserve that are consistent with the research guidelines developed under subsection (c) of this section. (2) Financial assistance provided under paragraph (1) shall be subject to such terms and conditions as the Secretary considers necessary or appropriate to protect the interests of the United States, including requiring coastal states to execute suitable title documents setting forth the property interest or interests of the United States in any lands and waters acquired in whole or part with such financial assistance. (3) (A) The amount of the financial assistance provided under paragraph (1)(A)(i) with respect to the acquisition of lands and waters, or interests therein, for any one national estuarine reserve may not exceed an amount equal to 50 percent of the costs of the lands, waters, and interests therein or $5,000,000, whichever amount is less.

(B) The amount of the financial assistance provided under paragraph (1)(A)(ii) and (iii) and paragraph (1)(B) may not exceed 70 percent of the costs incurred to achieve the purposes described in those paragraphs with respect to a reserve; except that the amount of the financial assistance provided under paragraph (1)(A)(iii) may be up to 100 percent of any costs for activities that benefit the entire System. (C) Notwithstanding subparagraphs (A) and (B), financial assistance under this subsection provided from amounts recovered as a result of damage to natural resources located in the coastal zone may be used to pay 100 percent of the costs of activities carried out with the assistance.

not been consistent with the research guidelines developed under subsection (c) of this section. (g) Report The Secretary shall include in the report required under section 1462 of this title information regarding – (1) new designations of national estuarine reserves; (2) any expansion of existing national estuarine reserves; (3) the status of the research program being conducted within the System; and (4) a summary of the evaluations made under subsection (f) of this section.

(f) Evaluation of System performance

§ 1462. Coastal zone management reports

(1) The Secretary shall periodically evaluate the operation and management of each national estuarine reserve, including education and interpretive activities, and the research being conducted within the reserve.

(a) Biennial reports

(2) If evaluation under paragraph (1) reveals that the operation and management of the reserve is deficient, or that the research being conducted within the reserve is not consistent with the research guidelines developed under subsection (c) of this section, the Secretary may suspend the eligibility of that reserve for financial assistance under subsection (e) of this section until the deficiency or inconsistency is remedied. (3) The Secretary may withdraw the designation of an estuarine area as a national estuarine reserve if evaluation under paragraph (1) reveals that – (A) the basis for any one or more of the findings made under subsection (b)(2) of this section regarding that area no longer exists; or (B) a substantial portion of the research conducted within the area, over a period of years, has

The Secretary shall consult with the Congress on a regular basis concerning the administration of this chapter and shall prepare and submit to the President for transmittal to the Congress a report summarizing the administration of this chapter during each period of two consecutive fiscal years. . . . § 1463. Rules and regulations The Secretary shall develop and promulgate, pursuant to section 553 of Title 5, after notice and opportunity for full participation by relevant Federal agencies, state agencies, local governments, regional organizations, port authorities, and other interested parties, both public and private, such rules and regulations as may be necessary to carry out the provisions of this chapter. § 1463a. [Omitted in original.] § 1463b. National Coastal Resources Research and Development Institute [Omitted.] § 1464. Authorization of appropriations [Omitted.] § 1465. Appeals to the Secretary [Omitted.]

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New York State Land Use Enabling Acts Summary: Parallel provisions of New York State’s Town, Village, and General City Law grant local governments powers to zone similar to those granted by the Standard State Zoning Enabling Act (SZEA) promulgated by the U.S. Department of Commerce in the 1920s. New York State encourages, but does not require, local governments to adopt comprehensive plans, and state statutes enumerate 15 topics that may be included in comprehensive plans. Local governments have considerable additional powers to regulate local land use under the home rule provisions of the state Constitution, the Statute of Local Governments, and the Municipal Home Rule Law(MHRL). The MHRL authorizes a local government to adopt regulations for the “protection and enhancement of its physical and visual environment.” This provision is the basis of many innovative local environmental laws in New York State. The full text of the New York statutes is available at: http://public.leginfo.state.ny.us/menugetf.cgi? COMMONQUERY=LAWS

NEW YORK STATE LAND USE ENABLING ACT – TOWN LAW (§§ 261, 262, 263, 272-A)

§ 261. Grant of power; appropriations for certain expenses incurred under this article. For the purpose of promoting the health, safety, morals, or the general welfare of the community, the town board is hereby empowered by local law or ordinance to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes; provided that such regulations shall apply to and affect only such part of a town as is outside the limits of any incorporated village or city; provided further, that all charges and expenses incurred under this article for zoning and planning shall be a charge upon the taxable property of that

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part of the town outside of any incorporated village or city. The town board is hereby authorized and empowered to make such appropriation as it may see fit for such charges and expenses, provided however, that such appropriation shall be the estimated charges and expenses less fees, if any, collected, and provided, that the amount so appropriated shall be assessed, levied and collected from the property outside of any incorporated village or city. Such regulations may provide that a board of appeals may determine and vary their application in harmony with their general purpose and intent, and in accordance with general or specific rules therein contained. § 262. Districts. For any or all of said purposes the town board may divide that part of the town which is outside the limits of any incorporated village or city into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this act; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings, throughout such district but the regulations in one district may differ from those in other districts. § 263. Purposes in view. Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets, to secure safety from fire, flood, panic and other dangers; to promote health and general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to make provision for, so far as conditions may permit, the accommodation of solar energy systems and equipment and access to sunlight necessary therefor; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging

the most appropriate use of land throughout such municipality. § 272-a. Town comprehensive plan 1. Legislative findings and intent. The legislature hereby finds and determines that: (a) Significant decisions and actions affecting the immediate and long-range protection, enhancement, growth and development of the state and its communities are made by local governments. (b) Among the most important powers and duties granted by the legislature to a town government is the authority and responsibility to undertake town comprehensive planning and to regulate land use for the purpose of protecting the public health, safety and general welfare of its citizens. (c) The development and enactment by the town government of a town comprehensive plan which can be readily identified, and is available for use by the public, is in the best interest of the people of each town.

ited to maps, charts, studies, resolutions, reports and other descriptive material that identify the goals, objectives, principles, guidelines, policies, standards, devices and instruments for the immediate and long-range protection, enhancement, growth and development of the town located outside the limits of any incorporated village or city. (b) “land use regulation” means an ordinance or local law enacted by the town for the regulation of any aspect of land use and community resource protection and includes any zoning, subdivision, special use permit or site plan regulation or any other regulation which prescribes the appropriate use of property or the scale, location and intensity of development. (c) “special board” means a board consisting of one or more members of the planning board and such other members as are appointed by the town board to prepare a proposed comprehensive plan and/or an amendment thereto.

(d) The great diversity of resources and conditions that exist within and among the towns of the state compels the consideration of such diversity in the development of each town comprehensive plan.

3. Content of a town comprehensive plan. The town comprehensive plan may include the following topics at the level of detail adapted to the special requirements of the town:

(e) The participation of citizens in an open, responsible and flexible planning process is essential to the designing of the optimum town comprehensive plan.

(a) General statements of goals, objectives, principles, policies, and standards upon which proposals for the immediate and long-range enhancement, growth and development of the town are based.

(f) The town comprehensive plan is a means to promote the health, safety and general welfare of the people of the town and to give due consideration to the needs of the people of the region of which the town is a part. (g) The comprehensive plan fosters cooperation among governmental agencies planning and implementing capital projects and municipalities that may be directly affected thereby. (h) It is the intent of the legislature to encourage, but not to require, the preparation and adoption of a comprehensive plan pursuant to this section. Nothing herein shall be deemed to affect the status or validity of existing master plans, comprehensive plans, or land use plans. 2. Definitions. As used in this section, the term: (a) “town comprehensive plan” means the materials, written and/or graphic, including but not lim-

(b) Consideration of regional needs and the official plans of other government units and agencies within the region. (c) The existing and proposed location and intensity of land uses. (d) Consideration of agricultural uses, historic and cultural resources, coastal and natural resources and sensitive environmental areas. (e) Consideration of population, demographic and socio-economic trends and future projections. (f) The location and types of transportation facilities. (g) Existing and proposed general location of public and private utilities and infrastructure. (h) Existing housing resources and future housing needs, including affordable housing.

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(i) The present and future general location of educational and cultural facilities, historic sites, health facilities and facilities for emergency services. (j) Existing and proposed recreation facilities and parkland. (k) The present and potential future general location of commercial and industrial facilities. (l) Specific policies and strategies for improving the local economy in coordination with other plan topics. (m) Proposed measures, programs, devices, and instruments to implement the goals and objectives of the various topics within the comprehensive plan. (n) All or part of the plan of another public agency. (o) Any and all other items which are consistent with the orderly growth and development of the town. 4. Preparation. The town board, or by resolution of such town board, the planning board or a special board, may prepare a proposed town comprehensive plan and amendments thereto. In the event the planning board or special board is directed to prepare a proposed comprehensive plan or amendment thereto, such board shall, by resolution, recommend such proposed plan or amendment to the town board. 5. Referrals (a) Any proposed comprehensive plan or amendment thereto that is prepared by the town board or a special board may be referred to the town planning board for review and recommendation before action by the town board. (b) The town board shall, prior to adoption, refer the proposed comprehensive plan or any amendment thereto to the county planning board or agency or regional planning council for review and recommendation as required by section two hundred thirty-nine-m of the general municipal law. In the event the proposed plan or amendment thereto is prepared by the town planning board or a special board, such board may request comment on such proposed plan or amendment from the county planning board or agency or regional planning council.

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6. Public hearings; notice (a) In the event the town board prepares a proposed town comprehensive plan or amendment thereto, the town board shall hold one or more public hearings and such other meetings as it deems necessary to assure full opportunity for citizen participation in the preparation of such proposed plan or amendment, and in addition, the town board shall hold one or more public hearings prior to adoption of such proposed plan or amendment. (b) In the event the town board has directed the planning board or a special board to prepare a proposed comprehensive plan or amendment thereto, the board preparing the plan shall hold one or more public hearings and such other meetings as it deems necessary to assure full opportunity for citizen participation in the preparation of such proposed plan or amendment. The town board shall, within ninety days of receiving the planning board or special board’s recommendations on such proposed plan or amendment, and prior to adoption of such proposed plan or amendment, hold a public hearing on such proposed plan or amendment. (c) Notice of a public hearing shall be published in a newspaper of general circulation in the town at least ten calendar days in advance of the hearing. The proposed comprehensive plan or amendment thereto shall be made available for public review during said period at the office of the town clerk and may be made available at any other place, including a public library. 7. Adoption. The town board may adopt by resolution a town comprehensive plan or any amendment thereto. 8. Environmental review. A town comprehensive plan, and any amendment thereto, is subject to the provisions of the state environmental quality review act under article eight of the environmental conservation law and its implementing regulations. A town comprehensive plan may be designed to also serve as, or be accompanied by, a generic environmental impact statement pursuant to the state environmental quality review act statute and regulations. No further compliance with such law is

required for subsequent site specific actions that are in conformance with the condtions and thresholds established for such actions in the generic environmental impact statement and its findings. 9. Agricultural review and coordination. A town comprehensive plan and any amendments thereto, for a town containing all or part of an agricultural district or lands receiving agricultural assessments within its jurisdiction, shall continue to be subject to the provisions of article twenty-five-AA of the agriculture and markets law relating to the enactment and administration of local laws, ordinances, rules or regulations. A newly adopted or amended town comprehensive plan shall take into consideration applicable county agricultural and farmland protection plans as created under article twentyfive-AAA of the agriculture and markets law. 10. Periodic review. The town board shall provide, as a component of such proposed comprehensive plan, the maximum intervals at which the adopted plan shall be reviewed. 11. Effect of adoption of the town comprehensive plan. (a) All town land use regulations must be in accordance with a comprehensive plan adopted pursuant to this section. (b) All plans for capital projects of another governmental agency on land included in the town comprehensive plan adopted pursuant to this section shall take such plan into consideration. 12. Filing of town comprehensive plan. The adopted town comprehensive plan and any amendments thereto shall be filed in the office of the town clerk and a copy thereof shall be filed in the office of the county planning agency.

NEW YORK STATE LAND USE ENABLING ACTS – CONSTITUTION OF THE STATE OF NEW YORK ARTICLE IX. LOCAL GOVERNMENTS

§ 1. Bill of rights for local governments Effective local self-government and intergovernmental cooperation are purposes of the people of the state. In furtherance thereof, local governments shall have the following rights, powers, privileges

and immunities in addition to those granted by other provisions of this constitution: (a) Every local government, except a county wholly included within a city, shall have a legislative body elective by the people thereof. Every local government shall have power to adopt local laws as provided by this article. . . . § 2. Powers and duties of legislature; home rule powers of local governments; statute of local governments (a) The legislature shall provide for the creation and organization of local governments in such manner as shall secure to them the rights, powers, privileges and immunities granted to them by this constitution. (b) Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature: (1) Shall enact, and may from time to time amend, a statute of local governments granting to local governments powers including but not limited to those of local legislation and administration in addition to the powers vested in them by this article. A power granted in such statute may be repealed, diminished, impaired or suspended only by enactment of a statute by the legislature with the approval of the governor at its regular session in one calendar year and the re-enactment and approval of such statute in the following calendar year. (2) Shall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law only (a) on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership, or (b), except in the case of the city of New York, on certificate of necessity from the governor reciting facts which in the judgment of the governor constitute an emergency requiring enactment of such law and, in such latter case, with the concurrence of two-thirds of the members elected to each house of the legislature. (3) Shall have the power to confer on local governments powers not relating to their property, affairs or government including but not limited to those of local legislation and administration, in addition to those otherwise granted by or pursuant to this

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article, and to withdraw or restrict such additional powers. (c) In addition to powers granted in the statute of local governments or any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government and, (ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government: (1) The powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare and safety of its officers and employees, except that cities and towns shall not have such power with respect to members of the legislative body of the county in their capacities as county officers. (2) In the case of a city, town or village, the membership and composition of its legislative body. (3) The transaction of its business. (4) The incurring of its obligations, except that local laws relating to financing by the issuance of evidences of indebtedness by such local government shall be consistent with laws enacted by the legislature. (5) The presentation, ascertainment and discharge of claims against it. (6) The acquisition, care, management and use of its highways, roads, streets, avenues and property. (7) The acquisition of its transit facilities and the ownership and operation thereof. (8) The levy, collection and administration of local taxes authorized by the legislature and of assessments for local improvements, consistent with laws enacted by the legislature. (9) The wages or salaries, the hours of work or labor, and the protection, welfare and safety of persons employed by any contractor or sub-

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contractor performing work, labor or services for it. (10) The government, protection, order, conduct, safety, health and well-being of persons or property therein. (d) Except in the case of a transfer of functions under an alternative form of county government, a local government shall not have power to adopt local laws which impair the powers of any other local government. (e) The rights and powers of local governments specified in this section insofar as applicable to any county within the city of New York shall be vested in such city. § 3. Existing laws to remain applicable; construction; definitions (a) Except as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to: (1) The maintenance, support or administration of the public school system, as required or provided by article XI of this constitution, or any retirement system pertaining to such public school system, (2) The courts as required or provided by article VI of this constitution, and (3) Matters other than the property, affairs or government of a local government. (b) The provisions of this article shall not affect any existing valid provisions of acts of the legislature or of local legislation and such provisions shall continue in force until repealed, amended, modified or superseded in accordance with the provisions of this constitution. (c) Rights, powers, privileges and immunities granted to local governments by this article shall be liberally construed. (d) Whenever used in this article the following terms shall mean or include: (1) “General law.” A law which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages. (2) “Local government.” A county, city, town or village.

(3) “People.” Persons entitled to vote as provided in section one of article two of this constitution.

construct, reconstruct, equip, maintain, repair and operate the same for such purposes.

(4) “Special law.” A law which in terms and in effect applies to one or more, but not all, counties, counties other than those wholly included within a city, cities, towns or villages.

3. The power to acquire, establish, construct, reconstruct, equip, maintain, repair and operate recreational facilities on park or other lands, including but not limited to self-supporting, self-sustaining or revenue-producing recreational facilities.

NEW YORK STATE LAND USE ENABLING ACTS – STATUTE OF LOCAL GOVERNMENTS CHAPTER 58-A OF THE CONSOLIDATED LAWS

Article 1

§ 2. Legislative intent In providing for effective local self-government and intergovernmental cooperation which the bill of rights for local governments in article nine of the constitution declares to be purposes of the people of the state of New York, it is the intention of the legislature by the enactment of this chapter to provide a statute of local governments and to grant powers therein to local governments pursuant to paragraph one of subdivision (b) of section two of article nine of the constitution. Powers granted to local governments in this statute of local governments may be repealed, diminished, impaired or suspended only by the enactment of a statute by the legislature with the approval of the governor at its regular session in one calendar year and the re-enactment and approval of such statute in the following calendar year. . . . Article 2. Grants of Powers to Local Governments

§ 10. Grants of powers to local governments Except as otherwise specifically provided in this section, each of the following powers, which shall include but not be limited to those of local legislation and administration, is hereby granted to each local government which shall at all times be subject to such purposes, standards and procedures as the legislature may have heretofore prescribed or may hereafter prescribe:

4. The power to dispose of its real or personal property or any interest therein when no longer required for its purposes, except that this power shall not be applicable to inalienable real or personal property or any inalienable interest therein. 5. The power to fix, levy, impose, collect and administer rents, charges, rates and fees, penalties and rates of interest thereon, liens on local property in connection therewith and charges thereon. 6. In the case of a city, village, or town with respect to the area thereof outside the village or villages therein, the power to adopt, amend and repeal zoning regulations. 7. The power to perform comprehensive or other planning work relating to its jurisdiction. § 11. Reservation of power by legislature The legislature hereby excludes from the scope of the grants of powers to local governments in this statute and reserves to itself the right and power to enact any law described in this section notwithstanding the fact that it repeals, diminishes, impairs or suspends a power granted to one or more local governments in this statute: 1. Any law relating to the defense or protection of the state or to the continuity of state or local governmental operations during periods of emergency caused by enemy attack, actual or imminent, or by disaster.

1. The power to adopt, amend and repeal ordinances, resolutions and rules and regulations in the exercise of its functions, powers and duties.

2. Any law enacted as provided by paragraph two of subdivision (b) of section two of article nine of the constitution on request of the legislative body of each affected local government, on request of the chief executive officer of each affected local government concurred in by its legislative body or, except in the case of the city of New York, on certificate of necessity from the governor.

2. The power to acquire real and personal property or any interest therein for its purposes, and to

3. Any law amending an alternative form of county government which is subject to referendum

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pursuant to paragraph one or paragraph two of subdivision (h) of section one of article nine of the constitution. 4. Any law relating to a matter other than the property, affairs or government of a local government. 5. Any law authorizing the voluntary transfer of a power by a local government to another local government or other governmental agency. 6. Any law authorizing the voluntary exercise of a power by a local government in cooperation with another local government or other governmental agency. § 12. Effective date provisions of bills requiring reenactment and approval 1. Where a bill introduced in the legislature would have the effect of repealing, diminishing, impairing or suspending a power granted by this statute of local governments and thus would be ineffective unless re-enacted and approved in the following calendar year as provided by paragraph one of subdivision (b) of section two of article nine of the constitution, the effective date provision thereof shall read substantially as follows: “This act shall take effect (specify effective date in event of reenactment by legislature and approval by governor in next calendar year), provided that it is approved by the governor in accordance with paragraph one of subdivision (b) of section two of article nine of the constitution and provided that it is re-enacted by the legislature and approved by the governor in the next calendar year in accordance with such paragraph.” 2. Where a statute enacted in one year is introduced in the legislature in the next calendar year for re-enactment by the legislature and approval thereafter by the governor in accordance with paragraph one of subdivision (b) of section two of article nine of the constitution, the effective date provision thereof shall refer to the enactment in the previous year and shall, in addition, provide substantially as follows: “This act shall take effect (set forth the effective date), provided that it is approved by the governor in accordance with paragraph one of subdivision (b) of section two of article nine of the constitution.” . . .

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Article 3

§ 20. Construction ... 2. Nothing in this statute shall operate to restrict the meaning of or diminish or impair any power granted to a local government by the constitution or by any other law; nor shall the failure to include a power of a local government in this statute operate to restrict the meaning of or diminish or impair such power. 3. No power granted in this statute shall be deemed repealed, diminished, impaired or suspended by the enactment of any subsequent act of the legislature, unless such act shall be enacted and re-enacted as prescribed in paragraph one of subdivision (b) of section two of article nine of the constitution and section twelve of this statute and unless such act shall contain a specific reference to this statute. . . . 5. Powers granted to local governments by this statute shall be liberally construed.

NEW YORK STATE LAND USE ENABLING ACTS – MUNICIPAL HOME RULE LAW CHAPTER 36-A OF THE CONSOLIDATED LAWS

Article 2. General Powers of Local Governments to Adopt and Amend Local Laws; Restrictions

§ 10. General powers of local governments to adopt and amend local laws 1. In addition to powers granted in the constitution, the statute of local governments or in any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law relating to its property, affairs or government and, (ii) every local government, as provided in this chapter, shall have power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law, relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the

extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government:

erty therein. This provision shall include but not be limited to the power to adopt local laws providing for the regulation or licensing of occupations or businesses provided, however, that:

a. A county, city, town or village: . . . (11) The protection and enhancement of its physical and visual environment.

(a) The exercise of such power by a town shall relate only to the area thereof outside the village or villages therein. . . .

(12) The government, protection, order, conduct, safety, health and well-being of persons or prop-

(14) The powers granted to it in the statute of local governments.

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New York State Coastal Erosion Hazard Areas Act Summary: The New York State Legislature recognizes that coastal erosion is caused by human activity as well as by natural forces: for example, by “building without considering the potential for damage to property, by undertaking activities which destroy natural protective features such as dunes or vegetation, and by building structures intended for erosion prevention which may exacerbate erosion conditions on adjacent or nearby property.” It is the state’s policy that erosion impacts should be minimized in hazard areas and that “the provision of additional municipal services, which are likely to encourage new permanent activities or development within coastal erosion hazard areas should not occur unless such hazard areas have been protected.” The statute calls for the identification and mapping of coastal erosion hazard areas within the state by the commissioner of the state Department of Environmental Protection (DEP) and for local governments to formulate an erosion hazard area ordinance or local law to be reviewed by the commissioner. The commissioner also adopts regulations establishing minimum standards for development in erosion hazard areas. Any person wishing to undertake development in an erosion hazard area must obtain a permit from the DEC. The full text of the statute is available at: http://www.assembly.state.ny.us/ DEC regulations for coastal erosion management – 6 NYCRR Part 505 – are available at: http://www.dec.state.ny. us/website/regs/part505.html

shore, tides, wind-driven water and ice as well as human activities such as construction and shipping. Such areas are also prone to erosion caused by the wind, runoff of rain water along the surface of the land, or groundwater seepage as well as by human activities such as construction, navigation and certain forms of recreation. 2. Coastal erosion causes extensive damage to publicly and privately owned property and to natural resources as well as endangering human lives. When this occurs, individuals and private businesses suffer significant economic losses, as does the state’s economy, either directly through property damage or indirectly through loss of economic return. Large public expenditures may also be necessitated for the removal of debris and damaged structures and replacement of essential public facilities and services. 3. Man often contributes to erosion-related problems by building without considering the potential for damage to property, by undertaking activities which destroy natural protective features such as dunes or vegetation and by building structures intended for erosion prevention which may exacerbate erosion conditions on adjacent or nearby property, and by water action produced by wakes from boats.

NEW YORK STATE CONSOLIDATED LAWS

4. Programs to build erosion protective structures, either with private or public funds, are costly, often only partially effective over time, and may even be harmful to adjacent or nearby properties, and in some sections of the state major erosion protective structures of great length would be required to effectively reduce future damages due to erosion.

ENVIRONMENTAL CONSERVATION

§ 34-0102. Declaration of policy

Article 34. Coastal Erosion Hazard Areas

It is declared to be the public policy of the state of New York that:

§ 34-0101. Statement of findings 1. Certain sections of the coastline of the state of New York are prone to erosion from action of the adjacent water bodies. Such erosion may be caused by the action of waves, currents running along the

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1. Those areas of the state’s coastline most prone to erosion hazards should be identified. 2. Any activities, development or other actions in such erosion hazard areas should be undertaken in

such manner as to minimize damage to property, and to prevent the exacerbation of erosion hazards. Such actions may be restricted or prohibited if necessary to protect natural protective features or to prevent or reduce erosion impacts. 3. Local governments should be encouraged to use all authorities that can be applied within the identified erosion hazard areas to achieve these objectives. 4. Public actions, such as the provision of additional municipal services, which are likely to encourage new permanent activities or development within coastal erosion hazard areas should not occur unless such hazard areas have been protected by erosion protection structures or non-structural measures which are most likely to prevent damage from effects of erosion during the anticipated life of the proposed activities or development. 5. Publicly-financed structures to minimize erosion damage should be utilized only where necessary to protect human life, existing investment in development or new development which requires a location within the erosion hazard area or adjacent coastal waters to be able to function. Both publicly and privately financed erosion protective structures should be designed to minimize damage to other manmade property or to natural protective features or to other natural resources; long term costs of such structures should be carefully weighed against public benefits before construction is undertaken. § 34-0103. Definitions 1. “Activities or development” shall mean any land use, construction or placement by any person of a structure, or any action which materially alters the condition of land, including grading and excavating or other disturbance of soil. The term shall include the division of land into lots, parcels or sites. 2. “Coastal erosion” or “erosion” shall mean loss or displacement of land along the coastline due to the action of waves, currents running along the shore, tides, wind-driven water or water-borne ice or other impacts of coastal storms. It shall also mean loss or displacement of land along the coastline due to the action of wind, runoff of surface waters, or groundwater seepage. 3. “Coastal erosion hazard area” or “erosion hazard area” shall mean those areas of the coastline:

(a) Which are determined as likely to be subject to erosion within a forty-year period. The inland boundary of such areas shall be determined on the basis of shoreline recession analysis and other pertinent studies and surveys by starting at the bluff edge or most landward point of active erosion and measuring along a line which is normal to the line of mean high water a distance which is forty times the long-term average annual rate of shoreline recession, where such average annual recession rate is at least one foot; or (b) Which constitute natural protective features, the alteration of which might reduce or destroy the protection afforded other lands against erosion, or lower the reserves of sand or other natural materials available to replenish storm losses through natural processes. The erosion hazard area is to be identified as provided in section 34-0104 of this article and shall be the area within which new activities or development shall be reviewed to effectuate the policies and purposes of this article to minimize damage caused by erosion to structures and to prevent damage to natural protective features caused by activities or development, as provided for in section 34-0108 of this article. 4. “Coastline” shall mean the lands adjacent to the state’s coastal waters, including lakes Erie and Ontario, the St. Lawrence and Niagara rivers, the Hudson river south of the federal dam at Troy, the East river, the Harlem river, the Kill van Kull and Arthur Kill, Long Island sound and the Atlantic ocean, their connecting water bodies, bays, harbors, shallows and marshes. 5. “Erosion protective structure” shall mean a structure specifically designed to reduce or prevent erosion including man made protection features created by landfill or deposition. 6. “Land” shall mean the earth, on or below the surface of the ground, including water and air above. 7. “Local government” shall mean a village, town (outside the area of any incorporated village), city or county. 8. “Natural protective features” shall mean without limitation, beaches, dunes, shoals, bars, spits, barrier islands, bluffs and wetlands; associated natural vegetation shall also be considered as part of such natural protective features.

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9. “Person” shall mean any individual, public or private corporation, political subdivision, government agency, partnership, association, firm, trust, estate or any other legal entity whatsoever. 10. “State agency” shall mean any department, bureau, commission, board, public authority or other agency of the state, including any public benefit corporation, any member of which is appointed by the governor. 11. “Structure” shall mean any object constructed, installed or placed on land or in water, including, but not limited to, buildings, permanent sheds, mobile homes, tanks, bulkheads, piers, docks, groins, jetties and any additions or alterations thereto. 12. “Significant fish and wildlife habitat” shall mean habitats which are essential to the survival of a large portion of a particular fish or wildlife population, support rare or endangered species, are found at a very low frequency within a geographic area, support fish or wildlife populations having significant commercial or recreational value or would be difficult or impossible to replace. § 34-0104. Identification of coastal erosion hazard areas 1. The commissioner shall as soon as practicable, but no later than thirty months after the effective date of this article, after the adoption of rules and regulations pursuant to subdivision one of section 34-0108 of this article, and in full cooperation with and consultation with local governments in which such land is located prepare a preliminary identification of the erosion hazard areas of the state’s coastline. The identification may, in the discretion of the commissioner, be carried out on a regional basis, with priority given to the identification of critical erosion areas. Such preliminary identification shall include, for each such area, a map showing the area subject to erosion, a statement of the long-term average annual rate of loss of land in such area from erosion, if applicable, and an identification of any land areas containing or comprising natural protective features the alteration of which might reduce or destroy the protection afforded other lands against erosion, or lower the reserves of sand or other natural materials available to replenish storm losses through natural processes. 2. Upon completion of a preliminary identification of an erosion hazard area, the commissioner or his

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designated hearing officer shall hold a public hearing in a place reasonably accessible to residents of the affected area in order to afford an opportunity for any person to propose changes in such preliminary identification. The commissioner shall give notice of such hearing to each owner of record, as shown on the latest completed tax assessment rolls, of lands included within such area, and also to the chief executive officer and clerk of each local government within the boundaries of which any portion of such area may be located, by certified mail at least thirty days prior to the date set for such hearing, and shall insure that a copy of the preliminary identification is available for public inspection at a convenient location in such local government. The commissioner shall also cause notice of such hearing to be published at least once, not more than thirty days nor fewer than ten days before the date set for such hearing, in at least one newspaper having general circulation in the area involved and in the environmental notice publication provided for under section 3-0306 of this chapter. 3. After considering the testimony given at such hearings and the potential erosion hazard in accordance with the purposes and policies of this article, and after consultation with affected local governments, the commissioner shall issue the final identification of the erosion hazard areas. Such final identification shall not be made less than sixty days from the date of the public hearing required by subdivision two hereof. A copy of such final identification shall be filed in the office of the clerk of each local government in which such area or any portion thereof is located. Notice that such final identification has been made shall be given each owner of lands included within the erosion hazard area, as such ownership is shown on the latest completed tax assessment rolls, by certified mail in any case where a notice by certified mail was not sent pursuant to subdivision two of this section, and in all other cases by first class mail. Such notice shall also be given at such time to the chief executive officer of each local government within the boundaries of which such erosion hazard area or any portion thereof is located. 4. The commissioner shall review the boundaries of each erosion hazard area identified pursuant to this section ten years from the date of its identification

and every ten years thereafter. The commissioner may revise erosion hazard area maps not sooner than twelve months after the occurrence of a major man made or natural event or a major coastal storm if he determines that topographical changes or loss of structural protection at the end of such a twelve month period and as a result of such event or such storm justify, pursuant to the regulations of the department, adjustment of the erosion hazard area boundary by twenty-five feet or more. Following such review, the commissioner shall adjust the boundaries of such erosion hazard area to effect any additions, deletions or technical changes, or to reflect any changes due to erosion, accretion or other natural or man-made changes. The commissioner shall follow the procedures set forth in subdivisions two and three of this section with respect to any lands which are proposed to be added to or deleted from an erosion hazard area because of an adjustment of the boundaries of such erosion hazard area pursuant to this subdivision. 5. The commissioner shall maintain a current file of maps or descriptions of all erosion hazard areas pursuant to this article, which shall be available to the public for inspection and examination at the regional office of the department in which the area is wholly or partly located and in the office of the clerk of each local government in which each such area or part thereof is located. § 34-0105. Local regulation of coastal erosion hazard areas 1. Within six months after the date on which a final identification of an erosion hazard area is filed with the clerk of a city, town or village pursuant to subdivision three of section 34-0104 of this article, such city, town or village shall submit to the commissioner an erosion hazard area ordinance or local law applicable to that portion of such area located within its jurisdiction. Then the commissioner shall review and certify such regulations as being consistent with the purposes of this article and in accordance with minimum standards promulgated under section 34-0108 of this article. All such ordinances or local laws shall include a map or other identification of the erosion hazard area subject to regulation, and zoning regulations, subdivision regulations, site plan approval regulations or any other applications of the police power, as such regulations

may be authorized by the municipal home rule law or other state enabling legislation, for the reasonable and prudent use of erosion hazard areas in accordance with minimum standards promulgated by the commissioner pursuant to section 34-0108 of this article. Nothing in this article shall be construed to increase the powers of any city, town or village; provided, however, that to carry out the purpose of this article, any regulations adopted in compliance with the provisions of this subdivision may be made applicable to only that portion of such city, town or village which is located within the erosion hazard area. The commissioner shall provide whatever technical assistance he may deem necessary for preparation of an ordinance or local law pursuant to this section. 2. Such erosion hazard area ordinance or local law shall be subject to public notification and review and, be submitted to the commissioner for approval as to its consistency with the minimum standards promulgated pursuant to section 34-0108 of this article; the commissioner shall act to approve or disapprove such ordinance or local law within thirty working days of its receipt. If the commissioner disapproves the ordinance or local law, he shall notify the city, town or village in writing of the reasons for such disapproval, or modification necessary for approval. The commissioner shall issue findings as part of his decision. 3. In the case of the commissioner’s disapproval of a local law or ordinance under subdivision two of this section, the commissioner, at his discretion, may extend the six month period for the adoption of an erosion hazard area local law or ordinance for a reasonable time period not to exceed an additional six months, during which time, the local government may adopt and re-submit a new or modified local law or ordinance to the commissioner for approval as provided in subdivision two of this section. During such extension period, provisions of section 340106 of this article shall not apply. 4. Prior to the adoption of any amendment to an approved erosion hazard area ordinance or local law, the local government shall notify the commissioner, who shall within fifteen days after receipt of such notification advise the local government whether such amendment conforms to the minimum standards promulgated pursuant to section 34-0108 of this article. Any amendment to such ordinance or

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local law that relates to such minimum standards shall be subject to approval by the commissioner as provided in subdivision two of this section. 5. The commissioner shall revoke his approval of an erosion hazard area ordinance or local law if he determines, after notice and hearing relative thereto, that the affected city, town or village has failed to administer or enforce such ordinance or local law to adequately carry out the purposes and policies of this article. In the event of such revocation, the provisions of subdivision seven of section 34-0106 of this article or the provisions of subdivision three of section 34-0107 of this article shall apply. 6. Where an application is made for any permit, variance or other form of approval required pursuant to any local law or ordinance enacted or adopted and approved by the commissioner pursuant to this section, for any activity or development within a designated erosion hazard area, the city, town or village to which such application is made shall ascertain what, if any, other permit, variance or hearing procedures or applications are required with regard to such activity or by any governing body of the state or any of its subdivisions pursuant to any federal, state or local law or ordinance. Such city, town or village, at the request of the applicant, shall consolidate and coordinate said application, permit, variance and hearing procedures, as required by each such governing authority, into a single, comprehensive hearing and review procedure with regard to such activity or development. However, nothing contained in this section shall be deemed to limit or restrict the state, its subdivisions or any other governing authorities, which are properly a party to such consolidated review proceeding, from the independent exercise of such discretionary authority with respect to the issuance, denial or modification of such permits, variances or other forms of approval as they may have been granted by law. § 34-0106. County regulation of coastal erosion hazard areas 1. If a city, other than a city which wholly includes one or more counties, a town or village fails to submit an erosion hazard area ordinance or local law to the commissioner within the time specified in subdivision one of section 34-0105 of this article,

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as such time may be extended by the commissioner under subdivision three of such section or if an ordinance or local law has been disapproved pursuant to subdivision two of such section, the commissioner shall notify the clerk of the legislative body of the county in which such city, town or village is located. Within six months from receipt of such notification, such county shall submit to the commissioner a county erosion hazard area local law meeting the criteria specified in subdivision one of section 34-0105 of this article, applicable to the erosion hazard area of such city, town or village. Notwithstanding any other provisions of law, whether general or special, or any provision of local law or ordinance, to carry out the purposes of this section, counties shall, within the erosion hazard area subject to such county local law, be deemed to possess the same implementation powers as could be exercised by the city, town or village within which the erosion hazard area is situated. The commissioner shall provide whatever technical assistance he may deem necessary for preparation of a local law pursuant to this section. . . . 6. In any city, town or village where there is in effect a county erosion hazard area local law adopted pursuant to this section, nothing herein shall be construed as preventing such city, town or village from submitting, at any time, an erosion hazard area ordinance or local law to the commissioner for approval pursuant to section 34-0105 of this article. If such ordinance or local law is approved by the commissioner, he shall immediately notify the affected county, and the county local law shall cease to apply to the affected erosion hazard area from the date of receipt by the county of such notification. 7. (a) If approval of a city (other than a city which wholly includes one or more counties), town or village erosion hazard area ordinance or local law is revoked by the commissioner pursuant to subdivision four of section 34-0105 of this article, the commissioner may designate the county in which such city, town or village is located to administer and enforce such city, town or village ordinance or local law so as to insure compliance of activities or development in the affected erosion hazard area with the minimum standards promulgated pursuant to section 34-0108 of this article. Such county shall be deemed to possess all

administrative and enforcement powers included in such city, town or village ordinance or local law.

or other forms of approval as they may have been granted by law.

(b) The commissioner shall reinstate approval of the city, town or village ordinance or local law when the commissioner is satisfied that the city, town or village will carry out the purposes and policies of this article, at which time administration and enforcement by the county pursuant to this subdivision shall cease, and the city, town or village shall administer and enforce such ordinance or local law.

§ 34-0107. Department regulation of coastal erosion hazard areas

8. The commissioner shall revoke his approval of a county erosion hazard area local law, or shall revoke his designation pursuant to subdivision six of this section of a county to administer and enforce a city, town or village ordinance or local law, if he determines, after notice and hearing relative thereto, that the affected county has failed to administer or enforce such ordinance or local law to adequately carry out the purposes and policies of this article. In the event of such revocation, the provisions of subdivision three of section 34-0107 of this article shall apply. 9. Where an application is made for any permit, variance or other form of approval required pursuant to any local law enacted and approved by the commissioner pursuant to this section, for any activity or development within a designated erosion hazard area, the county to which such application is made shall ascertain what, if any, other permit, variance or hearing procedures or applications are required with regard to such activity or development by any governing body of the state or its subdivisions pursuant to any federal, state or local law or ordinance. Such county, at the request of the applicant, shall consolidate and coordinate said application, permit, variance and hearing procedures, as required by each such governing authority, into a single, comprehensive hearing and review procedure with regard to such activity or development. However, nothing contained in this section shall be deemed to limit or restrict the state, its subdivisions, or any other governing authorities, which are properly a party to such consolidated review proceeding, from the independent exercise of such discretionary authority with respect to the issuance, denial or modification of such permits, variances

1. If a city which wholly includes one or more counties fails to submit an erosion hazard area local law or ordinance to the commissioner within the time specified in subdivision one of section 34-0105 of this article, as such time may be extended by the commissioner under subdivision three of such section, or if such local law or ordinance has been disapproved pursuant to subdivision two of such section, or if a county fails to submit an erosion hazard area local law to the commissioner within the time specified in subdivision one of section 34-0106 of this article as such time may be extended by the commissioner under subdivision three of such section, or if a county local law has been disapproved pursuant to subdivision two of such section, the commissioner shall, within ninety days after such failure or disapproval, as the case may be, issue and enforce regulations which apply the minimum standards promulgated pursuant to section 34-0108 of this article within the affected erosion hazard area. . . . § 34-0108. Rules and regulations 1. After consultation with affected state agencies and representatives of local governments, and after conducting public hearings and review of any other comments submitted, the commissioner shall adopt rules and regulations implementing the provisions of this article within one hundred eighty days after the effective date hereof. 2. The rules and regulations adopted by the commissioner shall include a procedure pursuant to which any owner of land in an erosion hazard area identified pursuant to section 34-0104 of this article may appeal from the inclusion of such land in such erosion hazard area. Such procedure shall provide that the sole basis for such appeal shall be technical information indicating either (a) that the long-term average annual recession or other method used in identifying the erosion hazard area was incorrect, or (b) that an area has been identified as a natural protective area erroneously, and that the commissioner shall decide such appeal within thirty days after receipt thereof, and shall adjust the boundaries

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of the identified erosion hazard area or identified natural protective features accordingly.

to minimize erosion on the site or to other nearby lands.

