I thought everyone knew that the permission of the Chief Town Planner (more familiarly known as “Town & Country Planning”) is required for any kind of construction in Barbados. It doesn’t matter whether it is a chattel house, apartment building, hut on a roundabout, gas station in a residential development, or a warehouse for concrete (whether next to a flour mill or not).
Pursuant to Section 16 of the Town & Country Planning Act, Cap. 240, the Chief Town Planner may either grant or refuse the permission for development sought in the application, subject to any conditions he thinks fit. In coming to his decision, the Chief Town Planner is required to have reference to the provisions of the Physical Development Plan in so far as applicable, which document is reviewable every five years to take into account “changes in key demographic and economic characteristics” to ensure “the objectives and policy directions established remain realistic and appropriate with regard to changing social [and]economic . . . circumstances”.
The Physical Development Plan is the document referred to in Section 6 of the Act which provides for the Chief Town Planner’s proposals for the “the sites of proposed roads, public and other buildings and works, airfields, parks, pleasure grounds, nature reserves and other open spaces; (b) [allocation of] areas of land for use for agricultural, residential, industrial, commercial or other purposes of any class specified in the plan; (c) [designation] as land subject to compulsory acquisition by the Crown or providing for the relocation of population or industry or the replacement of open space in the course of the development or redevelopment of any other area; or any other purpose specified in the plan”.
In Section 13 the term development is defined as “carrying out of building, engineering, mining or other operations in, on, over or under any land, the making of any material change in the use of any buildings or other land or the subdivision of land”.
Clause 220.127.116.11(a) of the Physical Development Plan Amended, 2003 provides that persons applying for permission to develop among other things “. . . a cement plant or other plant for the burning of lime or bricks; (6) any other industry where the processes are potentially obnoxious or dangerous to health and amenity by reason of excessive smell, fumes, smoke, dust, grit, ash, noise or vibration” require the preparation and submission of an Environmental Impact Assessment which should be accessible to the public so that they can read, mark, learn and inwardly digest it.
In the event there is a business which does not fall within one of the categories outlined in Clause 18.104.22.168(a) then the Chief Town Planner “may require applicants for planning permission to prepare and submit an Environmental Impact Assessment, if, in the opinion of the Chief Town Planner, a proposed development may have a significant negative effect on coastal or other environmental resources, natural heritage conservation areas, or adjacent land uses”.
Where one goes off on a tangent and either develops land without the permission of the Chief Town Planner or fails to comply with any of the conditions attached to his permission, the Chief Town Planner may issue an enforcement notice within four years from the date of the disputed development. Where an enforcement notice is issued and pursued to completion, consequences can range from demolition of any building constructed without permission or a criminal conviction in magistrates’ court.
More importantly, Section 40 maintains the validity of an enforcement order in relation to any subsequent construction or use of the land which is the subject of the notice. One cannot therefore conceive that on any purposive interpretation of the town planning legislation that the legislator could have intended that an enforcement notice having been issued by the Chief Town Planner, an application for retention could allow for additional construction on the said same building that is the subject of the notice.
However, arguing the niceties of the law is exactly what lawyers do.
(Alicia A. Archer is an attorney-at-law.)