Land Planning and Development Control Ordinance, 2013

ST HELENA REVISED EDITION OF THE LAWS, 2017 LAND OWNERSHIP & USE LAND PLANNING AND DEVELOPMENT CONTROL ORDINANCE, 2013 1 Ordinance 9 of 2013 In force 1 June 2013 (L.N. 31/2013) and 1 February 2014 (L.N. 1/2014) Amended by Ordinance 6 of 2016, 14 of 2017 Subsidiary legislation: LAND PLANNING AND DEVELOPMENT CONTROL (GENERAL) REGULATIONS, 2013 Legal Notice 47 of 2013 Amended by L.N. 10/2016 LAND PLANNING AND DEVELOPMENT CONTROL (AUTHORITY PROCEDURES) REGULATIONS, 2013 Legal Notice 48 of 2013 LAND PLANNING AND DEVELOPMENT CONTROL (ENVIRONMENTAL IMPACT ASSESSMENT) REGULATIONS, 2013 Legal Notice 49 of 2013 LAND PLANNING AND DEVELOPMENT CONTROL (APPEAL) REGULATIONS, 2013 Legal Notice 50 of 2013 LAND PLANNING AND DEVELOPMENT CONTROL (FORMS AND FEES) REGULATIONS, 2013 Legal Notice 51 of 2013 Amended by L.N. 10/2016 LAND PLANNING AND DEVELOPMENT CONTROL (GENERAL DEVELOPMENT) ORDER, 2013 Legal Notice 52 of 2013 Amended by L.N. 10/2016 1 Under section 10 of the Revised Edition of the Laws Ordinance, 1999 this text is authoritative and is the sole authentic edition in respect of the law contained in it as at 1 November 2017. 2 LAND PLANNING AND DEVELOPMENT CONTROL (DEVELOPMENT PLANS) REGULATIONS, 2013 Legal Notice 53 of 2013 Not included: INTERIM TREE PRESERVATION ORDER, 2015 G.N. 17 of 25 February 2015 Notes: 1. The ‘Building Regulations’ (Part II of the Land Planning & Development Control Regulations, 2000) were made under the Land Planning & Development Control Ordinance (Cap. 66) and preserved by section 95(b) of the Land Planning & Development Control Ordinance, 2008 which repealed Cap. 66. The 2008 Ordinance was itself repealed by this Ordinance, without a saving for the Building Regulations, but they are saved by the Commencement Notice for the Building Control Ordinance, 2013 which is noted under that Ordinance. The text of the ‘Building Regulations’ is published with the Building Control Ordinance, 2013. 2. The Diana’s Peak National Park Proclamation, 1996 and the Land Development Plan made under the Land Planning & Development Control Ordinance (Cap. 66) were saved by section 95(b) of the Ordinance of 2008, but were not further saved by the Commencement Notice for the Building Control Ordinance, 2013. They have therefore lapsed and are of no effect. LAND PLANNING AND DEVELOPMENT CONTROL ORDINANCE, 2013 ARRANGEMENT OF SECTIONS PART I PRELIMINARY 1. Short title 2. Interpretation PART II DEVELOPMENT CONTROL AUTHORITY 3. Establishment of Authority 4. Secretary to Authority 5. Duties of Authority 6. Meetings of Authority 7. Members not to participate in certain discussions PART III PLANNING OFFICERS 8. Planning Officers 9. Advice by Planning Officers 10. Assistance by Planning Officers to prospective developers 3 PART IV PLANNING POLICY AND EXERCISE OF PLANNING FUNCTIONS 11. General duty 12. Policy directions of Governor in Council PART V DEVELOPMENT PLANS 13. Proposal for Development Plan 14. Application of different plans applicable to same area 15. Legal status of Development Plan PART VI DEVELOPMENT CONTROL Division A: Development permission 16. Restriction on development 17. Types of development permission Division B:Application for development permission 18. Application for development permission 19. Development and environmental effects 20. Screening and scoping opinions Division C: Consideration of application for development permission 21. Planning Officer may require further information 22. Consultation in relation to applications 23. Referral of applications for development permission to Governor in Council 24. Matters to be considered 25. Development Agreements Division D: Decision on application for development permission 26. Decision on application 27. Notice of decision 28. Effect of grant of development permission Division E: Variation, modification or revocation of development permission 29. Minor variation of development permission 30. Modification or revocation of development permission Division F: Lapse of development permission 31. Lapse of development permission 4 PART VII UNAUTHORISED DEVELOPMENT OR CONTRAVENTION OF DEVELOPMENT PERMISSION Division A: Notice to apply for permission 32. Notice to apply for development permission Division B: Enforcement notices 33. Issue of enforcement notice 34. Considerations with respect to issue of enforcement notice 35. Scope and effect of enforcement notice 36. Continuing operation of enforcement notice 37. Protection of prospective purchasers with respect to unauthorised development Division C: Removal or alteration of work without enforcement notice 38. Power to require conformity PART VIII CONSERVATION OF NATURAL AND BUILT HERITAGE 39. Historic environment record, listed buildings and historic conservation areas 40. Building Preservation Orders 41. Urgent Building Preservation Orders 42. Tree preservation orders 43. Urgent Tree Preservation Orders PART IX AMENITY ORDERS AND SUPPLEMENTARY PROVISIONS FOR CONTROL OF DEVELOPMENT 44. Amenity orders 45. Notice requiring discontinuance of use or alteration or removal of buildings or works PART X COMPENSATION 46. No right to compensation except as expressly provided 47. Right to claim compensation from Crown 48. Position if land is subject to mortgage 49. Claims for compensation PART XI POWERS OF PLANNING OFFICERS 50. Powers of entry 51. Power to require information 5 PART XII APPEAL PROVISIONS 52. Establishment of Appeals Tribunal 53. Right of appeal 54. Powers and duties of Tribunal 55. Meetings of Tribunal 56. Notice of appeal 57. Rejection of notice of appeal in certain circumstances 58. Effect of service of notice of appeal in certain instances 59. Procedure in relation to appeals 60. Notification of decision 61. Application to court for judicial review PART XIII REGISTER OF INFORMATION AND REPORTING 62. Registration of planning and associated decisions 63. Reporting by Authority PART XIV OFFENCES 64. General offences 65. Offences by members of Authority and Tribunal 66. Offences by public officers 67. Offences by corporate body PART XV MISCELLANEOUS PROVISIONS 68. Service of notices 69. Death of person having claim or right 70. Regulations 71. Application to Crown PART XVI REPEAL AND CONSEQUENTIAL AMENDMENTS 72. Repeal and amendment of legislation AN ORDINANCE to make new provision for the planning and regulation of the development and use of land, and for connected or incidental matters. PART I PRELIMINARY Short title 1. (1) This Ordinance may be cited as the Land Planning and Development 6 Control Ordinance, 2013. (2) Omitted as spent (3) Omitted as spent Interpretation 2. (1) In this Ordinance, unless the context otherwise requires–– “advertisement” includes any representation, sign, device or artefact employed wholly or partly for the purposes of advertisement, announcement or direction and includes any supporting structure thereto; “Airport Operator” means the person designated by the Governor to be the operator of the airport in St Helena and (until the airport becomes operational and a person has been so designated) means the Airport Director; “amenity order” means an order made under section 44; “Authority” means the Land Development Control Authority established under section 3; “building” includes any structure and any part of a building as so defined but does not include plant or machinery contained in a building; “building operations” includes demolition of buildings, rebuilding, structural alterations or additions to buildings and other operations normally undertaken by a person carrying on business as a builder; “buildings or works” includes waste materials, refuse and other matters deposited on land, and references to the construction of buildings or works are to be construed accordingly; “Chair” means the person appointed by the Governor under section 3(2) to be the Chair of the Authority, and includes (where the context so admits) a person lawfully presiding at a meeting of the Authority; “Chief Planning Officer” means the Chief Planning Officer appointed under section 8; “Clerk” means the Clerk of the Tribunal appointed under section 52; “Crown” means the Crown in right of the Government of St Helena; “development” has the meaning given that term by subsection (2); “Development Plan” means a Development Plan prepared under Part V and includes any adopted modification or amendment of it; “development permission” means approval for development given under Part VI; “enforcement notice” means a notice issued under section 33; “environmental impact assessment report” or “EIA” in relation to any development, means the report referred to in section 19; “land” includes land covered with water and buildings and other things permanently affixed to land; “listed building” has the meaning given in section 39(2); “material planning considerations” are considerations relating to the use and development of land in the public interest, including any environmental, social and economic considerations that appear to be relevant in the circumstances, but excluding matters which are managed or regulated under other legislation; “mineral” includes all substances of a kind ordinarily worked for removal by quarrying and mining operations; “Planning Officer” means a Planning Officer appointed under section 8 and includes the Chief Planning Officer; “President” means the President of the Tribunal; 7 “relevant interest” has such meaning as is from time to time prescribed by regulations made under section 70; “Secretary” means the person appointed as Secretary to the Authority, under section 4; “Tribunal” means the Land Development Appeals Tribunal established under section 52; “unauthorised development” means any development for which development permission has neither been granted nor deemed to have been granted under a General Development Order under section 16(2); “use” in relation to land, does not include use for the purposes of carrying out building operations or engineering operations on it; and “waste material” includes refuse, spoil and any other material or artefact which has the appearance of being abandoned including vehicles, machinery or equipment, irrespective of any intention of any person to extract parts or residue from the material or artefact. (2) For purposes of this Ordinance, “development” means— (a) the carrying out in, on, over or under land of— (i) building operations; (ii) engineering operations, including, without limiting that term— (aa) the formation of means of access to a road; (bb) operations normally undertaken by a person carrying on business as a civil engineering or groundworks or marine engineering contractor; and (cc) the erection of radio transmitting or receiving equipment and structures for wind water and solar power; (iii) quarrying and mining operations which, without limiting that term, include extraction or working of any mineral, exploratory works, and the deposit of waste products incidental to such operations; (b) the making of any material change in the use, as defined in regulations made under section 70, of any building or land; (c) storing or depositing waste materials on land; or (d) the displaying of any advertisement on any building or land. PART II DEVELOPMENT CONTROL AUTHORITY Establishment of Authority 3. (1) There is hereby constituted a Land Development Control Authority having the functions and powers that are conferred upon it by this Ordinance or any other law. (2) The Governor must appoint a Chair, and not less than 4 nor more than 6 other persons, to be members of the Authority, each of whom holds office for the term, not exceeding 3 years, specified in the appointment. (3) The Governor may designate a member to be the Deputy Chair of the Authority. (4) A member of the Authority may resign office by giving written notice to the Governor. 