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Land Use Planning

LAND USE PLANNING IN THE PRE-EIA ERA

Jean Baptiste Philogene de Malavois, a French engineer, agronomist and geographer was perhaps one of the first colonizers in 1786 to institute orderly land tenure, allocating to each habitant at the time 112 acres of land from the coast upwards . He was also instrumental in the implementation of the 'Cinquante Pas du Roi', an area of about 100m inland from high tide where no development was permitted, except for military fortifications. Unfortunately, much later in response to the Secretary of State concern over indiscriminate development, the local court in 1903 concluded that the 'Cinquante Pas du Roi' had not been respected and that there was no law in force or applicable to redress the situation. Availability of land for development since then has become one of the major constraints of development and is subject to severe competition due to the wide range of uses, such as environment protection (43%), agriculture (22%), tourism (6.3%) and human settlements (11.7%). The scarcity of coastal land for development has already led to the reclamation of over 600 ha. along the East Coast of Mahe island. Table 2 below, shows the low percentage of coastal plateau available on the main islands.

Table 2 Coastal plateaux area on the three main islands in the Seychelles.

It is estimated that 90% to 100% of the population is concentrated on the narrow coastal strip. Mahe has a total land area of 148 square kilometers, which leads to a population density in excess of 400 persons per square kilometers. Approximately 40% of the population is located on the East Coast of Mahe from Victoria to the InternationalAirport on a coastal belt, which is only about 7 km long by 1 km wide. The Government of Seychelles has, despite these pressures for development and imminent encroachment on forest and sensitive habitats maintained a very tight control on the level of development as well as the types of development. Government has especially been consistent with its policy to limit the extent of housing development on the hilly slopes, preventing the construction of heavy industries. In this context, the government stood by its policy against the development of high-rise tourism infrastructures along the coast.

However, problems and ineffectiveness concerning the management of development from both planning and control perspectives still abound. Although there is over 100 years of land use legislation in Seychelles, the most modern is the Town and Country Planning Act, enacted in 1972. It is largely based upon the 1947 and 1962 Town and Country Planning Acts of the United Kingdom, since at the time Seychelles was a Crown Colony of the British Empire.

Development is defined by the 1972 Act as the carrying out of building, engineering, mining, or other operations in, on, over, or under any land, and the making of any material change in the use of any buildings or land, including any subdivision of land which is or is intended to be used for any residential, commercial or industrial purposes (Section 7). Table 3 below summarizes the various legislation enacted since the 1972 Act, which currently provides a framework for managing development including any subdivision of land which is or is intended to be used for any residential, commercial or industrial purposes (Section 7).The table below summarizes the various legislation enacted since the 1972 Act, which currently provides a framework for managing development.

The 1972 Actand its subsidiary legislations are implemented and overseen by a statutory body: the Town and Country Planning Authority (TCPA). This is dictated in section 3.1 of the Act. In the first Schedule, the powers and responsibilities of the authority are specified. The TCPA has traditionally operated under the Ministry of Land Use and Habitat and not as an autonomous authority as originally intended. This is due to close working relationships required with the various divisions within the ministry, notably the Physical Planning and Survey Divisions. Whilst the Physical Planning Division still has the role of secretariat, processing and managing the planning applications received on a daily basis, delays in approving some applications prevail. The 1972 Act is currently being reviewed to bring the legislation up to date, especially with developments in environmental law, approaches to enforcement, and to cover developments in coastal marine areas. The TCPA will also be reviewed and improbably be given some degree of autonomy in practice.

Table 3 Land Use and Development Legislation enacted from 1901 to 1995 (the post- EIA era)

HISTORICAL PERSPECTIVES IN THE DEVELOPMENT OF THE EIA REGULATION

The need for legislation to address emerging environmental issues and problems in Seychelles only received particular attention over the last ten years. The first Environment Protection Act was enacted in 1988, however this was repealed and replaced by a more comprehensive act, the Environment Protection Act 9 of 1994 (EPA1994)13. The main objective of the EPA 1994 is to provide for the protection, improvement and preservation of the environment and for the prevention, control and abatement of environment pollution (Section 3). The main sections of the EPA 1994 are described below:

• S.1 to S.3 General and definitions
   
• S.4 to S.5 Administration of the Act and functions of bodies instituted
   
• S.6 to S.14 Prevention, control and abatement of Environment Pollution - provisions for prescribing standards, subsidiary legislation, pollution areas, recycling and adoption of cleaner technologies, declare coastal zones and prepare ICZM plans, environmental research and monitoring control. use and trade in substances, waste, or activities which endanger the environment.
   
• S.15 Environment Impact Assessment - control of development and activities in a protected or ecologically sensitive area, set up of the EIA appraisal committee, contents of the EIA, responsibilities of the developer, provision for public inspection, claims and appeals, and monitoring of development or activity fro compliance with EIA recommendations.
   
• S.16 to 28 Enforcement of the Act - includes provisions for serving of enforcement notice, prohibition notice, with powers given to authorised officers for entry, examining and test any equipment, record and document, collection of samples, appointment of Government analyst and declaration of environmental emergencies.
   
• S.29 to S.40 Offenses, penalties, procedures and other provisions - includes provisions for consultation with other bodies in implementation of the Ac.

