Physical Planning Act Part 6

The following is part of a series of extracts from the Physical Planning Bill, 2005, being published by The Anguillian as a public service and in view of the public discussion on the legislation now taking place in Anguilla. The extracts are being published in cooperation with the Attorney Generals Chambers.

ENVIRONMENTAL PROTECTION
Plant preservation orders
43. (1) Where the Board, after consultation with the agency or department responsible for the environment, is of the opinion that it is desirable for amenity, environmental, landscape, scientific or similar reasons that any plant or group or species of plants ought to be preserved, it may make a plant preservation order with respect to such plant, group or species of plant.

(2) Any person who, without the permission of the Board, cuts down, tops, lops, digs up or destroys the plant, group or species of plants, to which a plant preservation order applies is guilty of an offence.
(3) A plant preservation order shall—
(a) be served on the owner and occupier of the land on which the plant, group or species of plants to which the order applies is situated;
(b) specify the plant, or group or species of plant, to which it applies;
(c) define the position of the plant, group or species of plant, by reference to a map which shall be available for inspection at a place specified in the order;
(d) state the effect of the plant preservation order and when it comes into effect; and
(e) inform the owner and occupier and any other person with an interest in the land on which the plant or group or species of plant is situated of the opportunities for making an appeal against the plant preservation order.
(4) Where an appeal is made against a plant preservation order, the order shall remain in full force and effect notwithstanding the making of the appeal.
(5) No plant preservation order made under this section shall apply to the cutting down, topping or lopping of plants or trees that are dying or dead or have become dangerous, or the cutting down, topping or lopping of any plants or trees in compliance with any obligation imposed by or under any Act or so far as may be necessary for the prevention or abatement of a nuisance.
(6) Notice of the making of a plant preservation order shall be published in the Gazette.
Amenity orders
44. (1) In any case in which the Director considers that land is—
(a) unsightly and injurious to the amenity of the area, and visible to persons using a public highway or any other area to which the public has a right of access; or
(b) likely to be or is offensive to persons residing in the immediate neighbourhood of such land, by reason of any waste, rubbish, derelict or abandoned machinery or articles or materials of any kind, or the dilapidated state of any structure or building thereon; he may prepare and submit to the Board a draft amenity order.
(2) An amenity order shall state clearly—
(a) the land to which it applies, and the owner or occupier thereof;
(b) any matter that is required to be cleared;
(c) if screening is required to be carried out, the requirements to effect the screening;
(d) the time, not being less than 28 days from the date of service of the order upon the owner or occupier, for compliance with the order;
(e) in the case of an order requiring clearance, the matter which must be destroyed, or the place, being an authorized place for the disposal of rubbish, to which it must be removed, as appropriate;
(f) in the case of a building, the manner in which the building is required to be repaired, painted or demolished, in whole or in part; and
(g) where the Director is aware that the occupier of land to which an amenity order is made is not the owner, the action that is required to be taken by the occupier and the action to be taken by the owner.
(3) A draft amenity order prepared by the Director under subsection (1) shall be submitted to the Board, together with a statement by the Director in support of the proposed action.
(4) The Board may approve or reject the draft order.
(5) Where the order is approved by the Board, copies shall be served on the occupier or owner of the land concerned, or if no such person can be found, may be served by affixing a copy of the order in a conspicuous place on the land concerned.
(6) If any person upon whom an amenity order is served fails to comply with the requirements of the order within the time specified in that order or any extension thereof approved by the Board, the Board may arrange for the work to be carried out at the expense of the person who is in default and may recover the cost of so doing as a civil debt from the person in default.
Appeal against amenity orders
45. (1) Any person upon whom an amenity order has been served under the provisions of section 44 may appeal to the Appeals Tribunal against the making or terms of such order.
(2) An appeal made under subsection (1) may be on any of the following grounds—
(a) the person upon whom an order has been served is not an owner or occupier of the land to which the order applies;
(b) the person upon whom the notice has been served has no control over and no authority to remove, destroy or demolish any matter or building referred to in the order;
(c) the time within which the order must be complied with is not reasonably sufficient for the purpose;
(d) the work specified in the order is unreasonable in character or extent or is unnecessary;
(e) that having regard to the character and condition of land and buildings in the immediate neighbourhood, the order is unreasonable.
(3) On an appeal under this section, the Appeals Tribunal may confirm, with or without modification, or may quash, in whole or in part, the order against which the appeal is made.
(4) Where an appeal is made under this section, the operation of the order which is the subject of the appeal is suspended pending the determination of the appeal.