8 (5) The members of the Authority are to be paid, out of sums duly appropriated from the Consolidated Fund, remuneration or other allowances that the Governor, acting in his or her discretion, determines. Secretary to Authority 4. (1) The Governor must appoint a public officer to be the Secretary to the Authority. (2) The Secretary, or in his or her absence any public officer authorised for that purpose by the Chief Planning Officer— (a) must attend all meetings of the Authority, but may not vote on any matter or question before the Authority; and (b) is responsible for preparing and maintaining all records and minutes of the proceedings of the Authority. (3) The Secretary must perform any other duties conferred on the Secretary by this Ordinance, and any other appropriate duties that the Chief Planning officer may require the Secretary to perform. Duties of Authority 5. (1) The duties of the Authority are to— (a) determine applications for development permission in accordance with— (i) this Ordinance and any other rule of law; and (ii) (except as is expressly otherwise provided) any relevant Development Plan, any relevant policy directions given under section 12 and any policies or guidance published under paragraph (c); (b) keep under review the policies contained in any Development Plan, and make recommendations to the Governor in Council as to possible amendments to them; (c) formulate and publish (and monitor, review and revise as occasion may require), any planning policies and planning guidance (consistent with this Ordinance and any relevant Development Plan) that the Authority considers necessary or desirable to aid consistency of practice and transparency of process; and (d) perform any other functions required or authorised by or under this Ordinance or any other law. (2) Acts of the Authority may be authenticated by the signature of the Secretary or a Planning Officer. Meetings of Authority 6. (1) Meetings of the Authority must be convened by the Chair as often as is necessary for the timely despatch of the Authority’s business, and a quorum is formed by not less than 3 of those members entitled to be present. (2) Meetings of the Authority must be held in public; but regulations may prescribe circumstances in which the Chair may exclude the public from all or part of a meeting. 9 (3) Every Planning Officer is entitled to attend any meeting of the Authority, and to advise the Authority on the performance of any of its functions under this Ordinance, but is not entitled to vote. (4) The Chair may invite any person to attend, and to speak at, any meeting of the Authority when, in his or her opinion that person has specialist knowledge or expertise relevant to any matter before the Authority. (5) The Chair must, as far as is practicable, preside at every meeting of the Authority, and in the Chair’s absence, there must preside: (a) the Deputy Chair, if one has been designated in accordance with section 3(3); failing whom, (b) a member of the authority designated to do so by the Chair; failing whom, (c) a member of the authority chosen by a majority of the members present at the meeting. (6) Subject to this Ordinance, and any regulations made under section 70, the Authority may regulate its own procedures. (7) Regulations may provide for meetings to be held in circumstances in which the members participating in the meeting are not all present in the same place but whereby all the members participating can hear, and be heard by, all of the other members so participating. Members not to participate in certain discussions 7. (1) Any member of the Authority who has a relevant interest in any matter which comes before the Authority for discussion at a meeting must immediately declare that interest and withdraw from the table and take no part in either the discussion or the decision. (1A) A member who withdraws from the table under subsection (1) may remain in the meeting room in the area made available for seating members of the public. (1B) This section does not prevent a member of the Authority who has submitted an application for development permission from making representations to the Authority on the same basis as any other applicant. (2) The Secretary must record in the minutes of the meeting particulars of any declaration of interest made pursuant to subsection (1). PART III PLANNING OFFICERS Planning Officers 8. (1) The Governor must appoint a Chief Planning Officer, and may appoint any other Planning Officers that are necessary or desirable for the administration of this Ordinance. 10 (2) Subject to this Ordinance, the Chief Planning Officer is responsible for the administration and operation of the system of planning and development control for which this Ordinance provides. (3) The Chief Planning Officer has the powers conferred on him or her, and such duties as he or she is required to perform, by this Ordinance or any other law. (4) The Chief Planning Officer may delegate any of his or her powers and duties under this Ordinance to any other Planning Officer. (5) The Authority may delegate to the Chief Planning Officer the power to grant development permission in relation to types of development, and subject to conditions or limitations as prescribed in the delegation. (5A) A person to whom development permission is granted under subsection (5), if dissatisfied with the terms and conditions subject to which it was granted, may require the Chief Planning Officer to refer the application to the Authority for its decision and thereupon the permission granted by the Chief Planning Officer ceases to have effect. (6) The Chief Planning Officer must report to the Authority any development permission granted (with or without conditions) under subsection (5). Advice by Planning Officers 9. (1) The Chief Planning Officer is the principal adviser to the Governor in Council and the Authority on matters relating to the physical planning and development of land. (2) Before exercising any function conferred by this Ordinance in relation to any matter, the Governor in Council or the Authority (as the case may be) must obtain and consider the advice of the Chief Planning Officer or of another Planning Officer designated by him or her to give advice in relation to the relevant subject. Assistance by Planning Officers to prospective developers 10. (1) A Planning Officer may enter into discussions with any person interested in developing any land or any proposed development of any land. (2) Nothing a Planning Officer says in any discussion which might take place between any prospective developer and the Planning Officer (or any person acting on his or her behalf) as to any proposed development, or any diagram, schematic drawing or other material a Planning Officer may provide or consider as a result of, or during any such discussion binds the Governor, the Authority or the Planning Officer— (a) to exercise any power under this Ordinance; or (b) as to the manner in which any such power may be exercised, nor requires the Planning Officer to perform any duty which he or she would not otherwise be obliged to perform. PART IV PLANNING POLICY AND EXERCISE OF PLANNING FUNCTIONS 11 General duty 11. (1) It is the duty of the Authority, the Planning Officers and all other officers charged by or under this Ordinance with the exercise of any power or the performance of any duty, to exercise that power or to perform that duty in such a manner as to promote orderly development of land, in so far as such development is consistent with this Ordinance and any other law, and with any policy (including any Development Plan) lawfully determined for the development of land in St Helena. (2) In performing the duty provided for in subsection (1), the Authority, the Planning Officers and all other officers mentioned in that subsection (a) may take into account any material planning considerations which are not provided for in any relevant policy; but (b) must not take into account any matter which is not a material planning consideration. Policy directions of Governor in Council 12. (1) The Governor in Council may give written directions to the Authority as to the general policy to be pursued in the performance of its functions; and the Authority must perform its functions in accordance with any directions so given. (2) Directions given under subsection (1) must not be inconsistent with the provisions contained in any Development Plan, or with this Ordinance or any other law. PART V DEVELOPMENT PLANS Proposal for Development Plan 13. (1) The Chief Planning Officer may, and if so required by the Governor in Council must, submit proposals to the Governor in Council for the preparation of a Development Plan setting out policies as to the regulation of the development and use of land— (a) for St Helena as a whole (such a plan being referred to as “The Land Development Control Plan”); (b) for a specified part (or parts) of St Helena (such a plan being given a name which contains the words ‘Development Plan’ and indicates the geographical area or areas to which it applies); or (c) in relation to any particular subject matter (such a plan being given a name which contains the words ‘Development Plan’ and indicates the subject matter to which it applies). (2) A proposal for the preparation of a Development Plan must include–– (a) a reasoned statement of need for the plan; (b) the main headings for the proposed contents of the plan; (c) any other matters considered by the Chief Planning Officer to be necessary for a decision to be made on the proposal. 12 (3) A Development Plan may, under subsection (1)(b), designate areas, to be known as “National Conservation Areas”, and contain policies relating to the conservation of natural, built, or cultural heritage in those areas. (4) A Development Plan may, under subsection (1)(c), have as its subject matter the preservation of historic buildings, archaeology and artefacts. (5) Regulations made under section 70 must make provision for procedures relating to Development Plans, including— (a) the preparation of proposals for Development Plans; (b) publication of, and public consultation upon, proposals for Development Plans; (c) procedures for reviewing such proposals, and the outputs of public consultation on them; (d) adoption, rejection or modification of Development Plans; and (e) amendment of adopted Development Plans. Application of different plans applicable to same area 14. (1) Subject to subsection (2), if there is any conflict or discrepancy with regard to the application or interpretation of two or more plans drawn to different scales, the plan drawn to the larger scale has precedence. (2) If two different plans have been approved which apply in whole or in part to the same area or the same subject matter, the later plan is deemed, so far as there is any conflict between the two, to have modified the earlier plan unless there is express provision to the contrary. Legal status of Development Plan 15. When a Development Plan has been adopted by decision of the Governor in Council it is the duty of— (a) all public officers to formulate any project of public development in St Helena in accordance with the relevant objectives and policies of the Development Plan, unless there are material planning considerations which the officers believe justify a departure from the Plan; and (b) the Authority and the Planning Officers to determine applications for development permission, and to exercise their other powers and functions, in accordance with the Development Plan. PART VI DEVELOPMENT CONTROL Division A: Development permission Restriction on development 16. (1) No person may carry out any development unless, prior to the commencement of such development, appropriate development permission has been granted under this Ordinance. 