Physical Planning Act Review Consultations a Success

After the approval of the COM on proposed changes to the Physical Planning Act, a consultation was undertaken by the Physical Planning Unit of the Department of Local Authorities and the Vanuatu Law Reform Commission between September 9th and September 20th 2019.

The Consultation was done with provincial TACs of all the six provinces starting from TORBA to TAFEA.

A Physical Plan is similar to a zoning plan and it is an instrument to guide the use of land within a physical planning Area. A physical planning Area is a declared area of land by a local authority (Provincial or Municipal Council). For instance, before a building can be erected within a Physical Planning area, a planning Application has to be logged with the Local Authority with a prescribed fee. Once the Council approves the application, planning conditions were provided with the approval to ensure that the development does not jeopardise the enjoyment of the neighbours such as runoffs from the development, noise and any forms of encroachment.

The Physical Planning Act was enacted by Parliament in 1986 and came into force on 2nd March 1987. Since 1987, there was never any review of the Act. This consultation covered issues that were identified by the Physical Planning Unit of the Department of Local Authorities to facilitate proper control of land use within a declared physical planning area.

The items (issues) identified and covered during the consultations were but not limited to the following:

1. Purpose of the Act

2. Physical Planning Areas (Zones)

3. Plan(s)

4. Planning Permission

5. Powers of the Council

6. Powers of the Minister

7. Immunity proceedings

8. Appeals and Redress

The proposed purpose of the Act is to provide for the control of the use of land within declared physical planning Areas and to provide for the creation of an institution to administer the Physical Planning Act. A separate Department would give rise to a separate structure and specific budget whilst the DLA concentrates of the governance aspect of decentralization, the new department would concentrate on the developmental aspect of the physical development of decentralization and decentralization would not take place if physical planning is not given any priority.

There was general agreement with the establishment of a separate Department but concerns are raised on the issue of capacity. It was also proposed that officers within this new department must have knowledge and experience in issues relating to land use planning and development. There was also proposal that any name that is given to this new Department must be inclusive of both the urban and rural settings. There were also discussions on the legal meaning of land especially issues relating to leases and clarifications on the issue of leases on land and the issue of foreshore developments and other related matters. Whilst there were also concerns that the Physical Planning Act may be a hindrance to development in some areas. However, it was explained that the rights of land owners remain but the purpose was for the Council to have control over the development activities in a declared area.

There was strong contention that customary land owners and claimants should be include in the consultations and the term chiefs is quite scary as there are multiple kinds of Chiefs. The Chiefs should be specifically be chiefs of areas that are affected by such declarations. Discussions were centred on the climatic aspects and that should be taken into consideration in the new proposals. Concerns were raised whether the geological risks and climatic risks were considered in current or past developments/ Ownership of Plans was an issue and generally that has contributed negatively to lack of ownership of developments.

On the time period between declaration and the preparation of plans, there were views that this proposal is practical in the way that there has to be a time period to enable to the Council to be able to prepare the Plan and to enable to council to consult the necessary stakeholders. On control and zoning plans, it is necessary to assist as a guide for future developments. In relation to the inclusion of local knowledge and kastom into plans, it would be helpful especially in areas where practices and respect has faded away.

There were also discussions on the development of taboo areas and such taboo areas must be protected at all times.

The involvement of provincial TACs on the preparation of Plans is welcomed as it is an avenue to provide their input into the plans before finalisation and an opportunity for the Sectors to incorporate sector plans into the Physical Plans. The role of planning Committees was reiterated in relation to standard to guide development.

There was concern on current developments and future developments which would lead to increasing population and so the proposed changes are very important especially when a physical plan is yet to be developed or is developed.

The Council’s role in the approval process was question and the how to ensure such issues could be managed and discussions led to the importance of a well-represented planning Committee as well as the enforcement of planning conditions. There was discussion as to the rights of customary landowners as well as to the extent of these rights and access and clarifications were made on the provisions of Mean High Water mark.

There have been discussions about consistency in council decisions to facilitate development, avoidance of conflicts and the meaning of Council.

There have been discussions on instances where a Councillor may facilitate an application and there may be conflict of interest. It was stress that the interest of any councillor should not influence the decision of the Planning Committee and Planning Committee should be compost of the SG and some members of the TAC as members.

There was general consensus on the powers of the Minister to make regulations to implement certain aspects of the act which includes fees and charges, compensation of loss and sustainability of plans.

On appeals and redress, there were concerns about the financial burden of the Claimant to lodge a claim with the Supreme Court whilst on the other side, there was also concerns about the financial impact of this proposal on the Councils.

Whilst there may be diverging issues from province to province, it is important that the issues raised should be looked at and be accommodated within the current review or any reviews in the future.