3. The rules and regulations adopted by the commissioner pursuant to sections 34-0105, 34-0106 and 34-0107 of this article shall establish minimum standards and criteria to be applied to activities or development in erosion hazard areas. Such standards and criteria shall be used to deny, condition or modify a proposed action, if necessary, to implement the policies and purposes of this article. Standards and criteria promulgated pursuant to this section shall include but shall not be limited to:

4. The rules and regulations shall provide procedure pursuant to which the strict application of their standards and criteria may be varied or modified in cases where practical difficulty or unnecessary hardship is shown, provided that in granting any such variance, the following criteria are met:

(a) minimum setback requirements for structures within coastal erosion hazard areas taking into consideration recession rates, the useful life of the proposed structure, and the protection afforded by natural protective features and existing erosion protection structures. (b) regulation of activities or development, including placement of erosion protection structures or use of non-structural measures so there will be no measurable increase in erosion to the development site or at other locations. (c) regulation of activities or development, including placement of erosion protection structures, so as to minimize adverse effects upon natural protective features, existing erosion protection structures or natural resources, such as significant fish and wildlife habitat. (d) standards and criteria shall provide that erosion protection structures that are proposed for construction or reconstruction shall have a reasonable probability of controlling long-term erosion on the immediate site for a period of at least thirty years and that a long-term maintenance program is provided for such structures; however such standards and criteria may allow for such protection structures to be constructed of materials which by themselves have a working life of less than thirty years, when the maintenance program assures that they will be regularly maintained and replaced as necessary to attain the required thirty years of erosion protection. (e) restoration and stabilization standards for activities which are to be undertaken in connection with activities or development to insure that land areas are maintained and where necessary restored

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(a) for any proposed activities and development where public funds are utilized the public benefits clearly outweigh the long-range adverse effects. (b) no reasonable prudent alternative site is available. (c) all responsible means and measures to mitigate adverse impacts on natural systems in the area have been incorporated into the project design and will be implemented at the developer’s expense. (d) the development will be reasonably safe from flood and erosion damage. (e) the variance provided will be the minimum necessary to overcome the practical difficulty or unnecessary hardship which was the basis for requesting such variance. 5. Notwithstanding section 34-0105 or 34-0106 of this article, in the case of any department, bureau, commission, board or other agency of the state, or any public benefit corporation, any member of which is appointed by the governor, a permit shall be obtained from the department pursuant to section 34-0109 of this article provided, however, in cases where there is a local law or ordinance in effect the commissioner shall make a finding prior to the issuance of the permit that the conditions of such local law or ordinance have been met, insofar as such conditions relate to the standards and criteria adopted pursuant to section 34-0108 of this article. § 34-0109. Administration; applications for permits 1. Applicability (a) Where the commissioner has, pursuant to subdivision one of section 34-0107 of this article, issued regulations which apply the minimum standards promulgated pursuant to section 34-0108 of this article to activities or development within any erosion hazard area, any person proposing to undertake activities or development subject to

such regulations shall obtain a permit as provided in this section. (b) A proposed activity or development in an erosion hazard area shall be deemed an action that is likely to require the preparation of an environmental impact statement pursuant to subparagraph (i) of paragraph (c) of subdivision two of section 80113 of this chapter. 2. Applications for permits (a) An application for a permit shall be submitted in such form and manner as the commissioner may prescribe, and shall contain a detailed description of the proposed development which is sufficient to enable the commissioner to make the findings and determinations required by this section. (b) Review by the commissioner of applications for permits pursuant to this section shall be governed by the provisions of article seventy of this chapter. 3. Decision (a) No permit shall be granted pursuant to this section unless the commissioner shall find that the proposed activity complies with the minimum standards promulgated pursuant to section 340108 of this article as such standards are applied to the affected erosion hazard area by the regulations issued by the commissioner pursuant to section 34-0107 of this article.

(b) In granting a permit, the commissioner may limit such permit or impose reasonable conditions or limitations designed to carry out the public policy set forth in this article. Upon a finding that the applicant has a record of non-compliance with the terms and conditions of permits, the commissioner may require a bond or other form of financial security in amount and with surety and conditions satisfactory to him to secure compliance with the terms, conditions and limitations set forth in the permit. The commissioner may suspend or revoke a permit if he finds that the applicant has not complied with any of the terms, conditions or limitations set forth in the permit. § 34-0110. Provision of technical assistance The commissioner shall encourage and assist affected local governments in the preparation and implementation of erosion hazard area ordinances and local laws. When an erosion hazard area has been identified pursuant to section 34-0104 of this article, the commissioner shall provide to the affected local governments whatever technical assistance may be necessary to enable such local governments to prepare and adopt erosion hazard area ordinances or local laws meeting the requirements of section 34-0105 of this article or section 34-0106 of this article, as the case may be. Such efforts shall include, as may be necessary, maps, model erosion hazard area regulations, and other information. . . .

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Coastal Erosion Hazard Zone Ordinance Town of Babylon (Suffolk County), New York Summary: This ordinance was adopted by the Town of Babylon, on Long Island, under the authority of the state Coastal Erosion Hazard Areas Act and the Municipal Home Rule Law. The ordinance establishes standards and procedures for minimizing damage to structures and for protecting natural resources from coastal erosion. It employs the coastal erosion area delineation established by the New York State Department of Environmental Conservation (NYSDEC) and specifies separate definitions and restrictions for nearshore areas, beach areas, and dune areas. Special consideration is given to the protection of bird nesting and breeding areas and other special wildlife habitat identified by the NYSDEC. This local law goes beyond state guidelines by prohibiting development in nearshore and beach areas. The Town of Babylon. Web site is: http://www. townofbabylon.com/ The Babylon Town Code is available at: http://gcp.esub.net/cgi-bin/om isapi. dll?clientID=96859&infobase=ba0924.nfo& softpage=Browse Frame Pg42 CODE OF THE TOWN OF BABYLON, NEW YORK

Part II. General Legislation Chapter 99. Coastal Erosion Hazard Areas

§§ 99–1 to 99–14 Article I. General Provisions

§ 99–1. Legislative authority Pursuant to the provisions of Article 34 of the New York State Environmental Conservation Law § 10 of the Municipal Home Rule Law, the Town of Babylon, County of Suffolk, State of New York, hereby enacts, by Local Law No. 2 of 1989, this chapter. . . . § 99–4. Purpose The Town of Babylon hereby assumes the responsibility and authority to implement and administer a coastal erosion management program within its jurisdiction pursuant to Article 34 of the New

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York State Environmental Conservation Law. It is the purpose of this chapter to: A. Establish standards and procedures for minimizing and preventing damage to structures from coastal flooding and erosion and to protect natural protective features and other natural resources. B. Regulate, in coastal areas subject to coastal flooding and erosion, land use and development activities so as to minimize or prevent damage or destruction to man-made property, natural protective features and other natural resources and to protect human life. C. Regulate new construction or placement of structures in order to place them a safe distance from areas of active erosion and the impacts of coastal storms to ensure that these structures are not prematurely destroyed or damaged due to improper siting, as well as to prevent damage to natural protective features and other natural resources. D. Restrict public investment in services, facilities or activities which are likely to encourage new permanent development in erosion hazard areas. E. Regulate the construction of erosion protection structures in coastal areas subject to serious erosion to assure that, when the construction of erosion protection structures is justified, their construction and operation will minimize or prevent damage or destruction to man-made property, private and public property, natural protective features and other natural resources. § 99–5. Findings The Town of Babylon finds that the coastal erosion hazard area: A. Is prone to erosion from action of the Atlantic Ocean and Fire Island Inlet. Such erosion may be caused by action of waves, currents running along the shore and wind-driven water and ice. Such areas are also prone to erosion caused by the wind, runoff of rainwater along the surface of the land or

groundwater seepage, as well as by human activities such as construction, navigation and certain forms of recreation.

vegetation, whichever is most waterward. Shorelands subject to seasonal or more frequent overwash or inundation are considered to be “beaches.”

B. Experiences coastal erosion which causes extensive damage to publicly and privately owned property and to natural resources as well as endangering human lives. When this occurs, individuals and private businesses suffer significant economic losses, as do the Town and the state economies, either directly through property damage or indirectly through loss of economic return. Large public expenditures may also be necessitated for the removal of debris and damaged structures and replacement of essential public facilities and services.

coastal erosion hazard area map – The final map and any amendments thereof issued by the Commissioner of the New York State Department of Environmental Conservation, which delineates boundaries of coastal erosion hazard areas subject to regulation under this chapter. coastline and coastal waters – The land adjacent to the Town of Babylon coastal waters is the “coastline.” The “coastal waters” are the Atlantic Ocean and its connecting water bodies, bays, harbors, shallows and marshes.

C. Experiences erosion-related problems that are often contributed to by man’s building without considering the potential for damage to property, by undertaking activities which destroy natural protective features such as dunes or vegetation by building structures intended for erosion prevention which may exacerbate erosion conditions on adjacent or nearby property and by water action produced by wakes from boats.

debris line – A linear accumulation of waterborne debris deposited on a beach by storm-induced high water or by wave action.

D. Is the subject of programs which foster erosion protection structures, either with private or public funds, which are costly, often only partially effective over time and may even be harmful to adjacent or nearby properties. In some sections of the Town, major erosion protection structures of great length would be required to effectively reduce future damages due to erosion.

erosion – The loss or displacement of land along the coastline due to the action of waves, currents, wind-driven water, waterborne ice or other impacts of storms. It also means the loss or displacement of land due to the action of wind, runoff or surface waters or groundwaters or groundwater seepage.

§ 99–6. Definitions The following terms, as used in this chapter, shall have the meanings indicated, unless the context clearly requires otherwise: administrator – The Commissioner of Environmental Control or his or her designee shall be responsible for administering and enforcing this chapter. The powers and duties of this position are fully described in § 99–26. beach – The zone of unconsolidated earth that extends landward from the mean low-water line to the waterward toe of a dune. Where no dune exists landward of a “beach,” the landward limit of a “beach” is 100 feet landward from the place where there is a marked change in material or physiographic form or from the line of permanent

department – The New York State Department of Environmental Conservation. dune – A ridge or hill of loose, windblown or artificially placed earth, the principal component of which is sand.

erosion hazard area – An area of the coastline which is a structural hazard area, or a natural protective feature area. erosion protection structure – A structure specifically designed to reduce or prevent erosion such as a groin, jetty, revetment, breakwater or artificial beach nourishment project. existing structure – A structure and appurtenances in existence or one where construction has commenced or one where construction has not begun but for which a building permit has been issued prior to the effective date of this chapter, as set forth in § 99–3 herein. grading – A redistribution of sand or other unconsolidated earth to effect a change in profile. major addition – An addition to a structure resulting in a twenty-five-percent or greater increase in the ground area coverage of the structure, other than

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an erosion protection structure or a pier, dock or wharf. The increase will be calculated as follows: the ground area coverage to be added, including any additions previously constructed under a coastal erosion management permit, divided by the ground area coverage of the existing structure as defined in “existing structure.” The sum total ground area coverage of subsequent additions may not exceed 25% of the ground area coverage of the existing structure as that term is defined in § 99–6 herein. mean low water – The approximate average low water level for a given body of water at a given location, determined by reference to hydrological information concerning water levels or other appropriate tests. modification – A change in size, design or function. movable structure – A structure designed and constructed to be readily relocated with minimum disruption of the intended use. Mobile homes and structures built on skids or piles and not having a permanent foundation are examples of “movable structures.” natural protective feature – A nearshore area, beach, primary dune, secondary dune or marsh and their vegetation. natural protective feature area – A land and/or water area containing natural protective features, the alteration of which might reduce or destroy the protection afforded other lands against erosion or high water or lower the reserve of sand or other natural materials available to replenish storm losses through natural processes. nearshore area – Those lands under water beginning at the mean low-water line and extending waterward in a direction perpendicular to the shoreline to a point where mean low water depth is 15 feet to or a horizontal distance of 1,000 feet from the mean low-water line, whichever is greater. normal maintenance – Periodic replacement or repair of same-kind structural elements or protective coatings which do not change the size, design or function of a functioning structure. A “functioning structure” is one which is fully performing as originally designed at the time that “normal maintenance” is scheduled to begin. “Normal

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maintenance” of a structure does not require a coastal erosion management permit. person – Any individual, public or private corporation, political subdivision, government agency, public improvement district, partnership, association, firm, trust, estate or any other legal entity whatsoever. primary dune – The most waterward major dune where there are two or more parallel lines within a coastal area. Where there is only one dune present, it is the primary one. Occasionally one or more relatively small dune formations exist waterward of the “primary dune.” These smaller formations will be considered to be part of the primary dune for the purposes of this chapter. The waterward limit of the “primary dune” is the landward limit of its fronting beach. The landward limit of the primary dune is 25 feet landward of its landward toe. receding edge – The most landward line of active erosion or, in cases where there is no discernible line of active erosion, it is the most waterward line of permanent vegetation. recession rate – The rate, expressed in feet per year, at which an eroding shoreline moves landward. regulated activity – The construction, modification, restoration or placement of a structure or major addition to a structure or any action or use of land which materially alters the condition of land, including grading, excavating, dumping, mining, dredging, filling or other disturbance of soil. restoration – The reconstruction, without modification, of a structure, the cost of which equals or exceeds 50% of the estimated full replacement cost of the structure at time of “restoration.” Modifications, however, may be allowed if they do not exceed preexisting size limits and are intended to mitigate impacts to natural protective features and other natural resources. secondary dune – The major dune immediately landward of the primary dune. The waterward limit of a “secondary dune” is the landward limit of its fronting primary dune. The landward limit of a “secondary dune” is 25 feet landward of its landward toe. significant fish and wildlife habitat – Those habitats which are essential to the survival of a large portion of a particular fish or wildlife population;

support rare or endangered species; are found at a very low frequency within a geographic area; support fish or wildlife populations having significant commercial or recreational value; or that would be difficult or impossible to replace. structural hazard area – Those shorelands located landward of natural protective features and having shorelines receding at a long-term average recession rate of one foot or more per year. The inland boundary of a “structural hazard area” is calculated by starting at the landward limit of the fronting natural protective feature and measuring along a line perpendicular to the shoreline a horizontal distance landward which is 40 times the longterm average annual recession rate. structure – Any object constructed, installed or placed in, on or under land or water, including but not limited to a building, permanent shed, deck, in-ground and aboveground pool, garage, mobile home, road, public service distribution, transmission or collection system, tank, dock, pier, wharf, groin, jetty, seawall, bulkhead, breakwater, revetment, artificial beach nourishment or any addition to or alteration of the same. toe – The lowest surface point on a slope face of a dune. unregulated activity – Excepted activities which are not regulated by this chapter include, but are not limited to, elevated walkways or stairways constructed solely for pedestrian use and built by an individual property owner for the limited purpose of providing noncommercial access to the beach; docks, piers, wharves or structures built on floats, columns, open timber piles or other similar openwork supports with a top surface area of less than 200 square feet or which are removed in the fall of each year; normal beach grooming or cleanup; maintenance of structures when normal and customary and/or in compliance with an approved maintenance program; planting vegetation and sand fencing so as to stabilize or entrap sand in primary dune and secondary dune areas, in order to maintain or increase the height and width of dunes; routine agricultural operations, including cultivation or harvesting, and the implementation of practices recommended in a soil and water conservation plan as defined in Section 3(12) of the Soil and Water Conservation District Law; provided,

however, that agricultural operations and implementation of practices will not be construed to include any activity that involves the construction or placement of a structure. vegetation – Plant life capable of surviving and successfully reproducing in the area or region and which is compatible with the environment of the coastal erosion hazard area. Article II. Standards and Restrictions

§ 99-7. Areas established; boundaries The coastal erosion hazard area is hereby established to classify land and water areas within the Town of Babylon, based upon shoreline recession rates or the location of natural protective features. The boundaries of the area are established on the final map prepared by the New York State Department of Environmental Conservation under § 34-0104 of the New York State Environmental Conservation Law and entitled “Coastal Erosion Hazard Area Map of the Town of Babylon,” including all amendments made thereto by the Commissioner of the New York State Department of Environmental Conservation pursuant to § 34-0104 of the New York State Environmental Conservation Law. § 99–8. Permit required for regulated activities No person may engage in any regulated activity in an erosion hazard area as depicted on the Coastal Erosion Hazard Areas Map of the Town of Babylon, as amended, without first obtaining a coastal erosion management permit. No coastal erosion management permit is required for unregulated activities. § 99–9. General standards A coastal erosion management permit will be issued only with a finding by the administrator that the proposed regulated activity: A. Is reasonable and necessary, considering reasonable alternatives to the proposed activity and the extent to which the proposed activity requires a shoreline location. B. Is not likely to cause a measurable increase in erosion at the proposed site and at other locations. C. Prevents, if possible, or minimizes adverse effects on natural protective features and their functions and protective values, existing erosion protection structures and natural resources.

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§ 99–10. Nearshore area restrictions A. Nearshore areas dissipate a substantial amount of wave energy before it is expended on beaches or dunes by causing waves to collapse or break. Nearshore areas also function as reservoirs of sand, gravel and other unconsolidated material for beaches. Sandbars, which are located in nearshore areas, control the orientation of incoming waves and promote the development of ice cap formations which help protect shorelines during winter storms. The roots of aquatic vegetation in nearshore areas bind fine-grained silts, clays and organic matter to form a fairly cohesive bottom that resists erosion. B. The following restrictions apply to regulated activities in nearshore areas: (1) Excavating, grading, mining or dredging which diminishes the erosion protection afforded by nearshore area is prohibited, except construction or maintenance of navigation channels, bypassing sand around natural and man-made obstructions and artificial beach nourishment, all of which require a coastal erosion management permit. (2) Clean sand or gravel of an equivalent or slightly larger grain size is the only material which may be deposited within nearshore areas. Any deposition will require a coastal erosion management permit. (3) All development is prohibited in nearshore areas unless specifically provided for by this chapter. § 99–11. Beach area restrictions A. Beaches buffer shorelands from erosion by absorbing wave energy that otherwise would be expended on the toes of dunes. Beaches that are high and wide protect shorelands from erosion more effectively than beaches that are low or narrow. Beaches also act as reservoirs of sand or other unconsolidated material for longshore littoral transport and offshore sandbar and shoal formation. B. The following restrictions apply to regulated activities in beach areas: (1) Excavating, grading or mining which diminishes the erosion protection afforded by beaches is prohibited.

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(2) Clean sand or gravel of an equivalent or slightly larger grain size is the only material which may be deposited within beach areas. Any deposition will require a coastal erosion management permit which may be issued only for expansion or stabilization of beaches. (3) Active bird nesting and breeding areas must not be disturbed unless such disturbance is pursuant to a specific wildlife management activity approved in writing by the New York State Department of Environmental Conservation. (4) All development is prohibited on beaches unless specifically provided for by this chapter. (5) The restoration of existing structures on beaches that are damaged or destroyed by events not related to coastal flooding and erosion may be undertaken without a coastal erosion management permit. § 99–12. Dune area restrictions A. Dunes prevent overtopping and store sand for coastal processes. High, vegetated dunes provide a greater degree of protection than low, unvegetated ones. Dunes are of the greatest protective value during conditions of storm-induced high water. Because dunes often protect some of the most biologically productive areas as well as developed coastal areas, their protective value is especially great. The key to maintaining a stable dune system is the establishment and maintenance of beach grass or other vegetation on the dunes and assurance of a supply of nourishment sand to the dunes. B. The following restrictions apply to regulated activities in dune areas: (1) In primary dune areas: (a) Excavating, grading or mining of primary dunes is prohibited. (b) Clean sand of a compatible type and size is the only material which may be deposited. Any deposition requires a coastal erosion management permit. (c) All depositions must be vegetatively stabilized using species tolerant of the conditions at the site and must be placed so as to increase the size of, or restore, a dune or dune area.

(d) Active bird nesting and breeding areas must not be disturbed unless such disturbance is pursuant to a specific wildlife management activity approved in writing by the New York State Department of Environmental Conservation. (e) Nonmajor additions to existing structures are allowed on primary dunes pursuant to a coastal erosion management permit and subject to permit conditions concerning the location, design and potential impacts of the structure on the primary dune. (f) Stone revetments or other erosion protection structures compatible with primary dunes will only be allowed at the waterward toe of primary dunes and must not interfere with the exchange of sand between primary dunes and their fronting beaches. (2) In secondary dune areas: (a) All depositions must be of clean sand of a compatible type and size, and all grading must be performed so as to increase the size of, or restore, a dune or former dune area. (b) Excavating, grading or mining must not diminish the erosion protection afforded by them. (c) Nonmajor additions to existing structures are allowed on secondary dunes pursuant to a coastal erosion management permit. (d) Permitted construction, reconstruction, restoration or modifications must be built on adequately anchored pilings such that at least three feet of open space exists between the floor joints and the surface of the secondary dune, and the permitted activity must leave the space below the lowest horizontal structural members free of obstructions. (3) All other activities and development in dune areas are prohibited unless specifically provided for by this chapter. (4) The restrictions of § 99–14, Traffic control, apply to dune areas. (5) The restoration of existing structures in dune areas that are damaged or destroyed by events not related to coastal flooding and erosion may be

undertaken without a coastal erosion management permit. § 99–13. Erosion protection structures The following requirements apply to the construction, modification or restoration of erosion protection structures: A. The construction, modification or restoration of erosion protection structures must: (1) Not be likely to cause a measurable increase in erosion at the development site or at other locations. (2) Minimize and, if possible, prevent adverse effects upon natural protective features, existing erosion protection structures and natural resources such as significant fish and wildlife habitats. B. All erosion protection structures must be designed and constructed according to generally accepted engineering principles which have demonstrated success or, where sufficient data is not currently available, a likelihood of success in controlling long-term erosion. The protective measures must have a reasonable probability of controlling erosion on the immediate site for at least 30 years. C. All materials used in such structures must be durable and capable of withstanding inundation, wave impacts, weathering and other effects of storm conditions for a minimum of 30 years. Individual component materials may have a working life of less than 30 years only when a maintenance program ensures that they will be regularly maintained and replaced as necessary to attain the required 30 years of erosion protection. D. A long-term maintenance program must be included with every permit application of construction, modification or restoration of an erosion protection structure. The maintenance program must include specifications for normal maintenance of degradable materials. To assure compliance with the proposed maintenance programs, a bond may be required. § 99–14. Traffic control Motorized and nonmotorized traffic must comply with the following restrictions and those set forth

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in Chapter 81 of Babylon Town Code: A. Motor vehicles must not travel on vegetation, must operate seaward of the debris line and, when no debris line exists, must operate seaward of the seaward toe of the primary dune.

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B. Motor vehicle traffic is prohibited on primary dunes, except for officially posted access points. C. Pedestrian passage across primary dunes must utilize elevated walkways and stairways or other specially designed dune crossing structures.

New Hampshire State Land Use Enabling Act Summary: New Hampshire does not require local governments to adopt zoning, but if a local government chooses to zone it is required first to adopt a master plan. The master plan must include a vision section and a land use element. It may also include transportation, community facilities, economic development, natural resources, natural hazards, and recreation elements. The state’s grant of power to local governments extends the purposes of the Standard State Zoning Enabling Act to expressly include the use of innovative planning techniques and the use of phased development for growth management. Among the innovative techniques mentioned in the statute, the “village plan alternative subdivision” allows for clustering to preserve open space, to reduce infrastructure costs, and to protect property values. The full text of the statute is available at: http://www.gencourt.state.nh.us/rsa/html/ indexes/674.html

TITLE LXIV. PLANNING AND ZONING

Chapter 674. Local Land Use Planning and Regulatory Powers 674:2 Master Plan; Purpose and Description

I The purpose of the master plan is to set down as clearly and practically as possible the best and most appropriate future development of the area under the jurisdiction of the planning board, to aid the board in designing ordinances that result in preserving and enhancing the unique quality of life and culture of New Hampshire, and to guide the board in the performance of its other duties in a manner that achieves the principles of smart growth, sound planning, and wise resource protection. II The master plan shall be a set of statements and land use and development principles for the municipality with such accompanying maps, diagrams, charts and descriptions as to give legal standing to the implementation ordinances and other measures

of the planning board. Each section of the master plan shall be consistent with the others in its implementation of the vision section. The master plan shall be a public record subject to the provisions of RSA 91-A. The master plan shall include, at a minimum, the following required sections: (a) A vision section that serves to direct the other sections of the plan. This section shall contain a set of statements which articulate the desires of the citizens affected by the master plan, not only for their locality but for the region and the whole state. It shall contain a set of guiding principles and priorities to implement that vision. (b) A land use section upon which all the following sections shall be based. This section shall translate the vision statements into physical terms. Based on a study of population, economic activity, and natural, historic, and cultural resources, it shall show existing conditions and the proposed location, extent, and intensity of future land use. III. The master plan may also include the following sections: (a) A transportation section which considers all pertinent modes of transportation and provides a framework for both adequate local needs and for coordination with regional and state transportation plans. Suggested items to be considered may include but are not limited to public transportation, park and ride facilities, and bicycle routes, or paths, or both. (b) A community facilities section which identifies facilities to support the future land use pattern of subparagraph II (b), meets the projected needs of the community, and coordinates with other local governments’ special districts and school districts, as well as with state and federal agencies that have multi-jurisdictional impacts. (c) An economic development section which proposes actions to suit the community’s

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economic goals, given its economic strengths and weaknesses in the region. (d) A natural resources section which identifies and inventories any critical or sensitive areas or resources, not only those in the local community, but also those shared with abutting communities. This section provides a factual basis for any land development regulations that may be enacted to protect natural areas. A key component in preparing this section is to identify any conflicts between other elements of the master plan and natural resources, as well as conflicts with plans of abutting communities. The natural resources section of the master plan should include a local water resources management and protection plan as specified in RSA 4-C:22. (e) A natural hazards section which documents the physical characteristics, severity, frequency, and extent of any potential natural hazards to the community. It should identify those elements of the built environment at risk from natural hazards as well as extent of current and future vulnerability that may result from current zoning and development policies. (f) A recreation section which shows existing recreation areas and addresses future recreation needs. (g) A utility and public service section analyzing the need for and showing the present and future general location of existing and anticipated public and private utilities, both local and regional, including telecommunications utilities, their supplies, and facilities for distribution and storage. (h) A section which identifies cultural and historic resources and protects them for rehabilitation or preservation from the impact of other land use tools such as land use regulations, housing, or transportation. (i) A regional concern section, which describes the specific areas in the municipality of significant regional interest. These areas may include resources wholly contained within the municipality or bordering, or shared, or both, with neighboring municipalities. Items to be considered may include but are not limited to public facilities, natural resources, economic and housing potential, transportation, agriculture, and open space.

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The intent of this section is to promote regional awareness in managing growth while fulfilling the vision statements. (j) A neighborhood plan section which focuses on a specific geographical area of local government that includes substantial residential development. This section is a part of the local master plan and shall be consistent with it. No neighborhood plan shall be adopted until a local master plan is adopted. (k) A community design section to identify positive physical attributes in a municipality and provide for design goals and policies for planning in specific areas to guide private and public development. (l) A housing section which assesses local housing conditions and projects future housing needs of residents of all levels of income and ages in the municipality and the region as identified in the regional housing needs assessment performed by the regional planning commission pursuant to RSA 36:47, II, and which integrates the availability of human services with other planning undertaken by the community. (m) An implementation section, which is a long range action program of specific actions, time frames, allocation of responsibility for actions, description of land development regulations to be adopted, and procedures which the municipality may use to monitor and measure the effectiveness of each section of the plan. . . .

674:16 Grant of Power

I For the purpose of promoting the health, safety, or the general welfare of the community, the local legislative body of any city, town, or county in which there are located unincorporated towns or unorganized places is authorized to adopt or amend a zoning ordinance under the ordinance enactment procedures of RSA 675:2–5. The zoning ordinance shall be designed to regulate and restrict: (a) The height, number of stories and size of buildings and other structures; (b) Lot sizes, the percentage of a lot that may be occupied, and the size of yards, courts, and other open spaces;

(c) The density of population in the municipality; and (d) The location and use of buildings, structures and land used for business, industrial, residential, or other purposes. II. The power to adopt a zoning ordinance under this subdivision expressly includes the power to adopt innovative land use controls which may include, but which are not limited to, the methods contained in RSA 674:21. III. In its exercise of the powers granted under this subdivision, the local legislative body of a city, town, or county in which there are located unincorporated towns or unorganized places may regulate and control the timing of development as provided in RSA 674:22. . . . 674:18 Adoption of Zoning Ordinance. The local

legislative body may adopt a zoning ordinance under RSA 674:16 only after the planning board has adopted the mandatory sections of the master plan as described in RSA 674:2, I and II. . . . 674:21 Innovative Land Use Controls.

I Innovative land use controls may include, but are not limited to: (a) Timing incentives. (b) Phased development. (c) Intensity and use incentive. (d) Transfer of development rights. (e) Planned unit development. (f) Cluster development. (g) Impact zoning. (h) Performance standards. (i) Flexible and discretionary zoning. (j) Environmental characteristics zoning. (k) Inclusionary zoning. (l) Accessory dwelling unit standards. (m) Impact fees. (n) Village plan alternative subdivision. II. An innovative land use control adopted under RSA 674:16 shall contain within it the standards

which shall guide the person or board which administers the ordinance. An innovative land use control ordinance may provide for administration, including the granting of conditional or special use permits, by the planning board, board of selectmen, zoning board of adjustment, or such other person or board as the ordinance may designate. If the administration of the innovative provisions of the ordinance is not vested in the planning board, any proposal submitted under this section shall be reviewed by the planning board prior to final consideration by the administrator. In such a case, the planning board shall set forth its comments on the proposal in writing and the administrator shall, to the extent that the planning board’s comments are not directly incorporated into its decision, set forth its findings and decisions on the planning board’s comments. III. Innovative land use controls must be adopted in accordance with RSA 675:1, II. IV. As used in this section: (a) “Inclusionary zoning” means land use control regulations which provide a voluntary incentive or benefit to a property owner in order to induce the property owner to produce housing units which are affordable to persons or families of low and moderate income. Inclusionary zoning includes, but is not limited to, density bonuses, growth control exemptions, and a streamlined application process. (b) “Accessory dwelling unit” means a second dwelling unit, attached or detached, which is permitted by a land use control regulation to be located on the same lot, plat, site, or other division of land as the permitted principal dwelling unit. V. As used in this section “impact fee” means a fee or assessment imposed upon development, including subdivision, building construction or other land use change, in order to help meet the needs occasioned by that development for the construction or improvement of capital facilities owned or operated by the municipality, including and limited to water treatment and distribution facilities; wastewater treatment and disposal facilities; sanitary sewers; storm water, drainage and flood control facilities; public road systems and rights-of-way;

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municipal office facilities; public school facilities; the municipality’s proportional share of capital facilities of a cooperative or regional school district of which the municipality is a member; public safety facilities; solid waste collection, transfer, recycling, processing and disposal facilities; public library facilities; and public recreational facilities not including public open space. No later than July 1, 1993, all impact fee ordinances shall be subject to the following: (a) The amount of any such fee shall be a proportional share of municipal capital improvement costs which is reasonably related to the capital needs created by the development, and to the benefits accruing to the development from the capital improvements financed by the fee. Upgrading of existing facilities and infrastructures, the need for which is not created by new development, shall not be paid for by impact fees. (b) In order for a municipality to adopt an impact fee ordinance, it must have enacted a capital improvements program pursuant to RSA 674:5–7. (c) Any impact fee shall be accounted for separately, shall be segregated from the municipality’s general fund, may be spent upon order of the municipal governing body, shall be exempt from all provisions of RSA 32 relative to limitation and expenditure of town moneys, and shall be used solely for the capital improvements for which it was collected, or to recoup the cost of capital improvements made in anticipation of the needs which the fee was collected to meet. (d) All impact fees imposed pursuant to this section shall be assessed prior to, or as a condition for, the issuance of a building permit or other appropriate permission to proceed with development. In the interim between assessment and collection, municipalities may require developers to post bonds, issue letters of credit, accept liens, or otherwise provide suitable measures of security so as to guarantee future payment of assessed impact fees. Impact fees shall normally be collected as a condition for the issuance of a certificate of occupancy. The above notwithstanding, in projects where offsite improvements are to be constructed simultaneously with a project’s development, and where a municipality has appropriated the necessary

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funds to cover such portions of the work for which it will be responsible, that municipality may advance the time of collection of the impact fee to the issuance of a building permit. Nothing in this subparagraph shall prevent the municipality and the assessed party from establishing an alternate, mutually acceptable schedule of payment. (e) The ordinance shall establish reasonable times after which any portion of an impact fee which has not become encumbered or otherwise legally bound to be spent for the purpose for which it was collected shall be refunded, with any accrued interest. Whenever the calculation of an impact fee has been predicated upon some portion of capital improvement costs being borne by the municipality, a refund shall be made upon the failure of the legislative body to appropriate the municipality’s share of the capital improvement costs within a reasonable time. The maximum time which shall be considered reasonable hereunder shall be six years. (f) Unless otherwise specified in the ordinance, any decision under an impact fee ordinance may be appealed in the same manner provided by statute for appeals from the officer or board making that decision, as set forth in RSA 676:5, RSA 677:2–14, or RSA 677:15, respectively. (g) The ordinance may also provide for a waiver process, including the criteria for the granting of such a waiver. (h) The adoption of a growth management limitation or moratorium by a municipality shall not affect any development with respect to which an impact fee has been paid or assessed as part of the approval for that development. (i) Neither the adoption of an impact fee ordinance, nor the failure to adopt such an ordinance, shall be deemed to affect existing authority of a planning board over subdivision or site plan review, except to the extent expressly stated in such an ordinance. VI. (a) In this section, “village plan alternative” means an optional land use control and subdivision regulation to provide a means of promoting a more efficient and cost effective method of land development. The village plan alternative’s

purpose is to encourage the preservation of open space wherever possible. The village plan alternative subdivision is meant to encourage beneficial consolidation of land development to permit the efficient layout of less costly to maintain roads, utilities, and other public and private infrastructures; to improve the ability of political subdivisions to provide more rapid and efficient delivery of public safety and school transportation services as community growth occurs; and finally, to provide owners of private property with a method for realizing the inherent development value of their real property in a manner conducive to the creation of substantial benefit to the environment and to the political subdivision’s property tax base. (b) An owner of record wishing to utilize the village plan alternative in the subdivision and development of a parcel of land, by locating the entire density permitted by the existing land use regulations of the political subdivision within which the property is located, on 20 percent or less of the entire parcel available for development, shall provide to the political subdivision within which the property is located, as a condition of approval, a recorded easement reserving the remaining land area of the entire, original lot, solely for agriculture, forestry, and conservation, or for public recreation. The recorded easement shall limit any new construction on the remainder lot to structures associated with farming operations, forest management operations, and conservation uses. Public recreational uses shall be subject to the written approval of those abutters whose property lies within the village plan alternative subdivision portion of the project at the time when such a public use is proposed. (c) The village plan alternative shall permit the developer or owner to have an expedited subdivision application and approval process wherever land use and subdivision regulations may apply. The submission and approval procedure for a village plan alternative subdivision shall be the same as that for a conventional subdivision. Existing zoning and subdivision regulations relating to emergency access, fire prevention, and public health and safety concerns including any setback requirement for wells, septic systems, or wetland

requirement imposed by the department of environmental services shall apply to the developed portion of a village plan alternative subdivision, but lot size regulations and dimensional requirements having to do with frontage and setbacks measured from all new property lot lines, and lot size regulations, as well as density regulations, shall not apply. The total density of development within a village plan alternate subdivision shall not exceed the total potential development density permitted a conventional subdivision of the entire original lot unless provisions contained within the political subdivision’s land use regulations provide a basis for increasing the permitted density of development within a village plan alternative subdivision. In no case shall a political subdivision impose lesser density requirements upon a village plan alternative subdivision than the density requirements imposed on a conventional subdivision. (d) Within a village plan alternative subdivision, the exterior wall construction of buildings shall meet or exceed the requirements for fire-rated construction described by the fire prevention and building codes being enforced by the state of New Hampshire at the date and time the property owner of record files a formal application for subdivision approval with the political subdivision having jurisdiction of the project. Exterior walls and openings of new buildings shall also conform to fire protective provisions of all other building codes in force in the political subdivision. Wherever building code or fire prevention code requirements for exterior wall construction appear to be in conflict, the more stringent building or fire prevention code requirements shall apply. (e) If the total area of a proposed village plan alternative subdivision including all roadways and improvements does not exceed 20 percent of the total land area of the undeveloped lot, and if the proposed subdivision incorporates the total sum of all proposed development as permitted by local regulation on the undeveloped lot, all existing and future dimensional requirements imposed by local regulation, including lot size, shall not apply to the development. 674:22 Growth Management; Timing of Development. The local legislative body may further

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exercise the powers granted under this subdivision to regulate and control the timing of development. Any ordinance imposing such a control may be adopted only after preparation and adoption by the planning board of a master plan

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and a capital improvement program and shall be based upon a growth management process intended to assess and balance community development needs and consider regional development needs.

Dover, New Hampshire Overriding Districts Ordinance Summary: This ordinance is adopted under the authority of New Hampshire’s Planning and Zoning Enabling Act, §674:16, and the state’s Comprehensive Shorelands Protection Act, §483-B:8, which delegates authority to municipalities to protect watercourses. “Overriding districts” – more commonly known as overlay districts – are superimposed on existing zoning districts. Their regulations supplement existing zoning regulations and, in this ordinance, are adopted to protect watercourses and wetlands as well as steep slope areas. The ordinance is intended to preserve the flora and fauna of the community and to maintain high water quality. A conservation district requires a 100-foot buffer from the mean high water mark of most waterways in the town and a 50-foot buffer from smaller freshwater streams. In addition, the conservation district protects steep slopes over 20% in grade. No development is permitted in these areas and permanent tree cover must be maintained.

susceptibility to flooding and with unique or fragile geologic, ecological or nature features as follows:

The full text of the Dover Code is available at: http://www.ci.dover.nh.us/Archives/ newArchives.htm

(5) To preserve existing natural drainage systems and the vegetation and wildlife habitats therein.

CITY OF DOVER, NEW HAMPSHIRE – DOVER ZONING CODE

Article VII. Overriding Districts

170-26. Additional regulations All overriding districts shall be superimposed upon other zoning districts established in this chapter. The regulations stipulated by the overriding districts shall be in addition to the regulations of the underlying zoning districts and other applicable city ordinances. 170-27. Conservation District. A. Purpose. In the interest of environmental quality, public health, resource conservation and the general welfare of the public, the regulations of this district are designed to guide development activities in areas with extended periods of high water table, with

(1) To prevent the development of structures and land uses on naturally occurring wetlands and flood-prone areas which would contribute to pollution of surface and ground water by sewage or other contaminants. (2) To prevent the destruction of natural wetlands or aquifer areas which provide flood protection, recharge of groundwater supply and augmentation of stream flow during dry periods. (3) To prevent unnecessary or excessive expenses to the city to provide and maintain essential services and utilities which arise because of inharmonious use of wetlands and other environmentally sensitive areas. (4) To encourage those uses that can be most appropriately and safely located in wetland and other environmentally sensitive areas.