13 (2) The Governor in Council may, by Order (to be known as a “General Development Order”) specify types of development in respect of which appropriate development permission is deemed, for purposes of subsection (1), to have been granted, and may in such Order prescribe procedures for determining whether prior approval will be required in respect of any such development. Types of development permission 17. A grant of development permission may be of either of the following types–– (a) outline development permission, the effect of which is to give approval in principle to the proposed development which is the subject of an application, but not to permit (except to the extent, if any, allowed by conditions attached to the permission) commencement of development to take place; or (b) full development permission, the effect of which is to permit the development, subject to the terms and conditions of the grant, of full development permission. Division B: Application for development permission Application for development permission 18. An application for development permission must be submitted to the Authority through a Planning Officer, in accordance with the requirements of any regulations made with respect to such applications, and must be accompanied by the prescribed fee. Development and environmental effects 19. (1) An application for development permission under section 18, in respect of development which may have significant effects on the environment, must be accompanied by a report (hereinafter referred to as an “EIA report”) assessing the environmental impacts of the proposed development. (2) The EIA report must be obtained at the developer’s expense and be in a prescribed form and contain prescribed content. (3) For the purpose of determining whether an application must be accompanied by an EIA report under subsection (1), the applicant may, before submitting an application, make an application to a Planning Officer for a screening opinion or a scoping opinion under section 20. (4) The Governor in Council may prepare and publish guidelines on the implementation of the requirements under this Ordinance with respect to applications requiring environmental impact assessments. Screening and scoping opinions 20. (1) A person who intends to apply for development permission may request a Planning Officer to adopt an opinion (referred to as a “screening opinion”) as to whether an EIA report is required and the type of report required. (2) If an EIA report is required in respect of any proposed development, a person 14 who intends to apply for development permission in respect of that development may apply to a Planning Officer to adopt an opinion (referred to as a “scoping opinion”) as to the information to be provided in the EIA report. (3) The Governor in Council may, by regulations, prescribe the information to be submitted to the Planning Officer for purposes of obtaining an opinion under this section, and the regulations may prescribe the period within which such an opinion must be adopted and provide for remedies if such an opinion is not adopted within the prescribed period. Division C: Consideration of application for development permission Planning Officer may require further information 21. (1) If a Planning Officer considers that further information is required to enable a proper decision to be made upon an application for development permission, the officer may, by written notice, require the applicant–– (a) to provide the Planning Officer, within a reasonable time as specified in the notice, with any further information relevant to the application specified in the notice; or (b) to permit the members of the Authority, the Planning Officer and any other person authorised by the Planning Officer, to enter upon and inspect the land to which the application relates, or both. (2) A request under subsection (1)(a) may require the applicant to obtain, at the applicant’s own expense, and to submit to the Planning Officer, reports from suitably qualified persons concerning the environmental, economic or social impacts of the proposed development or the impact of it on the safety of the operation of the airport. (3) In the case of a requirement under subsection (1)(b), if the applicant, at the time of the application does not have such an interest in the land to which the application relates as would enable the applicant to permit the members of the Authority to enter upon the land, the applicant must use his, her or its best endeavours to obtain that permission. (4) The Authority may, regardless of any time limit prescribed under section 27, defer a decision under section 26 on an application for development permission until it is satisfied on the matters in respect of which further information is or has been required under this section. Consultation in relation to applications 22. (1) The Chief Planning Officer must— (a) publicise all applications for permission in the prescribed manner; (b) consult with any public officer or other person who appears to the Chief Planning Officer to be likely to be able to provide information relevant to an application for development permission or to matters which the Authority is required to consider when determining the application; (c) if in the opinion of the Chief Planning Officer the proposed development is likely to have damaging effects on amenities of nearby properties, notify occupiers of such properties by written notice in the prescribed form; and 15 (d) comply with subsection (3). (2) Any person who wishes to submit representations in relation to an application for development permission, as provided for by subsection (1), must submit written representations to the Chief Planning Officer within the prescribed period. (3) Subject to subsection (4), the Chief Planning Officer must send a copy of every application for Development Permission to the Airport Operator, inviting comments as to whether or not the proposed development would be likely to affect (directly or indirectly) the safety of the operation of the airport. (4) Subsection (3) does not apply to applications which are of a kind that— (a) the Airport Operator has notified the Chief Planning Officer (in writing) need not be sent to him or her; or (b) have been declared to be exempt from that subsection by regulations made under section 70. (5) A notification under subsection (4)(a) may be varied or revoked (in writing) at any time. Referral of applications for development permission to Governor in Council 23. (1) The Governor in Council may direct the Chief Planning Officer to refer to the Governor in Council for decision all applications for development permission in relation to— (a) a particular type or class of development; (b) any locality in St Helena. (2) The Chief Planning Officer must refer to the Governor in Council all applications for development permission in respect of which— (a) the Airport Operator has informed the Chief Planning Officer that the proposed development would be likely to affect the safety of the operation of the airport; or (b) it appears to the Authority that— (i) granting the application would be inconsistent with a Development Plan but that there are material planning considerations which suggest that permission should nevertheless be granted; or (ii) the proposed development might be suitable to be the subject of a Development Agreement under section 25; or (c) a direction under subsection (1) applies. (3) Every referral under subsection (2) must be made within 14 days of the end of any period of public consultation under section 22, and be accompanied by a Planning Officer’s report under section 24(2). (4) Upon making a referral in accordance with subsection (2), the Chief Planning Officer must (a) cause a copy of it to be placed before the Authority; and (b) as soon as is practicable after the Authority has considered the matter, forward to the Governor in Council any recommendations or comments which the Authority wishes to make in relation to the application. 16 (5) The Governor in Council must not make a decision on an application which has been referred to the Governor in Council under this section until— (a) the comments or representations of the Authority have been received; or (b) 28 days have elapsed since the date of referral, whichever is the first to occur. Matters to be considered 24. (1) In considering an application for development permission, the Authority must take into account any of the following matters that appear to it to be relevant in order to make a proper decision on the application, namely–– (a) the provisions of any relevant Development Plan; (b) any information, advice or study report provided by the applicant in response to a notice served on the applicant under section 21, or otherwise submitted by the applicant (including any EIA report provided by the applicant under Division A) ; (c) representations made in response to publicity and consultations referred to in section 22, but only if such representation raise issues which are legally relevant to the subject matter of this Ordinance and of any instrument made under it or are otherwise material planning considerations; (d) in respect of any application for development permission— (i) for a new building which is intended to include access by the public; or (ii) as far as practicable, for the conversion or change of use of any existing building if such conversion or change of use is intended to include access by the public, whether the design for the building incorporates adequate provision to facilitate access and usage by persons with disabilities; and (e) any other matters prescribed. (2) Advice given by a Planning Officer to the Authority on any application must be in the form of a report on the application, which must include (a) the Planning Officer’s comments and recommendations on the environmental impact assessment report, if any; (b) a summary of any other relevant factors recommended to be taken into account in respect of that application; and (c) a recommendation as to the decision to be made on the application. (3) In this section, unless the context requires otherwise, references to “the Authority” include reference to the Governor in Council. Development Agreements 25. (1) The Attorney General (acting on behalf of Her Majesty in right of Her Government of St Helena) may, if authorised to do so by the Governor in Council, enter into an agreement with any person as to the nature, scope, timing or any other aspect of any proposed development, and such an agreement may contain provisions to secure contributions (financial or otherwise) towards the cost of infrastructure or other development in the public interest. (2) Notwithstanding any other provision of this Ordinance, if an agreement to 17 which subsection (1) relates provides that the Governor in