Control of advertisements
46. (1) Subject to this section, provision may be made by regulation under this Act for prohibiting the display of advertisements, and without restricting the generality of the foregoing, any such regulations may provide—
(a) for regulating the dimensions, appearance and position of advertisements that may be displayed, the sites on which the advertisements may be displayed, and the manner in which they are to be affixed to land;
(b) for requiring the consent of the Board to be obtained for the display of advertisements, or of advertisements of any class specified in the Regulations;
(c) for applying, in relation to any such consent and to applications therefor, any of the provisions of Part 4 relating to permission to develop land and to application for such permission, subject to such adaptations and modifications as may be specified in the Regulations;
(d) for enabling the Board to require the removal of any advertisement that is being displayed in contravention of the Regulations, or the discontinuance of the use for the display of advertisements of any site that is being used for that purpose in contravention of the Regulations, and for that purpose for applying any of the provisions of this Part with respect to enforcement notices, subject to such adaptations and modifications as may be specified in the Regulations; or
(e) for the constitution, for the purposes of the Regulations, of such Advisory Panels as may be prescribed by the Regulations, and for determining the manner in which the expenses of any such Advisory Panels are to be defrayed.
(2) Subject to section 47, regulations made for the purpose of this section may be made so as to apply to advertisements that are being displayed on the date on which the Regulations come into force, or to the use for the display of advertisements of any site that was being used for that purpose on that date.
(3) Regulations made for the purpose of this section shall provide for the exempting therefrom of—
(a) the continued display of any such advertisement as referred to in subsection (2); and
(b) the continued use for the display of advertisements of any such site as referred to in subsection (2); during such period as may be prescribed in that behalf by the Regulations, and different periods may be so prescribed for the purposes of different provisions of the Regulations.
(4) Regulations made for the purpose of this section may direct that any Act or regulations affecting the display of advertisements in force on the day when the regulations made under this section come into operation shall not apply to the display of advertisements in any area to which the regulations made under this section apply.
(5) Regulations made for the purpose of this section may make different provisions with respect to different areas and in particular may make special provision—
(a) with respect to environmental protection areas; and
(b) with respect to areas defined for the purposes of the Regulations as areas of special control, being areas which appear to the Board to require special protection on the grounds of amenity.
(6) In exercising the powers conferred by this section, the Board shall—
(a) in the interests of amenity, determine the suitability of sites for the display of advertisements having regard to any development plan applicable to the area and to the general characteristics of the locality including the presence of any feature of architectural, historic, cultural or similar interest and the natural beauty or scenic value of the locality; and
(b) in the interests of public safety, have regard to the safety of persons who may use any road, dock, harbour or airfield and in particular shall consider whether any display of advertisements thereon is likely to hinder or obscure any road or traffic sign or any aid to navigation by air or water.
Supplementary provisions as to advertisements
47. (1) Where the display of advertisements in accordance with regulations made for the purpose of section 46 involves the development of land within the meaning of this Act, permission for that development shall be deemed to be granted by virtue of this section, and no application shall be necessary in that behalf under the provisions of Part 4.
(2) Without prejudice to any other provisions, if any person displays an advertisement in contravention of the provisions of the Regulations, he is liable on summary conviction to a fine of $5,000 and, in the case of a continuing offence, to a further fine of $300 for every day after the first day during which the display is so continued.
(3) For the purposes of subsection (2) and without restricting the generality thereof, a person shall be deemed to display an advertisement if—
(a) the advertisement is displayed on the land of which he is the owner or occupier; or
(b) the advertisement gives publicity to his goods, trade, business or other concerns.
(4) A person shall not be guilty of an offence under subsection (2) by reason only that an advertisement is displayed on land of which he is the owner or occupier, or that his goods, trade, business or other concerns are given publicity by the advertisement, if he proves that it was displayed without his knowledge or consent.
Environmental protection area
48. (1) The Director may and, if so directed by the Minister, shall cause a survey to be made of the whole or any part of Anguilla, either independently of or as part of a development plan made under Part 3, with a view to determining whether any area of Anguilla ought to be declared an environmental protection area.
(2) Before finally determining whether to recommend to the Minister that any area should be declared an environmental protection area, the Director shall—
(a) take such steps as in his opinion will ensure that adequate publicity is given to the proposals in the area to which the proposals relate;
(b) provide persons living and working in the area and any other persons interested in the area with an opportunity of making representations and comments on the proposals;
(c) consult with the agency or department responsible for the environment and any other person, body or authority who appears appropriate as being interested in or having special knowledge of environmental matters; and
(d) receive and take account of the representations and comments received on the proposals.