(6) To preserve wetlands and other environmentally sensitive areas for other ecological reasons inter alia, those cited in RSA 483B. (7) To preserve and enhance those aesthetic values associated with waterways and the natural shoreline. B. Location. The Conservation District is hereby determined to consist of the following: (1) Those areas within a minimum of one hundred (100) feet of the mean high water of any water body, river, stream, swamp or marsh subject to tidal action and those areas within a minimum of one hundred (100) feet of the mean high water of any freshwater river or natural pond. (2) Those areas within a minimum of fifty (50) feet of the mean high water of any stream, brook or other freshwater body. (3) Those areas owned by and situated in the City of Dover and known as lots: [Omitted].

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(4) Those areas with slopes in excess of twenty percent (20%). C. Conditional Use Permits. Conditional Use Permits may be granted by the Planning Board for the following uses within the Conservation District: (1) Streets, roads, and other access ways and utility rights-of-way, communications equipment, easements, including power lines and pipe lines, if essential to the productive use of land not so zoned and if so located and constructed as to minimize any detrimental impact of such uses upon the wetlands or other environmentally sensitive areas, where it is physically impossible to locate such ways over land not so zoned. Economic advantage alone shall not be deemed a sufficient reason for such a routing. (2) The undertaking of a use not otherwise permitted in the Conservation District, which may include the erection of a structure, dredging, filling, draining, or otherwise altering the surface configuration of the land, provided that: (a) A soil erosion and sedimentation control plan is submitted to verify the planned avoidance of erosion along bodies of water. (b) Necessary state and federal approvals have been received. (c) A written review by the Conservation Commission of the environmental effects of the proposed use upon the area in question has been submitted. D. Procedures for subdivision. No subdivision of land shall be permitted which would create a lot or parcel or leave as a remainder a lot or parcel which does not have, outside the Conservation Zoning District, an area equal to the minimum lot size or one (1) acre, whichever is less. The Zoning Board of Adjustment may grant an exception to this rule if such a lot or parcel is to be permanently dedicated to open space or natural uses and is to be dedicated to a public or private agency having as a purpose the holding of such land in a natural state in perpetuity. E. Other provisions (1) Reference is hereby made to RSA 483A, as amended, which evidences a state concern over preservation of such lands. It is intended that the provisions of that statute shall apply and that in all cases the more restrictive law should apply.

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(2) In all cases where the Conservation District is superimposed over another zoning district in the city, that district whose regulations are the more restrictive shall apply. (3) The Conservation District adopted herein is hereby designated as open space under RSA 79-A, and all relevant provisions of RSA 79-A relating to current use assessment of such property shall apply. (4) In areas herein defined as the “Conservation District,” the cutting of trees shall be limited to no more than fifty percent (50%) of the basal area within a ten-year period. A continuous area of tree cover shall be maintained. (5) Upon the discretion of the Building Inspector, a structure may be erected within the Conservation District as described in Subsection B(1) up to but never closer than seventy-five (75) feet of the mean high water mark, provided that: (a) The lot existed within the Conservation District, as recorded in the Strafford County Registry of Deeds, prior to the effective date of this subsection. (b) The structure cannot feasibly be constructed on a portion or portions of the lot which are outside the one-hundred-foot setback of the Conservation District. (6) Upon the discretion of the Building Inspector, a structure located within the Conservation District, as described in Subsection B(1) and (2) and existing prior to the effective date of this subsection, may be increased up to twenty percent (20%) in area, provided that the enlarged structure at no point falls within seventy-five (75) feet of the mean high water mark. (7) Customary accessory structures shall be allowed within the Conservation District as described in Subsection B(1) but in no case closer than seventyfive (75) feet to the mean high water. (8) Projects which have been officially accepted by the Planning Board prior to the October 10, 1986, amendment posting date shall be exempt of all revisions herein. (9) Land area contained within the Conservation District can be counted in determining the gross land area of a tract, lot or parcel. F. The provisions of the Conservation District adopted herein shall not be binding on Cocheco

waterfront lots located in the B-2, UMUD and CWD Zoning Districts, provided that any proposed development actively integrates and makes use of the Cocheco River waterfront resource. G. Boat Docks (1) A boat dock may be allowed on a residential lot, provided that the following provisions are met: (a) The dock is for recreational and accessory use only. (b) One (1) dock is allowed per lot. (c) The beneficiary of an easement or right-ofway, recorded at the Strafford County Registry of Deeds prior to the October 10, 1986 amendment posting date for the purpose of providing water access to nonwaterfront lots, shall be entitled to one (1) boat dock within the prescribed easement or right-of-way. (d) All applicable state and federal approvals have been received. (e) A dock may be provided a maximum space for two (2) slips. Joint use or private docks by adjoining waterfront residents, not to exceed two (2) slips per lot, shall be encouraged when appropriate. 170-27.1. Wetland Protection district A. Authority. By the authority granted under RSA 674:16 and 17, this section is designed to protect the wetland areas and surface waters within the City of Dover from certain activities, the impact of which results in the alteration or destruction of wetland areas. B. Purpose and intent It is intended that this section shall:

(4) Protect wildlife habitats, maintain ecological balances and enhance ecological values such as those cited in RSA 483-A-1-B. (5) Protect potential water supplies and existing aquifers (water-bearing stratum) and aquifer recharge areas. (6) Prevent unnecessary or excessive expense to the city for the purpose of providing and/or maintaining essential services and utilities which might be required as a result of misuse or abuse of wetlands. (7) Encourage those low-intensity uses that can be harmoniously, appropriately, and safely located in wetlands. (8) Preserve and enhance the aesthetic values associated with wetlands in the City of Dover. (9) Avoid the high costs of constructing heavy structures and prevent damage to structures and abutting properties caused by inappropriate development in wetland areas. C. District boundaries (1) The Wetlands Protection District is hereby determined to be: (a) All areas of very poorly drained soils. (b) All areas of poorly drained soil which presently support or which will under natural conditions support a predominance of hydrophitic vegetation. These include areas which are naturally occurring or artificially created. (c) All areas of poorly drained soils, regardless of vegetative types, which are contiguous to surface waters such as ponds, streams (perennial or intermittent) and rivers and within the one-hundredyear flood zone as determined by the Federal Emergency Management Agency.

(2) Prevent the destruction of, or significant changes to, wetlands which provide flood protection, recharge the groundwater supply and augment stream flow during dry periods and filtration of water flowing into ponds and streams.

(2) For the purpose of this section, “poorly drained soils” and “very poorly drained soils” shall be defined by the Soil Survey of Strafford County, New Hampshire, March 1973, as amended. The Wetlands Soils Map, which is on file at the Planning Department and the City Clerk’s office at city Hall, illustrates the general location of these soils for informational purposes but does not depict the exact boundaries of Wetland Protection Districts for the purpose of this section.

(3) Protect unique and unusual natural areas and rare and endangered species.

(3) “Hydrophitic (water-loving) vegetation” is defined as those plants identified in the “1986

(1) Prevent the development of structures and land uses on wetlands which will contribute to pollution of surface and ground water by sewerage, toxic substances or sedimentation.

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Wetland Plant List Northeast Region” of the United States Fish and Wildlife Service. The more common names associated with these vegetative communities are “bogs,” “swamps,” “marshes,” (saltwater and freshwater) and “tidal wetlands.” D. Procedural requirements. (1) Presence of Wetland Protection District on site. (a) Where maps or field investigation indicate that a Wetland Protection District is present on a proposed development site, those wetlands shall be delineated by a High Intensity Soil (HIS) Survey Map prepared by a certified soil scientist. If necessary, a botanist shall be used in conjunction with the soil scientist to identify wetland vegetation where required. The botanist shall have equivalent and practical experience to that of the soil scientist. (b) Applications for a building permit, subdivision and site plan approval shall locate and depict on the survey/subdivision plat/site plan all Wetland Protection Districts on the subject parcel. Any applicant seeking said approval(s) will be responsible for providing this information before the appropriate approval or permit can be granted.

(5) Standards established herein shall constitute the rules of overlay zones and shall be superimposed over other zoning districts or portions thereof. The provisions herein shall apply in addition to all other applicable ordinances and regulations. In the event of a conflict between any provision herein and any other regulation, the more-restrictive requirement shall control. (6) The city shall have the power to enforce this section, and violations may be punishable by fines as provided by RSA 676:17. E. Permitted uses. (1) Any use otherwise permitted by the City Zoning Ordinance, except on-site sewage disposal systems, may be permitted in a Wetland Protection District on poorly drained soils. Any use permitted under Section E(1) must first receive conditional use approval as provided for in Section F before any building permit or subdivision/site plan can be approved. (2) The following uses shall be permitted in a Wetland Protection District on very poorly drained soils: (a) Crossing of a Wetland Protection District as provided for in Section F(1).

(c) Where no evidence has been produced, either by the applicant or the city, that a wetland is present on the site, an HIS map shall not be required under this section.

(b) The construction or reconstruction of fences, footbridges, catwalks, boat docks, and wharves does not require a conditional use permit, provided that:

(2) The Planning Department shall notify the Conservation Commission of all projects and construction proposed in wetland districts for the purpose of allowing the Commission to make recommendations prior to approval.

[1] Said structures are constructed on posts or pilings so as to permit unobstructed flow of water and are designed in compliance with the New Hampshire Wetlands Board Code of Administrative Rules (WT 400 and 600).

(3) In the event that the accuracy of the boundaries submitted by the applicant is suspect, the Planning Board may call upon the services of a certified soil scientist and/or botanist to reexamine said area and report the findings to the Planning Board for a boundary determination. The cost of said services shall be paid by the applicant.

[2] The natural contour of the wetland is preserved.

(4) The Building Inspector shall not issue a building permit for construction and the Planning Board shall not approve a site plan or subdivision plat unless such construction activity or proposal conforms to the provisions of this ordinance.

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[3] All other applicable provisions of the city’s Zoning Ordinance have been met. F. Conditional use approval (1) Conditional use approval may be granted by the Planning Board (RSA 674:21II) after proper public notice and public hearing, for the crossing of the Wetland Protection District by a road or other accessway, utility right-of-way, communication lines, power lines, and pipelines, provided that

the proposed construction complies with the following standards: (a) The proposed construction is essential to the productive use of land or water outside the Wetlands Protection District. (b) Design, construction, and maintenance methods will be prepared by a registered engineer to minimize detrimental impacts to the wetlands and will include restoration of the site as nearly as possible to its original grade. (c) No reasonable alternative to the proposed construction exists which does not cross or alter a wetland or which has less detrimental impact on a wetland. (2) Conditional use approval also may be granted by the Planning Board for development in the Wetlands Protection District on poorly drained soil. To obtain such an approval, the applicant shall perform or cause to have performed a functional evaluation of the wetlands on which development is proposed. Said functional evaluation shall examine the wetland in terms of the four (4) following criteria: flood control value; ecological integrity; nutrient retention and sediment trapping value; and groundwater use potential. The functional evaluation shall be performed in accordance with the procedures outlined in the “Wetland Evaluation Handbook for the City of Dover” which is on file in the office of the City Clerk and Planning Department in City Hall. If three (3) or more of the criteria being evaluated for a particular wetland have a functional value index (FVI) below five-tenths (0.5), the proposed use may be permitted by the Planning Board, provided that all other provisions of this section have been satisfied. If the wetland has an FVI of five-tenths (0.5) or greater for two (2) or more of the criteria, the proposed use shall not be permitted. (3) The burden of proof that the conditions specified in Subsection F(1) and/or (2) above have been met shall be the responsibility of the person(s) requesting the conditional use approval, except as herein provided. Regarding a development proposed for a parcel of land smaller than ten (10) acres, the applicant shall provide the High Intensity Soil Map, and the City of Dover shall conduct the evaluation in accordance with the Wetland Evaluation Handbook.

(4) The conditional use approval shall apply only to the project specified at the time of approval and shall not be transferable to a different project. (5) For the purposes of evaluating wetlands and granting conditional use permits, the Planning Board may divide a Wetland Protection District into smaller study areas, allowing different evaluations to be assigned to the various study areas and allowing a conditional use permit to be approved for certain study areas and not for others. (6) If deemed necessary by the Planning Board, prior to the granting of a conditional use approval, the applicant shall agree to submit a performance security to ensure that all operations are carried out in accordance with an approved design. This security shall be submitted in an amount sufficient to complete all specified work and repair damage to any wetland area in which no work has been authorized. The security shall be submitted in an amount, with surety and conditions satisfactory to the Planning Board. The security shall be submitted and approved prior to issuance of any permit authorizing construction. (7) The Planning Board may assess the applicant reasonable fees to cover the costs of special investigative studies and for the review of documents required by applications.

G. Specific provisions (1) Any construction altering the surface configuration of the land, shall be set back at least seventyfive (75) feet from a very poorly drained Wetland Protection District. (2) No septic tank or leach field may be constructed or enlarged closer than seventy-five (75) feet to any Wetland Protection District. In new subdivisions approved subsequent to adoption of this section, there must be sufficient lot size to place a house, a state-approved septic system, where applicable, and a state-approved well, where applicable, without locating them in a wetland. This provision can be waived if a conditional use approval is obtained from the Planning Board. (3) A state dredge and fill application shall be submitted for any proposed change to a wetland (RSA 483-A).

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H. Filled lands and preexisting uses (1) Lands which may have been wetlands but were filled under properly issued federal, state and local permits granted prior to the adoption of this section will be judged according to the soils and flora existing at the time the application for building permit or subdivision is made. (2) Structures and uses existing at the time of the adoption of this section that do not comply with the rules stated herein shall be regulated in accordance with 170–40 and 170–41 of this chapter. I. Exemption for one- and two-family residential structures, existing lots, impoundments and maintenance dredging (1) Notwithstanding other provisions of this chapter, the construction of additions and/or extensions to one- and two-family dwellings shall be permitted within the Wetlands Protection District, provided that: (a) The dwelling(s) lawfully existed prior to the effective date of this section; (b) The proposed construction conforms to all other applicable ordinances and regulations of the City of Dover; and (c) The design and construction of the proposed use will be done in a manner which minimizes the impacts on the affected wetland, including storage of excavation and construction material outside the wetland and installation of siltation fence and/or hay bales to contain erosion of the construction site. (2) Notwithstanding other provisions of the ordinance, a new one- or two-family dwelling shall be permitted in the Wetlands Protection District on an existing lot, provided that all of the following conditions are found to exist: (a) The lot for which an approval/permit is sought was an official lot of record, as recorded in the Strafford County Registry of Deeds, prior to the

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date on which this amendment was posted and published in the city. (b) The structure for which the approval/permit is sought cannot be feasibly built on a portion or portions of the lot which are outside the Wetlands Protection District. (c) Due to the provisions of the Wetlands Protection District, no reasonable and economically viable use of the lot can be made without the exemption. (d) The design and construction of the proposed structure will, to the extent practical, be consistent with the purpose and intent of this ordinance. (e) The proposed structure will not create a hazard to individual or public health, safety and welfare due to the loss of wetland, the contamination of groundwater, or other reason. (f) The design and construction of the proposed structure will be done in a manner which minimizes the impacts on the affected wetland, including storage of excavation and construction material outside the wetland and installation of siltation fence and/or hay bales to contain erosion of the construction site. (3) Water impoundments with related structures and maintenance dredging for navigational purposes (where a dredge spoil site has been approved by the Planning Board) are exempt from the regulations stated herein. Notwithstanding, copies of permits where required by the New Hampshire Wetlands Board, New Hampshire Water Supply and Pollution Control Division, and the United States Army Corp. of Engineers shall be submitted to the Planning Board prior to construction. (4) The burden of proof that the conditions specified in Subsection I(1) and/or (2) above have been met shall be the responsibility of the person(s) requesting the approval/permit. J. Separability. [Omitted.]

Wisconsin’s Smart Growth Act Summary: Wisconsin’s “Smart Growth Act,” adopted in 1999, requires local governments to adopt a comprehensive plan by January 1, 2010, if they engage in zoning or other specified land use actions. As amended, the statute requires that official mapping; local subdivision regulation; city, town, village, and county zoning; and shorelands and wetlands zoning must be consistent with a comprehensive plan. Required elements of the comprehensive plan are as follows: issues and opportunities; housing; transportation; utilities and community facilities; agricultural, natural, and cultural resources; economic development; intergovernmental cooperation; land use; and implementation. The state also requires that cities and villages with a population greater than 12,500 adopt a traditional neighborhood development ordinance that encourages mixed uses and compact development. The Wisconsin statutes are available at: http://www.legis.state.wi.us/rsb/stats.html

(c) “Political subdivision” means a city, village, town, or county that may adopt, prepare, or amend a comprehensive plan. (2) Contents of a comprehensive plan. A comprehensive plan shall contain all of the following elements: (a) Issues and opportunities element. Background information on the local governmental unit and a statement of overall objectives, policies, goals and programs of the local governmental unit to guide the future development and redevelopment of the local governmental unit over a 20-year planning period. Background information shall include population, household, and employment forecasts that the local governmental unit uses in developing its comprehensive plan, and demographic trends, age distribution, educational levels, income levels, and employment characteristics that exist within the local governmental unit.

3. For a regional planning commission, a master plan that is adopted or amended under s. 66.0309(8), (9) or (10).

(b) Housing element. A compilation of objectives, policies, goals, maps, and programs of the local governmental unit to provide an adequate housing supply that meets existing and forecasted housing demand in the local governmental unit. The element shall assess the age, structural, value, and occupancy characteristics of the local governmental unit’s housing stock. The element shall also identify specific policies and programs that promote the development of housing for residents of the local governmental unit and provide a range of housing choices that meet the needs of persons of all income levels and of all age groups and persons with special needs, policies, and programs that promote the availability of land for the development or redevelopment of low-income and moderate-income housing, and policies and programs to maintain or rehabilitate the local governmental unit’s existing housing stock.

(b) “Local governmental unit” means a city, village, town, county or regional planning commission that may adopt, prepare or amend a comprehensive plan.

(c) Transportation element. A compilation of objectives, policies, goals, maps and programs to guide the future development of the various modes of transportation, including highways, transit,

WISCONSIN STATUTES

§ 66.1001. Comprehensive planning (1) Definitions. In this section: (a) “Comprehensive plan” means: 1. For a county, a development plan that is prepared or amended under s. 59.69(2) or (3). 2. For a city or a village, or for a town that exercises village powers under s. 60.22(3), a master plan that is adopted or amended under s. 62.23(2) or (3).

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transportation systems for persons with disabilities, bicycles, electric personal assistive mobility devices, walking, railroads, air transportation, trucking, and water transportation. The element shall compare the local governmental unit’s objectives, policies, goals and programs to state and regional transportation plans. The element shall also identify highways within the local governmental unit by function and incorporate state, regional and other applicable transportation plans, including transportation corridor plans, county highway functional and jurisdictional studies, urban area and rural area transportation plans, airport master plans and rail plans that apply in the local governmental unit. (d) Utilities and community facilities element. A compilation of objectives, policies, goals, maps and programs to guide the future development of utilities and community facilities in the local governmental unit such as sanitary sewer service, storm water management, water supply, solid waste disposal, on-site wastewater treatment technologies, recycling facilities, parks, telecommunications facilities, power-generating plants and transmission lines, cemeteries, health care facilities, child care facilities, and other public facilities, such as police, fire and rescue facilities, libraries, schools, and other governmental facilities. The element shall describe the location, use, and capacity of existing public utilities and community facilities that serve the local governmental unit, shall include an approximate timetable that forecasts the need in the local governmental unit to expand or rehabilitate existing utilities and facilities or to create new utilities and facilities and shall assess future needs for government services in the local governmental unit that are related to such utilities and facilities. (e) Agricultural, natural, and cultural resources element. A compilation of objectives, policies, goals, maps and programs for the conservation, and promotion of the effective management, of natural resources such as groundwater, forests, productive agricultural areas, environmentally sensitive areas, threatened and endangered species, stream corridors, surface water, floodplains, wetlands, wildlife habitat, metallic and nonmetallic mineral resources consistent with zoning limitations under s. 295.20(2), parks, open

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spaces, historical and cultural resources, community design, recreational resources and other natural resources. (f) Economic development element. A compilation of objectives, policies, goals, maps, and programs to promote the stabilization, retention or expansion, of the economic base and quality employment opportunities in the local governmental unit, including an analysis of the labor force and economic base of the local governmental unit. The element shall assess categories or particular types of new businesses and industries that are desired by the local governmental unit. The element shall assess the local governmental unit’s strengths and weaknesses with respect to attracting and retaining businesses and industries, and shall designate an adequate number of sites for such businesses and industries. The element shall also evaluate and promote the use of environmentally contaminated sites for commercial or industrial uses. The element shall also identify county, regional and state economic development programs that apply to the local governmental unit. (g) Intergovernmental cooperation element. A compilation of objectives, policies, goals, maps, and programs for joint planning and decision making with other jurisdictions, including school districts and adjacent local governmental units, for siting and building public facilities and sharing public services. The element shall analyze the relationship of the local governmental unit to school districts and adjacent local governmental units, and to the region, the state and other governmental units. The element shall incorporate any plans or agreements to which the local governmental unit is a party under s. 66.0301, 66.0307, or 66.0309. The element shall identify existing or potential conflicts between the local governmental unit and other governmental units that are specified in this paragraph and describe processes to resolve such conflicts. (h) Land-use element. A compilation of objectives, policies, goals, maps, and programs to guide the future development and redevelopment of public and private property. The element shall contain a listing of the amount, type, intensity, and net density of existing uses of land in the local governmental unit, such as agricultural, residential, commercial, industrial, and other public and

private uses. The element shall analyze trends in the supply, demand, and price of land, opportunities for redevelopment and existing and potential land-use conflicts. The element shall contain projections, based on the background information specified in par. (a), for 20 years, in 5-year increments, of future residential, agricultural, commercial, and industrial land uses including the assumptions of net densities or other spatial assumptions upon which the projections are based. The element shall also include a series of maps that shows current land uses and future land uses that indicate productive agricultural soils, natural limitations for building site development, floodplains, wetlands, and other environmentally sensitive lands, the boundaries of areas to which services of public utilities and community facilities, as those terms are used in par. (d), will be provided in the future, consistent with the timetable described in par. (d), and the general location of future land uses by net density or other classifications. (i) Implementation element. A compilation of programs and specific actions to be completed in a stated sequence, including proposed changes to any applicable zoning ordinances, official maps, or subdivision ordinances, to implement the objectives, policies, plans, and programs contained in pars. (a) to (h). The element shall describe how each of the elements of the comprehensive plan will be integrated and made consistent with the other elements of the comprehensive plan, and shall include a mechanism to measure the local governmental unit’s progress toward achieving all aspects of the comprehensive plan. The element shall include a process for updating the comprehensive plan. A comprehensive plan under this subsection shall be updated no less than once every 10 years. (3) Actions, procedures that must be consistent with comprehensive plans. Beginning on January 1, 2010, if a local governmental unit engages in any of the following actions, those actions shall be consistent with that local governmental unit’s comprehensive plan: (g) Official mapping established or amended under s. 62.23(6). (h) Local subdivision regulation under s. 236.45 or 236.46.

(j) County zoning ordinances amended under s. 59.69.

enacted

or

(k) City or village zoning ordinances enacted or amended under s. 62.23(7). (l) Town zoning ordinances enacted or amended under s. 60.61 or 60.62. (q) Zoning of shorelands or wetlands in shorelands under s. 59.692, 61.351 or 62.231. [Please note that the lettering of the subheadings in §66.1001(3) is not consecutive in the original.] (4) Procedures for adopting comprehensive plans. A local governmental unit shall comply with all of the following before its comprehensive plan may take effect: (a) The governing body of a local governmental unit shall adopt written procedures that are designed to foster public participation, including open discussion, communication programs, information services, and public meetings for which advance notice has been provided, in every stage of the preparation of a comprehensive plan. The written procedures shall provide for wide distribution of proposed, alternative, or amended elements of a comprehensive plan and shall provide an opportunity for written comments on the plan to be submitted by members of the public to the governing body and for the governing body to respond to such written comments. The written procedures shall describe the methods the governing body of a local governmental unit will use to distribute proposed, alternative, or amended elements of a comprehensive plan to owners of property, or to persons who have a leasehold interest in property pursuant to which the persons may extract nonmetallic mineral resources in or on property, in which the allowable use or intensity of use of the property is changed by the comprehensive plan. (b) The plan commission or other body of a local governmental unit that is authorized to prepare or amend a comprehensive plan may recommend the adoption or amendment of a comprehensive plan only by adopting a resolution by a majority vote of the entire commission. The vote shall be recorded in the official minutes of the plan commission or other body. The resolution shall refer to maps and other descriptive materials that relate to one or more elements of a comprehensive plan.

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One copy of an adopted comprehensive plan, or of an amendment to such a plan, shall be sent to all of the following: 1. Every governmental body that is located in whole or in part within the boundaries of the local governmental unit. 2. The clerk of every local governmental unit that is adjacent to the local governmental unit that is the subject of the plan that is adopted or amended as described in par. (b)(intro.). 3. The Wisconsin land council. 4. After September 1, 2005, the department of administration. 5. The regional planning commission in which the local governmental unit is located. 6. The public library that serves the area in which the local governmental unit is located. (c) No comprehensive plan that is recommended for adoption or amendment under par. (b) may take effect until the political subdivision enacts an ordinance or the regional planning commission adopts a resolution that adopts the plan or amendment. The political subdivision may not enact an ordinance or the regional planning commission may not adopt a resolution under this paragraph unless the comprehensive plan contains all of the elements specified in sub. (2). An ordinance may be enacted or a resolution may be adopted under this paragraph only by a majority vote of the memberselect, as defined in s. 59.001(2m), of the governing body. An ordinance that is enacted or a resolution that is adopted under this paragraph, and the plan to which it relates, shall be filed with at least all of the entities specified under par. (b). (d) No political subdivision may enact an ordinance or no regional planning commission may adopt a resolution under par. (c) unless the political subdivision or regional planning commission holds at least one public hearing at which the proposed ordinance or resolution is discussed. That hearing must be preceded by a class 1 notice under ch. 985 that is published at least 30 days before the hearing is held. The political subdivision or regional planning commission may also provide notice of the hearing by any other means it considers appropriate. The class 1 notice shall contain at least the following information:

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1. The date, time, and place of the hearing. 2. A summary, which may include a map, of the proposed comprehensive plan or amendment to such a plan. 3. The name of an individual employed by the local governmental unit who may provide additional information regarding the proposed ordinance. 4. Information relating to where and when the proposed comprehensive plan or amendment to such a plan may be inspected before the hearing, and how a copy of the plan or amendment may be obtained. (e) At least 30 days before the hearing described in par. (d) is held, a local governmental unit shall provide written notice to all of the following: 1. An operator who has obtained, or made application for, a permit that is described under s. 295.12(3)(d). 2. A person who has registered a marketable nonmetallic mineral deposit under s. 295.20. 3. Any other property owner or leaseholder who has an interest in property pursuant to which the person may extract nonmetallic mineral resources, if the property owner or leaseholder requests in writing that the local governmental unit provide the property owner or leaseholder notice of the hearing described in par. (d). (5) Applicability of a regional planning commission’s plan. A regional planning commission’s comprehensive plan is only advisory in its applicability to a political subdivision and a political subdivision’s comprehensive plan. (6) Comprehensive plan may take effect. Notwithstanding sub. (4), a comprehensive plan, or an amendment of a comprehensive plan, may take effect even if a local governmental unit fails to provide the notice that is required under sub. (4)(e), unless the local governmental unit intentionally fails to provide the notice. . . . 66.1027. Traditional neighborhood developments and conservation subdivisions (1) Definitions. In this section: (a) “Conservation subdivision” means a housing development in a rural setting that is characterized by compact lots and common open space, and

where the natural features of land are maintained to the greatest extent possible. (b) “Extension” has the meaning given in s. 36.05(7). (c) “Traditional neighborhood development” means a compact, mixed-use neighborhood where residential, commercial, and civic buildings are within close proximity to each other. (2) Model ordinances. (a) Not later than January 1, 2001, the extension, in consultation with any other University of Wisconsin System institution or with a landscape architect, as that term is used in s. 443.02(5), or with independent planners or any other consultant with expertise in traditional neighborhood planning and development, shall develop a model ordinance for a traditional neighborhood development and an ordinance for a conservation subdivision. (b) The model ordinances developed under par. (a) shall be presented to the chief clerk of each house of the legislature, and shall be referred immediately by the speaker of the assembly and the presiding officer of the senate to the appropriate standing committee in each house. The model ordinances shall be considered to have been

approved by a standing committee if within 14 working days of the referral, the committee does not schedule a meeting for the purpose of reviewing the model ordinance. If the committee schedules a meeting for the purpose of reviewing the model ordinance, the ordinance may not be considered to have been approved unless the committee approves the model ordinance. (3) City and village requirements. (a) Not later than January 1, 2002, every city and village with a population of at least 12,500 shall enact an ordinance that is similar to the model traditional neighborhood development ordinance that is developed under sub. (2)(a) if the ordinance is approved under sub. (2)(b), although the ordinance is not required to be mapped. (b) A city or village whose population reaches at least 12,500, after January 1, 2002, shall enact an ordinance that is similar to the model traditional neighborhood development ordinance that is developed under sub. (2)(a) if the ordinance is approved under sub. (2)(b) not later than the first day of the 12th month beginning after the city’s or village’s population reaches at least 12,500, although the ordinance is not required to be mapped.

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River Falls, Wisconsin, Traditional Neighborhood Development Ordinance Summary: The Traditional Neighborhood Development (TND) Ordinance adopts design principles that were common in the City of River Falls in the 1940s. The ordinance applies to designated neighborhoods within the city and provides alternative standards for land of 40 acres or more that is annexed to the city for development. Under the ordinance, TND combines “a mix of residential uses, a mixed-use area, and open space.” Walkable neighborhoods, access to public transportation, traffic calming patterns, and the reduction of impervious surfaces in parking areas are goals of the regulations. The ordinance also sets out architectural standards and guidelines for lighting, signage, and landscaping. The full text of the River Falls TND ordinance is available at: http://municipalcodes.lexisnexis. com/codes/riverfalls/

A. Neighborhoods have identifiable centers and edges. B. Edge lots are readily accessible to retail and recreation by non-vehicular means (a distance not greater than one half mile). C. Use and housing types are mixed and in close proximity to one another. D. Street networks are interconnected and blocks are small. E. Civic buildings are given prominent sites throughout the neighborhood. 17.112.030 Applicability. A. The traditional neighborhood development (TND) ordinance is an alternative set of standards for land annexed into the city for development consisting of forty (40) acres or more. B. The TND shall be required for those properties located within the neighborhood centers proposed on the future land use map of the sewer service area water quality management plan (October 2000).

RIVER FALLS, WISCONSIN, MUNICIPAL CODE

C. All TND developments shall follow the preliminary and final plat procedures listed in this code.

CHAPTER 17.112 TRADITIONAL NEIGHBORHOOD DEVELOPMENT

D. If there is a conflict between standard and design ordinances, the provisions of this chapter shall apply.

17.112.010 Statutory authorization.

This chapter is adopted pursuant to the authority contained in Sections 62.23 [City Planning] and 66.1027 of the Wisconsin Statutes. 17.112.020 Intent. The purpose of this district is to allow for development of fully integrated, mixed use pedestrian oriented neighborhoods. The intent is to minimize traffic congestion, suburban sprawl, infrastructure cost, and environmental degradation. Its provision adapted urban conventions, which were normally in the United States and the city of River Falls until the 1940s and historically were based on the following design principals:

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17.112.040 Definitions. The following definitions shall be observed and applied: “Boulevard” means the portion of the street rightof-way between the back of curb line and sidewalk or property line. The right-of-way shall be a minimum of seven feet for all residential areas. “Gateway” means a principal point or entrance into a district or neighborhood. “Gateway building” means a building located at a gateway and that marks the entrance or transition through massing, extended height, use of arches or colonnades, or other distinguishing features.

“Modified grid street pattern” means an interconnected system of streets that is primarily a rectilinear grid and pattern, however, modified in a street layout and block shape as to avoid a monotonous repetition of the basic street/block grid pattern. Street layouts for blocks are generally in the range of two to four hundred (200–400) feet deep by four to eight hundred (400–800) feet long. “Neighborhood center” means a street containing a mix of uses, including the planned small community’s greatest concentration of commercial development. The neighborhood center together with the community park shall form the focus of the traditional neighborhood. “Parkway” means a landscape median commonly located in the center of a public right-of-way. Parkways vary in width from four to fifteen (15) feet, depending on the street type and intensity of adjacent uses. “Traditional neighborhood” means a pedestrianoriented neighborhood, with variable lot widths and sizes, a mix of dwelling unit types, and nonresidential uses generally located along a neighborhood center or fronting on a community park. A minimum of two percent and a maximum of ten (10) percent of the gross area of the TND shall be designated for commercial and civic or institution use lots. At least fifty (50) percent of the minimum two percent lots shall be designated for civic or institution use lots. No part of the neighborhood should be more than a fifteen (15) minute walk from the neighborhood center (core). 17.112.050 Traditional neighborhood development design standards. A. Neighborhood Uses. In order to make a neighborhood walkable, it is important to mix land uses. Therefore a TND shall consist of three types of land uses: a mix of residential uses, a mixed-use area, and open space. A TND shall have approximately thirty (30) percent of the residential units designated for attached houses (multifamily) and small lot (fifty (50) feet or less in width) detached houses. These land uses types are provided below: 1. A mix of residential, uses of the following types can occur anywhere in the TND. For infill development, the mix of residential uses may be satisfied by existing residential uses within the TND.

a. Single-family detached dwellings; b. Single-family attached dwellings, including duplexes, twin homes, townhouses, row houses; c. Multifamily housing;

dwellings,

including

senior

d. “Special needs” housing, such as community living arrangements and assisted living facilities. 2. Mixed-use area, of commercial, residential, civic or institutional, and open space uses as some are identified below. Residents should be within approximately one-half mile or a fifteen (15) minute walk from existing or proposed commercial, civic, and open space areas. Individual commercial businesses shall not exceed six thousand (6,000) square feet in building size. Commercial and civic or institution use lots shall be within or adjacent to a square or park. a. Commercial uses: i. Food services (such as: neighborhood grocery stores; butcher shops; bakeries; restaurants, not including drive-through; cafes, coffee shops, neighborhood bars or pubs); ii. Retail uses (such as: florists or nurseries; hardware stores; stationery stores; book stores; studios and shops of artists and artisans); iii. Services (such as: day care centers; music, dance studios; offices, professional and medical; banks; barber; salon; dry cleaning; (gas station(s) and their uses shall be approved by the plan commission and city council at the time of platting and subject to further plan review.); iv. Accommodations (such as: bed and breakfast establishments, small hotels or inns). b. Residential uses: i. Single-family attached dwellings, including duplexes, townhouses, row houses; ii. Multifamily dwellings, including senior housing; iii. Residential units located on upper floors above commercial uses or to the rear of storefronts;

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iv. “Live/work” (home occupation) units that combine a residence and the resident’s workplace; v. “Special needs” housing, such as community living arrangements and assisted living facilities. c. Civic or institutional uses: i. Municipal offices, police, fire stations, libraries, museums, community meeting facilities, and post offices (these may be substations); ii. Transit shelters; iii. Places of worship; iv. Educational facilities (if required by school district). d. Open space uses: i. Central square; ii. Neighborhood park; iii. Playground. 3. Open Space, uses identified below should be incorporated in the traditional neighborhood development as appropriate. Large outdoor recreation areas should be located at the periphery of neighborhoods rather than central locations. a. Environmental and scenic corridors; b. Protected natural areas – conservancy parks; c. Community parks; d. Streams, ponds, and other water bodies; e. Storm water detention/retention facilities. B. Development Units. The number of residential dwelling units and the amount of nonresidential development (excluding open spaces) shall be determined as follows: 1. Mixed residential uses: a. The number of single-family attached and detached units permitted shall be three to six dwelling units per net acre; b. The number of multifamily units shall be medium six to nine and high nine to twelve dwelling units per net acre; 2. Mixed-use areas. a. The number of single-family and multifamily dwelling units permitted shall be calculated the same as above.

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b. All dwelling units constructed above commercial uses shall be permissible in addition to the number of dwelling units authorized under this section. However, the total number of dwelling units shall not be increased by more than ten (10) percent, whichever is greater. C. Parkland. Parkland shall be dedicated in accordance with the requirements of Chapter 16.20. Ninety (90) percent of the lots within the areas devoted to mixed residential use shall be within a one-half mile or a fifteen (15) minute walk from common open space dedicated for park purposes. D. Lot and Block Standards. 1. Block and Lot Size Diversity. Street layouts should provide for perimeter blocks that are generally in the range of two to four hundred (200–400) feet deep by four eight hundred (400–800) feet long. A variety of lot sizes throughout the TND shall be provided to facilitate housing diversity and choice and meet the projected requirements of people with different housing needs. No block face shall have a length greater than five hundred (500) feet without a dedicated alley or pathway providing through access. 2. Lot Widths. Lot widths should create a relatively symmetrical street cross section that reinforces the public space of the street as a simple, unified public space. 3. Building Setback, Front-Mixed Use Area. Structures in mixed use area have no minimum setback. Commercial and civic or institutional buildings should abut the sidewalks in mixed-use area. 4. Building, Setback, Front-Mixed Residential Uses. Single-family and multifamily residences shall have a building setback in the front between zero and twenty-five (25) feet. 5. Building Setback, Rear-Mixed Residential Uses. The principal building on lots devoted to singlefamily detached residences shall be setback no less than thirty (30) feet from the rear lot line. All other building shall be setback minimum of five feet. 6. Side Setbacks. Provision for zero lot-line singlefamily dwellings should be made, provided that a reciprocal access easement is recorded for both lots and townhouses or other attached dwellings, provided that all dwellings have pedestrian access to

the rear yard through means other than the principal structure. A corner lot shall comply with this code. E. Circulation Standards. The circulation system shall allow for different modes of transportation. The circulation system shall provide functional and visual links within the residential areas, mixed use area, and open space of TND and shall be connected to existing and proposed external development. The circulation system shall provide adequate traffic capacity, provide connected pedestrian, and bicycle routes (especially offstreet bicycle or multiuse paths or bicycle lanes on the streets), control through traffic, limit lot access to streets of lower traffic volumes and promote safe and efficient mobility through the TND. The applicant shall show compliance with this section, this code, and city plans (bicycle and pedestrian plan, park and recreation plan, and sewer service plan and city master plan) by submitting a circulation plan. The following provisions also apply: 1. Pedestrian Circulation. Convenient pedestrian circulation systems that minimize pedestrianmotor vehicle conflicts shall be provided continuously throughout the TND. Where feasible, any existing pedestrian routes through the site shall be preserved and enhanced. A minimum of a five foot-wide sidewalk shall be provided on both sides of all streets. 2. Bicycle Circulation. Bicycle circulation shall be accommodated on streets and/or on dedicated bicycle paths. 3. Public Transit Access. Where public transit service is available or planned, convenient access to transit stops shall be provided. Where transit shelters are provided, they shall be placed in highly visible locations that promote security through surveillance, and shall be well lighted. 4. Motor Vehicle Circulation. Motor vehicle circulation shall be designed to minimize conflicts with pedestrians and bicycles. Traffic calming features such as “queuing streets,” curb extensions, traffic circles, center turn lanes, and medians may be used to encourage slow traffic speeds. F. Parking Requirements. Parking areas for shared or community use should be encouraged. In addition:

1. Mixed-use area. In a mixed-use area any parking lot shall be located at the rear or side of a building. If located at the side, screening shall be provided. [Refer to landscaping and screening standards below] 2. Parking lot or garage. A parking lot or garage located adjacent to or opposite a street intersection shall be landscaped and screened. 3. Parking plan, A parking plan shall be submitted by the applicant showing compliance with this code. 4. Service access. Access for service vehicles should provide a direct route to serve and loading dock areas, while avoiding movement through parking areas. Alleyways may be provided in commercial and residential area for service vehicles, utilities, and other uses. 5. Paving. Reduction of impervious surfaces through the use of interlocking pavers is strongly encouraged for areas such as remote parking lots and parking areas for periodic uses. G. Architectural Standards. Due to the mixed-use nature of the development, architectural compatibility is necessary in order to visually integrate development and allow for proximity of varied uses. The design style of the TND shall be conveyed with drawing or computer simulations of typical proposed building elevations (including dimensions of building height and width, and facade treatment). 1. Guidelines for Existing Structures. Existing structures, if determined to be historic or architecturally significant, shall be protected from demolition or encroachment by incompatible structures or landscape development. The U.S. Secretary of the Interior’s Standards for Rehabilitation of Historic Properties shall be used as the criteria for renovating historic or architecturally significant structures. 2. Guidelines for New Structures. a. Entries and Facades. i. For commercial buildings the architectural features, materials, and the articulation of a building shall be continued on all sides visible from a public street. ii. The front facade of the principal building on any lot in a TND shall face onto a public street.