Council will grant an application for development permission subject to compliance with the provisions of that agreement (a) the Chief Planning Officer must, on receipt of an application complying with those provisions, forthwith refer the application to the Governor in Council; and (b) the Governor in Council must grant development permission (and must not impose any condition on such permission which is more onerous than, or inconsistent with, any condition contained in such agreement). (3) The Governor in Council must not authorise the Attorney General to enter into an agreement under this section unless the Authority has had an opportunity to comment on the matter and the Governor in Council has considered any comments made by the Authority. Division D: Decision on application for development permission Decision on application 26. (1) The Authority may grant an application for development permission either unconditionally or subject to any conditions considered necessary, or may refuse an application; but if permission is granted conditionally or is refused, the reasons for the condition or refusal must be stated. (2) The conditions which the Authority may impose when granting development permission are such as are likely to be for the advantage of any matter mentioned in section 24(1), and any other matters prescribed. (3) A condition may be imposed under this section— (a) as to the use of any land which is contiguous to the land to which a grant of development permission relates, which is in the possession of or under the control of the developer, if it appears to the Authority that it is expedient to impose such a condition for the purposes of or in connection with the development to which the grant of development permission relates; (b) requiring the developer to carry out any works or other development on land (including highways) in the ownership or under the control of any other person, even if the effect of the imposition of such a condition would be to require the developer to carry out works or development at his own cost for the public benefit: (4) A condition of the kind described in subsection (3) must not be imposed without consent of the other person. Notice of decision 27. The Planning Officer must within a period prescribed in regulations notify the applicant in writing of the Authority’s decision on the application, including the reasons for any conditions or for refusal. If no such notification has been given within that period, or any longer period agreed in writing between the Chief Planning officer and the applicant, the application must be considered to have been refused. Effect of grant of development permission 18 28. (1) Without affecting the provisions of this Ordinance as to the lapse, modification or revocation of any development permission, the grant of development permission, except in so far as the grant otherwise provides, enures for the benefit of the land concerned and of all persons for the time being entitled to an interest in the land. (2) If development permission is granted for the erection of a building, the development permission may specify the purposes for which the building may be used, and if no purpose is so specified, is to be construed as including permission for the use of the building for the purposes for which it is designed, and for no other purpose. Division E: Variation, modification or revocation of development permission Minor variation of development permission 29. (1) The Chief Planning Officer, acting on behalf of the Authority, may approve a variation to any development permission which in his or her opinion is a minor variation, and in such event the Chief Planning Officer must inform the Authority of the action which he or she has taken. (2) If the Chief Planning Officer is requested by an applicant to approve a variation under subsection (1) but is of the opinion that the variation proposed is not a minor one, the Chief Planning Officer must, in writing, inform the applicant that a new development application is required. Modification or revocation of development permission 30. (1) Subject to this section, if it appears to the Authority, after consideration of any advice given by the Chief Planning Officer, that it is (due to circumstances which have changed or of which the Authority was unaware when the permission was granted) desirable that any development permission ought to be modified or revoked, the Authority may, by written notice to the person entitled to the benefit of the permission, revoke or modify the development permission to the extent it considers desirable. (2) The power conferred on the Authority by this section may be exercised— (a) if the development permission relates to the carrying out of building or other physical operations - at any time before those operations have begun, as referred to in section 31(3); (b) if the development permission relates only to a change in the use of any land - at any time before the change has taken place. (3) The modification or revocation of development permission for the carrying out of building or other physical operations does not affect so much of the operations as has been previously carried out. (4) A notice for the modification or revocation of development permission under this section must include–– (a) a statement of the reasons for the modification or revocation; (b) any directions the Authority considers necessary for the bringing to an end of any development to which the notice relates; (c) information as to any right to compensation that might arise in consequence of the 19 modification or revocation, and the procedure for making any claim for compensation; and (d) any other matters prescribed. (5) Upon service of a notice under subsection (1), the development permission concerned ceases to be valid or to have effect to the extent to which the modification or revocation so requires, and any further development or work carried out contrary to such notice is unauthorised development. (5A) The Authority, after considering any representations made in respect of a notice under subsection (1), may at any time withdraw the notice. (6) For purposes of this section, the modification of development permission includes the imposition or modification or deletion of conditions, or additional conditions, and any other alteration of development permission. Division F: Lapse of development permission Lapse of development permission 31. (1) Outline development permission lapses and ceases to have effect if no full development permission covering the same land has been applied for within one year of the grant of outline development permission, or any longer period specified in the outline development permission. (2) Development permission other than outline development permission lapses and ceases to have effect if the development to which it relates has not been begun within 5 years of the grant of full development permission, or any longer period authorised by the Authority in any particular case. (2A) An extension of the period as contemplated by subsection (2) may be authorised by the Authority retrospectively. (3) For the purpose of this section and section 30, the development is deemed to have begun when any work of construction, demolition or excavation forming part of the development has commenced and not been abandoned, or, in the case of development permission for change of use, the use authorised by the development permission has commenced. (4) If full development permission provides for different parts of the development to commence at different times, this section applies to those separate parts of the development as if separate full development permission was granted for each part or stage of the development. (5) If it appears to the Authority that development which has been commenced but not completed is materially prejudicing the development or amenity of other land, the Authority may serve notice on the developer requiring that the development be completed or removed within the time specified in the notice, in default of which the Authority may serve an enforcement notice as provided for in section 33. 20 PART VII UNAUTHORISED DEVELOPMENT OR CONTRAVENTION OF DEVELOPMENT PERMISSION Division A: Notice to apply for permission Notice to apply for development permission 32. (1) The Authority may, in any case in which it considers that unauthorised development has taken place, by written notice served on the owner or the occupier of the property concerned, require that an application be submitted by the owner or occupier for development permission. If such an application for development permission is submitted within one month of the service of such notice (or any extended period that is agreed), the Authority must refrain from issuing an enforcement notice. (1A) Subsection (1) does not apply to unauthorised development if an application for development permission was submitted and development permission for such development was refused. (2) If the Authority grants development permission in respect of an application made in accordance with a notice served under subsection (1), the Authority may grant permission with retrospective effect to the date when the development commenced, or any other date the Authority considers appropriate in the particular case. Division B: Enforcement notices Issue of enforcement notice 33. (1) Subject to section 38, if it appears to the Chief Planning Officer that any development of land has been carried out without development permission or in contravention of any notice of modification or revocation served in respect of that development, or that any conditions subject to which development permission was granted have not been complied with, the Chief Planning Officer— (a) may (with the consent of the Authority) issue an enforcement notice if he or she considers it expedient to do so, having regard to any Development Plan applicable to the area where the unauthorised development has taken place and the factors set out in section 23(1); and (b) must serve a copy of that enforcement notice on the owner and the occupier of the land. (2) An enforcement notice under subsection (1) must not be issued after a period of 5 years from the relevant unauthorised development or contravention taking place; but if the development alleged to have taken place is a change in the use of land, there is no time limit restricting the issue of such a notice. (3) The consent of the Authority referred to in subsection (1) may be given either in respect of a class or classes of enforcement notices or of a particular enforcement notice and such consent must be stated in that enforcement notice. (4) An enforcement notice must state clearly–– 21 (a) the unauthorised development to which it relates; (b) the person or persons to whom it is addressed; (c) the time at which it comes into effect; (d) the steps which must be taken to rectify the alleged unauthorised development and the time, being not less than 2 months, within which they must be taken; (e) the powers of the Authority, in case of default in compliance with the notice, to enter upon the land and undertake the steps specified in paragraph (d); (f) the penalties which may be incurred if the steps specified in paragraph (d) are not undertaken; (g) the right of the owner and occupier of the land or building which is the subject of the enforcement notice to appeal against the notice. (5) The Chief Planning Officer (with the approval of the