(3) In determining whether it is desirable to declare any area an environmental protection area the Minister shall have regard to—
(a) the survey prepared under subsection (1);
(b) any representations or comments submitted by any person, body or authority on the proposals; and
(c) such of the following matters as may be relevant to the area—
(i) the flora and fauna of the area,
(ii) the natural features and beauty of the area,
(iii) any outstanding geological, physiographical, ecological, architectural, cultural or historical features of the area which it is desirable to preserve and enhance,
(iv) any special scientific interest in the area,
(v) any special natural hazards to which the area is or may be subject,
(vi) the characteristics, circumstances and interests of the people living and working in the area.
(4) Where the Director is of the opinion that any area ought to be declared an environmental protection area, he shall submit to the Minister—
(a) his recommendations and proposals;
(b) a draft of the environmental protection area order;
(c) a report of the survey made under subsection (1); and
(d) the representations and comments received on the proposals.
Environmental protection area order
49. (1) The Minister shall consider the report of the Director and shall, in determining whether to declare any area to be an environmental protection area, have regard to the matters set out in section 48(3).
(2) Where the Minister is of the opinion that it is desirable to afford special protection to an area on account of the matters set out in section 48(3), he may with the approval of the Governor in Council by order published in the Gazette declare that area to be an environmental protection area.
(3) An order made under subsection (1) may—
(a) designate any part of an environmental protection area as being an area in which only certain development or classes of development may be permitted under Part 4;
(b) prohibit any development within the area or any part thereof;
(c) authorize the carrying out in the environmental protection area of such works and the doing on the land of such other things as may be expedient for the protection of the area as an environmental protection area;
(d) provide for control over use of land within an environmental protection area for purposes of agriculture or forestry;
(e) without prejudice to Part 4, require that any person who proposes to undertake any activity or enterprise (not being an activity or an enterprise involving development) of a description or category as may be prescribed shall, no less than 60 days before commencing, notify the Board of his proposals and furnish to the Board such documents and information as it may require;
(f) require that an environmental impact assessment be undertaken with respect to any proposal for an activity, enterprise or development referred to in paragraphs (a) to (e); or
(g) restrict or prohibit the entry into the area of any person or the movement of, or any activity carried out by, any person in the area.
Provisions with respect to land in environmental protection areas
50. In any case in which private land is included in an area which has been declared to be an environmental protection area, and in which the Crown does not acquire the land under the Land Acquisition Act, any person holding any interest in such land shall be entitled to receive compensation from the Crown for the depreciation, if any, of the value of his interest in the land consequential upon any restriction imposed on his use or interest in the land by reason of such declaration, such compensation to be determined in the same manner as compensation payable under section 60, provided that if agreement cannot be reached between the Crown and the party concerned as to whether or not any compensation is payable, or as to the amount thereof, the matter shall be determined under the provisions of the Land Acquisition Act.
Environmental protection area management plan
51. (1) The Director may prepare or cause to be prepared an environmental protection area management plan with respect to any area declared to be an environmental protection area under section 49.
(2) The purpose of a plan prepared under this section shall be to set out the operational policies and measures for the preservation, enhancement and management of the special features of the environmental protection area, including, as may be relevant to the area to which the order applies, policies and measures for—
(a) the preservation of marine and terrestrial flora and fauna, including the regulation of hunting and fishing;
(b) the protection of water supplies, water catchment areas and mineral resources;
(c) the prevention of erosion, landslip and flooding;
(d) the control of fires;
(e) the control of pollution;
(f) the designation of special resource and use areas in the coastal zone;
(g) the use and development of land so as to sustain the local economy of the environmental protection area;
(h) the prohibition, restriction or regulation of access to any area and the prevention of squatting;
(i) the development of facilities for residents and visitors for the enjoyment of the special features of the environmental protection area; or
(j) the development of facilities for educational visits, study and research of the special features of the environmental protection area.
Ministerial order to protect the environment
52. (1) Where the Minister is satisfied from information received from the Director that it is in the public interest for the purpose of preventing or mitigating a specified environmental threat or hazard so to do, he may, by order published in the Gazette, direct the Director to take such steps as are necessary to remove, mitigate or prevent any condition that poses or is likely to pose a threat to the environment and the Director shall act in accordance with such order.
(2) An order under subsection (1) may be made to extend to the whole of Anguilla or to any part thereof, and may contain such ancillary and supplementary matters as the Minister thinks appropriate for removing, mitigating or preventing any condition that poses or is likely to pose a threat to the environment.
(3) An order made under subsection (1) shall have an effect on a resolution of the House of Assembly.
(4) The Director shall cause a copy of every order made under this section to be posted in a conspicuous place as the Director may decide.
(5) Any person who—
(a) obstructs any person in carrying out any measures authorized by an order under subsection (1); or
(b) contravenes any provision of such order;
commits an offence, and is liable on summary conviction to a fine of $20,000.