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iii. The front facade shall not be oriented to face directly toward a parking lot. iv. Porches, pent roofs, roof overhangs, hooded front doors, or other similar architectural elements shall define the front entrance to all residences. v. For commercial buildings, a minimum of fifty (50) percent of the front facade on the ground floor shall be transparent, consisting of window or door openings allowing views into and out of the interior. vi. For commercial structures on opposite sides of the same street should follow similar design guidelines. This provision shall not apply to buildings bordering civic uses. 3. Guidelines for Exterior Signage. A comprehensive sign program is required for the entire TND that establishes a uniform sign theme. Signs shall share a common style (e.g., size, shape, material). Signs for commercial uses shall be wall signs or cantilever signs. Cantilever signs shall be mounted perpendicular to the building face and shall not exceed eight square feet. 4. Guidelines for Lighting. Street lighting shall be provided along all streets. Generally more, smaller lights, as opposed to fewer, high-intensity lights, should be used. Street lights shall be installed on both sides of the street at intervals of not greater

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than seventy-five (75) feet. Street lighting design shall meet the minimum standards developed by the Illumination Engineering Society. Lighting structures shall be architecturally compatible with the surrounding area. Lighting shall be shielded and directed downward in order to reduce glare onto adjacent properties. H. Landscaping and Screening Standards. Overall composition and location of landscaping shall complement the scale of the development and its surroundings. In general, larger, well-placed contiguous planting areas shall be preferred to smaller, disconnected areas. Where screening is required by this ordinance, it shall be at least three feet in height, unless otherwise specified. Required screening shall be at least fifty (50) percent opaque throughout the year. Required screening shall be satisfied by one or some combination of a decorative fence not less than fifty (50) percent opaque behind a continuous landscaped area, a masonry wall, or a hedge. 1. Street Trees. Street Trees shall be planted in accordance to the requirement of this code. 2. Parking Area Landscaping and Screening. All parking and loading areas fronting public streets or sidewalks, and all paving and loading areas abutting residential district or uses, shall be in conformance with the parking standards and landscape requirements contained in this code.

Washington State Growth Management Act Summary: In Washington State, municipalities, including counties and cities, are authorized to plan under four main acts: the Growth Management Act (GMA), the Planning Commission Act, the Optional Municipal Code, and the Planning Enabling Act. Under §36.70A.040 of the GMA, cities and counties that meet designated population thresholds are required to adopt comprehensive plans. These plans must be consistent with the plans of other counties and cities having “common borders or related regional issues.” The act establishes mandatory elements of comprehensive plans: land use, housing, capital facilities, utilities, rural transportation, economic development, and park and recreation. The land use element sets out “the proposed general distribution and general location and extent of the uses of land,” with particular emphasis on the protection of groundwater. Counties that plan under the GMA “shall designate an urban growth area or areas within which urban growth shall be encouraged and outside of which growth can occur only if it is not urban in nature.” Rural development is regulated to encourage infill, to protect critical areas and open space, and to prevent “sprawling, low-density development in the rural area.” Unlike the federal Coastal Zone Management Act, the GMA requires the use of the best available science in designating critical areas. The full text of the Growth Management Act is available at: http://www.leg.wa.gov/RCW/index. cfm?fuseaction=chapterdigest&chapter=36.70A WASHINGTON STATE LAND USE ENABLING ACT CHAPTER 36.70A RCW. GROWTH MANAGEMENT – PLANNING BY SELECTED COUNTIES AND CITIES

RCW 36.70A.010 Legislative findings. The legislature finds that uncoordinated and unplanned growth, together with a lack of com-

mon goals expressing the public’s interest in the conservation and the wise use of our lands, pose a threat to the environment, sustainable economic development, and the health, safety, and high quality of life enjoyed by residents of this state. It is in the public interest that citizens, communities, local governments, and the private sector cooperate and coordinate with one another in comprehensive land use planning. Further, the legislature finds that it is in the public interest that economic development programs be shared with communities experiencing insufficient economic growth. RCW 36.70A.020 Planning goals. The following goals are adopted to guide the development and adoption of comprehensive plans and development regulations of those counties and cities that are required or choose to plan under RCW 36.70A.040. The following goals are not listed in order of priority and shall be used exclusively for the purpose of guiding the development of comprehensive plans and development regulations: (1) Urban growth. Encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner. (2) Reduce sprawl. Reduce the inappropriate conversion of undeveloped land into sprawling, lowdensity development. (3) Transportation. Encourage efficient multimodal transportation systems that are based on regional priorities and coordinated with county and city comprehensive plans. (4) Housing. Encourage the availability of affordable housing to all economic segments of the population of this state, promote a variety of residential densities and housing types, and encourage preservation of existing housing stock. (5) Economic development. Encourage economic development throughout the state that is consistent with adopted comprehensive plans, promote

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economic opportunity for all citizens of this state, especially for unemployed and for disadvantaged persons, promote the retention and expansion of existing businesses and recruitment of new businesses, recognize regional differences impacting economic development opportunities, and encourage growth in areas experiencing insufficient economic growth, all within the capacities of the state’s natural resources, public services, and public facilities. (6) Property rights. Private property shall not be taken for public use without just compensation having been made. The property rights of landowners shall be protected from arbitrary and discriminatory actions. (7) Permits. Applications for both state and local government permits should be processed in a timely and fair manner to ensure predictability. (8) Natural resource industries. Maintain and enhance natural resource-based industries, including productive timber, agricultural, and fisheries industries. Encourage the conservation of productive forest lands and productive agricultural lands, and discourage incompatible uses. (9) Open space and recreation. Retain open space, enhance recreational opportunities, conserve fish and wildlife habitat, increase access to natural resource lands and water, and develop parks and recreation facilities. (10) Environment. Protect the environment and enhance the state’s high quality of life, including air and water quality, and the availability of water. (11) Citizen participation and coordination. Encourage the involvement of citizens in the planning process and ensure coordination between communities and jurisdictions to reconcile conflicts. (12) Public facilities and services. Ensure that those public facilities and services necessary to support development shall be adequate to serve the development at the time the development is available for occupancy and use without decreasing current service levels below locally established minimum standards. (13) Historic preservation. Identify and encourage the preservation of lands, sites, and structures, that have historical or archaeological significance. . . .

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RCW 36.70A.040 Who must plan – Summary of requirements – Development regulations must implement comprehensive plans. (1) Each county that has both a population of fifty thousand or more and, until May 16, 1995, has had its population increase by more than ten percent in the previous ten years or, on or after May 16, 1995, has had its population increase by more than seventeen percent in the previous ten years, and the cities located within such county, and any other county regardless of its population that has had its population increase by more than twenty percent in the previous ten years, and the cities located within such county, shall conform with all of the requirements of this chapter. However, the county legislative authority of such a county with a population of less than fifty thousand population may adopt a resolution removing the county, and the cities located within the county, from the requirements of adopting comprehensive land use plans and development regulations under this chapter if this resolution is adopted and filed with the department by December 31, 1990, for counties initially meeting this set of criteria, or within sixty days of the date the office of financial management certifies that a county meets this set of criteria under subsection (5) of this section. For the purposes of this subsection, a county not currently planning under this chapter is not required to include in its population count those persons confined in a correctional facility under the jurisdiction of the department of corrections that is located in the county. Once a county meets either of these sets of criteria, the requirement to conform with all of the requirements of this chapter remains in effect, even if the county no longer meets one of these sets of criteria. (2) The county legislative authority of any county that does not meet either of the sets of criteria established under subsection (1) of this section may adopt a resolution indicating its intention to have subsection (1) of this section apply to the county. Each city, located in a county that chooses to plan under this subsection, shall conform with all of the requirements of this chapter. Once such a resolution has been adopted, the county and the cities located within the county remain subject to all of the requirements of this chapter.

(3) Any county or city that is initially required to conform with all of the requirements of this chapter under subsection (1) of this section shall take actions under this chapter as follows: (a) The county legislative authority shall adopt a county-wide planning policy under RCW 36.70A.210; (b) the county and each city located within the county shall designate critical areas, agricultural lands, forest lands, and mineral resource lands, and adopt development regulations conserving these designated agricultural lands, forest lands, and mineral resource lands and protecting these designated critical areas, under RCW 36.70A.170 and 36.70A.060; (c) the county shall designate and take other actions related to urban growth areas under RCW 36.70A.110; (d) if the county has a population of fifty thousand or more, the county and each city located within the county shall adopt a comprehensive plan under this chapter and development regulations that are consistent with and implement the comprehensive plan on or before July 1, 1994, and if the county has a population of less than fifty thousand, the county and each city located within the county shall adopt a comprehensive plan under this chapter and development regulations that are consistent with and implement the comprehensive plan by January 1, 1995, but if the governor makes written findings that a county with a population of less than fifty thousand or a city located within such a county is not making reasonable progress toward adopting a comprehensive plan and development regulations the governor may reduce this deadline for such actions to be taken by no more than one hundred eighty days. Any county or city subject to this subsection may obtain an additional six months before it is required to have adopted its development regulations by submitting a letter notifying the department of community, trade, and economic development of its need prior to the deadline for adopting both a comprehensive plan and development regulations. . . . RCW 36.70A.050 Guidelines to classify agriculture, forest, and mineral lands and critical areas. (1) Subject to the definitions provided in RCW 36.70A.030, the department shall adopt guidelines, under chapter 34.05 RCW, no later than September 1, 1990, to guide the classification of: (a) Agricul-

tural lands; (b) forest lands; (c) mineral resource lands; and (d) critical areas. The department shall consult with the department of agriculture regarding guidelines for agricultural lands, the department of natural resources regarding forest lands and mineral resource lands, and the department of ecology regarding critical areas. (2) In carrying out its duties under this section, the department shall consult with interested parties, including but not limited to: (a) Representatives of cities; (b) representatives of counties; (c) representatives of developers; (d) representatives of builders; (e) representatives of owners of agricultural lands, forest lands, and mining lands; (f) representatives of local economic development officials; (g) representatives of environmental organizations; (h) representatives of special districts; (i) representatives of the governor’s office and federal and state agencies; and (j) representatives of Indian tribes. In addition to the consultation required under this subsection, the department shall conduct public hearings in the various regions of the state. The department shall consider the public input obtained at such public hearings when adopting the guidelines. (3) The guidelines under subsection (1) of this section shall be minimum guidelines that apply to all jurisdictions, but also shall allow for regional differences that exist in Washington State. The intent of these guidelines is to assist counties and cities in designating the classification of agricultural lands, forest lands, mineral resource lands, and critical areas under RCW 36.70A.170. (4) The guidelines established by the department under this section regarding classification of forest lands shall not be inconsistent with guidelines adopted by the department of natural resources. . . . RCW 36.70A.070 Comprehensive plans – Mandatory elements. The comprehensive plan of a county or city that is required or chooses to plan under RCW 36.70A.040 shall consist of a map or maps, and descriptive text covering objectives, principles, and standards used to develop the comprehensive plan. The plan shall be an internally consistent document and all elements shall be consistent with the future land use map. A comprehensive plan shall be adopted and

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amended with public participation as provided in RCW 36.70A.140. Each comprehensive plan shall include a plan, scheme, or design for each of the following: (1) A land use element designating the proposed general distribution and general location and extent of the uses of land, where appropriate, for agriculture, timber production, housing, commerce, industry, recreation, open spaces, general aviation airports, public utilities, public facilities, and other land uses. The land use element shall include population densities, building intensities, and estimates of future population growth. The land use element shall provide for protection of the quality and quantity of ground water used for public water supplies. Where applicable, the land use element shall review drainage, flooding, and storm water run-off in the area and nearby jurisdictions and provide guidance for corrective actions to mitigate or cleanse those discharges that pollute waters of the state, including Puget Sound or waters entering Puget Sound. (2) A housing element ensuring the vitality and character of established residential neighborhoods that: (a) Includes an inventory and analysis of existing and projected housing needs that identifies the number of housing units necessary to manage projected growth; (b) includes a statement of goals, policies, objectives, and mandatory provisions for the preservation, improvement, and development of housing, including single-family residences; (c) identifies sufficient land for housing, including, but not limited to, government-assisted housing, housing for low-income families, manufactured housing, multifamily housing, and group homes and foster care facilities; and (d) makes adequate provisions for existing and projected needs of all economic segments of the community. (3) A capital facilities plan element consisting of: (a) An inventory of existing capital facilities owned by public entities, showing the locations and capacities of the capital facilities; (b) a forecast of the future needs for such capital facilities; (c) the proposed locations and capacities of expanded or new capital facilities; (d) at least a six-year plan that will finance such capital facilities within projected funding capacities and clearly identifies sources of public money for such purposes; and (e) a requirement to reassess the land use element if probable funding

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falls short of meeting existing needs and to ensure that the land use element, capital facilities plan element, and financing plan within the capital facilities plan element are coordinated and consistent. Park and recreation facilities shall be included in the capital facilities plan element. (4) A utilities element consisting of the general location, proposed location, and capacity of all existing and proposed utilities, including, but not limited to, electrical lines, telecommunication lines, and natural gas lines. (5) Rural element. Counties shall include a rural element including lands that are not designated for urban growth, agriculture, forest, or mineral resources. The following provisions shall apply to the rural element: (a) Growth management act goals and local circumstances. Because circumstances vary from county to county, in establishing patterns of rural densities and uses, a county may consider local circumstances, but shall develop a written record explaining how the rural element harmonizes the planning goals in RCW 36.70A.020 and meets the requirements of this chapter. (b) Rural development. The rural element shall permit rural development, forestry, and agriculture in rural areas. The rural element shall provide for a variety of rural densities, uses, essential public facilities, and rural governmental services needed to serve the permitted densities and uses. To achieve a variety of rural densities and uses, counties may provide for clustering, density transfer, design guidelines, conservation easements, and other innovative techniques that will accommodate appropriate rural densities and uses that are not characterized by urban growth and that are consistent with rural character. (c) Measures governing rural development. The rural element shall include measures that apply to rural development and protect the rural character of the area, as established by the county, by: (i) Containing or otherwise controlling rural development; (ii) Assuring visual compatibility of rural development with the surrounding rural area; (iii) Reducing the inappropriate conversion of undeveloped land into sprawling, low-density development in the rural area;

(iv) Protecting critical areas, as provided in RCW 36.70A.060, and surface water and ground water resources; and (v) Protecting against conflicts with the use of agricultural, forest, and mineral resource lands designated under RCW 36.70A.170. (d) Limited areas of more intensive rural development. Subject to the requirements of this subsection and except as otherwise specifically provided in this subsection (5)(d), the rural element may allow for limited areas of more intensive rural development, including necessary public facilities and public services to serve the limited area as follows: (i) Rural development consisting of the infill, development, or redevelopment of existing commercial, industrial, residential, or mixed-use areas, whether characterized as shoreline development, villages, hamlets, rural activity centers, or crossroads developments. (A) A commercial, industrial, residential, shoreline, or mixed-use area shall be subject to the requirements of (d)(iv) of this subsection, but shall not be subject to the requirements of (c)(ii) and (iii) of this subsection. (B) Any development or redevelopment other than an industrial area or an industrial use within a mixed-use area or an industrial area under this subsection (5)(d)(i) must be principally designed to serve the existing and projected rural population. (C) Any development or redevelopment in terms of building size, scale, use, or intensity shall be consistent with the character of the existing areas. Development and redevelopment may include changes in use from vacant land or a previously existing use so long as the new use conforms to the requirements of this subsection (5); (ii) The intensification of development on lots containing, or new development of, small-scale recreational or tourist uses, including commercial facilities to serve those recreational or tourist uses, that rely on a rural location and setting, but that do not include new residential development. A small-scale recreation or tourist use is not required to be principally designed to serve

the existing and projected rural population. Public services and public facilities shall be limited to those necessary to serve the recreation or tourist use and shall be provided in a manner that does not permit low-density sprawl; (iii) The intensification of development on lots containing isolated nonresidential uses or new development of isolated cottage industries and isolated small-scale businesses that are not principally designed to serve the existing and projected rural population and nonresidential uses, but do provide job opportunities for rural residents. Rural counties may allow the expansion of small-scale businesses as long as those smallscale businesses conform with the rural character of the area as defined by the local government according to RCW 36.70A.030(14). Rural counties may also allow new small-scale businesses to utilize a site previously occupied by an existing business as long as the new small-scale business conforms to the rural character of the area as defined by the local government according to RCW 36.70A.030(14). Public services and public facilities shall be limited to those necessary to serve the isolated nonresidential use and shall be provided in a manner that does not permit lowdensity sprawl; (iv) A county shall adopt measures to minimize and contain the existing areas or uses of more intensive rural development, as appropriate, authorized under this subsection. Lands included in such existing areas or uses shall not extend beyond the logical outer boundary of the existing area or use, thereby allowing a new pattern of low-density sprawl. Existing areas are those that are clearly identifiable and contained and where there is a logical boundary delineated predominately by the built environment, but that may also include undeveloped lands if limited as provided in this subsection. The county shall establish the logical outer boundary of an area of more intensive rural development. In establishing the logical outer boundary the county shall address (A) the need to preserve the character of existing natural neighborhoods and communities, (B) physical boundaries such as bodies of water, streets and highways, and land forms and contours, (C) the prevention of abnormally irregular boundaries, and (D) the ability to provide

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public facilities and public services in a manner that does not permit low-density sprawl; . . .

concurrency requirements in (b) of this subsection;

6. A transportation element that implements, and is consistent with, the land use element.

(D) Specific actions and requirements for bringing into compliance locally owned transportation facilities or services that are below an established level of service standard;

(a) The transportation element shall include the following subelements: (i) Land use assumptions used in estimating travel; (ii) Estimated traffic impacts to state-owned transportation facilities resulting from land use assumptions to assist the department of transportation in monitoring the performance of state facilities, to plan improvements for the facilities, and to assess the impact of land-use decisions on state-owned transportation facilities; (iii) Facilities and services needs, including: (A) An inventory of air, water, and ground transportation facilities and services, including transit alignments and general aviation airport facilities, to define existing capital facilities and travel levels as a basis for future planning. This inventory must include state-owned transportation facilities within the city or county’s jurisdictional boundaries; (B) Level of service standards for all locally owned arterials and transit routes to serve as a gauge to judge performance of the system. These standards should be regionally coordinated; (C) For state-owned transportation facilities, level of service standards for highways, as prescribed in chapters 47.06 and 47.80 RCW, to gauge the performance of the system. The purposes of reflecting level of service standards for state highways in the local comprehensive plan are to monitor the performance of the system, to evaluate improvement strategies, and to facilitate coordination between the county’s or city’s six-year street, road, or transit program and the department of transportation’s six-year investment program. The concurrency requirements of (b) of this subsection do not apply to transportation facilities and services of statewide significance except for counties consisting of islands whose only connection to the mainland are state highways or ferry routes. In these island counties, state highways and ferry route capacity must be a factor in meeting the

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(E) Forecasts of traffic for at least ten years based on the adopted land use plan to provide information on the location, timing, and capacity needs of future growth; (F) Identification of state and local system needs to meet current and future demands. Identified needs on state-owned transportation facilities must be consistent with the statewide multimodal transportation plan required under chapter 47.06 RCW; (iv) Finance, including: (A) An analysis of funding capability to judge needs against probable funding resources; (B) A multiyear financing plan based on the needs identified in the comprehensive plan, the appropriate parts of which shall serve as the basis for the six-year street, road, or transit program required by RCW 35.77.010 for cities, RCW 36.81.121 for counties, and RCW 35.58.2795 for public transportation systems. The multiyear financing plan should be coordinated with the six-year improvement program developed by the department of transportation as required by RCW 47.05.030; (C) If probable funding falls short of meeting identified needs, a discussion of how additional funding will be raised, or how land use assumptions will be reassessed to ensure that level of service standards will be met; (v) Intergovernmental coordination efforts, including an assessment of the impacts of the transportation plan and land use assumptions on the transportation systems of adjacent jurisdictions; (vi) Demand-management strategies. (b) After adoption of the comprehensive plan by jurisdictions required to plan or who choose to plan under RCW 36.70A.040, local jurisdictions must adopt and enforce ordinances which prohibit development approval if the development causes

the level of service on a locally owned transportation facility to decline below the standards adopted in the transportation element of the comprehensive plan, unless transportation improvements or strategies to accommodate the impacts of development are made concurrent with the development. These strategies may include increased public transportation service, ride sharing programs, demand management, and other transportation systems management strategies. For the purposes of this subsection (6) “concurrent with the development” shall mean that improvements or strategies are in place at the time of development, or that a financial commitment is in place to complete the improvements or strategies within six years.

RCW 36.70A.080

(c) The transportation element described in this subsection (6), and the six-year plans required by RCW 35.77.010 for cities, RCW 36.81.121 for counties, RCW 35.58.2795 for public transportation systems, and RCW 47.05.030 for the state, must be consistent.

RCW 36.70A.090

(7) An economic development element establishing local goals, policies, objectives, and provisions for economic growth and vitality and a high quality of life. The element shall include: (a) A summary of the local economy such as population, employment, payroll, sectors, businesses, sales, and other information as appropriate; (b) a summary of the strengths and weaknesses of the local economy defined as the commercial and industrial sectors and supporting factors such as land use, transportation, utilities, education, work force, housing, and natural/cultural resources; and (c) an identification of policies, programs, and projects to foster economic growth and development and to address future needs. A city that has chosen to be a residential community is exempt from the economic development element requirement of this subsection. (8) A park and recreation element that implements, and is consistent with, the capital facilities plan element as it relates to park and recreation facilities. The element shall include: (a) Estimates of park and recreation demand for at least a ten-year period; (b) an evaluation of facilities and service needs; and (c) an evaluation of intergovernmental coordination opportunities to provide regional approaches for meeting park and recreational demand. . . .

Comprehensive plans – Optional elements. (1) A comprehensive plan may include additional elements, items, or studies dealing with other subjects relating to the physical development within its jurisdiction, including, but not limited to: (a) Conservation; (b) Solar energy; and (c) Recreation. (2) A comprehensive plan may include, where appropriate, subarea plans, each of which is consistent with the comprehensive plan.

Comprehensive plans – Innovative techniques. A comprehensive plan should provide for innovative land use management techniques, including, but not limited to, density bonuses, cluster housing, planned unit developments, and the transfer of development rights. RCW 36.70A.100 Comprehensive plans – Must be coordinated. The comprehensive plan of each county or city that is adopted pursuant to RCW 36.70A.040 shall be coordinated with, and consistent with, the comprehensive plans adopted pursuant to RCW 36.70A.040 of other counties or cities with which the county or city has, in part, common borders or related regional issues. RCW 36.70A.110 Comprehensive plans – Urban growth areas. (1) Each county that is required or chooses to plan under RCW 36.70A.040 shall designate an urban growth area or areas within which urban growth shall be encouraged and outside of which growth can occur only if it is not urban in nature. Each city that is located in such a county shall be included within an urban growth area. An urban growth area may include more than a single city. An urban growth area may include territory that is located outside of a city only if such territory already is characterized by urban growth whether or not the urban growth area includes a city, or is adjacent to territory already characterized by urban growth, or

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is a designated new fully contained community as defined by RCW 36.70A.350. (2) Based upon the growth management population projection made for the county by the office of financial management, the county and each city within the county shall include areas and densities sufficient to permit the urban growth that is projected to occur in the county or city for the succeeding twenty-year period, except for those urban growth areas contained totally within a national historical reserve. Each urban growth area shall permit urban densities and shall include greenbelt and open space areas. In the case of urban growth areas contained totally within a national historical reserve, the city may restrict densities, intensities, and forms of urban growth as determined to be necessary and appropriate to protect the physical, cultural, or historic integrity of the reserve. An urban growth area determination may include a reasonable land market supply factor and shall permit a range of urban densities and uses. In determining this market factor, cities and counties may consider local circumstances. Cities and counties have discretion in their comprehensive plans to make many choices about accommodating growth. Within one year of July 1, 1990, each county that as of June 1, 1991, was required or chose to plan under RCW 36.70A.040, shall begin consulting with each city located within its boundaries and each city shall propose the location of an urban growth area. Within sixty days of the date the county legislative authority of a county adopts its resolution of intention or of certification by the office of financial management, all other counties that are required or choose to plan under RCW 36.70A.040 shall begin this consultation with each city located within its boundaries. The county shall attempt to reach agreement with each city on the location of an urban growth area within which the city is located. If such an agreement is not reached with each city located within the urban growth area, the county shall justify in writing why it so designated the area an urban growth area. A city may object formally with the department over the designation of the urban growth area within which it is located. Where appropriate, the department shall attempt to resolve the conflicts, including the use of mediation services.

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(3) Urban growth should be located first in areas already characterized by urban growth that have adequate existing public facility and service capacities to serve such development, second in areas already characterized by urban growth that will be served adequately by a combination of both existing public facilities and services and any additional needed public facilities and services that are provided by either public or private sources, and third in the remaining portions of the urban growth areas. Urban growth may also be located in designated new fully contained communities as defined by RCW 36.70A.350. (4) In general, cities are the units of local government most appropriate to provide urban governmental services. In general, it is not appropriate that urban governmental services be extended to or expanded in rural areas except in those limited circumstances shown to be necessary to protect basic public health and safety and the environment and when such services are financially supportable at rural densities and do not permit urban development. (5) On or before October 1, 1993, each county that was initially required to plan under RCW 36.70A.040(1) shall adopt development regulations designating interim urban growth areas under this chapter. Within three years and three months of the date the county legislative authority of a county adopts its resolution of intention or of certification by the office of financial management, all other counties that are required or choose to plan under RCW 36.70A.040 shall adopt development regulations designating interim urban growth areas under this chapter. Adoption of the interim urban growth areas may only occur after public notice; public hearing; and compliance with the state environmental policy act, chapter 43.21C RCW, and RCW 36.70A.110. Such action may be appealed to the appropriate growth management hearings board under RCW 36.70A.280. Final urban growth areas shall be adopted at the time of comprehensive plan adoption under this chapter. (6) Each county shall include designations of urban growth areas in its comprehensive plan. (7) An urban growth area designated in accordance with this section may include within its boundaries urban service areas or potential annexation areas

designated for specific cities or towns within the county. [Notes omitted.] RCW 36.70A.140 Comprehensive plans – Ensure public participation. Each county and city that is required or chooses to plan under RCW 36.70A.040 shall establish and broadly disseminate to the public, a public participation program identifying procedures providing for early and continuous public participation in the development and amendment of comprehensive land use plans and development regulations implementing such plans. The procedures shall provide for broad dissemination of proposals and alternatives, opportunity for written comments, public meetings after effective notice, provision for open discussion, communication programs, information services, and consideration of and response to public comments. In enacting legislation in response to the board’s decision pursuant to RCW 36.70A.300 declaring part or all of a comprehensive plan or development regulation invalid, the county or city shall provide for public participation that is appropriate and effective under the circumstances presented by the board’s order. Errors in exact compliance with the established program and procedures shall not render the comprehensive land use plan or development regulations invalid if the spirit of the program and procedures is observed. . . . RCW 36.70A.170 Natural resource lands and critical areas – Designations. (1) On or before September 1, 1991, each county, and each city, shall designate where appropriate:

(a) Agricultural lands that are not already characterized by urban growth and that have longterm significance for the commercial production of food or other agricultural products; (b) Forest lands that are not already characterized by urban growth and that have long-term significance for the commercial production of timber; (c) Mineral resource lands that are not already characterized by urban growth and that have longterm significance for the extraction of minerals; and (d) Critical areas. (2) In making the designations required by this section, counties and cities shall consider the guidelines established pursuant to RCW 36.70A.050. . . . RCW 36.70A.172 Critical areas – Designation and protection – Best available science to be used. (1) In designating and protecting critical areas under this chapter, counties and cities shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas. In addition, counties and cities shall give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries. (2) If it determines that advice from scientific or other experts is necessary or will be of substantial assistance in reaching its decision, a growth management hearings board may retain scientific or other expert advice to assist in reviewing a petition under RCW 36.70A.290 that involves critical areas.

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Thurston County, Washington, Olympia Urban Growth Area Zoning Ordinance Summary: Under the Growth Management Act, Thurston County includes in its county code an urban growth area (UGA) zoning ordinance for the city of Olympia, the state’s capital. This ordinance establishes a variety of residential and mixed-use districts that incorporate new-urbanist design principles to encourage smart growth: among these are urban villages, neighborhood villages and centers, community-oriented shopping centers, and planned residential and master planned districts. The regulations apply to all construction in the UGA. The ordinance joins the Standard State Zoning Enabling Act’s traditional focus on protecting the public health, safety, and welfare with an innovative emphasis on consistency with the regional comprehensive plan. The table of contents and two sections of the ordinance are reproduced here: its general provisions and the section on planned residential development (PRD). The PRD district is intended to offer greater flexibility and “more creative and imaginative design” than conventional zoning. It encourages the use of infill techniques, the creation of public and common spaces, and clustering of development to protect open space, wildlife habitat, and other natural features in order to “promote environmental and aesthetic goals.” The full text of the Thurston County Code is available at http://municipalcodes.lexisnexis. com/codes/thurston/ The Thurston Regional Planning Council’s Web site is: http://www.trpc.org/ The Olympia Municipal Code is available at the city’s home page: http://www.ci.olympia.wa.us/ The Olympia Comprehensive Plan is available at: http://www.trpc.org/programs/planning/olympia/ olympia+comprehensive+plan.htm

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THURSTON COUNTY CODE – TITLE 23 OLYMPIA URBAN GROWTH AREA ZONING CHAPTER 23.02 GENERAL PROVISIONS

23.02.020 Title. This title shall be known as the Olympia UGA Zoning Ordinance. 23.02.040 Purpose. It is the purpose of this code to promote the health, safety and general welfare by guiding the development of the Olympia UGA consistent with the Olympia Joint Plan which is, in part, carried out by the provisions of this title. It is further intended to provide regulations and standards which will lessen congestion on the streets, encourage high standards of development, prevent the overcrowding of land, provide adequate light and air, avoid excessive concentration of population and facilitate adequate provisions for transportation, utilities, schools, parks and other public needs. 23.02.060 Scope. Hereafter, no building or structure shall be erected, demolished, remodeled, reconstructed, altered, enlarged or relocated, and no building, structure or premises shall be used in the Olympia UGA except in compliance with the provisions of this title and then only after securing all required permits. Any building, structure or use lawfully existing at the time of passage of this title, although not in compliance therewith, may be maintained as provided for in Chapter 23.37. 23.02.080 Interpretations. A. The director of development services shall review and resolve any questions involving the proper interpretation or application of the provisions of this title that may be requested by any

property owner, tenant, government officer, department, or other person affected. The director’s decision shall be in keeping with the spirit and intent of this title and of the Olympia Joint Plan. Code interpretations shall be processed in accordance with Section 23.72.200. B. Classification of Use. Recognizing that there may be uses not specifically mentioned in this title, either because of advancing technology or any other reason, the director may permit or condition such use if it is clearly evident that the use is in conformity with the designated principal uses of the district in which it is to be located. The decision by the director may be appealed in accordance with Section 23.72.190A. C. Record. A record shall be kept of all interpretations and rulings made by the director, hearing examiner, and board of county commissioners; such decisions shall be used for future administration and code amendments. The hearing examiner shall report decisions to the department when it appears desirable and necessary to amend this title. D. Minimum Requirements. When interpreting and applying the regulations of this code, its provisions shall be the minimum requirements, unless otherwise stated. E. Conflicts with Other Regulations. Where conflicts occur between the provisions of this code and the Building and Fire Codes, or other regulations of the county, the more restrictive shall apply. If any conflict between the zoning map and text of this title ensue, the text of this title shall prevail. 23.02.100 Authority and Olympia Joint Plan consistency. This code is a principal tool for implementing the goals and policies of the Olympia Joint Plan, pursuant to the mandated provisions of the Growth Management Act of 1990, Chapter 58.17 RCW, Subdivision Act, State Environmental Policy Act, and other applicable state and local requirements. All development within the Olympia UGA shall be consistent with the Olympia Joint Plan. The subdivision provisions of this code are intended to supplement and implement Chapter 58.17 RCW and the Subdivision Ordinance of the county. If the provisions of this code conflict with any provision of Chapter 58.17 Revised Code of Washington (RCW), the RCW shall prevail. No land shall be subdivided or

developed for any purpose which is not in conformance with the Olympia Joint Plan, any zoning ordinance or other applicable provisions of the Thurston County Code. 23.02.120 General requirements. A. Application. All land or structures shall be used and constructed in accordance with the regulations and requirements of this code including obtaining applicable permits prior to initiation of use. B. Conflicting Permits to be Voided. All permits or licenses shall be issued in conformance with the provisions of this code. Any permit or license subsequently issued and in conflict with this code shall be null and void. C. Implementation. All applications shall be processed in compliance with the regulations and requirements in effect at the time the application was accepted and complete. 23.02.140 Severability. [Omitted.] 23.02.160 Establishment of land use zoning districts. A. Establishment of Zoning Districts. The Olympia UGA of Olympia shall be divided into land use zoning districts identified in Chapters 23.04, 23.05, 23.06 and 23.08, which are consistent with and implement the Olympia Joint Plan. B. Adoption of Land Use Zoning District Map. The boundaries of the land use districts established by this section shall be shown upon the map designated as the “Olympia UGA Official Zoning Map” available at the department of development services. C. The location and boundaries of various use districts are shown on the “Official Zoning Map, which is identified by the approving signatures of board of county commissioners, and is on file with the department of development services. Such map is adopted as a part of this title. This title, and each and all of its terms, are to be read and interpreted in the light of the contents of such map. D. Official Zoning Map–Conflicts with Text. If any conflict between such map and text of this Article ensues, the text of this title shall prevail. E. Use District Boundaries. 1. Land use district boundaries, unless otherwise indicated by natural land forms, shall follow lot

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lines or the centerline of streets and alleys as shown on the zoning map. Where the street layout on the ground varies from that shown on the zoning map the designations shown on the map shall be applied to the streets as actually laid out so as to carry out the intent and purpose of this title. 2. Land use district boundary lines shall extend parallel from their landward location to a point of intersection at the center of all bodies of water. Bodies of water include the Puget Sound and all rivers, streams, and lakes. 3. If the use district boundary line divides a parcel of land having a single ownership of record at the time this title became effective, all such property shall take the least restrictive classification within its general land use classification (residential, commercial, industrial), provided the property is developed as one unit, and provided that no nonresidential use shall be permitted, under this provision, to extend into a residential use district except when that portion of the property lying within such district has an area less than four thousand five hundred square feet or is of such shape that it cannot be occupied by a residence. 23.02.180 Definitions [Omitted.] CHAPTER 23.56 PRD – PLANNED RESIDENTIAL DEVELOPMENT

23.56.020 Purpose. A. The intent of the PRD regulations is to permit greater flexibility and, consequently, more creative and imaginative design as required for the development within the MR 7–13, MR 10–18, urban village (UV), neighborhood villages (NV), and neighborhood center (NC) and community oriented shopping center (COSC) districts, and co-housing residential areas than generally is possible under conventional zoning regulations. B. It is further intended to promote urban infilling and more economical and efficient use of the land, while providing a development which is compatible with the surrounding neighborhood, a harmonious variety of housing choices, a higher level of urban amenities, and preservation of natural topography, unique geological features, and open space. C. It is also intended to encourage the provision of more usable and suitably located recreation facilities

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and other public and common facilities than would otherwise be provided under conventional land development procedures. D. Additionally, it is the purpose of this chapter to enable clustering of development in order to preserve the significant wildlife habitat located in certain land use districts as depicted in the Olympia Joint Plan and take the greatest possible advantage of existing topography and other natural features to promote environmental and aesthetic goals by optimizing siting, orientation, layout and design of structures to protect natural vegetation, wetlands, drainage areas, slopes, and other natural features. 23.56.040 General requirements. A. Land Use Districts. Planned residential development may be permitted in R-4, R 4–8, R 6–12, MR 7–13, MR 10–18, NC, NV and UV zoning districts; B. Minimum site area: none; C. Permitted Uses. Permitted uses are as follows: 1. Residential uses and other permitted uses within the underlying use district, 2. Accessory uses to the above, 3. Uses that may be allowed by special use permit in the underlying zone, subject to the requirements of Section 23.56.140F, Nonresidential Uses; D. Density. The density requirements of the underlying use district shall apply; E. Platting Requirements. When any parcel of land in a PRD is intended for individual ownership or sale, the platting and procedural requirements of the Thurston County Subdivision Ordinance, Title 18 of the Thurston County Code, and applicable state laws pertaining to the subdivision and conveyancing of land, and the preparation of maps shall be followed. Applications for preliminary or short plat approval should be submitted simultaneously, and processed concurrently, with applications for PRD approval. 23.56.060 Preliminary approval process. A. Presubmission Conference. Prior to making application, the developer shall meet with the department for an initial discussion of the proposal. 1. Application for Presubmission Conference. Prior to the submission of the preliminary

development plan, the developer or their representative shall present to the department preliminary studies or conceptual sketches which contain in a rough and approximate manner all of the information required on the PRD application (Section 23.56.060B4). The purpose of the preliminary site plan review is to enable the developer presenting the plan to obtain the advice of the department as to the intent, standards, and provisions of this chapter.