Authority) may withdraw or modify an enforcement notice and this section applies to any modification of an enforcement notice made under it as it applies to the enforcement notice. (6) The Chief Planning Officer must inform the Authority at the earliest opportunity of any action taken under this section. Considerations with respect to issue of enforcement notice 34. (1) In considering whether or not an enforcement notice is to be served, the Chief Planning Officer or Authority, as the case may be, must take into account any of the following matters that are relevant in the circumstances of the particular case, namely–– (a) any Development Plan applicable to the area concerned where the unauthorised development is alleged to have taken place; (b) the nature and extent of the unauthorised development; (c) the harm to the natural or built environment and the degree of harm to the amenity of adjacent property or of other proposed development; (d) the benefits (if any) resulting from the unauthorised development; (e) any possible alternative measures which could be taken to rectify or regularise the unauthorised development; (f) whether it is necessary or desirable having regard to the public interest to serve an enforcement notice; (g) any other material considerations. (2) The Chief Planning Officer must (a) obtain, so far as appears to him or her appropriate to do so, any technical advice which he or she considers to be necessary for a satisfactory decision to be made on any matter relating to an enforcement notice; and (b) place a summary of any such advice, together with his or her own recommendation, before the Authority when it is considering the issue of an enforcement notice under section 33. Scope and effect of enforcement notice 35. (1) The steps which may be specified for the purposes of section 33(4)(d) may be all or any of the following namely to–– (a) demolish or remove a building in whole or in part; (b) erect, re-erect or alter a building in whole or in part; 22 (c) restore land as near as may be to the appearance and state that it had before the unauthorised development took place, including planting or replanting of trees and other vegetation; (d) remove any advertisement or to display it in the place permitted by a grant of development permission; (e) discontinue any use of land or buildings; (f) carry out any building or other operations on the land to which the notice relates; (g) comply with any limitation or condition contained in the development permission; (h) do or refrain from doing or to take or refrain from taking any actions similar to those listed in paragraphs (a) to (g) which would assist in ending the unauthorised development. (2) If a person on whom an enforcement notice has been served fails to take the action required by the enforcement notice to rectify the unauthorised development, the Authority may, if the Governor in Council does not acquire the land under the Land Acquisition Ordinance, 2006, authorise the Chief Planning Officer or any department or officer of the Crown or any contractor engaged by any of them, to enter the land and take all necessary action in respect of the unauthorised development to enforce the notice that the Authority sees fit. (3) When the Authority has exercised any power under subsection (2), it may recover as a civil debt, from any person upon whom the notice has been served, those expenses reasonably incurred by it in the exercise of such power, and if that person, having been entitled to appeal under section 53 has failed to make such an appeal, the person may not in any proceedings dispute the validity of the action taken by the Authority or the Chief Planning Officer upon any ground that could have been entertained on such an appeal. Continuing operation of enforcement notice 36. (1) Compliance with the requirements of an enforcement notice does not discharge the enforcement notice. (2) Without limiting subsection (1), if any development is carried out by way of reinstating or restoring buildings or works that have been demolished or altered in compliance with an enforcement notice, the enforcement notice is, notwithstanding that its terms are no longer wholly apt for the purpose, deemed to apply in relation to any buildings or works so reinstated or restored as it applied in relation to such buildings or works before they were demolished or altered, and section 35(2) and (3) applies accordingly. Protection of prospective purchasers with respect to unauthorised development 37. (1) Any person may make application to the Chief Planning Officer, for a certificate confirming the lawfulness of any existing development or use of land; and the Chief Planning Officer may, if authorised to do so by the Authority, grant such a certificate. (2) Upon the grant of such certificate, all development on the land at the time of the grant of such certificate is, for the purposes of any enforcement notice thereafter issued, deemed to have been authorised by the grant of development permission. 23 Division C: Removal or alteration of work without enforcement notice Power to require conformity 38. (1) If it appears to the Planning Officer that development has been carried out other than in conformity with any condition subject to which development permission has been granted, the Planning Officer may, with the approval of the Authority and in compliance with regulations, serve notice on the developer, land owner and/or occupier, as appropriate, requiring that person to bring the development to conformity with such condition within the specified time, being not less than 28 days. (2) Nothing in subsection (1) precludes the issue of an enforcement notice under section 33 instead of or in addition to the notice referred to in subsection (1). (3) No notice may be given under subsection (1) after the expiration of 5 years from the date on which the work was substantially completed. PART VIII CONSERVATION OF NATURAL AND BUILT HERITAGE Historic environment record, listed buildings and historic conservation areas 39. (1) Without limiting section 13, the Chief Planning Officer may (and, if so directed by the Governor in Council must) submit to the Governor in Council proposals for the preparation of a Development Plan (to be known as “the Historic Environment Record”) identifying buildings, parts of buildings, or groups of buildings, and their settings, which ought to be protected due to their importance in relation to the architectural, cultural, or historical heritage of St Helena. (2) The Historic Environment Record must record, in addition to the matters mentioned in subsection (1), sites containing archaeological remains and associated artefacts which (for like reasons) ought to be preserved and protected. (3) Buildings and their settings, and the archaeological sites, identified in the Historic Environment Record must be listed and graded as to their architectural, cultural, or historical significance, together with a description of each such building, setting, or site; and each such building or site is to be known, for the purposes of this Ordinance, as a Listed Building or a Listed Site, as the case may be. (4) The Historic Environment Record may designate areas (to be known as “Historic Conservation Areas”) within which the various buildings, archaeological remains and other artefacts provide a harmonious unit which contributes to the architectural, cultural or historic heritage of St Helena. (5) No person may develop, demolish or engage in any building operations, other than essential repairs, or attempt to do so, in respect of any Listed Building or Listed Site, or within any Historic Conservation Area without first obtaining development permission; and nothing in a General Development Order has the effect of authorising any such development. (6) In determining any development application which relates to or affects a 24 Listed Building or its setting, a Listed Site, or a Historic Conservation Area, the Authority must have special regard to the importance of the building, site, or area in relation to— (a) the landscape; or (b) the architectural, cultural, or historical heritage, of St Helena and to any relevant policies contained in the Historic Environment Record. Building Preservation Orders 40. (1) In this section— “building” means a building (or, subject to subsection (11), a group of buildings) which is not a Listed Building; and “Building Preservation Order” means an Order (including, where the context so admits, an interim order) made under this section, in the prescribed form. (2) The Chief Planning Officer must if he or she considers it desirable that a building ought to be protected due to its importance in relation to the architectural, cultural, or historical heritage, of St Helena must (a) prepare a report for consideration by the Authority; and (b) append to the report a draft Building Preservation Order containing any requirements as appear to the Chief Planning Officer to be required in the circumstances for preventing the development or demolition of (or any building operations, except essential repairs, in relation to) the building unless such development, demolition or work has been first authorised by a development permission granted under this Ordinance. (3) The Authority must, within 30 days of the receipt of a report and draft order under subsection (2), consider the matter and decide whether to— (a) take no action in relation thereto; or (b) proceed in accordance with the following provisions of this section. (4) If the Authority decides to proceed under subsection (3)(b), an Interim Building Preservation Order (in the form of the draft, or in any other form the Authority directs) must be–– (a) served on the owner and occupier of the building concerned; and (b) published in the Gazette and in any other manner prescribed. (5) Any person may, within one month of the service of an Interim Building Preservation Order, or the publication of the notice under subsection (4) (whichever is sooner), make representations in writing to the Authority in regard to the Interim Building Preservation Order. (6) The Authority must consider any representations made to it under subsection (5) and may thereupon confirm the order, with or without modifications, or may revoke it; if the Order is confirmed it forthwith has effect as a Building Preservation Order and remain in force until lawfully revoked or otherwise terminated. (7) An Interim Building Preservation Order ceases to have effect on whichever is the earlier of the following dates: (a) the date on which the Authority revokes the Order; and (b) the date one month after the latest date for the submission of representations 25 under subsection (5). (8) Notice of the Authority’s decision under subsection (6) must be–– (a) served on the owner and occupier of the building concerned; and (b) published in the Gazette and in any other manner prescribed. (9) No person may develop, demolish, or engage in any building operations (other than urgent repairs) or attempt to do so, in respect of any building which is the subject of a Building Preservation Order without first obtaining development permission; and nothing in a General Development Order has the effect of authorising any such development. (9A) Unless it is impracticable to do so, a person intending to carry out urgent repairs as provided for by subsection (9) must consult the Chief Planning Officer before doing so. (10) Section 39(6) applies to a building which is the subject of a Building Preservation Order, as it applies to a Listed Building. (11) For the purposes of this section and section 41, a group of buildings may be made the subject of a Building Preservation Order if because of their proximity and relationship to each other it is considered desirable that the whole group should be preserved. Urgent Building Preservation Orders 41. If the Chief Planning Officer considers it desirable that a building ought to be protected due to its importance in relation to— (a) the landscape; or (b) the architectural, cultural, or historical heritage, of St Helena, and that the urgency of the matter and the significance of the building warrant such action, the Chief Planning Officer may report the circumstances to the Chair of the Authority and the Chair may authorise the Chief Planning Officer to proceed immediately as if he or she had submitted a report to the Authority under section 40(2) and the Authority had made a decision to proceed under section 40(3)(b). Tree preservation orders 42. 