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
* 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.
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:
a written statement setting serving out the proposed development of the proposed development of Antigua & Barbuda.
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.
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.
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.
This section empowers the Minister responsible for Land Development and Control matters to appoint a Town & Country Planner.
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.
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.
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.
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.
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.
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.
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 Development Control Authority shall keep a register of all development applications, decisions, appeals, appeals decisions and other relevant information.
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 ENFORCEMENT NOTICES shall specify
- the matter (s) alleged to constitute a breach of planning control;
- (b) the steps required by the Authority to be taken to remedy the breach
- the period for compliance
- demolition or alteration of any buildings
- discontinuance of any use of land or buildings,
- restoration of land or any building to its former state
- 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
(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.
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.