By Paul Lawrence
Planning Law is practised throughout the whole world in order to ensure that the development and various forms of land use are utilised for the maximum benefits of the local inhabitants. It is not used for the purpose of taking away the rights, benefits, and privileges that were enjoyed by generations after generations. On the contrary,it is used to restore rights, benefits, and privileges that have been denied or wrongfully taken away from aggrieved parties by officials either by carelessness, negligence or simply by lack of foresight and experience.
Here in Nevis, there is a semblance of some form of planning law that has not been enacted in our legislative assembly by our elected representatives, but by others perhaps in the pseudo federal house, or being imposed upon us by a kind of delegated legislation that comes out of the Organisation Of Eastern Caribbean States.
The central authority for planning comes from legislation that has been debated and passed by majorities in local sovereign parliaments. For laws to be relevant, they must address local problems and offer positive remedial solutions.It therefore follows that if the framers of our planning laws are not locals who have intimate knowledge of the nagging problems that face Nevisians, then the planning laws that are enacted elsewhere are not relevant and cannot be effectively applied to the solution of Nevisian problems or even to prevent the development on new ones.
We have seen here in Nevis two demonstrations by some Nevisians in general, and by residents of the Village of Jessups in particular over their rights of access to land. The first one was staged by the members and friends of the Pentacostal church over the denial of their rights of access to their Burial Grounds. The second demonstration was staged by the fishermen and their supporters from the village and other Nevisians.This demonstration was about the threatened denial of access to the beach and also access to the fishermen’s boats.
The problems that sparked off the above demonstrations are deeply-rooted in ineffective planning laws. The problems have their roots in: zoning, prescriptive law, and ancient rights that have been acquired by prescription.The right to the free movement of the fishermen of Jessups and to all the other people of Nevis to access the beach and also their boats existed from time immemorial; i.e over a time in excess of thirty years or more. Since it could be proven that the use of the land was effected by the following features: (1) without fear, (2) without secrecy, and (3) without being forced to traverse the land, then the right exists at law and could not be taken away that easily by anyone. Not even the local planning officer can connive with the present land owner to remove the prescriptive rights of the users.
Problems have arisen, are continuing to arise, and will ever continue to arise in the future especially with foreign investors who believe that they need to acquire plots of land by the sea-side. Invariably lands by the sea-side are burdened or encumbered by the local inhabitants who have acquired prescriptive rights to access the beach and any other public places.It is, again another principle of law that a purchaser who purchases burdened land,also purchases the burden; i.e the burden goes with the land and it would be illegal for the purchaser of the burdened land to personally strip the users of their rights. Our physical planners must carry out their searches to find out if there are any easements that are attached to the land that a prospective foreign purchaser wishes to buy and inform them of the presence of such encumbrances.
In addition to the above, we can expect a lot more challenges to prescriptive rights in Nevis along the western coast because this is the area that is much sought after by foreign purchasers of land. Development is apparently taking place at an alarmingly rapid pace and we have not got the desired sophisticated planning laws to deal with the severe problems that are currently being created.
I would suggest that one method of preventing the escalating problems that are being created by the purchasers of encumbered land is for planners and lawyers to encourage vendors to highlight the burdens that are attached to the land and to insert restrictive covenants in the transfer documents to safeguard the public. Failing this, there must be a mandatory Public Inquiry with recourse to appeal should in case the outcome of the inquiry goes against the public.
This is the first of many articles that I propose to write on Planning Law. In my next article I propose to write on the real meaning of Development and the Central Control (or) the Central Administration of Planning.