2 (1) In this section— “tree” includes, subject to subsection (10), a group of trees; “Tree Preservation Order” means an order (including, where the context so admits, an interim order) made under this section, in the prescribed form. (2) The Chief Planning Officer must if he or she considers it desirable that a tree ought to be protected and preserved due to its importance in relation to— (a) the landscape; or (b) the cultural or historical heritage, of St Helena, prepare a report for consideration by the Authority and must append to the report a draft Tree Preservation Order containing any requirements that appear to the Chief Planning Officer to be required in the circumstances for preventing the lopping, topping, 2 Interim Tree Preservation Order published as Gazette Notice No. 17 of 25 February 2015 26 felling, uprooting, or wilfull damaging of the tree. (2A) The Authority must, within 30 days of the receipt of a report and draft order under subsection (1), consider the matter and decide whether— (a) to take no action in relation to it; or (b) to proceed in accordance with the following provisions of this section. (3) If the Authority decides to proceed under subsection (2)(b), an Interim Tree Preservation Order (in the form of the draft, or in any form the Authority directs) must be–– (a) served on the owner and occupier of the land on which the tree stands; and (b) published in the Gazette and in any other manner prescribed. (4) Any person may, within one month of the service of an Interim Tree Preservation Order, or the publication of the notice under subsection (3) (whichever is sooner), make representations in writing to the Authority in regard to the Interim Tree Preservation Order. (5) The Authority must consider any representations made to it under subsection (4) and may thereupon confirm the order, with or without modifications, or may revoke it; if the Order is confirmed it forthwith has effect as a Tree Preservation Order and remains in force until lawfully revoked or otherwise terminated. (6) An Interim Tree Preservation Order ceases to have effect on whichever is the earlier of the following dates: (a) the date on which the Authority revokes the order; or (b) the date one month after the latest date for the submission of representations under subsection (4). (7) Notice of the Authority’s decision under subsection (5) must be–– (a) served on the owner and occupier of the land on which the tree stands; and (b) published in the Gazette and in any other manner prescribed. (8) No person may lop, top or fell, or attempt to lop top or fell, any tree which is the subject of a Tree Preservation Order (including an Interim Tree Preservation Order) without first obtaining permission from the Authority; and nothing in a General Development Order has the effect of authorising any development which may affect any tree or the setting of a tree which is the subject of an order under this section. (9) In determining any development application which affects or may affect any tree, or the setting of any tree, which is subject to an order under this section, the Authority must have special regard to the importance of the tree or setting of the tree in relation to— (a) the landscape; or (b) historical heritage, of St Helena. (10) For the purposes of this section and section 43, a group of trees may be made the subject of a Tree Preservation Order if, because of their proximity and relationship to each other, it is considered desirable that the whole group should be preserved. (11) Nothing in subsection (8) prevents the carrying out of urgent lopping, topping, 27 or felling of a tree which is so damaged or diseased as to be a danger to life or property; but, unless it is impracticable to do so, a person intending to carry out such urgent lopping, topping or felling must consult the Chief Planning Officer before doing so. Urgent Tree Preservation Orders 43. (1) If the Chief Planning Officer considers it desirable that a tree ought to be protected and preserved due to its importance in relation to— (a) the landscape; or (b) the historical heritage, of St Helena, and that the urgency of the matter and the significance of the tree warrant such action, the Chief Planning Officer may report the circumstances to the Chair of the Authority and the Chair may authorise the Chief Planning Officer to proceed immediately as if he or she had submitted a report to the Authority under section 42(1) and the Authority had made a decision to proceed under section 42(2)(b). (2) In this section, “tree” has the same meaning as in section 42. PART IX AMENITY ORDERS AND SUPPLEMENTARY PROVISIONS FOR CONTROL OF DEVELOPMENT Amenity orders 44. (1) In this section, “Amenity Order” means an order made under this section. (2) If the Chief Planning Officer considers that— (a) any land is unsightly or is otherwise injurious to the amenities of the area, and visible to persons using a public highway or any other area to which the public have a right of access; (b) any land is, or is likely to be, offensive to persons residing in the immediate neighbourhood of such land, because of any waste material or the dilapidated state of any structure or building thereon; or (c) any building which the Chief Planning Officer believes is of importance in relation to the architectural, cultural, or historical heritage of St Helena, is in a dilapidated or neglected state and needs to be maintained or restored, he or she may (with the consent of the Authority) issue an Amenity Order requiring the owner or occupier of the land or building to do anything which is, in the opinion of the Chief Planning Officer, necessary or desirable to rectify, mitigate, or abate the unsightliness, injury, offence, dilapidation or neglect and must serve a copy of that notice on the owner and the occupier of the land. (3) An Amenity Order must be in the prescribed form and specify–– (a) the land to which it applies, and the owner or occupier of it; (b) the actions which the owner or occupier is required to take; and; (c) the time, not being less than 28 days from the date of service of the order upon the owner or occupier, for compliance with the order. (4) The things which an Amenity Order may require the owner or occupier to do 28 include— (a) the demolition of any building, the removal of resulting rubble and other waste material, and landscaping or other measures required to ensure that the site is no longer unsightly, injurious or offensive; (b) the restoration or repair of any building or other structure. (5) If a person on whom an Amenity Order has been served fails to take the action required by the order, the Authority may, if the Governor in Council does not acquire the land under the Land Acquisition Ordinance, 2006, authorise the Chief Planning Officer or any department or officer of the Crown or any contractor engaged by any of them, to enter the land and take all necessary action for the purposes mentioned in subsection (2) to enforce the Order as the Authority sees fit. (6) If the Authority has exercised any power under subsection (5), it may recover as a civil debt, from any person upon whom the Amenity Order has been served, the expenses reasonably incurred by it in the exercise of the power, and if that person, having been entitled to appeal under section 53 has failed to make such an appeal, the person may not in any proceedings dispute the validity of the action taken by the Authority or the Chief Planning Officer upon any ground that could have been entertained on such an appeal. Notice requiring discontinuance of use or alteration or removal of buildings or works 45. (1) If the Chief Planning Officer, having regard to a Development Plan and to any other material consideration, considers it is expedient in the interests of the proper planning of St Helena (including the interests of amenity) that— (a) any use of land is to be discontinued, or that any conditions should be imposed on the continuance of a use of land; or (b) any buildings or works should be altered or removed, the Chief Planning Officer may (with the consent of the Authority) issue a notice requiring the owner or occupier of the land or building to discontinue that use, or impose conditions specified in the notice on the continuance of the use, or require any steps so specified to be taken for the alteration or removal of the buildings or works, as the case may be. (2) A notice under subsection (1) must specify–– (a) the land to which it applies, and the owner or occupier of it; (b) the actions which the owner or occupier is required to take; and (c) the time, not being less than 28 days from the date of service of the notice upon the owner or occupier, for compliance with the order. (3) If a person on whom a notice has been served under subsection (1) fails to take the action required by the notice, the Authority may, if the Governor in Council does not acquire the land under the Land Acquisition Ordinance, 2006, authorise the Chief Planning Officer or any department or officer of the Crown or any contractor engaged by any of them, to enter the land and take all necessary action for the purposes mentioned in subsection (1) to enforce the notice as the Authority sees fit. (4) When the Authority has exercised any power under subsection (3), it may recover as a civil debt, from any person upon whom the notice has been served, the expenses reasonably incurred by it in the exercise of the power, and if that person, having been entitled to appeal under section 53 has failed to make such an appeal, the person may not in any 29 proceedings dispute the validity of the action taken by the Authority or the Chief Planning Officer upon any ground that could have been entertained on such an appeal. PART X COMPENSATION No right to compensation except as expressly provided 46. Subject to section 47, no claim to compensation lies against the Crown, the Governor, the Authority, the Tribunal or any public officer in connection with or arising out of anything done by any of them in good faith (proof of the absence of which lies upon the claimant) in exercise, or purported exercise, of the powers and functions provided for in this Ordinance. Right to claim compensation from Crown 47. (1) There is a right to the payment of compensation, assessed in accordance with this Ordinance, in the following cases–– (a) if development permission has been revoked or modified and— (i) the holder of that permission, or the holder’s successor