3. At the presubmission conference the department will furnish to the developer comments on how the proposed development conforms to county policies and regulations, and the department’s requirements for development approval. The department’s comments shall be directly proportional to the information provided by the applicant. The department shall have the right to change its development requirements if changes are necessitated by:

2. Meeting. At the conference the department shall make available all pertinent information as may be on file relating to the general area. It is the purpose of this conference to eliminate as many potential problems as possible in order for the preliminary development plan to be processed without delay or undue expense. The conference should take place prior to detailed work by an engineer or surveyor. Discussion topics at this time would include such things as:

a. Changes to the plans and information provided by the applicant at the presubmission conference; or

a. The Olympia Joint Plan; b. The street plan; c. The shoreline master program; d. Zoning Ordinance; e. Availability of sewer and water, or need for utility oversizing; f. Storm drainage and erosion control; g. Latecomer charges; h. Features of the development, and the rationale behind them; i. Sidewalk requirements; j. Bike paths; k. Bus stops; l. Phasing of off-site requirements such as sidewalks, street lights, traffic signals, utilities, or improvement of adjacent streets; m. The environmental impact of the development; n. Design concepts (architectural goals and themes); o. Other county requirements and permits; p. If the applicant owns adjacent land, the possibilities of future development shall be discussed; q. Process and timelines.

b. New policies or regulations adopted by the board of county commissioners subsequent to the presubmission conference. B. Application For Preliminary Approval. An application for a PRD may be filed only by a person having a legal interest in the property. 1. The applicant shall complete and submit to the department a PRD application in accordance with the submittal requirements in Section 23.72.060. 2. Each and every PRD application submitted to the department shall comply with the county’s SEPA regulations, TCC Chapter 17.09, adopted in compliance with the State Environmental Policy Act, Chapter 43.21C RCW. 3. Accuracy for all data and information submitted on or with a preliminary development plan shall be the responsibility of the applicant. Any proposed plan found to be inaccurate or misleading as to hamper the decision of the hearing examiner shall be returned to the applicant with a letter stating that the plan or application must be corrected and returned to the department. 4. An application for preliminary approval shall be reviewed in accordance with the procedures in Section 23.72.040C. 5. In order to promote development flexibility within large PRDs (e.g., one hundred acres or greater), the hearing examiner may defer review of certain of the preliminary PRD application requirements at the time of PRD approval, provided that an alternative review and information submittal procedure is contractually established and approved by the county.

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C. An approved PRD, or subsequent revision thereto, shall be binding as to the general intent and apportionment of land for buildings, stipulated use and circulation pattern. The terms and conditions upon which approval was given shall not be changed except as provided in Section 23.56.120B, Minor and Major Adjustments of the Final Plan. D. Permits. 1. Permits. The department may issue permits within a PRD prior to the approval of the final plat, provided that: a. The improvements will be consistent with the approved preliminary PRD. b. The county has reviewed the application and determined that the improvements are to be constructed in conformance with the Thurston County Code. c. All required improvements have been completed or arrangements or contracts have been entered into to guarantee that such required improvements will be completed for the phase of the project involved. d. Partial or complete construction of improvements shall not relieve the developer from, nor impair county enforcement of, conditions of preliminary PRD approval. 2. Building Permits. Building permits may be issued for any structure within a PRD prior to the approval of the final PRD, provided that: a. The construction will be consistent with the approved preliminary PRD. b. The building permit application must identify the location and dimensions of the proposed building in relation to all lot lines for the site and must provide proposed building elevations.

e. Partial or complete construction of structures shall not relieve the developer from, nor impair county enforcement of, conditions of PRD approval. f. Units may not be rented or sold until final PRD approval. 23.56.080 Final PRD approval. A. Application. approval:

Application

for

final

PRD

1. For any portion of the PRD which is to be platted, approval of the final plat by the board of county commissioners shall constitute final development plan approval for the platted portion of the PRD. Application requirements shall be as provided for final plat approval under county ordinance. 2. For any portion of the PRD which is not to be platted, approval of a binding site plan shall constitute final development plan approval. The department may attach terms and conditions to the approval of the site plan if necessary to ensure compliance with the preliminary PRD. Review of the site plan shall be as provided for site plan review in Chapter 23.72. B. Phasing. If a proposed PRD is to be developed in phases, the project as a whole shall be portrayed on the preliminary PRD, and each phase shall individually receive final development plan review and approval according to the procedures established herein. Those portions of the PRD which have received preliminary approval but which have not yet received final approval shall be subject to the provisions of Section 23.56.100, Expiration and extensions. 23.56.100 Expiration and extensions.

c. No vertical construction may take place until the necessary fire flow and emergency vehicle access have been provided to the building(s).

A. If a final PRD is not approved within five years from the date of preliminary PRD approval, and an extension of time has not been granted, the preliminary PRD approval shall expire and the land and the structures thereon shall be used only for a lawful purpose permissible within the underlying zone.

d. All required improvements have been completed or arrangements or contracts have been entered into to guarantee that such required improvements will be completed for the phase of the project involved.

B. Knowledge of expiration date and initiation of a request for extension of approval time is the responsibility of the applicant. The county shall not be held accountable for notification of expirations. All requests for an extension of time must be submitted

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to the department at least thirty days prior to expiration of preliminary PRD approval. The department may grant a single extension for no more than one year. If an extension of time is granted, the PRD shall be subject to all new and amended regulations, requirements, policies or standards which are adopted after the original date of approval unless there has been substantial on-site work completed. 23.56.120 Administration and enforcement. A. Building Permit. Building permits and other permits required for the construction or development of property under the provisions of this chapter shall be issued only when the work to be performed meets the requirements of the final plan and program elements of the PRD, except as provided in Section 23.56.060E. B. Minor and Major Adjustments of the Final Plan. 1. Minor adjustments may be made and approved when a building permit is issued. Any such alteration must be approved by the department. Minor adjustments are those which may affect the precise dimensions or siting of buildings (i.e., lot coverage, height, setbacks), but which do not affect the basic character or arrangement and number of buildings approved in the preliminary or final plan, nor the density of the development or the amount and quality of open space and landscaping. Such dimensional adjustments shall not vary more than ten percent from the original, nor shall they permit development which would conflict with Section 23.56.140. 2. Major adjustments are those which substantially change the character, basic design, density, open space or other requirements and conditions of the planned residential development. When a change constitutes a major adjustment, no building or other permit shall be issued without prior approval of such adjustment by the hearing examiner. 23.56.140 Development and design standards. A. General Criteria. 1. All requirements of the underlying use district and other county ordinances, including but not limited to urban design guidelines, connecting streets, tree protection and drainage design and

erosion control shall apply within the PRD unless specifically modified pursuant to the provisions of this chapter. For urban villages, neighborhood villages, and neighborhood centers the applicable goals and policies contained within the Olympia Joint Plan shall be applied. 2. Any action to approve a preliminary development plan for a proposed PRD shall be based upon the following findings: a. That the proposed development is in conformance with the Olympia Joint Plan; b. That exceptions from the standards of the underlying district are warranted by the design and amenities incorporated in the development plan and program; c. That the system of ownership and means of developing, preserving and maintaining open space are suitable, as provided in Section 23.56.140D. 3. The department may require the proposed development to be clustered on a portion of the site in order to preserve significant wildlife habitat (see Map 2–4 in the Olympia Joint Plan) and well-head protection areas. 4. If a plat is involved, the county shall issue no building permit for vertical construction for a multifamily structure in a PRD until final plat approval has been granted for the single-family lots in the PRD, if any. If the PRD is to be built in phases, this requirement shall apply to the development in each phase. B. Minimum Lot Size. The hearing examiner may allow lot sizes to be reduced (provided that the applicable setback requirements are met) to enable creation of common open space or allow preservation of significant wildlife habitat or a wellhead protection area. C. Maximum Coverage. Building coverage and development coverage of individual parcels may exceed the percentage permitted by the underlying zone, provided that the overall coverage of the project as a whole does not exceed the percentage permitted by the underlying zone. D. Open Space. 1. Common open space, if any, may contain such structures and improvements as are necessary and

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appropriate for the out-of-doors enjoyment by residents of the PRD. 2. The developer shall provide a bond or other assurance acceptable to the prosecuting attorney that any improvements made in the common open space will be completed. The county shall release the bond or other assurance when the improvements have been completed in accordance with the development plan. 3. Before approval of the final development plan may be granted, the developer shall submit to the county covenants, deeds and/or homeowners’ association bylaws, and other documents guaranteeing maintenance, construction, common fee ownership, if applicable, of open space, community facilities, stormwater facilities, private roads and drives, and all other commonly owned and operated property. These documents shall be reviewed and approved by the county staff to ensure that they comply with the requirements of this chapter prior to approval of the final development plan by the county. Such documents and conveyances shall be accomplished and be recorded, as applicable, with the county auditor as a condition of any final development plan approval. 4. All common open space shall be landscaped in accordance with the landscaping plan submitted by the applicant and approved by the county. Natural landscape features which are to be preserved, such as existing trees, drainage ways, rock outcroppings, etc., may be accepted as part of the landscaping plan. 5. That portion of the open space which is to be available for the common use of the residents of the PRD shall be either: (1) Conveyed to a public agency which will agree to maintain the common open space and any buildings, structures, or improvements which have been placed on it; or (2) Owned in common by the property owners within the PRD or a homeowners’ association. E. Perimeter Treatment. 1. Relationship of PRD Site to Adjacent Area. The design of a PRD shall take into account the relationship of the site to the surrounding areas. The

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perimeter of the PRD shall be so designed as to minimize undesirable impact of the PRD on adjacent properties and, conversely, to minimize undesirable impact of adjacent land use and development characteristics on the PRD. 2. Structures located on the perimeter of the development shall be set back in accordance with the front yard setback of the underlying zone. F. Nonresidential Uses. 1. Nonresidential uses are permitted in a PRD as specified in Section 23.56.040C, provided that such uses are primarily for the service and convenience of the residents of the development. 2. Uses permitted by special use permit in the underlying zone shall conform to standards as provided in Chapter 23.48, Special Uses. 3. Permitted uses shall conform to the standards of that use district, and to the following additional requirements: a. Building permits or occupancy permits for such uses shall not be issued until completion of one-half of the total dwelling units. b. Screening and landscaping shall be provided adequate to protect all neighboring uses from potential adverse effects. c. All sides of the proposed buildings shall be finished in a style which is harmonious with the development as a whole and with neighboring uses. 4. Accessory uses such as storage of boats, campers and recreational vehicles shall be permitted only if visual screening is provided. This same provision shall apply to garbage storage, recycling and collection areas. Amendment V to the Constitution of the United States No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment X to the Constitution of the United States The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

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CANADA

Crown Forest Sustainability Act, 1994 Summary: The Crown Forest Sustainability Act of 1994 provides for the protection and sustainable use of forest resources on public lands in the Province of Ontario, Canada. The several provisions of the act are administered primarily through the authority of the Minister of Natural Resources. Sustainable forestry is achieved through the development of forest management plans, forest operations prescriptions, and work schedules for harvesting forest resources. The minister, in turn, is authorized to establish local citizen committees, other advisory committees, and forest management boards to get advice on the preparation of such plans. The act provides for compliance through the payment of fees, licensing requirements, preparation of four manuals outlining the specific applicable requirements in a given area, and various enforcement provisions including both administrative and criminal penalties. In this excerpt, Parts I, VI, and IX have been omitted in their entirety. Key sections from Parts II–V, VII, and VIII are reproduced. Omitted sections are denoted by an ellipsis. The full English text can be found at: http://www. e-laws.gov.on.ca/DBLaws/Statutes/English/94c25 e.htm#P318 17915 The full French text can be found at: http://www. e-laws.gov.on.ca/DBLaws/Statutes/French/94c25 f.htm

PARTS II–V, VII, VIII PART II. MANAGEMENT PLANNING AND INFORMATION

Management units 7. The Minister may designate all or part of a Crown forest as a management unit for the purposes of this Act. Forest management plans 8. (1) The Minister shall ensure that a forest management plan is prepared for every management unit. Contents (2) A forest management plan shall, in accordance with the Forest Management Planning Manual, (a) describe the forest management objectives and strategies applicable to the management unit; and (b) have regard to the plant life, animal life, water, soil, air and social and economic values, including recreational values and heritage values, of the management unit. . . . Approval by Minister 9. (1) A forest management plan is of no effect unless it is approved by the Minister. . . . Preparation by licensee

S.O. 1994, CHAPTER 25 Amended by: 1996, c. 14, s. 1; 1998, c. 18, Sched. I, ss. 15–18; 2000, c. 18, s. 64; 2000, c. 26, Sched. L, s. 3; 2001, c. 9, Sched. K, s. 2. Notice of Currency: This document is up to date as of 05/31/2005.

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10. (1) The Minister may require the holder of a forest resource licence to prepare a forest management plan for a management unit. . . . Amendment of plan 11. (1) The Minister may at any time, in accordance with the Forest Management Planning Manual,

amend a forest management plan that the Minister previously approved. . . .

tion applies that are expected to result from the activities referred to in clause (b); and

Local citizens’ committees

(d) any standards or guidelines used in developing the prescription. . . .

13. The Minister shall establish local citizens’ committees to advise the Minister on the preparation and implementation of forest management plans and on any other matters referred to the committees by the Minister. Other advisory committees 14. The Minister may establish other advisory committees to advise the Minister on matters under this Act, including the preparation of forest management plans and the manuals required by section 68. Forest management boards 15. (1) The Minister may establish forest management boards for such areas as are designated by the Minister, including forest management boards for community forests designated by the Minister. Functions (2) A forest management board shall, (a) advise the Minister on matters relating to the management of Crown forests; (b) prepare forest management plans on the request of the Minister; (c) exercise any authority of the Minister under this Part that is delegated to the board by the regulations; and (d) perform such additional functions as are prescribed by the regulations. Forest operations prescriptions 16. (1) Every forest operations prescription shall be prepared in accordance with the Forest Management Planning Manual and shall include descriptions of, (a) the current structure and condition of the Crown forest in the area to which the prescription applies;

Work schedules 17. (1) The Minister may require the holder of a forest resource licence to prepare a work schedule for the licensee’s forest operations in a management unit. Contents (2) The work schedule shall be prepared in accordance with the Forest Management Planning Manual and shall be consistent with, (a) the applicable forest management plan; and (b) any forest operations prescriptions that apply to the forest operations. . . . Forest management plan (5) A work schedule and any modification or revision to a work schedule under subsection (3) or (4) shall be consistent with the applicable forest management plan. . . . Inventories, surveys, tests and studies 20. (1) The Minister may require the holder of a forest resource licence to conduct inventories, surveys, tests or studies in accordance with the Forest Information Manual for the purpose of forest management planning or ensuring compliance with this Act and the regulations. . . . Information 21. (1) The Minister may require the holder or former holder of a forest resource licence to provide the Minister with information in accordance with the Forest Information Manual for the purpose of forest management planning or ensuring compliance with this Act and the regulations. . . . Minister’s report 22. (1) The Minister shall prepare a report on the state of the Crown forests at least once every five years. . . .

(b) harvesting, renewal and maintenance activities that will be used to ensure that the Crown forest in the area to which the prescription applies will be renewed and maintained;

PART III.

(c) the future structure and condition of the Crown forest in the area to which the prescrip-

24. (1) If the Minister is of the opinion that forest resources in a management unit should be

FOREST RESOURCE LICENCES

Availability of resources

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made available to be harvested or to be used for a designated purpose, the Minister shall give public notice in such manner as he or she considers appropriate of the intention to make the resources available. Competitive process (2) The Minister shall not enter into an agreement under section 25 or grant a licence under this Part except in accordance with a competitive process. . . . Sustainable forest licences 26. (1) The Minister may, with the approval of the Lieutenant Governor in Council, grant a renewable licence to harvest forest resources in a management unit that requires the licensee to carry out renewal and maintenance activities for the benefit and on behalf of the Crown necessary to provide for the sustainability of the Crown forest in the area covered by the licence. Term (2) A licence under this section may be granted for a term of up to 20 years and the term shall be extended in accordance with subsection (4). Five-year review (3) During the term of the licence, the Minister shall conduct a review every five years to ensure that the licensee has complied with the terms and conditions of the licence. Extension of term (4) If a review conducted under subsection (3) satisfies the Minister that the licensee has complied with the terms and conditions of a licence, the Minister shall, with the approval of the Lieutenant Governor in Council, extend the term of the licence for five years. Contents (5) A licence under this section shall specify the following: 1. Requirements for the preparation by the licensee of inventories and forest management plans. 2. The silvicultural and other standards to be met by the licensee in carrying out forest operations. 3. Requirements for the submission of reports by the licensee to the Minister.

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4. Procedures for the periodic review of the licensee’s performance under the licence. 5. The term of the licence and any conditions applicable to the renewal of the licence. Same (6) A licence under this section shall inform the licensee of the provisions of sections 34 and 38. Other licences 27. (1) The Minister may, without the approval of the Lieutenant Governor in Council, grant a licence to harvest forest resources in a management unit or to use forest resources in a management unit for a designated purpose. Term (2) The term of a licence under this section shall not exceed five years. Agreements (3) The Minister may enter into an agreement with the holder of a licence under this section in respect of, (a) renewal and maintenance activities necessary to provide for the sustainability of the Crown forest in the area covered by the licence; or (b) obligations of the licensee that will be performed by the Minister in return for payment of a fee. Renewal of licence (4) If the harvesting or use of the resources authorized by a licence under this section is not completed before the licence expires, the Minister may renew the licence for one term of one year, subject to such terms and conditions as may be specified by the Minister. Forest management plan (5) A licence shall not be renewed under subsection (4) unless the renewal is consistent with the applicable forest management plan. . . . Harvesting limit 29. (1) A forest resource licence that authorizes the harvesting of forest resources is subject to the condition that the amount of forest resources harvested shall not exceed the amount described as available for harvesting in the applicable forest management plan. . . .

Annual area charge 32. (1) The holder of a forest resource licence shall pay to the Minister of Finance an annual area charge in the amount and within the times required by the Minister of Natural Resources in respect of the land specified under subsection (2). Land to be specified (2) A forest resource licence shall specify the land in the area covered by the licence in respect of which an annual area charge shall be paid and shall state the total area occupied by that land. Exceptions (3) Subsections (1) and (2) do not apply in respect of a licence that only authorizes the harvesting of killed or damaged forest resources or that belongs to a class of licences prescribed by the regulations. Ownership of forest resources 33. (1) Property in forest resources that may be harvested under a forest resource licence remains in the Crown until all Crown charges have been paid in respect of the resources. Same (2) Property in forest resources that may be used for a designated purpose under a forest resource licence remains in the Crown. Amendment of licences 34. (1) The Minister may amend a forest resource licence in accordance with the regulations. Considerations (2) In determining whether to amend a licence under this section, the Minister shall take into consideration, (a) any reasonable business requirement of the licensee; (b) any collective agreement to which the licensee is a party and which affects the harvesting of the forest resources in the management unit to which the licence relates; (c) values identified in the forest management plan for the management unit to which the licence relates, including values relating to plant life, animal life, water, soil and air and social and economic values, including recreational values and heritage values; and

(d) any other matter the Minister sees fit to consider. Approval of L.G. in C. (3) An amendment to a licence under section 26 may be made only with the approval of the Lieutenant Governor in Council, unless the licensee has agreed in writing to the amendment. Right to make representations (4) Before amending a licence, the Minister shall, (a) give the licensee written notice of the Minister’s intention to amend the licence and of the reasons for the amendment; and (b) give the licensee an opportunity to make representations to the Minister on the proposed amendment. Forest management plan (5) Any amendment to a licence shall be consistent with the applicable forest management plan. Transfer of licences 35. (1) A transfer, assignment, charge or other disposition of a forest resource licence is not valid without the written consent of the Minister. . . . Survey 39. The Minister may at any time cause a survey to be made to establish or re-establish the boundaries of the area covered by a forest resource licence and, unless the Minister otherwise directs, the cost of the survey shall be borne by the licensee or, if the boundary in question is a division line between two licensed areas, by the respective licensees in such proportions as the Minister considers proper. Crown charges 40. (1) Crown charges in respect of forest resources authorized to be harvested or used for a designated purpose by a forest resource licence shall be paid by the licensee whether the resources are harvested or used by the licensee or by another person with or without the licensee’s consent. Property in resources (2) Upon payment of the charges referred to in subsection (1) by the holder of a forest resource licence, property in forest resources that have been harvested on the land to which the licence relates

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during the term of the licence vests in the licensee, whether the resources were harvested by the licensee or by another person with or without the licensee’s consent. . . . Unpaid Crown charges 41. If Crown charges have not been paid by the holder of a forest resource licence, the Minister may withhold any licence or approval requested by the licensee until the Crown charges are paid.

Measurement of resources 45. (1) A person shall not remove forest resources in a Crown forest from the place of harvesting unless the resources have been measured and counted by a licensed scaler. Methods of measurement (2) A person who measures, counts or weighs forest resources shall do so in accordance with the Scaling Manual. . . . Records

PART IV.

FOREST OPERATIONS

Conduct of forest operations 42. (1) A person shall not conduct forest operations in a Crown forest except in accordance with, (a) an applicable forest management plan; (a.1) any forest operations prescriptions that apply to the forest operations; and (b) an applicable work schedule approved by the Minister. Exception (2) The Minister may in writing direct that subsection (1) does not apply to forest operations conducted by or on behalf of the Minister if, in the opinion of the Minister, the forest operations are necessary to provide for the sustainability of a Crown forest. . . . Compliance with Manual 43. A person who conducts forest operations in a Crown forest shall comply with the Forest Operations and Silviculture Manual. Approval for harvesting 44. (1) The holder of a forest resource licence that authorizes the harvesting of forest resources shall not begin to harvest forest resources in any year unless the Minister has approved in writing the harvesting in the area in which the harvesting is to occur.

46. A person who removes forest resources from a Crown forest shall keep such records as are prescribed by the regulations. . . . PART V.

TRUST FUNDS

Forest Renewal Trust 48. (1) If the Forest Renewal Trust is not established under the Crown Timber Act before this Act comes into force, the Minister may establish in writing a trust to be known in English as the Forest Renewal Trust and in French as Fonds de reboisement. Same (2) If the Forest Renewal Trust is established under the Crown Timber Act before this Act comes into force, the Trust is continued under the name Forest Renewal Trust in English and Fonds de reboisement in French. Terms of Trust (3) The Trust shall provide for reimbursement of silvicultural expenses incurred after March 31, 1994 in respect of Crown forests in which forest resources have been harvested and for such other matters as may be specified by the Minister, on such terms and conditions as may be specified by the Minister. . . . Forest renewal charges

Crown charges

49. (1) The holder of a forest resource licence shall pay forest renewal charges to the Minister of Finance in the amounts and within the times required by the Minister of Natural Resources.

(2) The Minister may withhold approval under subsection (1) if the person is in default of payment of any Crown charges.

Payment to Forest Renewal Trust (2) Despite subsection (1), the Minister of Natural Resources may direct that a licensee who harvests

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forest resources in an area that is subject to a licence under section 26 shall pay forest renewal charges to the Forest Renewal Trust instead of to the Minister of Finance. . . . Forestry Futures Trust 51. (1) If the Forestry Futures Trust is not established under the Crown Timber Act before this Act comes into force, the Minister may establish in writing a trust to be known in English as the Forestry Futures Trust and in French as Fonds de r´eserve forestier. Same (2) If the Forestry Futures Trust is established under the Crown Timber Act before this Act comes into force, the Trust is continued under the name Forestry Futures Trust in English and Fonds de r´eserve forestier in French. Terms of Trust (3) The Trust shall provide for the following matters, on such terms and conditions as may be specified by the Minister:

to best carry out the criteria established under subsection (6). . . .

PART VII.

REMEDIES AND ENFORCEMENT

Damage by forest operations 55. (1) If, in the opinion of the Minister, forest operations conducted in a Crown forest are causing or are likely to cause loss or damage that impairs or is likely to impair the sustainability of the Crown forest or that is contrary to a forest management plan or a work schedule approved by the Minister, the Minister may by order, (a) direct that the forest operations stop; (b) establish limits or require other changes in the forest operations; (c) amend the forest management plan or work schedule. . . . Repairs Minister’s powers

1. The funding of silvicultural expenses in Crown forests where forest resources have been killed or damaged by fire or natural causes.

56. (1) If, in the opinion of the Minister, a person causes or permits damage to water, soil, plant life or habitat for animal life in a Crown forest, the Minister may,

2. The funding of silvicultural expenses on land that is subject to a forest resource licence, if the licensee becomes insolvent.

(a) order the person to take such action as the Minister directs to repair the damage or prevent further damage;

3. The funding of intensive stand management and pest control in respect of forest resources in Crown forests.

(b) take such action as the Minister considers necessary to repair the damage or prevent further damage. . . .

4. Such other purposes as may be specified by the Minister. . . . Payments to Trust (5) The holder of a forest resource licence shall pay forestry futures charges to the Trust in the amounts and within the times required by the Minister. . . . Committee (7) The Minister may establish a committee to,

Court powers (3) If a person causes or permits damage to water, soil, plant life or habitat for animal life in a Crown forest, the Superior Court of Justice, on the application of the Minister, may order the person to take such action as the court directs to repair the damage or prevent further damage. Compliance with forest resource licence

(a) advise the Minister on the criteria referred to in subsection (6); and

57. (1) If, in the opinion of the Minister, a person has failed to comply with a forest resource licence, the Minister may,

(b) issue directions to the trustee on how much of the funds of the Trust shall be paid out in any year and on what payments to make from those funds

(a) order the person to take such action as the Minister directs to carry out the obligations imposed by the licence;

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(b) take such action as the Minister considers necessary to carry out the obligations imposed by the licence. . . . Administrative penalties 58. (1) A person who, (a) without the authority of a forest resource licence, harvests forest resources in a Crown forest or uses forest resources in a Crown forest for a designated purpose is liable to a penalty of not more than the greater of, (i) $15,000, and (ii) five times the value of any forest resources harvested without the authority of a forest resource licence;

Forestry Futures Trust (8) If the Forestry Futures Trust is established or continued under section 51, penalties imposed under this section shall be paid to the Forestry Futures Trust. Suspension or cancellation of forest resource licence 59. (1) The Minister may suspend or cancel a forest resource licence, in whole or in part, if, (a) the licensee fails to comply with the licence; (b) the licensee fails to comply with the Forest Management Planning Manual, the Forest Information Manual or the Forest Operations and Silviculture Manual;

(i) $15,000, and

(c) the licensee fails to prepare a forest management plan or work schedule that the licensee is required to prepare under subsection 10 (1) or 17 (1);

(ii) five times the value of any forest resources harvested in contravention of the licence;

(d) the licensee contravenes section 30 or subsection 42 (1) or 45 (1);

(c) contravenes section 30 is liable to a penalty of not more than $15,000;

(e) the licensee fails to comply with an order made under clause 55 (1) (a) or (b) or clause 56 (1) (a);

(d) contravenes subsection 42 (1) is liable to a penalty of not more than the greater of,

(f) without the authority of a forest resource licence, the licensee harvests forest resources in a Crown forest or uses forest resources in a Crown forest for a designated purpose;

(b) fails to comply with a forest resource licence is liable to a penalty of not more than the greater of,

(i) $15,000, and (ii) five times the value of any forest resources harvested in contravention of subsection 42 (1); (e) contravenes section 43 or 44, subsection 45 (1) or (3) or section 53 is liable to a penalty of not more than $15,000; (f) fails to comply with an order made under clause 55 (1) (a) or (b), 56 (1) (a) or 57 (1) (a) is liable to a penalty of not more than $15,000, in addition to any costs for which the person is liable under subsection 56 (2) or 57 (2); (g) fails to provide information to the Minister or to an employee or agent of the Ministry as required under this Act or the regulations is liable to a penalty of not more than $2,000; (h) fails to keep records required by this Act or the regulations or interferes with an employee or agent of the Ministry or a person appointed by the Minister acting under section 62 is liable to a penalty of not more than $5,000. . . .

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(g) the licensee fails to pay Crown charges; (h) the licensee fails to provide information to the Minister or to an employee or agent of the Ministry as required under this Act or the regulations; (i) the licensee becomes insolvent; (j) the licence conflicts with an earlier licence; or (k) the suspension or cancellation is authorized for another reason prescribed by the regulations. Approval of L.G. in C. (2) The Minister shall not, without the approval of the Lieutenant Governor in Council, cancel or suspend a licence granted under section 26. . . . Seizure of forest resources and products 60. (1) An employee or agent of the Ministry may seize and detain forest resources or a product manufactured from forest resources if any of the following circumstances exist: . . .

2. The employee or agent believes on reasonable grounds that the forest resources or the forest resources from which the product was manufactured have not been measured, counted or weighed as required under this Act. 3. The employee or agent believes on reasonable grounds that Crown charges are owing in respect of the forest resources, the forest resources from which the product was manufactured, or any other forest resources. 4. The employee or agent believes on reasonable grounds that the forest resources or the forest resources from which the product was manufactured were removed from a Crown forest in contravention of this Act or the regulations. . . . Entry on private land 61. (1) Subject to subsection (2), an employee or agent of the Ministry and any person accompanying him or her and acting under his or her instructions may, at all reasonable times and on producing proper identification, (a) enter private land for the purposes of this Act if forest resources or products manufactured from forest resources are, or are reasonably believed to be, located or processed on the private land; or (b) cross private land for the purpose of reaching a Crown forest. Search warrant (2) An employee or agent of the Ministry or a person accompanying him or her shall not enter a room or place actually used as a dwelling without the consent of the occupier except under the authority of a search warrant issued under section 158 of the Provincial Offences Act. Inspection of records 62. An employee or agent of the Ministry or a person appointed by the Minister may, at all reasonable times and on producing proper identification, inspect any records required to be kept under this Act. . . .

or uses forest resources in a Crown forest for a designated purpose is guilty of an offence and on conviction is liable to a fine of not more than $100,000; (b) fails to comply with a forest resource licence is guilty of an offence and on conviction is liable to a fine of not more than $100,000; (c) contravenes subsection 42 (1) or section 43 or 53 is guilty of an offence and on conviction is liable to a fine of not more than $100,000; (d) fails to comply with an order made under clause 55 (1) (a) is guilty of an offence and on conviction is liable to a fine of not more than $1,000,000; (e) obstructs an employee or agent of the Ministry acting under section 60, 61 or 62 is guilty of an offence and is liable on conviction to a fine of not more than $10,000; (f) makes or takes advantage of a false statement with respect to any matter under this Act or the regulations is guilty of an offence and is liable on conviction to a fine of not more than $10,000; (g) fails to provide information to the Minister or to an employee or agent of the Ministry as required under this Act or the regulations is guilty of an offence and is liable on conviction to a fine of not more than $10,000; (h) contravenes any other provision of this Act or the regulations is guilty of an offence and is liable on conviction to a fine of not more than $100,000. Penalty imposed under s. 58 (2) (2) A person shall not be convicted of an offence under this section in respect of an act or omission for which a penalty was imposed on the person under section 58. . . .

PART VIII.

MISCELLANEOUS

Renewed resources

Offences

65. All forest resources renewed in a Crown forest are property of the Crown.

64. (1) A person who,

Scaler’s licence

(a) without the authority of a forest resource licence, harvests forest resources in a Crown forest

66. (1) The Minister may issue a licence to a scaler in accordance with the regulations.

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Suspension or cancellation (2) The Minister may suspend or cancel a scaler’s licence if the scaler, (a) fails to measure, count or weigh forest resources in accordance with the Scaling Manual; or (b) provides false information to the Minister or fails to provide information to the Minister when requested to do so. . . . Manuals 68. (1) The Minister shall require the following manuals to be prepared by the Ministry: 1. Forest Management Planning Manual. 2. Forest Information Manual. 3. Forest Operations and Silviculture Manual. 4. Scaling Manual. Forest Management Planning Manual (2) The Minister shall ensure that every forest management plan complies with the Forest Management Planning Manual. (3) The Forest Management Planning Manual shall contain provisions respecting, (a) the contents and preparation of forest management plans, forest operations prescriptions and work schedules, including public involvement and decision-making processes; (b) determinations of the sustainability of Crown forests for the purposes of this Act and the regulations in accordance with section 2; (c) the requirement that management objectives in each forest management plan be compatible with the sustainability of the Crown forest; and (d) the requirement that indicators be identified in each forest management plan to assess the effectiveness of activities in achieving management objectives and to assess the sustainability of the Crown forest. (4) An amendment to the Forest Management Planning Manual shall be subject to review and comment by the public in accordance with the regulations. (5) The Forest Management Planning Manual shall require that every forest management plan contain,

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(a) a description of the current structure, composition and condition of the Crown forest; (b) management objectives relating to, (i) Crown forest diversity objectives, including consideration for the conservation of natural landscape patterns, forest structure and composition, habitat for animal life and the abundance and distribution of forest ecosystems, (ii) social and economic objectives, including harvest levels and a recognition that healthy forest ecosystems are vital to the well-being of Ontario communities, (iii) objectives relating to the provision of forest cover for those values that are dependent on the Crown forest, (iv) silviculture objectives for the harvest, renewal and maintenance of the Crown forest; and (c) a description of the future structure, composition and condition of the Crown forest. Forest Information Manual (6) The Forest Information Manual may contain provisions respecting information systems, inventories, surveys, tests and studies that may be required by the Minister in respect of Crown forests and respecting information to be provided to the Minister in respect of Crown forests. Forest Operations and Silviculture Manual (7) The Forest Operations and Silviculture Manual shall contain provisions respecting forest operations, including, (a) standards for forest operations; (b) standards for silvicultural practices; (c) minimum qualifications for persons specified in the manual who are engaged in forest operations; and (d) assessment procedures and standards to be used in the evaluation of forest operations and forest management. Scaling Manual (8) The Scaling Manual may contain provisions respecting the measurement, counting and weighing of forest resources from Crown forests, including the methods of measuring, counting and weighing forest resources of various types and in

various circumstances and the conduct of scaling audits.

14. governing the resolution of disputes under subsection 38 (2);

Geographic scope

15. prescribing the records to be kept by persons who remove forest resources from Crown forests; . . .

(9) A manual prepared under this section may apply to all of Ontario or separate manuals may be prepared for different parts of Ontario. Effect of manual (10) A manual prepared under this section or an amendment to a manual is of no effect unless, (a) the manual or amendment is published by the Ministry and available to the public; and

17. fixing the dates by which Crown charges are payable, requiring the payment of interest on overdue payments and prescribing the method for determining the amount of interest payable; 18. governing the Forestry Futures Trust;

Regulations

19. governing the issuance, transfer, renewal, amendment, suspension and cancellation of forest resource processing facility licences and governing the determination of whether a person has a sufficient supply of forest resources to operate a forest resource processing facility;

69. (1) The Lieutenant Governor in Council may make regulations,

20. exempting a forest resource processing facility from section 53;

1. designating purposes for the purpose of the definition of “designated purpose” in subsection 3 (1);

21. prescribing the fees payable for forest resource processing facility licences;

(b) the manual or amendment is approved by the regulations.

2. prescribing types of plant life for the purpose of the definition of “forest resource” in sub section 3 (1); 3. prescribing forest resources for the purpose of the definition of “forest resource processing facility” in subsection 3 (1); 4. governing appeals under section 12; 5. prescribing the records to be kept by holders and former holders of forest resource licences; 6. prescribing terms and conditions applicable to forest resource licences; . . . 8. prescribing classes of licences for the purposes of subsection 32 (3); 9. governing the amendment of forest resource licences; 10. prescribing a fee for obtaining the consent referred to in subsection 35 (1); 11. prescribing circumstances in which subsection 35 (2) does not apply; 12. requiring information specified by the regulations to be provided when a forest resource licence is transferred; 13. prescribing matters on which licensees shall endeavour to agree under subsection 38 (2);

22. prescribing the term of forest resource processing facility licences; 23. imposing conditions as to the location, mechanical efficiency and operating methods of forest resource processing facilities; 24. providing for the inspection of forest resource processing facilities; 25. prescribing the returns that forest resource processing facility licensees shall make to the Minister, including the sources, species, quantities and disposition of forest resources processed; 26. prescribing other reasons for which a forest resource licence may be cancelled or suspended under section 59; 27. delegating any authority of the Minister under Part II to a forest management board and prescribing additional functions of a forest management board; 28. governing the qualifications and licensing of scalers, including prescribing fees for licensing examinations and scalers’ licences; 29. approving a manual prepared under section 68 or an amendment to a manual; 30. governing public reviews and comments referred to in subsection 68 (4);

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31. governing the establishment and conduct of independent audits reporting to the Legislative Assembly relating to compliance with this Act; 32. governing the harvesting and disposition of trees that are not in Crown forests but are reserved

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to the Crown, including requiring a licence for the harvesting or disposition of those trees and including making any provision of Part VII, except section 64, applicable, with such modifications as may be specified by the regulations, to the harvesting and disposition of those trees. . . .

