Antigua and Barbuda Land Development and Control Act CAP 235.

Note: This document was prepared by Marsha Lougheed Paige, Crown Counsel for the Government of Antigua and Barbuda

This Act was passed on 30 December 1977

PURPOSE (S) of the ACT

1. * The Authority is the Development Control Authority was established by SECTION 3 (1) of the Act. That section also clearly defines the role and functions of the members of the Board of this Authority.

2. FUNCTIONS of the Development Control Authority.

The Land Development & Control Regulations made by the Minister under Section 23 of the Land Development and Control Act Cap 235.

* The law is quite specific regarding the contents of this Development Plan. It specifies that the Development Plan shall comprise of the following:

1. a written statement setting serving out the proposed development of the proposed development of Antigua & Barbuda.

2. a formulation of the Authority's policy and general proposals in respect of the development and other use of land in Antigua & Barbuda, including measures for the improvement of physical environment and the management of traffic.

SECTION 6 (1)

The Authority upon the Act coming into force was " to institute a survey of Antigua and Barbuda " to examine the matters that were expected to "affect the development of Antigua & Barbuda on the planning of its development." Once this survey had been completed, the Authority was vested with the mandate to keep "all such matters under review." Such matters specifically relate to those matters that were likely to affect the development and / or planning for the development of this country.

SECTION 6 (2)

Empowers the authority to institute a " fresh survey" if it thinks fit or if the Authority is directed to do so by the Minister responsible for Land Development and Control to reach at those matters affecting development and its attendant planning as stipulated in Section 6 (2).

The Act stipulates that the Development Control Authority shall be responsible for preparing a survey report and a Development Plan for Antigua & Barbuda.

This Development Plan shall be submitted to the Minister responsible for Land Development and Control; who shall then submit this plan to the Cabinet for approval it is assured that this process would have been done to ensure that the Authority acts in accordance with it.

There is a process that must be undertaken to inform the public of the proposed Development Plan for Antigua & Barbuda.

SECTION 7

This section empowers the Minister responsible for Land Development and Control matters to appoint a Town & Country Planner.

SECTION 8 (1)

This section provides that "no person shall develop any land or building except under and in accordance with the terms of the development permission granted by the Authority." This is a mandatory provision and is not subject to interpretation. It clearly notes that unless an individual has development permission, he cannot develop any land or building.

• This subsection goes further and stipulates that no land shall be sub-divided without development permission having been granted by the Authority. This provision applies to the Crown as well as to all citizens and residents of Antigua and Barbuda.
• The Government is empowered by this subsection to withhold improvements and services for example water and electricity supplies until this development permission is obtained and/or complied with completely.
• This section also controls the display of advertisements "on any external part of a building or on a board on any land"

The interpretation section of this Act explains what is meant by the term "advertisement"

"Development", subject to the provisions of Section 8 (2) means the carrying out of building, engineering, mining or other operations in, on over or under land, on the making of any material change in the use of any buildings or other land, or the segregation, division, or sub-division of any building or land whether or not any building, engineering or other operations have been carried out or are intended to be carried out for the formation of lots.

• Any person who contravenes this section of this Act and develops any building or land or displays any advertisement shall be guilty of any offence upon summary convention, they shall be liable to a fine not exceeding five hundred dollars ($500.00).

SECTION 8 (4)

This subsection addresses the issue as to whether a body corporate can be found guilty of an offence and the said offence is with the consent or connivance of senior company officials such as any director, manager or anyone purporting to act in any such capacity. The Act makes it an offence for that individual as well as the body corporate to be guilty of that offence and can be prosecuted against and punished accordingly.

How do you obtain Development Permissions?

EXAMPLE: The development permission is sought for a TYPE C project which is a relocation or demolition.

SECTION 5 of the Land Development and Control Regulations made by the Minister under Section 23 of the Land Development and Control Act confirms that any person desirous of undertaking a development project must obtain planning permission from the Development Control Authority.

1. Development permission can only be given by the Development Control Authority. However, before any such application for development permission can be obtained, the relevant application must be properly submitted to the Development Control Authority. Regulation 5 (3) of the Act clearly states, "all applications for planning permission shall be submitted to the Authority in triplicate in accordance with Form I of the Act's first Schedule. Therefore an application for permission to develop land as noted in Section 9 (1) and an application for approval in principle to determine (1) whether what is proposed would constitute development (Section 10 (1) (2)) must follow the process set out in the law.
2. Before any application can be duly considered by the Development Control Authority, that application must be accompanied by the required number and type of plans that the Authority would deem necessary for the particular proposed project.
3. Regulation 7 (1) goes further and imposes an obligation on the applicant for any development permission to serve notices on certain specified persons prior to the submission of the application. This notice must be sent to the Authority to accompany the application. The Authority does have discretion to request that an applicant send notices to persons when the proposed development is likely to affect and these person can also be asked to cause a notice to be published on three occasions in a newspaper.
4. The Authority has even specified the form that such notices must take for the avoidance of any doubt. Regulation 7 (4) clearly outlines the process to be followed:

SECTION 11

This provision in the Act seeks to inform the public of the manner in which any application may be determined. Thus, the Authority has the discretion to grant permission to the whole or any part of an application and such development permission, if granted, should be subject to any terms and conditions that the Authority may deem fit.