in title, has incurred expenses necessarily arising out of commencing to develop or developing in accordance with that permission or has otherwise suffered loss or damage directly attributable to the revocation or modification; or (ii) any person with an interest in the land or who has lent money on the security of the land, has suffered loss or damage directly attributable to the revocation or modification; (b) if a building has been destroyed by fire or other natural disaster and the Authority refuses to allow a building of similar cubic content to be erected in the same position, as near as can be, to the destroyed building; (c) if the Authority is empowered under any law to require any building to be demolished, altered, removed or relocated, or the cessation of use of any land for a particular purpose (other than such action required under a notice issued under section 38). (2) Compensation payable must be assessed in respect of loss or damage consisting of the depreciation in value of any interest in land directly attributable to the revocation or modification of development permission if–– (a) the development permitted by the development permission revoked or modified has not been carried out; or (b) the person claiming compensation acquired an interest in the land or building to which the development permission relates for valuable consideration after the grant of that development permission and such development permission, at the material time, had not lapsed under section 31. (3) For the purposes of this section, any expenditure incurred in the preparation of plans for the purposes of any work, or upon similar matter preparatory to the work, is to be taken to be included in the expenditure incurred in carrying out that work. (4) Subject to subsection (3), no compensation is payable under this section in respect of any work carried out before the grant of development permission which is revoked 30 or modified, or in respect of any other loss or damage (not being loss or damage consisting of depreciation of the value of an interest in the land) arising out of anything done or omitted to be done before the grant of that permission. Position if land is subject to mortgage 48. If any compensation is payable under this Part in respect of the depreciation of the value of an interest in land which is subject to a mortgage–– (a) the amount of the compensation payable must be assessed as if the interest was not subject to the mortgage; (b) no compensation to which this section applies is payable in respect of the interest of the mortgagee (as distinct from the interest which is subject to the mortgage); and (c) any compensation to which this section applies which is payable in respect of the interest which is subject to the mortgage must be paid to the mortgagee, or, if there is more than one mortgagee, to the first mortgagee, and must in either case be applied by the mortgagee as if it were proceeds of sale. Claims for compensation 49. (1) A claim for compensation alleged to be payable under this Part must be made in writing to the Chief Planning Officer within one month of the date on which notice of the decision which gives rise to the claim was served upon the person who makes the claim. (2) When a claim is made under subsection (1), the Chief Planning Officer may by written notice served on the claimant require the claimant to provide any further information in support of the claim specified in the notice, and a decision on the claim may be deferred until such further information has been supplied by the claimant. (3) If a claim for compensation has been made, the Chief Planning Officer must, after making any enquiries that appear to him or her to be necessary, submit the claim and his or her own recommendation on the matter to the Attorney General for a decision as to the action to be taken on the claim. (4) If any claim for compensation cannot be settled through negotiation between the claimant and the Crown, the question as to whether any compensation is payable to the claimant, or as to the amount of it, must be referred by the Attorney General for decision by the Supreme Court. PART XI POWERS OF PLANNING OFFICERS Powers of entry 50. (1) Subject to subsection (2), a Planning Officer, or any person authorised by a Planning Officer in writing, may at any reasonable time enter on any land or in any building–– (a) to inspect or survey the land, or any building for the purpose of the preparation of any Development Plan, or to decide whether or not any Development Plan should 31 be prepared under Part V; (b) to determine whether any order or interim order should be made under Part VIII or Part IX or for the exercise of any powers conferred by any such order; (c) to obtain information relevant to the determination of any application for development permission; (d) to determine whether any unauthorised development is being or has been undertaken on the land or in any building on it; (e) for the purpose of taking any action, or executing any work, authorised or required by Part VII or IX; (f) to determine whether or not any compensation is payable under Part X, or as to the amount of it; or (g) generally for the purpose of the performance by the Authority of its functions under or those Parts. (2) No person may, except with the consent of the owner or occupier of the land or building, enter on land or a building under this section without giving such owner or occupier at least 24 hours written notice of the intention so to do and the intended purpose of such entry. (3) Before exercising any powers under this section, the Chief Planning Officer or any other person exercising those powers must, so far as is practicable to do so, identify himself or herself to the occupier or other person who is or appears to be in control of the land or building concerned. (4) The powers of entry conferred by this section extend to permit the Chief Planning Officer or other person concerned to make such examination and inquiries as are necessary to achieve the intended purpose of such entry. (5) If any damage is caused by reason of the exercise of any right of entry conferred by this section, or in the making of any survey for the purpose for which such right of entry was conferred, or by the wrongful or negligent use of powers conferred, or alleged to have been conferred, by this section (a) the Chief Planning Officer must, as soon as may be after such entry, pay compensation to the person injured by it; and (b) if the amount of such compensation cannot be agreed, the amount payable must be determined in the same manner as compensation payable under section 47, and the Chief Planning Officer must refer the matter accordingly. (6) Nothing in Subsections (2) or (5) do not apply in respect of any work or operation which the Crown, the Authority, or any public officer is authorised to do or carry out in relation to any building or land under Division B of Part VII or under Part IX. Power to require information 51. (1) For the purpose of enabling the Chief Planning Officer, the Authority or the Governor in Council to make an order or serve a notice or other document under this Ordinance, the Chief Planning Officer, Authority or Governor in Council, as the case may be, may require any person who is the owner or the occupier of any land or premises, and any other person who either directly or indirectly receives rent in respect of any land or premises, to state in writing the nature of that person’s interest in the land, and the name and address of 32 any other person known to that person to have an interest in the land or premises, whether as a freeholder, mortgagee, lessee or otherwise. (2) A person who, without reasonable excuse, fails to comply with a request under subsection (1) is to be treated for the purposes of section 64(1)(g) as obstructing the Chief Planning Officer, Authority or Governor in Council, as the case may be. PART XII APPEAL PROVISIONS Establishment of Appeals Tribunal 52. (1) There is hereby constituted a Land Development Appeals Tribunal, consisting of a President and not less than 2 nor more than 4 additional members (none of whom may be public officers, members of the Authority, or members of the Legislative Council) appointed by the Governor. (2) The Chief Magistrate is the President of the Tribunal; but if the office of Chief Magistrate is vacant, or the holder of it is absent or otherwise unable to act, the Governor (acting in his or her discretion, but after consulting the President of the Judicial Service Commission) may appoint a Justice of the Peace to act as President of the Tribunal. (3) A member of the Tribunal may resign office at any time by giving notice in writing to the Governor. (4) The President and other members of the Tribunal must be paid, out of sums duly appropriated from the Consolidated Fund, remuneration or other allowances that the Governor, acting in his or her discretion, from time to time approves. (5) There is to be a Clerk of the Tribunal, appointed by the Governor, who must perform the duties prescribed by or under this Ordinance. (6) At any time when there is no subsisting appointment of a Clerk of the Tribunal, the duties of the Clerk may be performed by the Registrar of the Supreme Court. Right of appeal 53. (1) Subject to this Ordinance, an appeal lies to the Tribunal against any decision made by the Authority under this Ordinance to–– (a) refuse an application for development permission or impose any condition on granting development permission; (b) require an environmental impact assessment report for the purposes of development permission or require a specific type of report; (c) modify or revoke development permission or refuse to withdraw a notice as provided for in section 30; (d) require the completion of a development within a time limit; (e) serve an enforcement notice or as to the terms of it; (f) impose a building preservation order or tree preservation order under Part VIII, subject to subsection (2); (g) make an amenity order under section 44; 33 (h) issue a notice requiring discontinuance of use or alteration or removal of buildings or works under section 45. (2) No appeal lies against an interim building preservation order or interim tree preservation order; Powers and duties of Tribunal 54. (1) The Tribunal must consider and determine all appeals against decisions of the Authority under this Ordinance and may, in respect of each appeal, either— (a) confirm the decision of the Authority; or (b) substitute for that decision any other decision which the Authority could lawfully have made. (2) The President of the Tribunal may extend any period within which any action must be taken in relation to any appeal, if he or she considers it to be in the interests of justice to do so. (3) The Tribunal may exercise any other functions conferred upon it by or under any other law. Meetings of Tribunal 55. (1) The Tribunal must meet whenever required to do so by the President for the purpose of either— (a) determining an appeal or appeals made to it; or (b) discussing issues regarding the management of business or the general administration of the work of the Tribunal. (2) At all meetings of the Tribunal the President must preside or, in the absence of the President (or a Justice of the Peace lawfully acting as the President pursuant to section 52(2)), any other member of the Tribunal the members present select from among themselves. (3) A member of the Tribunal must not participate in the determination of any appeal in relation to the subject matter in which the member has a relevant interest. (4) The Tribunal is validly constituted for the purposes of determining any appeal if at least 3 of its members are present. (4A) Decisions of the Tribunal are by a majority decision of the members participating in the decision, and if the votes cast are equally divided, the President or other member presiding has a casting vote. (5) The Tribunal (a) must be open to the public when sitting for the purpose of determining an appeal; but (b) may meet in camera for purposes of discussing administrative and procedural matters concerning its work and in any other circumstances prescribed. 