Although, there was already a large number of environment related statutes, the consistency and level of fragmentation between those instruments warranted the drafting of the EPA 1994. Section 15 of the EPA 1994 provided for the enactment of the first generation of EIA regulations in Seychelles. Whilst the EPA 1994 provided the framework for the establishment, procedures, criteria for implementation and the administration of an EIA, the regulations were actually put into law after the EPA 1994 had been endorsed by the National Assembly. The Environment Protection (Impact Assessment) Regulations (thereafter called the EIA regulations) consequently came into force on the 26th May 1996. It contained the following sections:

• S.1 to S.3 General and reference to section 15.1 of the EPA 1994
   
• S.4 Application for authorisation  - application requirements, with a specific reference to the TCPA
   
• S.5 to S.6 Determination of Authority - introduces the Class 1 and Class 2 EIAs. This is linked with the TCPA (regulations 5.3).
   
• S.7 Submission of the EIA by the Proponent
   
• S.8 Public inspection of the EIA.
   
• S.9 Role and function of the EIA Appraisal Committee, which shall be ad-hoc
   
• S.10 Authorisation of project or activity
   
• S.11 Right of appeal against any decision.
   
• S.12 Covers other developments falling outside the scope of the TCPA, such as resource extraction, marine recreational activities, etc.
   
• Schedule 1 List of projects or Activities requiring environmental authorisation under regulations 3.1
   
• Schedule 2 Protected and ecologically sensitive areas under regulations 3.2
   
• Schedule 3 Form of Memorandum of Appeal.

The development of the EIA Regulations, as expected, was a highly contested and frequently redrafted piece of legislation. To ensure its credibility, section 15.1 of the EPA1994 was added to clearly indicate that:

"Notwithstanding any license, permit or approval granted under any other Act, any person who commences, proceeds with, carries out, executes or conducts or causes to commence, proceed with, carry out, execute or conduct any prescribed project, activity or any project or activity within a protected or ecologically sensitive area as may be prescribed under this Act or under any other Act for the time being in force –

(a) without carrying out an Environmental Impact Assessment Study and obtaining the authorization for the Authority;
(b) in breach of any conditions imposed by the Authority,
is guilty of an offence"

Almost every major development project in the Seychelles is subject to environmental screening and authorization by the authority designated under the EPA1994, i.e. the Ministry of Environment. Other ministries expressed several concerns at the time. These key concerns included:

(i)                 the powers vested in the EPA (1994) and subsequent EIA Regulations may compromise decisions of the Planning Authority (administrator of the Town and Country Planning Act, 1972);

(ii)               the possible delays in processing projects;

(iii)               the additional cost to development;

(iv)             the technical capacity of the country to prepare and review EIA's;

(v)               the availability of baseline environmental information;

(vi)             the composition and independence of the EIA authorization body; and

(vii)            the relevance of EIA projects to certain types of activities.

Following many consultative meetings and draft proposals, the final text of the present regulations was agreed upon, which essentially provided a mechanism for close consultation between the key Ministries involved, i.e. the Ministry of Land Use and Habitat and Ministry of Health. A direct link and cross-reference to the Public Health Act 1960 and the TCPA 1972 was also included. The list of projects and activities listed in Schedule 1 of the EIA Regulations is quite comprehensive, covering mining, agricultural production, forestry, fish processing and aqua-culture, chemical industries, construction industry, transport of goods and materials, agro-industries, energy production and distribution, water, sewage and wastewater, solid waste, hotels, restaurants and tourism activities, land reclamation, housing and urban development and roads. Whilst there was much debate about the requisite threshold of each project or activity to be met for an EIA, it was agreed that through the screening process, the Authority would subject these to either an EIA Class I or II pursuant to guidelines laid down by the Authority. Schedule 2, on the other hand, covers an extensive category of legally protected and ecologically sensitive areas. These include: namely protected areas by law; historical sites; national monuments; remarkable natural landscapes; viewpoints; interurban buffer zones; water catchment areas; industrial risk areas; natural risk areas; steep slopes; areas prone to erosion; high elevations; and the skyline. The schedule also lists certain habitats, which are considered sensitive, and draws reference to international conventions such as CITES. The list also includes marshes and wetland habitats, streams and surroundings, the coastal strip (100m from the high-water mark), beaches and inter-tidal zones, the seabed, small islets and all the outer islands. The first generation of the EIA regulations were therefore very comprehensive, but involved the participation of experts and stakeholders. Contrary to the development of EIA legal frameworks elsewhere, the motivation for the EIA process has been driven primarily by the need to address the issues of environmental impacts and development in a more informed and long-term manner. The present EIA regulations bring together a wider scope of issues, such as environmental, social, economic, health, cultural, resource management and risk within the entire planning process. Similarly the regulations are not only limited to the impacts of projects and activities, but look at habitat responses, biodiversity effects, and sustainability considerations. Although many countries have opted for a separate statute for EIA (e.g. Canada and Korea), using the specific regulations under the already proclaimed EPA 1994 had its advantages. Since, the EPA 1994 laid the basic legal principles and framework for environmental impact assessment, the development of the EIA regulations, which was part of a much longer process, was developed without revisiting the environmental principles already embedded in the EPA 1994.