5. It should be noted that there are specified instances when and application for such planning permission is not required. Regulation 8 lists those exemptions to include;
   1. Land to be developed for agricultural purposes or for forestry, including buildings necessary for such developments.
   2. Improvements to the interior of a building which does not involve structural changes.
   3. Garden huts (other than garages) not to be used for human habitation
   4. Alternative or extension of an existing residential house of the clams referred to in Regulation 5 (2) (b) provided that the total amount of new floor area does not exceed one third of the total area of the house prior to enlargement
   5. Moveable buildings such as tents trailers and vans
   6. Minor construction such as walks.

Successful Development Applications

Fees Payable for Panning Permission

• Regulation 9 (1) stipulates that since the Authority has approved an application for planning permission, the law makes it mandatory for the Authority to inform the successful applicant of its approval in writing in FORM 11 or the first schedule.
• However, before that approval can be given, the Authority must first inform the applicant that he/she must pay the appropriate fee specified in the notification into the Government Treasury. The receipt of this payment MUST be submitted to the Authority before the Development Control Authority issues its planning approval.

SECTION 12 provides that once the Authority refuses permission to an applicant or grants the requested development permission subject to conditions or imitations, it is mandatory that the applicant is informed in writing of the Authority's reasons for refusing or expositing conditions and / or limitations on the application. Regulation 11I (1) reinforces this provision of the Act. The Regulation 11 (2) prescribes that the applicant shall be notified in the manner prescribed in form 11 of the first schedule with any necessary variations as the instant matter may require.

Should the Authority refuse an applicant development permission or grant permission subject to conditions or limitations, that applicant can lodge an appeal against such decision to the Minister. The applicant must outline the grounds upon which the appeal is being made.

This procedure for Appeals is confirmed by Regulation 12 (1) and in fact Regulation 12 (2) goes further to stipulate that four copies of any such appeal shall be prepared. Three of those copies are to be sent to the Minister responsible for land development and the fourth to the office of the Authority.

Once this process has been complied with, the Minister responsible for development control shall refer the appeal to the APPEALS TRIBUNAL for leaving and determination of that appeal.

• The Appeals Tribunal shall be appointed by the Mnister responsible for Land Development and Control matters.
• The Appeals Tribunal shall consist of a chairman and Town & Country Planner or a construction engineer or architect and one other member.
• The law provides at Section 14 (4) that this Tribunal shall regulate its own proceedings and shall have the power to receive or invite such evidence including professional opinions, as it may deem necessary to enable it to make a proper decision.

SECTION 15

Should the Authority does not give a decision on an application within three months from the receipt thereof or any extended period as the party may agree to in writing, the application should be deemed to have been refused unless the applicant has been specifically advised otherwise.

Any applicant whose application is effused in this manner, also has the right to appeal under Section 13 (1).

If, in the opinion of the Development Control Authority, a successful applicant has not substantially started a development or displayed any advertisement within a period of two years after the receipt of development permission that development permission would be deemed to have lapsed.

In such a situation, the development permission would be deemed to have lapsed and the individual would have to make a further application pursuant to Section 9 or Section 10 and await a new award of development permission.

THE REGISTER

The Development Control Authority shall keep a register of all development applications, decisions, appeals, appeals decisions and other relevant information.

• This register shall be open for inspection at the office of the Development Control Authority during normal hours of work. The maps and plans accompanying an application shall likewise be open for inspection at the office of the Authority.

There shall be provided to the Authority such employees as are necessary for the purpose of carrying out planning studies, surveys technical reviews inspections and any other duties as may be directed by the Authority.

• All employers of the Authority engaged in the inspection of private property shall produce his/her letter of appointment or his/her employment identity card upon request by any member of the public.
• Every member of the Authority and every employee of the Development Control Authority shall have the power to enter any premises or land at all reasonable times to carry out such examination or inquiries as may be necessary.
• Any person who willfully hinders or obstructs any member or employee of the Authority in the performance of his/her duties, he or she shall be guilty of an offence and shall be liable upon summary conviction to an offence of $400.00 or to imprisonment for one month.