Muskwa-Kechika Management Area Act Summary: The Muskwa-Kechika Management Area is formalized in the Muskwa-Kechika Management Area Act (M-KMAA). This act succeeded an order in council under the Environment and Land Use Act, which initially created the Muskwa-Kechika Management Area in 1997. The Muskwa-Kechika Management Area, a 6.3 million hectare (15.6 million acre) region in northeastern British Columbia, encompasses 1.6 million hectares of protected areas and 4.7 million hectares of special management areas that are managed to ensure that wildlife and environmental values are maintained. It remains one of North America’s last wilderness areas south of the 60th parallel. Assented to on July 30, 1998, the M-KMAA represents a consensus-based, multi-stakeholder agreement to establish the largest conservation system in North America. The act outlines the enactment of local strategic plans, including park management and wildlife management plans, and landscape unit objectives. In Part Four, the purposes of the Muskwa-Kechika Trust Fund are defined. This provision allows for use of the fund to further eleven types of management activities, which include conservation, inventory maintenance, and research work. The objective of this sustainable development act is integrated management and preservation of ecosystems while allowing for economically viable extraction of resources. Schedule Three of the act provides that a Muskwa-Kechika management plan will be implemented by all relevant government agencies through agency-specific management activities, local strategic plans, resource development permits, and natural resource dispositions. Select provisions from Chapter 38, Parts 1–5, are reproduced here. An ellipsis indicates that a provision has been abridged. The full text of the act can be found at: http:// www.qp.gov.bc.ca/statreg/stat/M/98038 01.htm

MUSKWA-KECHIKA MANAGEMENT AREA ACT [SBC 1998] CHAPTER 38

Part 1 – Definitions and Interpretation Definitions and Interpretation

1. In this Act: “advisory board” means the Muskwa-Kechika Advisory Board appointed under section 9; “landscape unit objective” means a landscape unit objective under the Forest Practices Code of British Columbia Act for an area within the management area; “local strategic plan” means a plan referred to in Schedule 6 to Order in Council 1367/97 or a local strategic plan enacted under section 5 that is one of the following: (a) an oil and gas pre-tenure plan; (b) a recreation management plan; (c) a park management plan; (d) a wildlife management plan; “management area” means the Muskwa-Kechika Management Area continued by section 3 and described in the Schedule; “management plan” means the Muskwa-Kechika Management Plan in Schedule 3 to Order in Council 1367/97 or as enacted or amended under section 4; “oil and gas pre-tenure plan” means an oil and gas pre-tenure plan as defined by the regulations; “operational instrument” means a plan, allocation, tenure, disposition, licence or any other instrument or document affecting or respecting Crown land or a natural resource that is enacted or authorized under an enactment other than this Act and the regulations;

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“park management plan” means a park management plan as defined by the regulations; “recreation management plan” means a recreation management plan as defined by the regulations; “resource management zone” means a zone described in Schedule 2 to Order in Council 1367/97 or defined in the regulations; “trust fund” means the Muskwa-Kechika Trust Fund established under section 10; “wildlife management plan” means a wildlife management plan as defined by the regulations. Part 2 – Application Application of Other Enactments to the Management Area

2. (1) With respect to the management area, a minister or other agent of the government must not exercise a power under any enactment except in accordance with this Act, the regulations and local strategic plans. (2) Subsection (1) does not apply to an order made under the Environment and Land Use Act or a person acting under an order made under that Act. Part 3 – Management Area and Plan Muskwa-Kechika Management Area Continued

3. The area established under Order in Council 1367/97 and known as the Muskwa-Kechika Management Area is continued as the management area to be administered under this Act. Muskwa-Kechika Management Plan

4. (1) The planning and management of Crown land and natural resources in the management area must be conducted in accordance with the management plan. (2) After giving notice under subsection (3) and consulting with the advisory board, and despite any other Act or regulation, the Lieutenant Governor in Council may make regulations that the Lieutenant Governor in Council considers necessary or advisable to enact or amend the management plan respecting the environment, resource management or land use in the management area. (3) Before the Lieutenant Governor in Council enacts or amends the management plan, the

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minister must give notice, in accordance with the regulations, of the intention to do so. . . . Local Strategic Plans and Landscape Unit Objectives

5. (1) The minister or a person or a class of persons designated by the minister may, by order, enact the following: (a) an oil and gas pre-tenure plan; (b) a recreation management plan. (1.1) The minister responsible for the Park Act or a person or a class of persons designated by that minister may, by order, enact a park management plan. (1.2) The minister responsible for the Wildlife Act or a person or a class of persons designated by that minister may, by order, enact a wildlife management plan. (2) A local strategic plan must do the following: (a) specify the boundaries of the area within the management area to which the local strategic plan applies; (b) be consistent with the management plan; (c) apply measures to achieve the provisions of the management plan. (3) A landscape unit objective must be consistent with the management plan . . . . Consistency of Operational Activities

7. (1) If there is no local strategic plan or landscape unit objective and no local strategic plan or landscape unit objective is required under section 8 (1), the issuance, approval, permitting or authorization of an operational instrument affecting or respecting Crown land or a natural resource by a minister or other agent of the government must be consistent with the management plan. (2) If there is a local strategic plan or landscape unit objective for an area, an operational instrument referred to in subsection (1) affecting or respecting the area must be consistent with the local strategic plan or landscape unit objective as follows: (a) an operational instrument for timber or range resource management must be consistent with any landscape unit objective;

(b) an operational instrument affecting or respecting oil or gas resource management must be consistent with any local strategic plan that is an oil and gas pre-tenure plan; (c) an operational instrument affecting or respecting commercial recreation management must be consistent with any local strategic plan that is a recreation management plan; (d) an operational instrument affecting or respecting a Provincial park or ecological reserve must be consistent with any local strategic plan that is a park management plan; (e) an operational instrument affecting or respecting wildlife management must be consistent with any local strategic plan that is a wildlife management plan; (f) a range use plan or range stewardship plan under the Forest and Range Practices Act that applies to a Provincial park must be consistent with any local strategic plan that is a park management plan.

instrument affecting or respecting an activity in an area only as follows: (a) a landscape unit objective is a prerequisite to a forest development plan or a forest stewardship plan under the Forest and Range Practices Act ; (b) a local strategic plan that is an oil and gas pre-tenure plan is a prerequisite to an operational instrument affecting or respecting oil or gas resource management; (c) a local strategic plan that is a recreation management plan is a prerequisite to an operational instrument affecting or respecting commercial recreation management. . . . Muskwa-Kechika Advisory Board

9. The Premier must appoint an advisory board, to be known as the Muskwa-Kechika Advisory Board, to advise on natural resource management in the management area and may appoint a chair of the advisory board. Part 4 – Muskwa-Kechika Trust Fund

(3) An operational instrument referred to in subsection (1) must incorporate any conditions necessary to make its operation consistent with the management plan. (4) An operational instrument referred to in subsection (2) must incorporate any conditions necessary to make its operation consistent with the local strategic plan or landscape unit objective. (5) If the minister or other agent of the government issuing, approving, permitting or authorizing the operational instrument does not otherwise have the power to incorporate the conditions referred to in subsections (3) and (4) in an operational instrument referred to in those subsections, that minister or other agent has that power for the purposes of this Act, the regulations and local strategic plans or landscape unit objectives. Prerequisites to and Approval of Operational Activities

8. (1) A local strategic plan or landscape unit objective is a prerequisite to the issuance, approval, permitting or authorization, by a minister or other agent of the government, of an operational

... Purposes of and Expenditure From Fund

12. (1) The purposes of the trust fund are the following: (a) to support wildlife and wilderness resources of the management area through research and integrated management of natural resource development; (b) to maintain in perpetuity the diversity and abundance of wildlife species and the ecosystems on which they depend throughout the management area. (2) To achieve the purposes of the trust, the trustee may make payments out of the trust fund only for one or more of the following in respect of the management area: (a) conserving and enhancing biological diversity, fish, fish habitat, wildlife, wildlife habitat and wilderness values; (b) conducting research into wilderness management, fish and wildlife biology and ecology, with emphasis on large predator/prey ecosystems;

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(c) conducting research into integrated management of wilderness, wildlife, fish, recreation and resource development; (d) supporting inventories and mapping of wildlife, recreation, range, and culture; (e) supporting planning initiatives regarding wildlife, recreation, parks, access, and resource development;

Advisory Board to Advise on Trust Projects

15. (1) The advisory board may identify suitable projects and proposals consistent with the purposes of the trust. (2) The trustee must consult the chair of the advisory board before committing or spending money from the trust fund.

(f) involving and training persons from local communities in resource related career opportunities;

Part 5 – General

(g) promoting knowledge and awareness of the trust fund, the management area and its wilderness values, by way of promotional, educational, or other programs or activities;

Power to Make Regulations

(h) supporting enforcement training and activities that serve to ensure compliance with this Act and other relevant enactments;

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(i) the reasonable traveling and out of pocket expenses incurred by the advisory board on matters relating to this Act;

(a) defining a word or phrase used but not defined in this Act;

(j) administration, staffing, services and supplies provided in relation to matters referred to in this section or provided to otherwise manage the trust fund; (k) the remuneration of the chair of the advisory board. . . .

...

17. (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(b) amending the Schedule to add land to the management area. (3) Without limiting subsection (1), after consulting the advisory board, the Lieutenant Governor in Council may make regulations as follows: (a) enacting or amending the management plan;

Funding Conditions

(b) defining the composition and responsibilities of the advisory board;

14. The trustee may accept on behalf of the trust fund, donations that are subject to conditions, as long as the conditions are consistent with the intent of section 12.

(c) respecting consultation with the public, including first nations, on proposed amendments to the management plan and the establishment of or changes to a resource management zone. . . .

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The Manitoba Sustainable Development Act Summary: Assented to on June 28, 1997, the Manitoba Sustainable Development Act (with the exception of section 3) was made effective from July 1, 1998. The act contains eight parts that establish the province’s framework for achieving environmental and economic sustainability in both the public and private sector. This act focuses on integrated decision making and global responsibility, and it emphasizes public participation, shared responsibility, and stewardship. An allowance is made for the incorporation of sustainable development planning in existing and future acts. Funding for planning is provided by the Sustainable Development Innovations Fund, which replaces the Environmental Innovations Fund. The Manitoba Round Table for Sustainable Development is established to administer and implement the act, to provide guidance, and to ensure that government initiatives promote sustainable development. Schedules A and B provide Manitoba’s Principles and Guidelines of Sustainable Development. An ellipsis indicates that a provision has been abridged. The full text of this act is available in English at: http://web2.gov.mb.ca/laws/statutes/ccsm/ s270e.php The full text of this act is available in French at: http://web2.gov.mb.ca/laws/statutes/ccsm/ s270f.php

C.C.S.M. c. S270 PART 1. DEFINITIONS AND PURPOSE

Definitions 1 In this Act, . . . “code of practice” means the provincial sustainable development code of practice established under subsection 11(1); “Crown corporation” means a corporation or other body to which The Crown Corporations Public Review and Accountability Act applies; “Crown Corporations Council” means the Crown Corporations Council established under The Crown

Corporations Public Review and Accountability Act ; “demand management” means measures implemented to influence the amount of resources consumers use, as well as how and when the resources are used; . . . “full-cost accounting” means accounting for the economic, environmental, land use, human health, social and heritage costs and benefits of a particular decision or action to ensure no costs associated with the decision or action, including externalized costs, are left unaccounted for; “Fund” means the Sustainable Development Innovations Fund continued under subsection 17(1); “Guidelines” means the Guidelines for Sustainable Development set out in Schedule B; . . . “Interdepartmental Planning Board” means the Interdepartmental Planning Board established under The Planning Act; . . . “Manitoba Round Table” means the Manitoba Round Table for Sustainable Development established under subsection 4(1); “minister” means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act or any part of this Act; “Principles” means the Principles of Sustainable Development set out in Schedule A; . . . “Sustainable Development Strategy” means the Sustainable Development Strategy for Manitoba established under section 7; “sustainable yield” means the harvesting, extraction or use of a renewable resource at a rate or in an amount that does not exceed the rate of growth, regeneration or replacement of the resource. Purpose 2 The purpose of this Act is to create a framework through which sustainable development will be implemented in the provincial public sector and

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promoted in private industry and in society generally.

PART 2. FRAMEWORK FOR IMPLEMENTING SUSTAINABLE DEVELOPMENT

3 Not yet proclaimed. Manitoba Round Table established 4(1) The Manitoba Round Table for Sustainable Development is hereby established to (a) promote sustainable development in Manitoba; and (b) provide advice and recommendations to government in accordance with this Act.

(b) make its own rules of procedure, including procedures of subcommittees; (c) identify, promote and encourage projects and activities which exemplify sustainable development practices; (d) initiate, sponsor and support seminars, workshops and conferences related to sustainable development; (d.1) conduct studies and investigations, and advise and make recommendations to the minister, on matters related to sustainable development, other than matters involving the gathering of evidence to determine whether or not specific persons or bodies are complying with the provisions of this Act and the regulations;

Duties of the Manitoba Round Table

(e) publish reports and other materials; and

4(2) The duties of the Manitoba Round Table include

(f) do all things necessary for the effective carrying out of its duties under this Act. . . .

(a) creating awareness and understanding of sustainable development by the citizens of Manitoba; (b) cooperating with public sector organizations, private industry, non-governmental organizations and citizens to share knowledge and experience; (c) reviewing the Principles and Guidelines under section 6; (d) advising on the development of, and reviewing, the Sustainable Development Strategy in accordance with section 7; (e) advising on the development of component strategies in accordance with section 7; (f) advising on the development and review of sustainability indicators in accordance with section 9; (f.1) at the request of the minister, reviewing existing or proposed policy, legislation, regulations or programs for consistency with the Principles and Guidelines, and reporting to the minister with recommendations for his or her consideration; and (g) any other task or activity related to sustainable development, at the request of the minister. Powers of the Manitoba Round Table 4(3) The Manitoba Round Table may (a) establish and direct subcommittees to undertake various tasks;

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Reporting 4(11) The Manitoba Round Table shall submit an annual report on its activities to the minister. . . . Responsibilities of the Department of Conservation 5 The Department of Conservation is responsible for (a) providing secretariat, administrative and research support to the Manitoba Round Table and to Cabinet or any committee of Cabinet; (b) coordinating the review of strategy and policy work by the Interdepartmental Planning Board, and any other interdepartmental committee designated by the minister, regarding implementation of sustainable development policy and strategies; (c) coordinating the conduct of tasks set out in this Act, including, but not limited to (i) development and review of the Sustainable Development Strategy under section 7, (ii) development of component strategies under section 7, (iii) development of sustainability indicators for the purpose of section 9, (iv) preparation of the provincial sustainability report under section 10,

(v) preparation and review of the provincial sustainable development code of practice under section 11, and (vi) coordination of the implementation of the provisions of this Act relating to provincial public sector organizations; (d) administering the Fund under the supervision of the minister in accordance with Part 7; . . .

PART 3. PRINCIPLES AND GUIDELINES

Principles of Sustainable Development enumerated 6(1) The Principles of Sustainable Development for the purposes of this Act are listed in Schedule A. Guidelines for Sustainable Development enumerated 6(2) The Guidelines for Sustainable Development for the purposes of this Act are listed in Schedule B. Review of Principles and Guidelines 6(3) The Principles and Guidelines (a) may be reviewed by the Manitoba Round Table at any time after the coming into force of this Act; and (b) shall be reviewed by the Manitoba Round Table within five years after the coming into force of this Act, and at regular intervals of not more than five years after the initial review. Manitoba Round Table to make recommendations 6(4) Upon completion of a review under subsection (3), the Manitoba Round Table shall make any recommendations it considers appropriate concerning the Principles and Guidelines to the minister.

PART 4. SUSTAINABLE DEVELOPMENT STRATEGIES

Provincial strategy to be established 7(1) The Lieutenant Governor in Council shall (a) within two years after the coming into force of this Act, establish a Sustainable Development Strategy for Manitoba in consultation with the Manitoba Round Table; and

(b) require the Manitoba Round Table to review the strategy within five years after its establishment, and then at regular intervals of not more than five years after the initial review. Purpose of the provincial strategy 7(2) The Sustainable Development Strategy is intended for the purpose of, but not limited to, (a) establishing provincial sustainable development goals; (b) establishing a framework for sustainable development policy development; and (c) guiding the preparation of specific economic, environmental, resource, human health and social policy component strategies. Component strategies 7(3) The component strategies created under this Part shall set out strategic plans for achieving sustainability in specific economic, environmental, resource, human health and social policy sectors identified in the Sustainable Development Strategy. . . . PART 5. PROVINCIAL SUSTAINABILITY INDICATORS AND REPORTING

[Omitted.] PART 6. PUBLIC SECTOR OPERATIONS

Provincial code shall be established 11(1) Cabinet shall (a) within three years after the coming into force of this Act, establish a provincial sustainable development code of practice to assist in the integration of sustainable development into the decisions, actions and operations of provincial public sector organizations; and (b) require a review of the code of practice within five years after its establishment and at regular intervals of not more than five years after the initial review. . . . Crown corporations to adopt code of practice 13 Each Crown corporation shall, within two years after the establishment of the code of practice, prepare and adopt a corporate sustainable development code of practice.

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Crown corporations to adopt guidelines 14 Each Crown corporation and provincial public sector organization, except a department, shall, within two years after the establishment of financial management and procurement guidelines under subsections 12(1) and (2), (a) prepare and adopt financial management and procurement guidelines consistent with the intent of the guidelines established under those subsections; (b) integrate those guidelines into its financial management and procurement manuals and procedures; (c) establish procurement goals in support of the established provincial goals, and prepare an action plan to meet its established goals; (d) require a review of the guidelines and goals within five years after their establishment and at regular intervals of not more than five years after the initial review; and (e) integrate into its annual reporting process and requirements, information respecting progress made in implementing sustainable development practices in its activities and operations. Guidelines for local authorities and others 15 The Lieutenant Governor in Council shall, within five years after the coming into force of this Act, and in consultation with local authorities, school divisions, universities, colleges, regional health authorities and, in any parts of the province where no regional health authorities exist, hospitals, adopt by regulation (a) financial management guidelines for evaluating the sustainability of programs and activities; and (b) procurement guidelines; to be integrated into the financial management and procurement manuals and procedures of those local authorities, school divisions, universities, colleges, regional health authorities and hospitals. Review may be required 16(1) The minister may (a) direct a provincial public sector organization to undertake an internal review and provide a

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report of its progress in implementing sustainable development practices in its activities; (b) request the Auditor General or another independent body to undertake a review and provide a report of the progress of a provincial public sector organization in implementing sustainable development practices in its activities; or (c) request the Crown Corporations Council or another independent body to undertake a review and provide a report of the progress of a Crown corporation in implementing sustainable development practices in its activities. . . . PART 7. SUSTAINABLE DEVELOPMENT INNOVATIONS FUND

Sustainable Development Innovations Fund continued 17(1) The Sustainable Development Innovations Fund is continued under this Act, consisting of amounts appropriated for the purposes of the Fund. Purpose of Fund 17(2) The purpose of the Fund is to (a) provide grants in support of innovative projects, activities, research and developments that further the sustainability of Manitoba’s economy, environment, human health and social wellbeing and support environmentally sustainable economic growth; and (b) support any other sustainable development innovation purpose that the Lieutenant Governor in Council considers necessary or advisable. . . . PART 8. GENERAL PROVISIONS

Regulations 18 The Lieutenant Governor in Council may make regulations (a) designating a board, commission, association, or body as a provincial public sector organization within the meaning of section 1 and for the purpose of making this Act apply to it; (b) respecting the adoption of a component strategy or a part of a strategy and of financial management or procurement guidelines; (c) respecting the review procedures for the Sustainable Development Strategy, sustainability

indicators, code of practice, and procurement guidelines; (d) designating legislation to be reviewed for consistency with the Principles and Guidelines; (e) defining any word or expression used but not defined in this Act; (f) prescribing any matter or thing that is required or authorized by this Act to be prescribed by regulation; (g) respecting any matter necessary or advisable to carry out the purpose of this Act effectively. Regulations Act not applicable 19 The Regulations Act does not apply to an order of the Lieutenant Governor in Council establishing or revising the Sustainable Development Strategy, sustainability indicators, code of practice or financial management and procurement guidelines. . . . Schedule A. Principles of Sustainable Development

Integration of Environmental and Economic Decisions 1(1) Economic decisions should adequately reflect environmental, human health and social effects. 1(2) Environmental and health initiatives should adequately take into account economic, human health and social consequences. Stewardship 2(1) The economy, the environment, human health and social well-being should be managed for the equal benefit of present and future generations. 2(2) Manitobans are caretakers of the economy, the environment, human health and social wellbeing for the benefit of present and future generations. 2(3) Today’s decisions are to be balanced with tomorrow’s effects. Shared Responsibility and Understanding 3(1) Manitobans should acknowledge responsibility for sustaining the economy, the environment, human health and social well-being, with each being accountable for decisions and actions in a spirit of partnership and open cooperation. 3(2) Manitobans share a common economic, physical and social environment.

3(3) Manitobans should understand and respect differing economic and social views, values, traditions and aspirations. 3(4) Manitobans should consider the aspirations, needs and views of the people of the various geographical regions and ethnic groups in Manitoba, including aboriginal peoples, to facilitate equitable management of Manitoba’s common resources. Prevention 4 Manitobans should anticipate, and prevent or mitigate, significant adverse economic, environmental, human health and social effects of decisions and actions, having particular careful regard to decisions whose impacts are not entirely certain but which, on reasonable and well-informed grounds, appear to pose serious threats to the economy, the environment, human health and social wellbeing. Conservation and Enhancement 5 Manitobans should (a) maintain the ecological processes, biological diversity and life-support systems of the environment; (b) harvest renewable resources on a sustainable yield basis; (c) make wise and efficient use of renewable and non-renewable resources; and (d) enhance the long-term productive capability, quality and capacity of natural ecosystems. Rehabilitation and Reclamation 6 Manitobans should (1) endeavour to repair damage to or degradation of the environment; and (2) consider the need for rehabilitation and reclamation in future decisions and actions. Global Responsibility 7 Manitobans should think globally when acting locally, recognizing that there is economic, ecological and social interdependence among provinces and nations, and working cooperatively, within Canada and internationally, to integrate economic, environmental, human health and social factors in decision-making while developing comprehensive and equitable solutions to problems.

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Schedule B. Guidelines for Sustainable Development

mental, human health and social information; and

1 Efficient Use of Resources – which means

(b) promoting the opportunity for equal and timely access to information by all Manitobans.

(a) encouraging and facilitating development and application of systems for proper resource pricing, demand management and resource allocation together with incentives to encourage efficient use of resources; and (b) employing full-cost accounting to provide better information for decision makers.

4 Integrated Decision Making and Planning – which means encouraging and facilitating decision making and planning processes that are efficient, timely, accountable and cross-sectoral and which incorporate an inter-generational perspective of future needs and consequences.

2 Public Participation – which means (a) establishing forums which encourage and provide opportunity for consultation and meaningful participation in decision making processes by Manitobans; (b) endeavouring to provide due process, prior notification and appropriate and timely redress for those adversely affected by decisions and actions; and (c) striving to achieve consensus amongst citizens with regard to decisions affecting them. 3 Access to Information – which means (a) encouraging and facilitating the improvement and refinement of economic, environ-

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5 Waste Minimization and Substitution – which means (a) encouraging and promoting the development and use of substitutes for scarce resources where such substitutes are both environmentally sound and economically viable; and (b) reducing, reusing, recycling and recovering the products of society. 6 Research and Innovation – which means encouraging and assisting the researching, development, application and sharing of knowledge and technologies which further our economic, environmental, human health and social well-being.

Oceans Act (1996, c. 31) Summary: This law, applicable to ocean waters only, empowers the Minister of Fisheries and Oceans, in collaboration with other officials and government agencies, to develop and implement a national strategy for the management of estuarine, coastal, and marine ecosystems in waters that form part of Canada or in which Canada has sovereign rights under international law. This national strategy is to include plans for the integrated management of all activities or measures in or affecting such ocean waters. Part I of the act, which has been excluded here in its entirety, defines the geographical area of Canada’s maritime zones and specifies the applicable body of law and government officials authorized to regulate these zones. Part II authorizes the development of a comprehensive national oceans management strategy. It empowers the minister to facilitate the strategy in collaboration with other government officials and agencies, defines the designation of “marine protected areas,” and provides for executive enactment of regulations in accordance with the act as well as corresponding enforcement provisions. Part III outlines the specific powers, duties, and functions of the Minister of Fisheries and Oceans. It also provides for a subsequent review of the administration of the act and empowers the Governor in Council, with the minister’s recommendation, to make regulations for carrying out the purposes and provisions of the act. Omitted sections are identified by an ellipsis. The full text of this law can be found at: http://laws.justice.gc.ca/en/O-2.4/text.html

Excerpts of the act (updated to August 31, 2004) from Parts II and III PART II. OCEANS MANAGEMENT STRATEGY

Part does not apply to inland waters 28. For greater certainty, this Part does not apply in respect of rivers and lakes.

Development and implementation of strategy 29. The Minister, in collaboration with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements, shall lead and facilitate the development and implementation of a national strategy for the management of estuarine, coastal, and marine ecosystems in waters that form part of Canada or in which Canada has sovereign rights under international law. Principles of strategy 30. The national strategy will be based on the principles of (a) sustainable development, that is, development that meets the needs of the present without compromising the ability of future generations to meet their own needs; (b) the integrated management of activities in estuaries, coastal waters and marine waters that form part of Canada or in which Canada has sovereign rights under international law; and (c) the precautionary approach, that is, erring on the side of caution. Integrated management plans 31. The Minister, in collaboration with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities, and other persons and bodies, including those bodies established under land claims agreements, shall lead and facilitate the development and implementation of plans for the integrated management of all activities or measures in or affecting estuaries, coastal waters, and marine waters that form part of Canada or in which Canada has sovereign rights under international law.

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Implementation of integrated management plans 32. For the purpose of the implementation of integrated management plans, the Minister (a) shall develop and implement policies and programs with respect to matters assigned by law to the Minister; (b) shall coordinate with other ministers, boards and agencies of the Government of Canada the implementation of policies and programs of the Government with respect to all activities or measures in or affecting coastal waters and marine waters; (c) may, on his or her own or jointly with another person or body or with another minister, board or agency of the Government of Canada, and taking into consideration the views of other ministers, boards and agencies of the Government of Canada, provincial and territorial governments and affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements, (i) establish advisory or management bodies and appoint or designate, as appropriate, members of those bodies, and (ii) recognize established advisory or management bodies; and (d) may, in consultation with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements, establish marine environmental quality guidelines, objectives and criteria respecting estuaries, coastal waters, and marine waters. Cooperation and agreements 33. (1) In exercising the powers and performing the duties and functions assigned to the Minister by this Act, the Minister (a) shall cooperate with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, includ-

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ing those bodies established under land claims agreements; (b) may enter into agreements with any person or body or with another minister, board or agency of the Government of Canada; (c) shall gather, compile, analyse, coordinate, and disseminate information; (d) may make grants and contributions on terms and conditions approved by the Treasury Board; and (e) may make recoverable expenditures on behalf of and at the request of any other minister, board or agency of the Government of Canada or of a province or any person or body. Consultation (2) In exercising the powers and performing the duties and functions mentioned in this Part, the Minister may consult with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements. Logistics support, etc. 34. The Minister may coordinate logistics support and provide related assistance for the purposes of advancing scientific knowledge of estuarine, coastal, and marine ecosystems. Marine protected areas 35. (1) A marine protected area is an area of the sea that forms part of the internal waters of Canada, the territorial sea of Canada or the exclusive economic zone of Canada and has been designated under this section for special protection for one or more of the following reasons: (a) the conservation and protection of commercial and non-commercial fishery resources, including marine mammals, and their habitats; (b) the conservation and protection of endangered or threatened marine species, and their habitats; (c) the conservation and protection of unique habitats;

(d) the conservation and protection of marine areas of high biodiversity or biological productivity; and

(a) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $100,000; or

(e) the conservation and protection of any other marine resource or habitat as is necessary to fulfil the mandate of the Minister.

(b) is guilty of an indictable offence and liable to a fine not exceeding $500,000.

Marine protected areas (2) For the purposes of integrated management plans referred to in sections 31 and 32, the Minister will lead and coordinate the development and implementation of a national system of marine protected areas on behalf of the Government of Canada. Regulations (3) The Governor in Council, on the recommendation of the Minister, may make regulations (a) designating marine protected areas; and (b) prescribing measures that may include but not be limited to

Contravention of unpublished order 38. No person may be convicted of an offence consisting of a contravention of an order made under subsection 36(1) in the exercise of a power under paragraph 35(3)(b) that, at the time of the alleged contravention, had not been published in the Canada Gazette in both official languages unless it is proved that reasonable steps had been taken before that time to bring the purport of the order to the attention of those persons likely to be affected by it. Enforcement officers 39. (1) The Minister may designate any person or class of persons to act as enforcement officers for the purposes of this Act and the regulations. . . .

(i) the zoning of marine protected areas,

Powers of peace officers

(ii) the prohibition of classes of activities within marine protected areas, and

(4) For the purposes of this Act and the regulations, enforcement officers have all the powers of a peace officer, but the Minister may specify limits on those powers when designating any person or class of persons. . . .

(iii) any other matter consistent with the purpose of the designation. Interim marine protected areas in emergency situations 36. (1) The Governor in Council, on the recommendation of the Minister, may make orders exercising any power under section 35 on an emergency basis, where the Minister is of the opinion that a marine resource or habitat is or is likely to be at risk to the extent that such orders are not inconsistent with a land claims agreement that has been given effect and has been ratified or approved by an Act of Parliament. . . . Temporary effect (3) An order made under this section that is not repealed ceases to have effect 90 days after it is made. Offence and punishment 37. Every person who contravenes a regulation made under paragraph 35(3)(b) or an order made under subsection 36(1) in the exercise of a power under that paragraph

Obstruction (6) When an enforcement officer is carrying out duties or functions under this Act or the regulations, no person shall (a) knowingly make any false or misleading statement either orally or in writing to the enforcement officer; or (b) otherwise wilfully obstruct the enforcement officer. . . . Contravention of Act or regulations 39.6 (1) Every person who contravenes subsection 39(6) or any regulation made under section 52.1 (a) is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding $100,000; or (b) is guilty of an indictable offence and is liable to a fine not exceeding $500,000.

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Subsequent offence (2) Where a person is convicted of an offence under this Act a second or subsequent time, the amount of the fine for the subsequent offence may, notwithstanding subsection (1), be double the amount set out in that subsection. Continuing offence (3) A person who commits or continues an offence on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed or continued. Fines cumulative (4) A fine imposed for an offence involving more than one animal, plant, or other organism may be calculated in respect of each one as though it had been the subject of a separate information and the fine then imposed is the total of that calculation. Additional fine (5) Where a person has been convicted of an offence and the court is satisfied that monetary benefits accrued to the person as a result of the commission of the offence, (a) the court may order the person to pay an additional fine in an amount equal to the court’s estimation of the amount of the monetary benefits; and (b) the additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act. Forfeiture 39.7 (1) Where a person is convicted of an offence, the convicting court may, in addition to any punishment imposed, order that any seized thing by means of or in relation to which the offence was committed, or any proceeds of its disposition, be forfeited to Her Majesty in right of Canada. . . . Orders of court 39.9 Where a person is convicted of an offence, the court may, in addition to any punishment imposed and having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions, or requirements:

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(a) prohibiting the person from doing any act or engaging in any activity that could, in the opinion of the court, result in the continuation or repetition of the offence; (b) directing the person to take any action that the court considers appropriate to remedy or avoid any harm to estuarine, coastal, or ocean waters, or their resources that resulted or may result from the commission of the offence; (c) directing the person to publish, in any manner that the court considers appropriate, the facts relating to the commission of the offence; (d) directing the person to pay the Minister or the government of a province compensation, in whole or in part, for the cost of any remedial or preventive action taken by or on behalf of the Minister or that government as a result of the commission of the offence; (e) directing the person to perform community service in accordance with any reasonable conditions that may be specified in the order; (f) directing the person to submit to the Minister, on application to the court by the Minister within three years after the conviction, any information respecting the activities of the person that the court considers appropriate in the circumstances; (g) requiring the person to comply with any other conditions that the court considers appropriate for securing the person’s good conduct and for preventing the person from repeating the offence or committing other offences; and (h) directing the person to post a bond or pay into court an amount of money that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction, or requirement under this section. . . . Limitation period 39.11 (1) Proceedings by way of summary conviction in respect of an offence may be commenced at any time within, but not later than, two years after the day on which the subject-matter of the proceedings became known to the Minister. . . . Regulations (5) The Governor in Council may make regulations prescribing

(a) offences in respect of which this section applies and the manner in which the offences are to be described in tickets; and (b) the amount of the fine for a prescribed offence, but the amount may not exceed $2,000.0 PART III. POWERS, DUTIES AND FUNCTIONS OF THE MINISTER

General Powers, Duties and Functions of the Minister

40. (1) As the Minister responsible for oceans, the powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not assigned by law to any other department, board, or agency of the Government of Canada, relating to the policies and programs of the Government of Canada respecting oceans. Encouragement of Activities

(2) For the purpose of subsection (1), the Minister shall encourage activities necessary to foster understanding, management and sustainable development of oceans and marine resources and the provision of coast guard and hydrographic services to ensure the facilitation of marine trade, commerce and safety in collaboration with other ministers of the Government of Canada. Coast Guard Services Coast Guard Services

41. (1) As the Minister responsible for coast guard services, the powers, duties, and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not assigned by law to any other department, board, or agency of the Government of Canada, relating to (a) services for the safe, economical and efficient movement of ships in Canadian waters through the provision of . . . (iv) channel maintenance; . . . (d) marine pollution prevention and response; and. . . .

Marine Sciences Functions

42. In exercising the powers and performing the duties and functions assigned by paragraph 4(1)(c) of the Department of Fisheries and Oceans Act, the Minister may (a) collect data for the purpose of understanding oceans and their living resources and ecosystems; (b) conduct hydrographic, and oceanographic surveys of Canadian and other waters; (c) conduct marine scientific surveys relating to fisheries resources and their supporting habitat and ecosystems; (d) conduct basic and applied research related to hydrography, oceanography and other marine sciences, including the study of fish and their supporting habitat and ecosystems; (e) carry out investigations for the purpose of understanding oceans and their living resources and ecosystems; (f) prepare and publish data, reports, statistics, charts, maps, plans, sections, and other documents; (g) authorize the distribution or sale of data, reports, statistics, charts, maps, plans, sections, and other documents; (h) prepare in collaboration with the Minister of Foreign Affairs, publish and authorize the distribution or sale of charts delineating, consistently with the nature and scale of the charts, all or part of the territorial sea of Canada, the contiguous zone of Canada, the exclusive economic zone of Canada and the fishing zones of Canada and adjacent waters; (i) participate in ocean technology development; and (j) conduct studies to obtain traditional ecological knowledge for the purpose of understanding oceans and their living resources and ecosystems.

Cost Effective

Powers

(2) The Minister shall ensure that the services referred to in subparagraphs (1)(a)(i) to (iv) are provided in a cost effective manner.

43. Subject to section 4 of the Department of Fisheries and Oceans Act respecting the powers, duties and functions of the Minister in relation to

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matters mentioned in that section over which Parliament has jurisdiction, the Minister

law to any other department, board or agency of the Government of Canada, relating to

(a) is responsible for coordinating, promoting, and recommending national policies and programs with respect to fisheries science, hydrography, oceanography, and other marine sciences;

(a) setting standards and establishing guidelines for use by hydrographers and others in collecting data and preparing charts on behalf of the Minister; and

(b) in carrying out his or her responsibilities under this section, may

(b) providing hydrographic advice, services, and support to the Government of Canada and, on behalf of the Government, to the governments of the provinces, to other states, to international organizations and to other persons.

(i) conduct or cooperate with persons conducting applied and basic research programs and investigations and economic studies for the purpose of understanding oceans and their living resources and ecosystems, and (ii) for that purpose maintain and operate ships, research institutes, laboratories and other facilities for research, surveying and monitoring for the purpose of understanding oceans and their living resources and ecosystems; and (c) may provide marine scientific advice, services and support to the Government of Canada and, on behalf of the Government, to the governments of the provinces, to other states, to international organizations and to other persons. Marine Scientific Research by Foreign Ships

44. The Minister may (a) request the Minister of Foreign Affairs to attach to a consent of the Minister of Foreign Affairs under paragraph 3(2)(c) of the Coasting Trade Act a condition that the foreign ship or nonduty paid ship supply the Minister with the results of the marine scientific research conducted by that ship in waters that form part of Canada or in which Canada has sovereign rights under international law; and (b) establish guidelines, not inconsistent with Canada’s international obligations, for use by foreign ships and non-duty paid ships in conducting marine scientific research in waters that form part of Canada or in which Canada has sovereign rights under international law. Minister’s Powers

45. As the Minister responsible for hydrographic services, the powers, duties, and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not assigned by

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Entry on Lands

46. A hydrographer may, for the purpose of conducting a hydrographic survey on behalf of the Minister, enter on or pass over the lands of any person, but shall take all reasonable precautions to avoid causing any damage in doing so. . . . Review

52. (1) The administration of this Act shall, within three years after the coming into force of this section, be reviewed by the Standing Committee on Fisheries and Oceans. Report to Parliament

(2) The Committee shall undertake a comprehensive review of the provisions and operation of this Act, including the consequences of its implementation, and shall, within a year after the review is undertaken or within such further time as the House of Commons may authorize, submit a report to Parliament thereon including a statement of any changes to this Act or its administration that the Committee would recommend. Regulations

52.1 The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Act and, in particular, but without restricting the generality of the foregoing, may make regulations (a) prescribing marine environmental quality requirements and standards; (b) respecting the powers and duties of persons designated by the Minister as enforcement officers; and (c) respecting the implementation of provisions of agreements made under this Act. . . .

Ontario’s Sustainable Water and Sewage Systems Act, 2002 Summary: This act received Royal Assent on December 13, 2002. The goal of Ontario’s Sustainable Water and Sewage Systems Act is to ensure that municipalities can finance essential water and sewer services and ensure clean and safe drinking water. The act makes it mandatory for municipalities to assess the costs of providing water and sewage services and to recover the amount of money needed to operate and maintain them. This provincial act requires municipalities to identify and recover the costs necessary to sustain water and sewer services and provides the framework for implementing full cost accounting and recovery. Municipalities must assess the costs of water in order to charge appropriate rates and generate sufficient revenue to finance capital and operating costs. This is a two-part process –preparing first a full cost report and then a cost recovery plan. It requires that an inventory of and management plan for the infrastructure needed be prepared and certified by a professional engineer. The act requires water and wastewater providers to prepare an assessment of the full cost of providing the water services (including source protection, operating, financing, renewal, replacement, and improvement costs) and the revenue obtained to provide these services. The cost recovery plans must cover water source protection measures, which are defined as techniques “specified in the regulations to protect the quantity or quality of any raw water supply that a regulated entity relies upon or may rely upon in the future for the provision of water services or waste water services to the public.” Each entity must prepare an approved plan describing how the full cost of providing services will be financed. Additionally, two or more municipalities may produce a joint report. The cost recovery plan must also be reviewed by the municipal auditor and approved by the municipality before it is submitted to the Minister of Environment for approval. Full cost recovery is intended to ensure that adequate financing is available for water and sewer infrastructure over the long term. An ellipsis indicates that a provision has been abridged.

The full text of this act is available at: http://www. e-laws.gov.on.ca/DBLaws/Statutes/English/ 02s29 e.htm. The full text of this act is available in French at: http://www.e-laws.gov.on.ca/DBLaws/Statutes/ French/02s29 f.htm. S.O. 2002, CHAPTER 29

Interpretation and Application

Interpretation 1. (1) In this Act, “approved cost recovery plan” means a plan approved by a regulated entity under section 9 or 10, or deemed to be approved by a regulated entity under section 12; (“plan de recouvrement des cots approuv´e”) “Minister” means the Minister of the Environment or such other member of the Executive Council as may be assigned the administration of this Act under the Executive Council Act; (“ministre”) “municipal auditor” means, (a) an auditor appointed by a regulated entity under section 296 of the Municipal Act, 2001, or (b) a person specified by the Minister in a direction given under section 5 or 11; (“v´erificateur municipal”) . . . “raw water supply” includes any ground water or surface water in the natural environment; (“source d’appro-vision-nement en eau brute”) “regulated entity” means a municipality designated by regulation under section 2; (“entit´e r´eglement´ee”) “source protection costs” means the prescribed costs that relate to a source protection measure financed in whole or in part by a regulated entity and includes any prescribed charges or fees imposed on a regulated entity under the authority of an Act, regulation or by-law; (“cots de protection des sources d’eau”)

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“source protection measure” means a measure specified in the regulations to protect the quantity or quality of any raw water supply that a regulated entity relies upon or may rely upon in the future for the provision of water services or waste water services to the public. (“mesure de protection des sources d’eau”) Provision of water services (2) The provision of water services to the public includes any source protection measure related to the provision of water services and extracting, treating and distributing water. Provision of waste water services (3) The provision of waste water services to the public includes any source protection measure related to the provision of waste water services and collecting, treating and discharging waste water. . . . Designation of regulated entities 2. (1) This Act applies to those municipalities that provide water services or waste water services to the public and that are designated by regulation as regulated entities. Same (2) A municipality shall be deemed to be providing water services or waste water services to the public for the purposes of this Act even if it has, before or after being designated under subsection (1), (a) transferred all or part of its authority for doing so to a municipal service board, a corporation established under section 203 of the Municipal Act, 2001 or any other person or entity; or (b) entered into an agreement with a corporation established under section 203 of the Municipal Act, 2001 or any other person or entity to do so on its behalf. Report on Full Cost of Services

Report on full cost of water services 3. (1) Every regulated entity that provides water services to the public shall prepare and approve a written report about those services. Auditor’s review (2) The regulated entity shall not approve the report before giving the report to the municipal auditor

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for review and receiving the written opinion of the municipal auditor on the report. Same (3) The opinion of the municipal auditor shall address the prescribed matters, contain the prescribed information and be in the prescribed form and shall be submitted to the regulated entity by the date specified by the regulated entity, which shall not be later than 30 days before the regulated entity is required to submit its report to the Minister. Report submitted to Minister (4) The regulated entity shall submit the approved report and the municipal auditor’s opinion on it to the Minister by the date specified by regulation. Contents (5) The report must contain the following information: 1. An inventory of and management plan for the infrastructure needed to provide the water services, prepared and certified by a professional engineer. 2. An assessment of the full cost of providing the water services and the revenue obtained to provide them. 3. Any other matter specified by the regulations. Form (6) The report must be made in a form approved by the Minister. Components of full cost (7) The full cost of providing the water services includes the source protection costs, operating costs, financing costs, renewal and replacement costs and improvement costs associated with extracting, treating or distributing water to the public and such other costs as may be specified by regulation. Report on full cost of waste water services 4. (1) Every regulated entity that provides waste water services to the public shall prepare and approve a written report about those services. . . . Components of full cost (7) The full cost of providing the waste water services includes the source protection costs, operating costs, financing costs, renewal and replacement

costs and improvement costs associated with collecting, treating or discharging waste water and such other costs as may be specified by regulation. Joint reports 5. (1) The Minister may direct two or more regulated entities to prepare a joint report under subsection 3 (1) or 4 (1) if the Minister considers it appropriate to do so. . . . Cost Recovery Plan

Cost recovery plan for water services 9. (1) Every regulated entity that provides water services to the public shall prepare and approve a plan describing how the entity intends to pay the full cost of providing those services. . . . Sources of revenue (7) The regulations may specify those sources of revenue that a regulated entity is, or is not, permitted to include in the plan and may impose conditions or restrictions with respect to different sources of revenue. Restriction (8) The regulations may specify the maximum amount by which a regulated entity may increase the charges for the provision of the water services for any customer or class of customer over any period of time. Cost recovery plan for waste water services 10. (1) Every regulated entity that provides waste water services to the public shall prepare and approve a plan describing how the entity intends to pay the full cost of providing those services. . . . Sources of revenue (7) The regulations may specify those sources of revenue that a regulated entity is, or is not, permitted to include in the plan and may impose conditions or restrictions with respect to different sources of revenue. Restriction (8) The regulations may specify the maximum amount by which a regulated entity may increase the charges for the provision of the waste water services for any customer or class of customer over any period of time.