34 Notice of appeal 56. (1) Subject to any provision to the contrary in this Ordinance, any person desiring to appeal under section 53 must, within 28 days of receiving notification of the decision desired to be appealed against, send to the Clerk a notice of appeal in the prescribed form and the Clerk must (a) refer the matter to the President; and (b) thereafter (unless the President rejects the notice in accordance with section 57) send a copy of the notice to the Chief Planning Officer. (2) The Chief Planning Officer must, within a prescribed period of time, submit to the Clerk— (a) copies of any papers and documents submitted by the appellant or by any person acting on the appellant’s behalf to the Authority with respect to the decision that is being appealed against; (b) a copy of the decision appealed against. Rejection of notice of appeal in certain circumstances 57. On receipt of a notice of appeal under section 56, the President must reject the notice of appeal if— (a) it appears not to comply with section 56 (without prejudice to any further such notice being given); or (b) the appellant appears not to have any sufficient interest in the land to justify the appellant appealing against the decision. Effect of service of notice of appeal in certain instances 58. (1) If an appeal is notified against the issue of a notice by the Authority under section 30(1) to modify or revoke development permission, or against the refusal of the Authority to cancel or withdraw such notice under section 30(5A), the notice is deemed to be suspended in its operation pending the determination of any such appeal, except that any further development or work carried out is unauthorised development. (2) If notice of an appeal is given by a person on whom an enforcement notice was served under section 33, the operation of the enforcement notice is suspended pending the determination or withdrawal of the appeal. Procedure in relation to appeals 59. (1) Subject to this Part, the procedure for appeals is as prescribed by regulations made under section 70. (2) In any matter or circumstance for which no procedural provision is made either in this Part or in regulations, the procedure is at the discretion of the President. Notification of decision 60. The Tribunal must send to the Chief Planning Officer written notification of its decision, together with a statement of its reasons for the decision, and the Chief Planning 35 Officer must on receipt of the notification forward a copy of the decision to the appellant and the Authority. Application to court for judicial review 61. (1) Except as expressly provided in this Ordinance, no appeal lies to any court against a decision or order of the Authority, the Tribunal or the Governor in Council under this Ordinance. (2) Subsection (1) does not prevent an application to the Supreme Court for judicial review of a decision of the Authority, the Tribunal or the Governor in Council. PART XIII REGISTER OF INFORMATION AND REPORTING Registration of planning and associated decisions 62. (1) The Chief Planning Officer must maintain a Register of all— (a) applications for a grant of development permission; (b) decisions on such applications; (c) development permissions granted, and any conditions attached to them; (d) enforcement notices; (e) any Building Preservation Orders or Tree Preservation Orders made under Part VIII; (e) any orders made under Parts IX and X; (f) notice for removal or alteration of building works; and (g) decisions on appeals against any decisions made or action taken under this Ordinance. (2) The Chief Planning Officer must provide to any person who so requests a copy of any entry in the Register upon payment of the prescribed fee. (3) The Register required to be maintained under subsection (1) may be kept in an electronic data storage and retrieval system whether by use of a computer or otherwise. (4) Regulations made under section 70 may provide that, in prescribed circumstances and in a prescribed manner, decisions and orders made under this Ordinance must be registered under the Registered Land Ordinance, 1980. Reporting by Authority 63. (1) The Authority must provide the Governor with any returns and other information with respect to the exercise by them of their functions that the Governor from time to time requires. (2) The Authority must, not later than the 31st of March in each year, submit to the Governor a report in writing relating to the year expired on the preceding 31st of December, containing any information prescribed. (3) The Governor must, as soon as practical after receipt of the report under 36 subsection (2), cause a copy of it to be laid on the table of the Legislative Council. PART XIV OFFENCES General offences 64. (1) It is an offence for a person, without reasonable excuse, to–– (a) carry out, or commence to carry out, any development contrary to section 16; (b) fail to comply with any condition to which a grant of development permission is subject; (c) fail to comply with the requirements of an enforcement notice issued under section 33; (d) fail to comply with any requirement of section 38; (e) fail to comply with the requirement of–– (i) a Building Preservation Order or interim Building Preservation Order made under section 40; (ii) a Tree Preservation Order or interim Tree Preservation Order made under section 42; (iii) an Amenity Order made under section 44; (f) wilfully give false information, relating to any matter in respect of which the person is required to give information under this Ordinance; or (g) obstruct any person in the exercise of any powers or the performance of any duties under this Ordinance. Penalty: A fine, or imprisonment for 5 years, or both. (2) If, in the case of a continuing offence, the contravention under subsection (1) is continued after conviction of the person, the person commits a further offence. Penalty: A fine, or imprisonment for 10 years, or both. (3) A person (a) to whom information has been given under section 51 or otherwise under this Ordinance; or (b) who has obtained any information in the course of his or her duties under this Ordinance, and who makes any unauthorised disclosure of that information to any person who is not required to receive that information, commits an offence. Penalty: A fine of £500 or imprisonment for 6 six months, or both. Offences by members of Authority and Tribunal 65. It is an offence for a member of the Authority or the Tribunal to–– (a) knowingly fail to declare any interest the member is obliged to declare by section 7 or section 55; or (b) having declared such an interest in accordance with section 7 or section 55 take, or attempt to take, any part in the decision of the Authority or the Tribunal. Penalty: A fine of £25,000 or imprisonment for a term of 5 years, or both. Offences by public officers 37 66. (1) It is an offence for a public officer who is by virtue of his or her office involved in the planning process, or in the determination of a planning application, for fee or reward, or in the expectation of any fee or reward, payable to himself or herself or any person associated with him or her, except in the course of duties as such a public officer, to – (a) assist any person who is applying for development permission or any other consent, by drawing or aiding in the drawing of plans or preparing any document or particulars which the officer knows or has reason to suspect will or may be used with the application; or (b) apply on behalf of a person who is so applying. Penalty: a fine of £5,000 or imprisonment for 2 years, or both. (2) Omitted (3) For the purposes of subsection (1), if it is proved that a public officer assisted an applicant by the drawing of plans or preparing any document or particulars, subject to the exceptions therein, it is to be presumed that he or she did so in expectation of a fee or reward payable to the officer or a associated person in relation to the officer, unless the officer proves to the contrary. (4) In this section, “associated person” has the meaning prescribed by regulations made under section 70. Offences by corporate body 67. If an offence under this Ordinance is committed by a corporate body and is proved to have been committed with the consent or connivance of a person who was a director, manager, secretary or other similar officer of the body, or who was purporting to act in such capacity, that person as well as the corporate body commits that offence and liable to be proceeded against and punished accordingly. PART XV MISCELLANEOUS PROVISIONS Service of notices 68. Any notice or other document required or authorised to be given or served under this Ordinance may be served on or given to the person concerned–– (a) by delivering it to that person; (b) by leaving it at the usual or last known place of abode of that person; (c) by sending it in a prepaid registered letter addressed to that person at the person’s usual or last known place of abode or, if an address for service has been given by that person, at that address; or (d) in the case of a corporate body, or other body, by delivering it to the secretary or other officer of that body at its registered or principal office in St Helena, or by sending it in a prepaid registered letter addressed to the secretary or other officer of that body at that office. Death of person having claim or right 69. Any reference in this Ordinance to a person having a claim for or a right to the 38 payment of compensation, or to appeal against any decision given under this Ordinance is, upon the death of that person before the determination of the matter at issue, to be construed as if the reference were a reference to that person’s personal representatives. Regulations 70. (1) The Governor in Council may make regulations generally for carrying into effect the provisions of this Ordinance. (2) Without limiting subsection (1), regulations may provide for forms to be used, fees to be paid, and procedures to be adopted for or in connection with the operation of this Ordinance and for anything which is to be, or may be, prescribed under it. Application to Crown 71. This Ordinance binds the Crown. PART XVI REPEAL AND CONSEQUENTIAL AMENDMENTS Repeal and amendment of legislation 72. (1) The Land Planning and Development Control Ordinance, 2008, is repealed. (2) Omitted LAND PLANNING AND DEVELOPMENT CONTROL ORDINANCE, 2013 LAND PLANNING AND DEVELOPMENT CONTROL (GENERAL) REGULATIONS, 2013 (Section 70) TABLE OF CONTENTS PART 1 PRELIMINARY 1. Citation, commencement and interpretation PART 2 PROVISIONS RELATING TO DEVELOPMENT PERMISSION 2. Applications for development permission 3. Public consultation on development applications 4. Conditions imposed on development permissions 5. Notice of decision on development applications PART 3