NOTICES

SECTION 22

• If the Development Control Authority is of the view that the condition of any land or building, garden or vacant site or waste or neglect of vehicles on scrap in the occupation of land or road affects the amenity health or safety of any area within Antigua & Barbuda, it has the authority to serve the owner or occupier of the said land with a notice requiring such steps for abating the injury to be taken.
• The service of this notice shall be deemed in accordance with Section 22 (2) to be the service of an enforcement notice and shall be subject to Section 8 (5) to section 11

SECTION 8(5) ENFORCEMENT NOTICE

• If an individual carries out any development or displays any advertisement without the proper permission having been obtained from the Authority, the said Authority may have a notice requiring the breach to be remedied. This notice shall be called an Enforcement Notice.

• If any of the conditions or limitations of development permission are not adhered to, the Authority can serve the offender with an enforcement notice, requiring the breach to be remedied.

ALL ENFORCEMENT NOTICES shall specify

• SECTION 8 (6)

1. the matter (s) alleged to constitute a breach of planning control;
2. (b) the steps required by the Authority to be taken to remedy the breach
3. the period for compliance

• SECTION 8 (7) stipulates the steps that can be required by an enforcement notice. These steps are:

1. demolition or alteration of any buildings
2. discontinuance of any use of land or buildings,
3. restoration of land or any building to its former state
4. the discontinuance of any building or other operations,

• SECTION 8 (9)

  • Many of the persons mentioned in Section 8 (8) may appeal to the Minister in the name manner specified in Section 13.

• Appeals against Notices

  • The Minister may allow in whole on in part the appeal or dismiss the appeal acting upon the determination or the Appeal Tribunal.

  SECTION 8 (10): Penalties

  •  Any person who fails to comply with a properly served enforcement notice shall be guilty of an offence and on summary convention he shall be liable to a penalty of $ 1 00. 00 for each day during which such offence continue after the period specified in the enforcement notice or such substituted period that may be specified an appeal.

  What the DCA can do?

  • The Authority may enter the land if any of the steps specified in the enforcement notice have not been taken within the time specified in the enforcement notice. The Authority may enter the land and take the steps and recover from the person who is then the owner of the land, any expenses reasonably incurred by them in so doing.

  SECTION 8 (12)

  • Where development permission has been implemented without compliance to the stipulated conditions or limitations and an enforcement notice has been served and not complied with, the development permission shall be deemed to have been void or at no effect. Unless the applicant has lodge an appeal against the enforcement notice.

  SERVICE OF NOTICE.

  • SECTION 25 (1) specifies how these notices or other document required by the authority to be served or given by the Act must be done.

    (a) by delivering it to the person on whom it is to be served or to whom it is to be given,

    (b) by leaving it at the usual or last know place of residence of that person

    (c) by pre paid, registered letter addressed to that person at his/her last place of residence or last know address

    (d) If it is a body corporate, a registered letter should be sent to the last place of business or by registered post to the secretary or clerk of the body corporate at its office.

    SECTION 25 (2)

    • This subsection addresses circumstances where notices or documents are to be served on any person having an interest in premises and the name of the person cannot be ascertained after reasonable inquiry or if it is to be served on an occupier of the premises, the notice will be deemed to have been property served in the following instances :-

      (a) if it was addressed to the individual by name or by the description of "The Owner" or " The Occupier" (as the case may require) of the premises, and delivered by hand, prepaid registered letter to the individual's last known address or residence.

      (b) being addressed as above and marked plainly to identify the correspondence as one of importance that correspondence is dispatched by prepaid registered letter to the premises, and is not returned to the Authority.

      Or is delivered to some person on those premises or is affixed conspicuously to some object on those premises.

      (c) Even if notice needs to be served on all persons having interests in or being occupiers of premises a part of any land, the notice shall be deemed to be duly served on all persons having interests in and on any premises on the land.

  NON COMPLIANCE WITH NOTICES

  • SECTION 26

    (1) Any owner or occupier who fails to comply with the terms specified in any notice issued in accordance with this Act, shall be guilty of an offence & that person (s) would be liable upon summary conviction to a fine of $2000.00 or to six months imprisonment.

    (2) Any person who is convicted pursuant to subsection (1) of failing to comply with the terms of a notice, fails within any further period specified by the Authority to comply with the requirements therein shall be guilty of a further offence against this Act. That individuals (s) will be liable for each day that the offence continues, to a fine of $ 100. 00 or in default to imprisonment for one month.

  GENERAL

  • Regulations 13 - 40 set out specific guidelines to be enforced by the Authority and its employees regarding development projects.

In the final analysis, the provisions of this Act should be fully complied with. All persons enforcing this Act, should be conversant with all the powers that are at their disposal. This knowledge would enable them to carry out the mandate of the Act in an efficient and consistent manner.

It should always be borne in mind that this Act seeks to protect all individuals who live and work in buildings. It would be foolhardy to circumvent the provisions of the Act for the sake of expediency when any such deviance has the potential to cause severe damages to lives and property.