Joint plans 11. (1) The Minister may direct two or more regulated entities to prepare a joint plan under section 9 or 10 if the Minister considers it appropriate to do so. . . . Charges to customers increased beyond prescribed limits 13. (1) A regulated entity may increase the charges to any customer or class of customer for the provision of water services or waste water services beyond the limit prescribed under section 9 or 10 with the written approval of the Minister under subsection (2). Minister’s approval (2) The Minister may approve the requested increase in the charges or may approve a lower increase in the charges than that requested by the regulated entity if the Minister is of the opinion that, (a) the regulated entity’s approved cost recovery plan requires the increase to pay for the full costs of providing water services or waste water services; or (b) it is in the public interest to increase the charges. . . . Revisions to Reports and Plans

Revised report to Minister 17. (1) A regulated entity shall prepare a revised report setting out its estimate of the full cost of providing water services or waste water services to the public, (a) if the entity has reasonable grounds to believe that the estimate does not reflect the full cost of providing the services, as a result of a change in circumstances; (b) if, as a result of a change in circumstances, any other information in the report needs to be updated or corrected; (c) if the requirements set out in the regulations governing the preparation of the report change; or (d) if the Minister directs the entity to revise its report or to make specified changes to the report. . . . Revised cost recovery plan 18. (1) A regulated entity shall prepare a revised plan describing how the entity intends to pay the

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full cost of providing water services or waste water services to the public, (a) if the entity is required to revise its estimate of the full cost of providing the services; (b) if, as a result of a change in circumstances, the plan needs to be changed; (c) if the requirements set out in the regulations governing the preparation of the plan change; or (d) if the Minister directs the entity to revise the plan or to make specified changes to the plan. . . . Enforcement ... Extension of deadlines 20. (1) The Minister may, by order, extend the deadline by which a regulated entity is required to submit a report or plan under this Act and may make the order before or after the deadline has passed. Same (2) An extension to a deadline to submit a report under section 3 or 4 shall not exceed six months. Minister’s orders 21. (1) This section applies if, in the opinion of the Minister, any of the following circumstances exist: 1. A regulated entity is not implementing its approved cost recovery plan. 2. A regulated entity is not taking all necessary steps to pay the full cost of providing water services or waste water services, as the case may be, to the public. Same (2) The Minister may order a regulated entity to do or refrain from doing such things as the Minister considers advisable to ensure that the entity pays the full cost of providing water services or waste water services, as the case may be, to the public.

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Same (3) Without limiting the generality of subsection (2), an order may require the regulated entity to generate revenue in a specified manner or from a specified source to pay all or part of the cost of providing the services and to make specified or necessary amendments to existing contracts, resolutions or by-laws. General

Financial management 22. Every regulated entity shall establish and maintain a dedicated reserve account that segregate from its general revenues the revenue allocated in its approved cost recovery plan to pay the full cost (including source protection costs and operating and capital costs) of providing water services or waste water services, and shall do so in accordance with the regulations. Delegation 23. The Minister may, in writing, delegate any of his or her powers or duties under this Act (including the power to give directions and make orders) to any person or entity, subject to such conditions or restrictions as the Minister considers appropriate. Regulations 24. (1) The Lieutenant Governor in Council may make regulations, (a) prescribing those things that are required or permitted by this Act to be prescribed or done by regulation; (b) exempting a regulated entity from any requirement of this Act or a regulation, subject to such conditions or restrictions as may be prescribed; (c) prescribing accounting standards and rules to be used in connection with the preparation of any report or plan required under this Act. Scope of regulations (2) A regulation may be general or particular in its application. . . .

Ontario Planning Act Summary: The Ontario Planning Act was promulgated in 1990 to create an organized provincial system of land use planning. The act, provided here in abridged form with the amendments incorporated, authorizes the formation of municipal and provincial planning boards and allows for the creation of intermunicipal planning advisory committees. The act specifies that these planning boards are to create development and zoning regulations within their boundaries. The act seeks to attain sustainable development through the work of these municipal and provincial planning boards, which carry out community improvement plans. The act defines community improvement as those land regulations necessary for the betterment of the area sought to be improved. The specific procedure outlined in the act includes creation of zoning regulations, procedures for public notification, regulation approval, repeals and amendments, and enforcement provisions. Under the Ontario Act, zoning reaches to construction, demolition, use of marshland areas, protection of natural features, regulation of architectural features, density of development, temporary use provisions, and the creation of site plan control areas. The act provides that zoning boards may enforce the regulations by acquiring and disposing of noncompliant parcels. Notations of amendment and strictly procedural provisions have been omitted and are identified using an ellipsis. An English version of the full text of the Ontario Planning Act is available at: http://www.e-laws.gov. on.ca/DBLaws/Statutes/English/90p13 e.htm A French version of the full text of the Ontario Planning Act is available at: http://www.e-laws.gov. on.ca/DBLaws/Statutes/French/90p13 f.htm

Purposes 1. The purposes of this Act are, (a) to promote sustainable economic development in a healthy natural environment within the policy and by the means provided under this Act;

(b) to provide for a land use planning system led by provincial policy; (c) to integrate matters of provincial interest in provincial and municipal planning decisions; (d) to provide for planning processes that are fair by making them open, accessible, timely and efficient; (e) to encourage co-operation and co-ordination among various interests; (f) to recognize the decision-making authority and accountability of municipal councils in planning.

PART I. PROVINCIAL ADMINISTRATION

Provincial interest 2. The Minister, the council of a municipality, a local board, a planning board and the municipal Board, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as, (a) the protection of ecological systems, including natural areas, features and functions; (b) the protection of the agricultural resources of the Province; (c) the conservation and management of natural resources and the mineral resource base; (d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest; (e) the supply, efficient use and conservation of energy and water; (f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems; (g) the minimization of waste; (h) the orderly development of safe and healthy communities;

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(h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies; (i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities; (j) the adequate provision of a full range of housing; (k) the adequate provision of employment opportunities; (l) the protection of the financial and economic well-being of the Province and it’s municipalities; (m) the co-ordination of planning activities of public bodies; (n) the resolution of planning conflicts involving public and private interests; (o) the protection of public health and safety; (p) the appropriate location of growth and development. . . . PART II. LOCAL PLANNING ADMINISTRATION

Planning advisory committee 8.(1) The council of a municipality may appoint a planning advisory committee composed of such persons as the council may determine. Joint planning by agreement (2) The councils of two or more municipalities may enter into agreement to provide for the joint undertaking of such matters of a planning nature as may be agreed upon and may appoint a joint planning advisory committee composed of such persons as they may determine. . . . Municipal grants 13. Any municipality within a planning area may make grants of money to the planning board of the planning area. Duties of planning board 14. (1) A planning board shall provide advice and assistance in respect of such planning matters affecting the planning area as are referred to the board, (a) by the councils to which the board submits its estimates under section 12, or by any of such councils; or

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(b) by the Minister, in the case of a planning board appointed for a planning area consisting solely or partially of territory without municipal organization. Preparation of official plan (2) A planning board shall prepare a plan suitable for adoption as the official plan of the planning area, or at the request of any of the councils mentioned in subsection (1), prepare a plan suitable for adoption as the official plan of the municipality of which it is the council. . . . Official plan 14.7 (1) If land in a municipal planning area is covered by the official plan of a county, the parts of the official plan which affect the land in the municipal planning area shall be deemed for all purposes to be the official plan of the municipal planning authority on the day the municipal planning authority is established and the county shall forward to the municipal planning authority all papers, plans and documents and other material that relate to the parts of the official plan that are deemed to be the official plan of the municipal planning authority. . . . Preparation of plan (3) A municipal planning authority shall prepare and adopt a plan and, unless exempt from approval, submit it for approval as an official plan in respect of the land in the municipal planning area that is not covered by an official plan deemed under subsection (1) to be the official plan of the municipal planning authority . . . Deemed official plan (5) If land that is in a local municipality that forms part of a county for municipal purposes is removed from a municipal planning area, the parts of the official plan of the municipal planning authority which affect the land removed from the municipal planning area shall be deemed for all purposes to be the official plan of the county on the day the by-law removing the land is passed and the municipal planning authority shall forward to the county all papers, plans and documents and other materials that relate to the parts of the plan that are deemed to be the official plan of the county.

Revocation (6) If land that is in a local municipality that does not form part of a county for municipal purposes is removed from a municipal planning area, the parts of the official plan which affect the land removed from the municipal planning area are revoked. Deemed plan (7) If land that is in a local municipality that forms part of a county for municipal purposes is in a municipal planning area that is dissolved, the parts of the official plan of the municipal planning authority which affect land in the local municipality shall be deemed for all purposes to be the official plan of the county on the day the municipal planning authority is dissolved. Revocation (8) If land that is in a local municipality that does not form part of a county for municipal purposes is in a municipal planning area that is dissolved, the parts of the official plan of the municipal planning authority which affect land in the local municipality are revoked. Conformity with upper tier plan (9) Section 27 applies with necessary modifications to the official plan of a planning authority as though the official plan of the municipal planning authority were the official plan of a county and the municipal planning authority were the council of a county. . . . Upper-tier municipalities, planning functions 15. The council of an upper-tier municipality, on such conditions as may be agreed upon with the council of a lower-tier municipality, may, (a) assume any authority, responsibility, duty or function of a planning nature that the lower-tier municipality has under this or any other Act; or (b) provide advice and assistance to the lowertier municipality in respect of planning matters generally. PART III. OFFICIAL PLANS

Contents of official plan 16. (1) An official plan, (a) shall contain goals, objectives and policies established primarily to manage and direct physi-

cal change and the effects on the social, economic and natural environment of the municipality or part of it, or an area that is without municipal organization; and (b) may contain a description of the measures and procedures proposed to attain the objectives of the plan and a description of the measures and procedures for informing and obtaining the views of the public in respect of a proposed amendment to the official plan or proposed revision of the plan or in respect of a proposed zoning by-law. Prescribed process 16.1 The council of a municipality or a planning board may by by-law elect to follow the prescribed processes and develop the materials prescribed for the preparation of an official plan and any processes followed or materials developed in the preparation of the plan may be considered under the Environmental Assessment Act with respect to any requirement that it must meet under that Act. . . . Approval by upper-tier municipality (2) An upper-tier municipality is the approval authority in respect of an official plan of a lowertier municipality for the purposes of this section if the upper-tier municipality has an approved official plan. . . . Mandatory adoption (13) A plan shall be prepared and adopted and, unless exempt from approval, submitted for approval by the council of a prescribed municipality. Discretionary adoption (14) The council of a municipality not prescribed under subsection (13) may prepare and adopt a plan and, unless the plan is exempt from approval, submit it for approval. Public meeting (15) In the course of the preparation of a plan, the council shall ensure that, (a) the appropriate approval authority, whether or not the plan is exempt from approval, is consulted on the preparation of the plan; (b) adequate information, including a copy of the current proposed plan, is made available to the public; and

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(c) at least one public meeting is held, notice of which shall be given in the manner and to the persons and public bodies and containing the information prescribed. Copy of plan (16) A copy of the current proposed plan referred to in subsection (15) shall be made available to the public at least 20 days before the public meeting is held. Timing (17) The meeting shall be held no earlier than 20 days after the requirements for giving notice have been complied with and any person who attends the meeting shall be given the opportunity to make representation in respect of the plan. . . . Information (19) At a meeting under subsection (15), the council shall ensure that information is made available to the public regarding the power of the Municipal Board under subsection (45) to dismiss an appeal if an appellant has not provided the council with oral submissions at a public meeting or written submissions before a plan is adopted. . . . Adoption of plan (22) When the requirements of subsections (15) to (21), as appropriate, have been met and the council is satisfied that the plan as finally prepared is suitable for adoption, the council may by by-law adopt all or part of the plan and, unless the plan is exempt from approval, submit it for approval. . . . Action by approval authority (34) The approval authority may confer with any person or public body that it considers may have an interest in the plan and may, (a) approve, modify and approve as modified or refuse to approve a plan; or (b) approve, modify and approve as modified or refuse to approve part or parts of the plan. . . .

Approval by upper-tier municipality (2) An upper-tier municipality is the approval authority in respect of an official plan of a lowertier municipality for the purposes of this section if the upper-tier municipality has an approved official plan. . . . Delegation of approval authority 17.1 (1) If an upper-tier municipality is the approval authority under section 17 in respect of the approval of official plans of lower-tier municipalities, the council may by by-law delegate all or any of the authority to approve amendments to official plans to a committee of council or to an appointed officer identified in the by-law by name or position occupied. . . . Withdrawal of delegation (3) A council may by by-law withdraw a delegation of authority made by it under subsection (1) and the withdrawal may be in respect of one or more requests for approval specified in the by-law or any or all requests for approval in respect of which a final disposition was not made by the committee or officer before the withdrawal. Recommendation of plan 18. (1) Where a plan is prepared by a planning board, the plan shall not be recommended to any council for adoption as an official plan unless it is approved by a vote of the majority of all the members of the planning board. Submission of plan to council (2) When the plan is approved by the planning board, the board shall submit a copy thereof, certified by the secretary-treasurer of the board to be a true copy, (a) in the case of a plan prepared for a planning area, to the council of each municipality that is within the planning area; and (b) in the case of a plan prepared at the request of a single municipality, to the council of that municipality, together with a recommendation that it be adopted by the council.

Approvals 17. (1) Except as otherwise provided in this section, the Minister is the approval authority in respect of the approval of a plan as an official plan for the purposes of this section.

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Adoption of plan (3) Each council to which the plan is submitted may, subject to subsections 17 (15) to (22), by by-law adopt the plan and the clerk of each municipality,

the council of which adopted the plan, shall provide the secretary-treasurer of the planning board with a certified copy of the adopting by-law and shall comply with subsections 17 (23), (32), (33) and (34). . . . Unorganized territory 9. In a planning area consisting solely of territory without municipal organization, section 17 applies with necessary modifications to a plan being prepared and adopted by a planning board and that is to come into effect as the official plan of the planning board as if the planning board were a council of a municipality and the secretary-treasurer were the clerk. . . . Amendment or repeal of plan 21. (1) Except as hereinafter provided, the provisions of this Act with respect to an official plan apply, with necessary modifications, to amendments thereto or the repeal thereof, and the council of a municipality that is within a planning area may initiate an amendment to or the repeal of any official plan that applies to the municipality, and section 17 applies to any such amendment or repeal. . . . Request by Minister to amend plan 23. (1) Where the Minister is of the opinion that a matter of provincial interest as set out in a policy statement issued under section 3 is, or is likely to be, affected by an official plan, the Minister may request the council of a municipality to adopt such amendment as the Minister specifies to an official plan and, where the council refuses the request or fails to adopt the amendment within such time as is specified by the Minister in his or her request, the Minister may make the amendment.

amendment, should be made but the decision is not final and binding unless the Lieutenant Governor in Council has confirmed it. Powers of L.G. in C. (6) The Lieutenant Governor in Council may confirm, vary or rescind the decision of the Municipal Board made under subsection (5) and in doing so may direct the Minister to amend the plan in such manner as the Lieutenant Governor in Council may determine. Public works and by-laws to conform with plan 24. (1) Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith. Pending amendments (2) If a council or a planning board has adopted an amendment to an official plan, the council of any municipality or the planning board of any planning area to which the plan or any part of the plan applies may, before the amendment to the official plan comes into effect, pass a by-law that does not conform with the official plan but will conform with it if the amendment comes into effect, and the bylaw shall be conclusively deemed to have conformed with the official plan on and after the day it was passed if the amendment comes into effect. Preliminary steps that may be taken where proposed public work would not conform with official plan

(2) Where the Minister proposes to make an amendment to an official plan under subsection (1), the Minister may, and on the request of any person or municipality shall, request the Municipal Board to hold a hearing on the proposed amendment and the Board shall thereupon hold a hearing as to whether the amendment should be made. . . .

(3) Despite subsections (1) and (2), the council of a municipality may take into consideration the undertaking of a public work that does not conform with the official plan and for that purpose the council may apply for any approval that may be required for the work, carry out any investigations, obtain any reports or take other preliminary steps incidental to and reasonably necessary for the undertaking of the work, but nothing in this subsection authorizes the actual undertaking of any public work that does not conform with an official plan.

Decision of O.M.B.

Deemed conformity

(5) The Municipal Board, after the conclusion of the hearing, shall make a decision as to whether the proposed amendment, or an alternative form of

(4) If a by-law is passed under section 34 by the council of a municipality or a planning board in a planning area in which an official plan is in effect

Hearing by O.M.B.

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and, within the time limited for appeal no appeal is taken or an appeal is taken and the appeal is withdrawn or dismissed or the by-law is amended by the Municipal Board or as directed by the Board, the by-law shall be conclusively deemed to be in conformity with the official plan, except, if the by-law is passed in the circumstances mentioned in subsection (2), the by-law shall be conclusively deemed to be in conformity with the official plan on and after the day the by-law was passed, if the amendment to the official plan comes into effect. Acquisition of lands in accordance with provisions of plan 25. (1) If there is an official plan in effect in a municipality that includes provisions relating to the acquisition of land, which provisions have come into effect after the 28th day of June, 1974, the council may, in accordance with such provisions, acquire and hold land within the municipality for the purpose of developing any feature of the official plan, and any land so acquired or held may be sold, leased or otherwise disposed of when no longer required. . . . Determining need for revision 26. (1) If an official plan is in effect in a municipality, the council of the municipality that has adopted the official plan shall, not less frequently than every five years, hold a special meeting of council, open to the public, to determine the need for a revision of the official plan and in determining the need for a revision council shall have regard to policy statements issued under subsection 3 (1). . . . Direction by approval authority (3) Despite subsection (1), the approval authority may, at any time, direct the council of a municipality to undertake a revision of any official plan or part thereof in effect in the municipality and when so directed the municipal council shall cause the revision to be undertaken without undue delay. Amendments to conform to official plan 27. (1) The council of a lower-tier municipality shall amend every official plan and every by-law passed under section 34, or a predecessor of it, to conform with a plan that comes into effect as the official plan of the upper-tier municipality.

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Failure to make amendments (2) If the official plan of an upper-tier municipality comes into effect as mentioned in subsection (1) and any official plan or zoning by-law is not amended as required by that subsection within one year from the day the plan comes into effect as the official plan, the council of the upper-tier municipality may amend the official plan of the lower-tier municipality or zoning by-law, as the case may be, in the like manner and subject to the same requirements and procedures as the council that failed to make the amendment within the one-year period as required. . . . Conflicts (4) In the event of a conflict between the official plan of an upper-tier municipality and the official plan of a lower-tier municipality, the plan of the upper-tier municipality prevails to the extent of the conflict but in all other respects the official plan of the lower-tier municipality remains in effect. PART IV. COMMUNITY IMPROVEMENT

Community improvement project area 28. (1) In this section, “community improvement” means the planning or replanning, design or redesign, resubdivision, clearance, development or redevelopment, reconstruction and rehabilitation, or any of them, of a community improvement project area, and the provision of such residential, commercial, industrial, public, recreational, institutional, religious, charitable or other uses, buildings, works, improvements or facilities, or spaces therefor, as may be appropriate or necessary; . . . “community improvement project area” means a municipality or an area within a municipality, the community improvement of which in the opinion of the council is desirable because of age, dilapidation, overcrowding, faulty arrangement, unsuitability of buildings or for any other environmental, social or community economic development reason. Designation of community improvement project area (2) Where there is an official plan in effect in a local municipality that contains provisions relating to community improvement in the municipality,

the council may, by by-law, designate the whole or any part of an area covered by such an official plan as a community improvement project area. Acquisition and clearance of land (3) When a by-law has been passed under subsection (2), the municipality may, (a) acquire land within the community improvement project area with the approval of the Minister if the land is acquired before a community improvement plan mentioned in subsection (4) comes into effect and without the approval of the Minister if the land is acquired after the community improvement plan comes into effect; (b) hold land acquired before or after the passing of the by-law within the community improvement project area; and (c) clear, grade or otherwise prepare the land for community improvement. Community improvement plan (4) When a by-law has been passed under subsection (2), the council may provide for the preparation of a plan suitable for adoption as a community improvement plan for the community improvement project area and the plan may be adopted and come into effect in accordance with subsections (4.1) to (4.4). . . . Deemed community improvement plan (5) For the purposes of this section, the Minister may, in writing, deem the provisions relating to community improvement mentioned in subsection (2) to be a community improvement plan that has been adopted and has come into effect under subsection (4). Powers of council re land (6) For the purpose of carrying out a community improvement plan that has come into effect, the municipality may, (a) construct, repair, rehabilitate or improve buildings on land acquired or held by it in the community improvement project area in conformity with the community improvement plan, and sell, lease or otherwise dispose of any such buildings and the land appurtenant thereto;

(b) sell, lease or otherwise dispose of any land acquired or held by it in the community improvement project area to any person or governmental authority for use in conformity with the community improvement plan. . . . Agreement re studies and development 29. (1) A municipality, with the approval of the Minister, may enter into agreement with any governmental authority or any agency thereof created by statute, for the carrying out of studies and the preparation and implementation of plans and programs for the development or improvement of the municipality. . . . Agreements for grants in aid of community improvement 30. The Minister, with the approval of the Lieutenant Governor in Council, and a municipality may enter into agreement providing for payment to the municipality on such terms and conditions and in such amounts as may be approved by the Lieutenant Governor in Council to assist in the community improvement of a community improvement project area as defined in section 28, including the carrying out of studies for the purpose of selecting areas for community improvement. . . . PART V. LAND USE CONTROLS AND RELATED ADMINISTRATION

Zoning by-laws 34. (1) Zoning by-laws may be passed by the councils of local municipalities: Restricting use of land 1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway. Restricting buildings

erecting,

locating

or

using

of

2 For prohibiting the erecting, locating or using of buildings or structures for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway.

423

Marshy lands, etc. 3 For prohibiting the erection of any class or classes of buildings or structures on land that is subject to flooding or on land with steep slopes, or that is rocky, low-lying, marshy, unstable, hazardous, subject to erosion or to natural or artificial perils. Contaminated lands or sensitive areas 3.1 For prohibiting any use of land and the erecting, locating or using of any class or classes of buildings or structures on land that is contaminated, that is a sensitive ground water recharge area or head-water area or on land that contains a sensitive aquifer. Natural features and areas

named in the by-law to provide and maintain loading or parking facilities on land that is not part of a highway. . . . Minimum area and density provisions (3) The authority to regulate provided in paragraph 4 of subsection (1) includes and, despite the decision of any court, shall be deemed always to have included the authority to regulate the minimum area of the parcel of land mentioned therein and to regulate the density of development in the municipality or in the area or areas defined in the by-law. . . . Prohibition of use of land, etc., availability of municipal services

i. that is a significant wildlife habitat, wetland, woodland, ravine, valley or area of natural and scientific interest,

(5) A by-law passed under paragraph 1 or 2 of subsection (1) or a predecessor of that paragraph may prohibit the use of land or the erection or use of buildings or structures unless such municipal services as may be set out in the by-law are available to service the land, buildings or structures, as the case may be. . . .

ii. that is a significant corridor or shoreline of a lake, river or stream, or

Acquisition and disposition of non-conforming lands

iii. that is a significant natural corridor, feature or area. . . .

(8) The council may acquire any land, building or structure used or erected for a purpose that does not conform with a by-law passed under this section and any vacant land having a frontage or depth less than the minimum established for the erection of a building or structure in the defined area in which such land is situate, and the council may dispose of any of such land, building or structure or may exchange any of such land for other land within the municipality. . . .

3.2 For prohibiting any use of land and the erecting, locating or using of any class or classes of buildings or structures within any defined area or areas,

Construction of buildings or structures 4. For regulating the type of construction and the height, bulk, location, size, floor area, spacing, character and use of buildings or structures to be erected or located within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway, and the minimum frontage and depth of the parcel of land and the proportion of the area thereof that any building or structure may occupy. Minimum elevation of doors, etc. 5. For regulating the minimum elevation of doors, windows or other openings in buildings or structures or in any class or classes of buildings or structures to be erected or located within the municipality or within any defined area or areas of the municipality. Loading or parking facilities 6. For requiring the owners or occupants of buildings or structures to be erected or used for a purpose

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Action of L.G. in C. (29.1) The Lieutenant Governor in Council may confirm, vary or rescind the decision of the Municipal Board in respect of the part or parts of the by-law identified in the notice and in doing so may repeal the by-law in whole or in part or amend the by-law in such a manner as the Lieutenant Governor in Council may determine. . . . Increased density, etc., provision by-law 37. (1) The council of a local municipality may, in a by-law passed under section 34, authorize increases in the height and density of development otherwise permitted by the by-law that will be permitted in

return for the provision of such facilities, services or matters as are set out in the by-law. Condition (2) A by-law shall not contain the provisions mentioned in subsection (1) unless there is an official plan in effect in the local municipality that contains provisions relating to the authorization of increases in height and density of development. Agreements (3) Where an owner of land elects to provide facilities, services or matters in return for an increase in the height or density of development, the municipality may require the owner to enter into one or more agreements with the municipality dealing with the facilities, services or matters. . . . Temporary use provisions 39. (1) The council of a local municipality may, in a by-law passed under section 34, authorize the temporary use of land, buildings or structures for any purpose set out therein that is otherwise prohibited by the by-law. . . . Site plan control area ...

of all facilities and works to be provided in conjunction therewith and of all facilities and works required under clause (7) (a). 2. Drawings showing plan, elevation and crosssection views for each building to be erected, except a building to be used for residential purposes containing less than twenty-five dwelling units, which drawings are sufficient to display, (a) the massing and conceptual design of the proposed building; (b) the relationship of the proposed building to adjacent buildings, streets, and exterior areas to which members of the public have access; and (c) the provision of interior walkways, stairs, elevators and escalators to which members of the public have access from streets, open spaces and interior walkways in adjacent buildings, but which exclude the layout of interior areas, other than the interior walkways, stairs, elevators and escalators referred to in clause (c), the colour, texture and type of materials, window detail, construction details, architectural detail and interior design. . . .

Establishment of site plan control area

Conditions to approval of plans

(2) Where in an official plan an area is shown or described as a proposed site plan control area, the council of the local municipality in which the proposed area is situated may, by by-law, designate the whole or any part of such area as a site plan control area.

(7) As a condition to the approval of the plans and drawings referred to in subsection (4), a municipality may require the owner of the land to,

Designation of site plan control area (3) A by-law passed under subsection (2) may designate a site plan control area by reference to one or more land use designations contained in a by-law passed under section 34. Approval of plans or drawings (4) No person shall undertake any development in an area designated under subsection (2) unless the council of the municipality or, where a referral has been made under subsection (12), the Municipal Board has approved one or both, as the council may determine, of the following: 1. Plans showing the location of all buildings and structures to be erected and showing the location

(a) provide to the satisfaction of and at no expense to the municipality any or all of the following: 1. Subject to the provisions of subsections (8) and (9), widenings of highways that abut on the land. 2. Subject to the Public Transportation and Highway Improvement Act, facilities to provide access to and from the land such as access ramps and curbings and traffic direction signs. 3. Off-street vehicular loading and parking facilities, either covered or uncovered, access driveways, including driveways for emergency vehicles, and the surfacing of such areas and driveways. 4. Walkways and walkway ramps, including the surfacing thereof, and all other means of pedestrian access.

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5. Facilities for the lighting, including floodlighting, of the land or of any buildings or structures thereon.

i. subject to subsection (9), widenings of highways that are under the jurisdiction of the uppertier municipality and that abut on the land,

6. Walls, fences, hedges, trees, shrubs or other groundcover or facilities for the landscaping of the lands or the protection of adjoining lands. 7. Vaults, central storage and collection areas and other facilities and enclosures for the storage of garbage and other waste material.

ii. subject to the Public Transportation and Highway Improvement Act, where the land abuts a highway under the jurisdiction of the upper-tier municipality, facilities to provide access to and from the land such as access ramps and curbings and traffic direction signs,

8. Easements conveyed to the municipality for the construction, maintenance or improvement of watercourses, ditches, land drainage works, sanitary sewage facilities and other public utilities of the municipality or local board thereof on the land.

iii. where the land abuts a highway under the jurisdiction of the upper-tier municipality, offstreet vehicular loading and parking facilities, either covered or uncovered, access driveways, including driveways for emergency vehicles, and the surfacing of such areas and driveways,

9. Grading or alteration in elevation or contour of the land and provision for the disposal of storm, surface and waste water from the land and from any buildings or structures thereon;

iv. where the land abuts a highway under the jurisdiction of the upper-tier municipality, grading or alteration in elevation or contour of the land in relation to the elevation of the highway and provision for the disposal of storm and surface water from the land;

(b) maintain to the satisfaction of the municipality and at the sole risk and expense of the owner any or all of the facilities or works mentioned in paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 of clause (a), including the removal of snow from access ramps and driveways, parking and loading areas and walkways; (c) enter into one or more agreements with the municipality dealing with and ensuring the provision of any or all of the facilities, works or matters mentioned in clause (a) or (d) and the maintenance thereof as mentioned in clause (b) or with the provision and approval of the plans and drawings referred to in subsection (4); (d) subject to subsection (9.1), convey part of the land to the municipality to the satisfaction of and at no expense to the municipality for a public transit right of way. Where area is in upper-tier municipality (8) If an area designated under subsection (2) is within an upper-tier municipality, plans and drawings in respect of any development proposed to be undertaken in the area shall not be approved until the upper-tier municipality has been advised of the proposed development and afforded a reasonable opportunity to require the owner of the land to, (a) provide to the satisfaction of and at no expense to the upper-tier municipality any or all of the following:

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(b) enter into one or more agreements with the upper-tier municipality dealing with and ensuring the provision of any or all of the facilities, works or matters mentioned in clause (a) or (c) and the maintenance thereof at the sole risk and expense of the owner, including the removal of snow from access ramps and driveways and parking and loading areas; (c) subject to subsection (9.1), convey part of the land to the upper-tier municipality to the satisfaction of and at no expense to the municipality for a public transit right of way. Widening must be described in official plan (9) An owner may not be required to provide a highway widening under paragraph 1 of clause (7) (a) or under paragraph 1 of clause (8) (a) unless the highway to be widened is shown on or described in an official plan as a highway to be widened and the extent of the proposed widening is likewise shown or described. . . . Classes of development, delegation (13) Where the council of a municipality has designated a site plan control area under this section, the council may, by by-law,

(a) define any class or classes of development that may be undertaken without the approval of plans and drawings otherwise required under subsection (4) or (5); and (b) delegate to either a committee of the council or to an appointed officer of the municipality identified in the by-law either by name or position occupied, any of the council’s powers or authority under this section, except the authority to define any class or classes of development as mentioned in clause (a). . . . Conveyance of land for park purposes 42. (1) As a condition of development or redevelopment of land, the council of a local municipality may, by by-law applicable to the whole municipality or to any defined area or areas thereof, require that land in an amount not exceeding, in the case of land proposed for development or redevelopment for commercial or industrial purposes, 2 per cent and in all other cases 5 per cent of the land be conveyed to the municipality for park or other public recreational purposes. . . . Use and sale of land (5) Land conveyed to a municipality under this section shall be used for park or other public recreational purposes, but may be sold at any time. Payment instead of conveyance (6) The council of a local municipality may require the payment of money to the value of the land otherwise required to be conveyed under this section in lieu of the conveyance and the value of the land shall be determined as of the day before the day the building permit is issued in respect of the development or redevelopment or, where more than one building permit is required for the development or redevelopment, as of the day before the day the first permit is issued. Where land conveyed (7) If land has been conveyed or is required to be conveyed to a municipality for park or other public purposes or a payment of money in lieu of such conveyance has been received by the municipality or is owing to it under this section or a condition imposed under section 51.1 or 53, no additional conveyance or payment in respect of the land subject to the earlier conveyance or payment may be

required by a municipality in respect of subsequent development or redevelopment unless, (a) there is a change in the proposed development or redevelopment which would increase the density of development; or (b) land originally proposed for development or redevelopment for commercial or industrial purposes is now proposed for development or redevelopment for other purposes. . . . Committee of adjustment 44. (1) If a municipality has passed a by-law under section 34 or a predecessor of such section, the council of the municipality may by by-law constitute and appoint a committee of adjustment for the municipality composed of such persons, not fewer than three, as the council considers advisable. . . . Powers of committee 45. (1) The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained. Other powers (2) In addition to its powers under subsection (1), the committee, upon any such application, (a) where any land, building or structure, on the day the by-law was passed, was lawfully used for a purpose prohibited by the by-law, may permit, (i) the enlargement or extension of the building or structure, if the use that was made of the building or structure on the day the by-law was passed, or a use permitted under subclause (ii) continued until the date of the application to the committee, but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by-law was passed, or

427

(ii) the use of such land, building or structure for a purpose that, in the opinion of the committee, is similar to the purpose for which it was used on the day the by-law was passed or is more compatible with the uses permitted by the bylaw than the purpose for which it was used on the day the by-law was passed, if the use for a purpose prohibited by the by-law or another use for a purpose previously permitted by the committee continued until the date of the application to the committee; or (b) where the uses of land, buildings or structures permitted in the by-law are defined in general terms, may permit the use of any land, building or structure for any purpose that, in the opinion of the committee, conforms with the uses permitted in the by-law. . . . Where licence, etc., not to issue 48. Despite the provisions of any other general or special Act, a licence, permit, approval or permission shall not be issued or granted nor any utility or service provided by a public utilities commission or other public or Crown agency in respect of any land, building or structure where the proposed use of the land or the erection or proposed use of the building or structure would be in contravention of section 46 or of an order made under section 47 or of a by-law passed by a planning board under section 34 or 38. . . . Entry and inspection (2) Subject to subsection (3), where an officer believes on reasonable grounds that section 46, an order of the Minister made under clause 47 (1) (a) or a by-law passed under section 34 or 38 is being contravened, the officer or any person acting under his or her instructions may, at all reasonable times and upon producing proper identification, enter and inspect any property on or in respect of which he or she believes the contravention is occurring. . . .

municipality may clear, grade or otherwise prepare the land for the purpose for which it has been acquired or is held. . . . Variation of notice requirements 62.1 The Minister, the council of a municipality or a planning board may by agreement with a First Nation vary or waive the prescribed notice requirements to a band in respect of an official plan, a zoning by-law or any application under this Act. . . . Discretionary dispute resolution techniques 65. The Minister, the council of a municipality, a local board, a planning board or the Municipal Board or their agents shall, if they consider it appropriate, at any time before a decision is made under this Act, use mediation, conciliation or other dispute resolution techniques to attempt to resolve concerns or disputes in respect of any planning application or matter. . . . Penalty 67. (1) Every person who contravenes section 41, section 46, subsection 49 (4) or section 52 or who contravenes a by-law passed under section 34 or 38 or an order made under section 47 and, if the person is a corporation, every director or officer of the corporation who knowingly concurs in the contravention, is guilty of an offence and on conviction is liable, (a) on a first conviction to a fine of not more than $25,000; and (b) on a subsequent conviction to a fine of not more than $10,000 for each day or part thereof upon which the contravention has continued after the day on which the person was first convicted. . . . Order of prohibition

PART VII. GENERAL

(3) Where a conviction is entered under subsection (1), in addition to any other remedy or any penalty provided by law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted. . . .

Power to clear, grade, etc., lands acquired

Offence

59. When a municipality has acquired or holds lands for any purpose authorized by this Act, the

(2) An employee of a municipality or of a planning board who wilfully discloses or permits to

428

be disclosed the information referred to in subsection (1) to any other person not likewise entitled in the course of his or her duties to acquire or have access to the information is guilty of an offence and on conviction is liable to a fine of not more than $5,000. . . .

(a) prescribe conditions or criteria that must be met before a municipality passes a by-law establishing a system;

Offence

(c) prescribe policies that must be contained in an official plan before a system may be established;

(8) Every person who contravenes a development permit by-law passed under this section or the conditions of a development permit is guilty of an offence and on conviction is liable to the fines set out in section 67 and section 67 applies to the offence. Regulations 70.3 (1) The Lieutenant Governor in Council may by regulation authorize municipalities to pass bylaws establishing a system for allocating sewage and water services to land that is the subject of an application under section 51 upon such conditions as may be set out in the regulation. Contents of regulations (2) A regulation under subsection (1) may,

(b) prescribe powers that the municipality may exercise in administering the system including the power to issue permits or collect fees;

(d) require that the official plan of the municipality contain policies regarding the allocation of services; (e) authorize the by-law to apply to any class of plan of subdivision or description under the Condominium Act in respect of which draft approval was given before or after the by-law was passed; and (f) provide for transitional matters that may be necessary to implement a system. Same (3) A regulation under this section may be general or particular in its application and may be restricted to those municipalities set out in the regulation. . . .

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Index

Act for the Rebuilding of London, xv Act No. 237 (Slovakia), 254, 266 building prohibition under, 260 communes under, 265 construction materials under, 264 construction siting under, 259, 260 environment modifications under, 264 environmental protections as part of, 260 government appropriations under, 264, 265 land-use decisions under, 264 special interest protections under, 265, 266 territorial planning documentation under, 256, 259 territory use under, 260 transfers of power under, 265 action areas, 120 Administration of Lands Act (Malta), 231, 232 claims process under, 232 emphyteusis under, 231 government lands under, 231, 232 Africa. See also South Africa, Republic of; Tanzania Cape Verde Order No. 86/IV/93, 59, 61 Forests Ordinance in, 62, 66 human rights charters in, xxvi Lagos Town Planning Ordinance, xxii African Charter on the Rights of Man and Peoples (1981), xxvi African Convention on the Conservation of Nature and Natural Resources, 5, 9 conservation areas under, 8 definitions within, 6, 7 Preamble to, 5 principles of, 6 provisions for, 8, 9 Agenda 21, xvi, xvii, 24, 48 capacity-building under, 47 compliance enforcement under, 39 cost evaluations for, 46 Danish applications of, 187, 188 economic markets and, 40, 42 environment integration as goal of, 36, 42, 43 human resource development and, 35, 36, 46, 47 human settlement management under, 27, 29 information systems for, 45, 46 international coordination under, 46

judicial procedures development within, 39 land use goals as part of, xvii land use planning under, 29, 30, 43, 47 legal services under, 39 objectives of, 25, 26 planning strategies as part of, xvii Preamble to, 24, 25 pricing policies under, 41, 42 regulatory framework for, 38, 40 sanitation management under, 30, 31 scientific community and, 46 shelter provision under, 26, 27 sustainable construction industries under, 34, 35 sustainable human development promotion in, 25, 26 training networks under, 39 urban management under, 27, 29 agriculture under Federal Building Code (Germany), 221, 222 under town comprehensive plans (U.S.), 327 appeals processes for Federal Territory Act (Malaysia), 119 under Land Acquisition Act (Singapore), 142, 143 Argentina, xxvii, xxviii Constitution of, xxvi, xxvii, 273 constitutional reforms in, xxvii General Environmental Law in, xxv, 274, 275 hacienda system in, xiv, xv National Integrated System of Information in, xxv Asia. See China, People’s Republic of; India; Malaysia; Singapore Australia, xxviii, 160, 175. See also South Australia Capital Territory (Planning and Land Management) Act in, 145, 147 engineers in, 180 Land (Planning and Environment) Act in, xv, 148, 159 National Oceans Office in, xxviii Oceans Policy in, xxviii Brazil urban planning in, xix, xx Brazil, Federative Republic of, xxviii, xxix Decree No. 3179 in, 289, 291 Federal Constitution for, xix, xxviii, 73, 74, 75 Law No. 9605 in, 292, 296

431

432 Brazil, Federative Republic of (cont.) Medida Provisorio No. 2.220 in, 281, 282 Statute of the City in, xix, xxxi, 283, 288 urban planning in, xix, xx Buenos Aires, Argentina Constitution for, xxviii, 276, 277 building regulations. See regulations, building Canada, xxix Crown Forest Sustainability Act in, xxix, 386, 396 Manitoba Sustainable Development Act in, xxv, xxix, 401, 406 Muskwa-Kechika Management Area Act in, xxix, 397, 400 Oceans Act in, xxix, xxxiii, 407, 412 Ontario Planning Act in, 417, 429 Sustainable Water and Sewage Systems Act in, xxix, 413, 416 Cape Verde Order No. 86/IV/93, 59, 61 licensing under, 61 luminosity levels under, 60 man-made construction regulations under, 61 natural environmental components of, 59, 61 objectives for, 59 soil protection regulations in, 60, 61 water categorization in, 60 Capital Territory (Planning and Land Management) Act (Australia). See also National Capital Plan; Territory Plan land management under, 146 National Capital Plan as part of, 145, 146 powers of authority under, 145, 147 territory land administration under, 146, 147 Territory Plan as part of, 146 CDP (City Data Programme) for human settlements, 28 China, People’s Republic of Environmental Protection Law of, xx, 131, 134 Law of Land Administration in, xxxi, 122, 125 Law on Water and Soil Conservation in, 126, 130 private land ownership in, xxxi urban planning in, xx City Data Programme. See CDP coastal areas. See also Mississippi River Basin; oceans under Planning Act (Denmark), 184 sustainable development of, 47, 48 Coastal Erosion Hazard Areas Act, xxxiv area restrictions under, 344, 345 definitions within, 333, 334 findings statement for, 332 identification criteria for, 334, 337 as integrated system, xxxiv permit applications under, xxxiv, 338, 339 policy declaration of, 332, 333 regulations for, 337, 338 Coastal Erosion Hazard Areas Act (U.S.), 332, 339 Coastal Erosion Hazard Zone Ordinance (U.S.), 340, 346 definitions within, 341, 343 findings for, 340, 341

INDEX permit requirements for, 343 purpose of, 340 standards for, 343, 346 Coastal Zone Management Act. See CZMA communes under Act No. 237 (Slovakia), 265 compliance enforcement under Agenda 21, 39 for land leases, 151 under Planning Act (Singapore), 138 comprehensive plans. See planning, comprehensive Comprehensive Shorelands Protection Act (U.S.), xxxv Connecticut (U.S.) urban planning in, xv conservation under African Convention on the Conservation of Nature and Natural Resources, 8 Organization of National Conservation Services and, 8 conservation districts, 353, 355 Conservation of Agricultural Resources Act (South Africa) administration of, 80, 81 Committee for Environmental Coordination as part of, 78, 79 conservation committee formation as part of, 71 control measures within, 68, 69 environmental management bylaw models and, 81 Environmental Management Cooperation Agreements as part of, 79, 80 expropriation measures under, 80, 81 flora limitations under, 68 governmental procedures under, 79 ministerial regulations under, 71, 72 National Environmental Advisory Forum as part of, 78 objectives of, 67 personnel organization under, 67, 68 schedules under, 81 scheme establishment as part of, 69, 70 soil conservation maintenance under, 70, 71 constitution(s), municipal Buenos Aires, Argentina, xxviii, 276, 277 constitution(s), national Czechoslovakia, xxvi Germany, xxi human rights under, xxvi, xxvii Hungary, xxvi Lithuania, xxvi property rights in, xxxv, 73, 74 urban planning, xix U.S., xxxv Constitution of Argentina, xxvi, xxvii, 273 articles of, 273 Constitution of City of Buenos Aires, Argentina, xxviii, 276, 277 articles of, 276, 277 Constitution of Federative Republic of Brazil, xix, xxviii, 278, 280 articles of, 278, 280

INDEX Constitution of Mexico, xxx articles of, 297, 302, 306 Constitution of the Republic of South Africa, xxvi, 73, 75 Bill of Rights as part of, 73, 74 municipal governments under, 74, 75 property rights in, 73, 74 Crown Forest Sustainability Act (Canada), xxix, 386, 396 enforcement of, 391, 393 forest operations under, 390 forest resource licensing under, 387, 390 management planning for, 386, 387 manuals as result of, 394, 395 trust funds under, 390, 391 “culture of safety,” 33 Czechoslovakia constitution of, xxvi human rights in, xxvi Land Use Planning and Construction Rules Act in, xxvi CZMA (Coastal Zone Management Act) (U.S.), xxxiii, xxxiv, 307, 323 congressional findings for, 307, 308 definitions within, 309, 311 enhancement grants under, 320, 321 environmental protections as result of, 315, 317 Estuarine Land Conservation Program under, 321 federal cooperation under, 317, 320 grants for, administrative, 311, 313 National Estuarine Research Reserve System under, 321, 323 New Hampshire and, xxxvi public hearings as part of, 321 reports for, 323 resource improvement programs for, 314, 315 technical assistance as part of, 321 Decree No. 3179 (Brazil), 289, 291 pollution violations under, 291 provisions for, 289 urban order violations under, 291 violation sanctions for, 289, 291 Denmark Agenda 21 in, 188 Planning Act in, 183, 189 Development Assessment Commission (Australia), 163 approval process for, 168, 170 building rules for, 169 functions of, 163 offense assessment by, 170 schemes for, general, 168, 170 development orders general, 197 permissions as result of, 197 provisions for, 197, 198 for Town and Country Planning Act (Scotland), 244, 245 for Town and Country Planning Act (U.K.), 197, 198 disaster management “culture of safety” as part of, 33 for human settlements, 32, 34

433 post-disaster reconstruction as part of, 34 pre-disaster planning as part of, 33, 34 Earth Summit, xvi Ecological Equilibrium and Environmental Protection Act (Mexico), xxx ejidos (communal lands), xiv, xxxi, xxxii, 299, 300 Environmental Management Cooperation Agreements, 79, 80 environmental protection. See protections, environmental Environmental Protection Agency. See EPA Environmental Protection Law (China), xx, 131, 134 governmental land use planning under, xxvii legal liabilities under, 133, 134 natural resource improvement programs under, 132, 133 pollution prevention as part of, 133 quality standard setting under, 131, 132 environments, natural Agenda 21 and, 36, 42, 43 Cape Verde Order No. 86/IV/93 and, as components, 59, 61 under Federal Building Code (Germany), 212 under Law No. 9605 (Brazil), 295 public perceptions of, xxxviii under Town and Country Planning Act (Scotland), 249 EPA (Environmental Protection Agency) (U.S.), xxxvii ESDP (European Spatial Development Perspective), xx Estonia Planning Act in, 206, 210 Estuarine Land Conservation Program (U.S.), 321 EU (European Union). See Europe Europe,. xxix, xxx. See also Czechoslovakia; Denmark; Estonia; France; Germany; Hungary; Lithuania; Malta; The Netherlands; Scotland; Slovakia; Spain; Sweden; U.K. ESDP in, xx land use planning models in, historical, xv, xx Landscape Convention and, 12, 13, 21, 22 Landscape Convention in, xxxiii Single European Act in, xx Treaty of Amsterdam in, xxix Treaty on European Union in, xx urban planning in, xx, xxi European Landscape Convention, 10, 14 amendments to, 14, 23 definitions within, 11, 17, 19 explanatory report on, 15, 23 final clauses in, 13, 14, 22, 23 goals of, 15, 17 inter-European cooperation under, 12, 13, 21, 22 international programs as part of, 21 Landscape award of the Council of Europe and, 13, 22 measures, general, 11, 12, 19 measures, national, 11, 12, 19, 21 measures, specific, 19, 21 origins of, 15 Preamble to, 10, 11, 17

434 European Landscape Convention (cont.) provisions for, general, 11 responsibility division as part of, 11, 19 scope of, 11 European Spatial Development Perspective. See ESDP Federal Building Code (Germany), 211, 222 agriculture under, 221, 222 conservation measures, natural, 218 construction under, 220 coordination within, 221 development freezes as part of, 215 expropriation under, 217 infrastructure plans under, 214, 215, 216, 217, 219, 220 land use consolidation under, 221 municipality responsibilities under, 220 natural environments under, 212 plot subdivision under, 215 preconditions for, 216, 217 pre-emption rights as part of, 215, 216 preparatory land-use plan as part of, 213 principles of, 211, 212 public agencies and, 219 reallocation purposes in, 216 statute enactment as part of, 218 urban development contracts under, 214, 220, 221 urban redevelopment under, 218, 219 Federal Territory Act (Malaysia), 111, 121 action areas under, 120 appeals processes for, 119 commission powers within, 112, 113 definitions within, 111, 112 development charges as part of, 118, 119 development plans as part of, 113, 115 planning controls within, 115, 117 private land ownership under, 119, 120 provisions for, 121 tree preservation under, 118 Federative Republic of Brazil. See Brazil, Federative Republic of Fish and Wildlife Coordination Act (U.S.), xxxvii Flood Control Act (U.S.), xxxvii flooding in U.S., xxxvii Foreign Investment Law (Mexico), xxxiii Forest Information Manual, 394 Forest Management Planning Manual, 394 Forest Operations and Silviculture Manual, 394 Forest Renewal Trust, 390, 391 forest reserves under Forests Ordinance, 62, 64 land ownership within, 64 notification regulations for, 62, 63, 64 rights transfers within, 64, 65 ways and water-courses in, 64 forest resource licenses, 387, 390 harvesting limits under, 388 renewals, 388

INDEX suspension of, 392 for sustainable forests, 388 term extensions for, 388 Forestry Futures Trust, 391, 392 forests. See also forest reserves; forest resource licenses; sustainable forests under Federal Territory Act (Malaysia), 118 use of, 84, 86 Forests Ordinance (Africa), 62, 66 compensation restrictions under, 63, 64 enquiry notices under, 63 land exclusion powers under, 63 officer appointments under, 62 penalties under, 65 property destruction under, 65 provisions for, special, 66 rights commutation under, 63 France urban planning in, xx General Environmental Law (Argentina), xxv, 274, 275 articles of, 274, 275 Georgia (U.S.) urban planning in, xv Germany Constitution of, xxi Federal Building Code for, 211, 222 land use planning in, xxi property rights in, xv Prussian Land Law in, xv urban planning in, xx Global Report on Human Settlements, xxiii governmental organizations. See organizations, governmental governments. See also governments, municipal land ownership and, xxxii land use planning by, xix, xxvii “property rules” and, xxxii governments, municipal under Constitution of the Republic of South Africa, 74, 75 under Federal Building Code (Germany), 220 under Istanbul Declaration on Human Settlements, xxvii land use planning by, xxvii under New York State Land Use Enabling Acts (U.S.), 329, 330 Planning Act (Denmark) and, 186, 187 Planning Act (Estonia) and, 207, 208 in Slovakia, 257 under Town and Country Planning (Netherlands), 234 under Town and Country Planning Act (Scotland), 239, 240 grants under CZMA (U.S.), 311, 313 enhancement, under CZMA (U.S.), 320, 321 for planning permissions, 201, 202 Growth Management Act (U.S.), xxxvi, 369, 377 comprehensive plans under, 371, 375

INDEX by county, 369, 377 environmental classifications under, 371, 377 planning goals for, 369, 370 requirement summary for, 370, 371 Habitat I, xxiii, 28 Habitat II, xxiii Istanbul Declaration on Human Settlements, xxiii, xxiv hacienda (plantation) system, xiv, xv Housing for the Working Class Act (U.K.), xxii human rights. See rights, human human settlements. See settlements, human Hungary Constitution of, xxvi land use in, xxxii India slums in, xxiii Istanbul Declaration on Human Settlements, xxiii, xxiv, 52, 54 municipal government land use and, xxvii Johannesburg Declaration on Sustainable Development, xi, 55, 57 multilateralism as part of, 57 Lagos Town Planning Ordinance, xxii land definition of, 43 Land Acquisition Act (Singapore), 140, 144 appeals process under, 142, 143 inquiry process under, 141 land occupation under, temporary, 143 land use notification under, 140, 141 “power of possession” under, 141, 142 Land (Planning and Environment) Act (Australia), xv, 148, 159. See also leases, land applications under, 158 approval processes for, 158 index numbers as part of, 154 injunctions as part of, 159 inspection procedures as part of, 159 land recovery under, 155 land use administration under, 149, 150 leasing under, 149, 154, 156, 157 licensing under, 157 minerals under, 157 objectives of, 148, 149 orders under, 159 public lands under, 155, 156 rectification work under, 159 subdivisions under, 154 land charter companies in American colonies, xv land conveyances under Ontario Planning Act (Canada), 427 land leases. See leases, land land ownership, private, xv. See also rights, property in China, xxxi

435 under Federal Territory Act (Malaysia), 119, 120 within forest reserves, 64 land ownership, public governments and, xxxii under Land (Planning and Environment) Act (Australia), 155, 156 under Law of Land Administration (China), 123 management planning of, 155, 156 land transfers in leases, 152 under Statute of the City (Brazil), 287 under Village Land Act (Tanzania), 90, 91 zoning and, 188 land use. See also land use, U.S.; urban planning under Agenda 21, xvii, 29, 30, 43, 47 Europe planning models for, xv, xx under Federal Building Code (Germany), 213, 221 forecasts for, 262, 263 in Germany, xxi governmental organizations and, xxiv, xxx historical review of, xiv, xvii in Hungary, xxxii under Land Acquisition Act (Singapore), notification of, 140, 141 under Land (Planning and Environment) Act, 149, 150 under Law on Water and Soil Conservation (China), 127, 128 for leased land, 151 under legal systems, development of, xiii, xiv legally-binding designations for, 214, 218 in Lithuania, xxxii during Maya civilization, xiv in Millennium Ecosystem Assessment, xii, xiii municipal government planning for, xxvii under New Hampshire State Land Use Enabling Act, 349, 351 under Ontario Planning Act (Canada), 423, 428 planning documentation for, 262, 263, 264 in Slovakia, 263 under South Australia Development Act, 161, 162 stakeholder participation and, xii Statute of Winchester, xiv under Town and Country Planning (Netherlands), 234 Twelve Tables and, xiv in U.K., xxii in U.S., xxxiii, xxxviii in wetland protection districts, 356 Land Use Enabling Acts (U.S.), xxxiv Land Use Planning and Building Order Act (Slovakia), 261, 262 building schemes for, 262 material definitions under, 262 objectives of, 261, 262 urban planning under, 262 Land Use Planning and Construction Rules Act (Czechoslovakia), xxvi land use, U.S., xi, xxxiii, xxxviii CZMA and, xxxiii, xxxiv

436 land use U.S. (cont.) Mississippi River Basin, xxxvi, xxxviii national policies for, xxxiii New Hampshire, xxxv, xxxvi New York, xxxiv, xxxv Washington, xxxvi Wisconsin, xxxvi lands, territory under Capital Territory (Planning and Land Management) Act, 146, 147 Landscape award of the Council of Europe, 13, 22 Landscape Convention (Europe), xxxiii Latin America. See also Argentina; Brazil, Federative Republic of; Maya civilization urban planning history in, xiv Law No. 9605 (Brazil), 292, 296 environmental administration under, 295, 296 fauna protections as part of, 293 flora protections as part of, 293, 294 penalties under, 292 pollution crimes under, 294 property confiscation under, 292, 293 provisions for, 292 urban planning violations under, 295 Law of Land Administration (China), 122, 125 cultivate land protections under, 124, 125 land utilization planning under, 123, 124 legal penalties under, 129, 130 natural resource rehabilitation under, 128, 129 provisions for, general, 122, 123 public land ownership under, 123 violations supervision of, 125 Law of Social Development (Mexico), xvii, xxii, 302, 303 obligations under, 303 Law of the Indies, xiv, 267, 272 discovery ordinances as part of, 267, 272 Law on Territorial Planning (Lithuania), xxvi, 223, 227 definitions in, 223 detailed planning under, 225, 226 general planning under, 224, 225 objectives of, 223, 224 regulations under, 226 special planning under, 225 state supervision of, 227 Law on Water and Soil Conservation (China), 126, 130 land use organization under, 127, 128 provisions for, general, 126, 127 leases, land accessibility to, 157 alternative, 150 to community organizations, 149 community titles as part of, 150, 151 compliance certificates for, 151 improvement values in, 151 under Land (Planning and Environment) Act, 149, 154, 156, 157 land management agreements as part of, 154 mortgages for, 152

INDEX for parcels, undivided, 152 refunds for, 151 rent reduction provisions under, 157 residential, 150 rural, 150, 153, 154 sublets of, 153 termination of, 155 transfers of, 152 unit titles as part of, 150 uses for, 151 variation of, 153 legal systems. See systems, legal licensing. See also forest resource licenses under Cape Verde Order No. 86/IV/93, 61 forest resource, 387, 390 under Land (Planning and Environment) Act (Australia), 157 Lithuania Constitution of, xxvi land use in, xxxii Law on Territorial Planning in, xxvi, 223, 227 Local Agenda 21 (Denmark), 187, 188 Major Developments Panel (Australia) for South Australia Development Act, 171 for South Australia Development Regulations, 181, 182 Malaysia Federal Territory Act in, 111, 121 Town and Country Planning Act in, 97, 110 Malta Administration of Lands Act in, 231, 232 Special Development Areas Act in, 228, 230 Manitoba Round Table, 402 Manitoba Sustainable Development Act (Canada), xxv, xxix, 401, 406 definitions within, 401, 402 Department of Conservation responsibilities under, 402, 403 development strategies for, 403 Manitoba Round Table as result of, 402 Ministerial functions under, 411, 412 principles of, 403 provisions for, general, 404, 406 public sector operations under, 403, 404 Sustainable Development Innovations Fund from, 404 manuals from Crown Forest Sustainability Act (Canada), 394, 395 Forest Information Manual, 394 Forest Management Planning Manual, 394 Forest Operations and Silviculture Manual, 394 Scaling Manual, 394 markets, economic Agenda 21 and, 40, 42 for developing nations, 41 Maya civilization land use during, xiv

INDEX Medida Provisorio No. 2.220 (Brazil), 281, 282 National Urban Development Council as part of, 282 special use concessions in, 281, 282 Mexico, xiv, xxx Constitution for, xxx, 297, 302, 306 Ecological Equilibrium and Environmental Protection Act in, xxx ejidos in, xiv, xxxi, xxxii, 299, 300 Foreign Investment Law in, xxxiii foreign investment limitations in, xxxiii, 299 Law of Social Development in, xvii, xxii, 302, 303 mortgages in, xxxii National Council of Evaluation of Social Development in, 306 National Development Plan in, xxi National Policy of Social Development in, 304, 305 National System of Social Development in, 305, 306 poverty programs in, xxiv Program Habitat in, xxiv “property rules” in, xxxii, xxxiii, 299 sustainable development programs in, xxi, xxii Millennium Ecosystem Assessment (UN), xii, xiii land use sustainability as part of, xii, xiii Mississippi River Basin (U.S.) Fish and Wildlife Coordination Act and, xxxvii Flood Control Act and, xxxvii geographic area of, xxxvi land use systems in, xxxvi, xxxviii River and Harbors Act and, xxxvii state jurisdictions within, xxxvii, xxxviii Upper Mississippi River Conservation Committee in, xxxvii Upper Mississippi River Wildlife and Fish Refuge Act, xxxvii Water Pollution Control Act in, xxxvii Water Project Recreation Act in, xxxvii Water Resources Development Act in, xxxvii mortgages for leased land, 152 in Mexico, xxxii Muskwa-Kechika Management Area Act (Canada), xxix, 397, 400 definitions within, 397, 398 management areas under, 398, 399 Trust Fund for, 399, 400 National Capital Plan (Australia), 145, 146 objectives of, 145, 146 preparation of, 146 National Council of Evaluation of Social Development (Mexico), 306 National Development Plan (Mexico), xxi National Environmental Management Act (South Africa), 76, 81 principles of, 76, 78 National Estuarine Research Reserve System (U.S.), 321, 323 research guidelines for, 322 National Forests Act (South Africa), 82, 88

437 administration of, 86, 88 Preamble to, 82 provisions for, introductory, 82 sustainable forest management as part of, 83, 84 National Oceans Office (Australia), xxviii National Policy of Social Development (Mexico), 304, 305 economic social sectors under, 304 finances for, 304 planning under, 304 poverty programs under, 304, 305 priority zones for, 304 purpose of, 304 National System of Social Development (Mexico) controllers under, 306 councils for, 306 evaluation of, 306 intersecretarial commission of, 306 scope of, 305, 306 social participation as part of, 306 National Urban Development Council, 282 The Netherlands Spatial Planning Act in, 233, 236 New Hampshire (U.S.), xxxv, xxxvi Comprehensive Shorelands Protection Act in, xxxv CZMA and, xxxvi Overriding Districts Ordinance in, 353, 358 “Overriding Districts” ordinances in, xxxv State Land Use Enabling Act in, 347, 352 New Hampshire State Land Use Enabling Act (U.S.), 347, 352 growth management as part of, 351, 352 land use controls under, 349, 351 master plans under, 347, 349 New York (U.S.) Bill of Rights in, 327 Coastal Erosion Hazard Areas Act in, xxxiv, 332, 339 Coastal Erosion Hazard Zone Ordinance in, 340, 346 Land Use Enabling Acts in, xxxiv land use planning acts in, xv land use systems in, xxxiv, xxxv State Land Use Enabling Acts in, 324, 331 New York City urban planning history in, xv New York State Land Use Enabling Acts (U.S.), 324, 331 consolidated laws under, 330, 331 definitions within, 325 existing laws under, 328, 329 legislative intent of, 329 municipal government powers under, 329, 330 town comprehensive plans as part of, 325, 327 North America. See Canada; Mexico; U.S. oceans Commission on Ocean Policy (U.S.) and, xxxvii National Oceans Office (Australian), xxviii Oceans Act (Canada), xxix, xxxiii, 407, 412 Oceans Policy (Australia), xxviii

438 oceans (cont.) Pew Oceans Commission on, xxxviii pollution in, 4 protections of, 47, 48 Oceans Act (Canada), xxix, xxxiii, 407, 412 management strategy under, 407, 411 Oceans Policy (Australian), xxviii Ontario Planning Act (Canada), 417, 429 adoption measures under, 419 amendments to, 421 community improvement project areas as result of, 422, 423 land conveyances under, 427 land use controls under, 423, 428 municipal planning under, 418, 419 official plans under, 419, 422 provincial administration for, 417, 418 Organization of National Conservation Services, 8 organizations, community land leasing to, 149 organizations, governmental land use planning and, xxiv, xxx Overriding Districts Ordinance (U.S.), 353, 358 conservation districts as part of, 353, 355 wetland protection districts as part of, 355, 358 People’s Republic of China. See China, People’s Republic of permits for Coastal Erosion Hazard Areas Act, xxxiv, 338, 339 for Coastal Erosion Hazard Zone Ordinance (U.S.), 343 for PRD, 382 for Spatial Planning Act (Netherlands), 235 Pew Oceans Commission, xxxviii Philip II (King), xiv Planned Residential Development. See PRD Planned Unit Development. See PUD Planning Act (Denmark), 183, 189 coastal zones under, 184 compliance regulation of, 188 decentralization as factor in, 183 exemptions under, 188 expropriation measures under, 188 Local Agenda 21 and, 187, 188 for municipalities, 186, 187 national spatial plan as part of, 184, 187 penalties under, 189 purpose of, 183 regional applications of, 184, 186 retail trade under, 184 zoning under, 188 Planning Act (Estonia), 206, 210 building regulations under, 207 comprehensive plans as part of, 208, 209 detailed plans as part of, 209 municipal plans as part of, 207, 208 national spatial plan as part of, 207 “objects of national importance” under, 210

INDEX plans for, 206, 207 public participation in, 209 supervisory authorities for, 209, 210 Planning Act (Singapore), 135, 139 compliance under, 138 definitions within 135, 136 development charges as part of, 138, 139 land subdivision under, 137 levies under, temporary, 139 Master Plan for, 136 monies recovery under, 139 planning, comprehensive. See also town comprehensive plans (U.S.) agriculture and, 327 elements of, optional, 375 under Growth Management Act (U.S.), 371, 375 in New York State Land Use Enabling Acts (U.S.), 325, 327 under Planning Act (Estonia), 208, 209 public participation in, 377 under Smart Growth Act (U.S.), 359, 362 for urban growth areas, 375, 377 planning permissions agricultural tenants and, 199, 200 applications for, 198, 200, 201, 203, 245, 246, 248 for buildings, existing, 198 conditional grants for, 201, 202, 249, 250 criteria for, 201 deemed, 203, 204, 251 duration of, 204, 251 effects of, 203, 250 notice publication for, 198, 199 in Town and Country Planning Act (U.K.), 196, 197 under Town and Country Planning Act (Scotland), 244 pollution. See also sanitation controls, UN Convention on the Law of the Sea and, 3, 4 Decree No. 3179 (Brazil) and, 291 Environmental Protection Law (China) and, prevention of, 133 land-based, 3, 4 under Law No. 9605 (Brazil), 294 ocean-based, 4 poverty under National Policy of Social Development (Mexico), 304, 305 sustainable development’s influence on, xvi PRD (Planned Residential Development) administration for, 383 approval process for, 380, 382 design standards for, 383, 385 extensions during, 382, 383 permits as part of, 382 purpose of, 380 requirements for, 380 Urban Growth Area Zoning Ordinance and, 380, 385 pre-emption rights. See rights, pre-emption pricing policies, Agenda 21 and, 41, 42

INDEX private land ownership. See land ownership, private Program Habitat (Mexico), xxiv property rights. See rights, property “property rules” (Mexico), xxxii, xxxiii, 299 for charitable institutions, 299 for commercial stock companies, 299 for religious institutions, 299 protections, environmental under Act No. 237 (Slovakia), 260 in China, xx, 131, 134 from CZMA (U.S.), 315, 317 Ecological Equilibrium and Environmental Protection Act (Mexico), xxx EPA (U.S.), xxxvii in Law No. 9605 (Brazil), 293, 294 wetland protection districts as, 355, 358 Prussian Land Law (1794), xv public land ownership. See land ownership, public PUD (Planned Unit Development), xxxvi regulations, building, xv under Act No. 237 (Slovakia), 260 in Germany, 211, 222 under Planning Act (Estonia), 207 planning permissions and, 198 under Town and Country Planning Act (U.K.), 204, 205 Republic of South Africa. See South Africa, Republic of rights, human African Charter on the Rights of Man and Peoples and, xxvi under national constitutions, xxvi, xxvii under Rio Declaration on Environment and Development, xxvi rights, pre-emption in Federal Building Code (Germany), 215, 216 under Statute of the City (Brazil), 286 rights, property, xxx, xxxiii in Constitution of the Republic of South Africa, 73, 74 in forest reserves, 64 in Germany, xv national regulations for, xxxi under U.S. Constitution, xxxv under U.S. Supreme Court, xxx Rio Declaration on Environment and Development, xvi, xxiv, xxv, 49, 51 Agenda 21 as result of, xvi connectivity as factor in, xvi human rights under, xxvi “international consensus” from, xvi principles of, 49, 51 River and Harbors Act (U.S.), xxxvii sanitation management of, 30, 31 Scaling Manual, 394 Scotland Town and Country Planning Act in, 237, 253

439 Second Annual Colloquium of the Academy of International Environmental Law, xiii services, legal under Agenda 21, 39 settlements, human, xxiii, xxiv CDP for, 28 development assistance figures for, 25 disaster management for, 32, 34 Global Reports on Human Settlements, xxiii Habitat I, xxiii, 28 Habitat II, xxiii Istanbul Declaration on Human Settlements, xxiii, xxiv, 52, 54 management of, 27, 29 sustainable energy promotion for, 31, 32 shelters provision of, under Agenda 21, 26, 27 Singapore Land Acquisition Act in, 140, 144 Planning Act in, 135, 139 Single European Act (1987), xx Slovakia Act No. 237 in, 254, 266 Land Use Planning and Building Order Act in, 261, 262 land-use plan under, 263 land-use project under, 263 municipal territorial plans in, 257 regional territorial plans in, 256, 257 Territorial Development Conception of, 256 slums, xxiii, xxxi in Global Report on Human Settlements, xxiii in India, xxiii Smart Growth Act (U.S.), xxxvi, 359, 363 comprehensive planning under, 359, 362 TND under, 362, 363 soil conservation maintenance for, 70, 71 protection regulations for, 60, 61 South Africa, Republic of Conservation of Agricultural Resources Act in, 67, 72 Constitution of, xxvi, 73, 74, 75 governmental land use management in, xxvii National Environmental Management Act in, 76, 81 National Forests Act in, 82, 88 South Australia South Australia Development Act in, xxv, 160, 175 South Australia Development Regulations in, 176, 182 South Australia Development Act, xxv, 160, 175. See also Development Assessment Commission (Australia) advisory committee as part of, 162, 163 amendments to, 166, 167 annual reports, 164 authorized officers under, 163, 164 council review under, 168 Crown development under, 173, 175 definitions within, 160, 161 delegations under, 164 Development Assessment Commission under, 163 development plans for, 165, 168, 170, 175

440 South Australia Development Act (cont.) DR process under, 172, 173 EIS process under, 171 land use under, 161, 162 Major Developments Panel as part of, 171 Parliament approvals under, 167, 168 PER process under, 171, 172 planning schemes as part of, 164, 165 process amendments to, 173 provisions for, 168 state bodies under, 162, 163 South Australia Development Regulations, 176, 182 applications under, 177, 178 development plans under, 176, 177, 180, 182 infrastructure construction under, 179, 180 land division provisions under, 178, 182 Major Developments Panel as part of, 181, 182 public inspections under, 178 Spain Law of the Indies, xiv Philip II in, xiv Spatial Planning Act (Netherlands), 233, 236. See also Town and Country Planning advisory councils for, 235, 236 construction permits under, 235 development orders as part of, 235 enforcement of, 236 Town and Country Planning as part of, 233 spatial plans, national in Planning Act (Denmark), 184, 187 in Planning Act (Estonia), 207 in Planning Act (Netherlands), 233, 236 Special Development Areas Act (Malta), 228, 230 declaration effects of, 229 government acquisitions under, 229 works removal under, 229, 230 Statute of the City (Brazil), xix, xxxi, 283, 288 articles of, 283, 284 building rights transfers under, 287 city management under, 288 compulsory subdivisions under, 285 consociated operations under, 286, 287 directives of, general, 283 master plan for, 287, 288 neighborhood impact studies for, 287 payment expropriation under, 285 pre-emption rights under, 286 principles of, xix, xx provisions for, 288 special use concessions for, 288 surface rights under, 285, 286 urban policy planning under, 284, 287 “urban usucapiao” under, 285 Statute of Winchester (1285), xiv “cooperative federalism” under, xiv Sustainable Communities Plan (U.K.), xxiv sustainable construction industries under Act No. 237 (Slovakia), 259, 260, 264

INDEX under Agenda 21, 34, 35 under Cape Verde Order No. 86/IV/93, 61 under South Australia Development Regulations, 179, 180 sustainable development. See also land use in Agenda 21, 25, 26 citizen participation in, xxv, xxvi for coastal areas, 47, 48 international agreements for, xii Johannesburg Declaration on Sustainable Development, 55, 57 in Mexico, xxi, xxii national strategies for, 38, 40 poverty and, xvi Sustainable Development Act (Canada), xxv, xxix Sustainable Development Innovations Fund, 404 sustainable energy for human settlements, 31, 32 sustainable forests licenses for, 388 management of, 83, 84 Sustainable Water and Sewage Systems Act (Canada), xxix, 413, 416 cost recovery plans under, 415 interpretation of, 413, 414 report revision for, 415, 416 services cost under, 414, 415 Sweden urban planning in, xx systems, information for Agenda 21, 45, 46 systems, legal, xiii land use development under, xiii, xiv Tanzania Village Land Act in, xxvi, 89, 96 Village Land Councils in, xxvi, 92 territorial plans documentation of, 256, 259 zonal, 257, 258, 259 Territory Plan (Australia), 146 TND (traditional neighborhood developments), xxxvi design standards for, 365, 368 under Smart Growth Act (U.S.), 362, 363 TND Ordinance (U.S.) and, 364, 368 TND Ordinances (U.S.), 364, 368 definitions within, 364, 365 Town and Country Planning (Netherlands), 233 inquiries as part of, 241 land use under, 234 municipalities under, 234 proposal adoption under, 241 provincial policies on, 233, 234 structure plans as part of, 234 Town and Country Planning Act (Malaysia), 97, 110 administration policies for, 99, 102 amendments to, 109, 110 development charges for, 107, 108 development plans under, 102, 105

INDEX national physical plan under, 101, 102 planning policies for, 99, 101, 105, 107 provisions for, 108, 109 Secretary of State and, 205 term definitions in, 97, 98 Town and Country Planning Act (Scotland), 237, 253 development orders for, general, 244, 245 development plans for, 237, 242, 244 environmental effects and, 249 municipal planning under, 239, 240 planning permission requirements under, 244 structure replacement under, 239 Town and Country Planning Act (U.K.), xxii, 190, 205. See also development orders; planning permissions development orders for, 197, 198 for metropolitan areas, 193, 194 for non-metropolitan areas, 194 planning authorities as part of, 190 planning permission under, 196, 197, 198, 203 structural alterations under, 204, 205 unitary development plans as part of, 190, 194, 195 town comprehensive plans (U.S.) agricultural coordination under, 327 contents of, 325, 326 environmental reviews of, 326, 327 in New York State Land Use Enabling Acts, 325, 327 public hearings for, 326 traditional neighborhood developments. See TND transfers. See land transfers Treaty of Amsterdam, xxix Treaty on European Union (1993), xx trust funds Forest Renewal Trust, 390, 391 Forestry Futures Trust, 391, 392 for Muskwa-Kechika Management Area Act (Canada), 399, 400 Sustainable Development Innovations Fund, 404 Twelve Tables, xiv U.K. (United Kingdom) Act for the Rebuilding of London in, xv building regulations in, xv Housing for the Working Class Act in, xxii housing stock estimates in, xxiv land use planning in, xxii Sustainable Communities Plan in, xxiv Town and Country Planning Act in, xxii, 190, 205 urban planning in, xxii UN (United Nations) Commission on Human Settlements, xxiii Millennium Ecosystem Assessment, xii, xiii UN Conference on Environment and Development. See UNCED UN Convention on the Law of the Sea, xviii, xix, xxviii, xxxiii, xxxvi, 1, 4 enforcement of, 4 general provisions for, 2, 3 global/regional cooperation with, 3

441 pollution controls under, 3, 4 Preamble to, 1, 2 UNCED (UN Conference on Environment and Development), xvi, xvii. See also Agenda 21 United States. See U.S. Upper Mississippi River Wildlife and Fish Refuge Act (U.S.), xxxvii Urban Growth Area Zoning Ordinance (U.S.), 378, 385 PRD under, 380, 385 provisions for, general, 378, 380 urban planning, xviii, xix. See also Urban Growth Area Zoning Ordinance under Agenda 21, 27, 29 as applied science, xviii in Brazil, xix, xx in China, xx comprehensive planning for, 375, 377 in Connecticut, xv in Europe, xx, xxi in Europe, history of, xv under Federal Building Code (Germany), 214, 218, 219, 220, 221 Federal Constitution in, xix in France, xx in Georgia, xv in Germany, xx under Land Use Planning and Building Order Act (Slovakia), 262 in Latin America, history of, xiv under Law No. 9605 (Brazil), 295 master plans in, xviii by National Urban Development Council, 282 in New York City, xv under Statute of the City (Brazil), 284, 287 in Sweden, xx within U.K., xxii villas as part of, xiv in Virginia, xv “urban usucapiao,” 285 U.S. (United States), xv. See also Georgia; Mississippi River Basin; New Hampshire; New York; Virginia; Washington; Wisconsin colonial charter companies in, xv Commission on Ocean Policy, xxxvii Connecticut, xv Constitutional Amendments, xxxv CZMA in, xxxiii, xxxiv, 307, 323 EPA in, xxxvii flooding in, xxxvii Growth Management Act in, xxxvi, 369, 377 land use systems in, xi, xxxiii, xxxviii New York, xv New York State Land Use Enabling Acts in, 324, 331 Pew Oceans Commission in, xxxviii private land ownership in, xv property rights in, xxx Smart Growth Act in, 359, 363

442 U.S. (United States) (cont.) TND Ordinance in, 364, 368 Virginia, xv U.S. Commission on Ocean Policy, xxxvii Village Land Act (Tanzania), xxvi, 89, 96 dispute mediation under, 95 hazard land declaration under, 91 land definitions in, 91, 95 land transfers under, 90, 91 principles of, 89, 90 provisions for, 95, 96 women under, xxvi Village Land Councils (Tanzania), xxvi, 92 functions of, 95 village lands (Tanzania) communal, 93, 94 division of, 93 joint use agreements among, 92, 93 management of, 92 occupancy rights for, 94, 95 in Village Land Act, 91, 95 villas (towns), xiv Virginia (U.S.) urban planning in, xv Washington (U.S.), xxxvi Growth Management Act in, xxxvi, 369, 377

INDEX PUD in, xxxvi Urban Growth Area Zoning Ordinance in, 378, 385 Water Pollution Control Act (U.S.), xxxvii Water Project Recreation Act (U.S.), xxxvii Water Resources Development Act (U.S.), xxxvii wetland protection districts, 355, 358 boundaries of, 355, 356 conditional use approval for, 356, 357 filled lands in, 358 land uses in, 356 procedural requirements for, 356 provisions for, specific, 357 purpose of, 355 residential exemptions in, 358 Wisconsin land use systems in, xxxvi Smart Growth Act in, xxxvi, 359, 363 TND in, xxxvi TND Ordinance in, 364, 368 women under Village Land Act, xxvi zoning under Act No. 237 (Slovakia), 257, 258 under Planning Act (Denmark), 188 transfers, 188