October 10, 2005 The Speaker of Anguilla House of Assembly, the Honourable David Carty on August 23, 2005 suggested (following discussions with the Chief Minister) that the passage of the Physical Planning Bill and the Labour Code Bill be postponed to allow for further public consultations even though these had already occurred. He felt that this was appropriate --- given the significance of both Bills to Anguilla’s development. On raising the matter, the Speaker asked the Chief Minister as Leader of Government Business and a Member of the Opposition to comment on his suggestion.
In his comments the Chief Minister, Honourable Osbourne Fleming, suggested that there should be joint public consultations by Government and the Opposition to field their views on the Bills and then put forward any valid suggestions or amendments for consideration during the final debate in the House of Assembly. His idea was that these consultations would be non-partisan --- given the national significance of the Bills. The Honourable Hubert Hughes speaking on behalf of the Opposition applauded and agreed to this approach. The Chief Minister’s suggestion received unanimous support by the members of the House of Assembly.
Over the last few weeks discussions on the Physical Planning Bill have inundated the air waves, other media, normal conversations and heated arguments. Interestingly enough the Labour Code Bill which was anxiously awaited by workers in the private sector did not receive the same level of attention. These discussions were facilitated by the fact that the government delivered on its promise of public consultations and began a series of meetings in the various communities beginning with East End on September 6th.
Whereas the meeting in East End was conducted in an atmosphere conducive to solid dialogue and exchange ---- the meetings at the Teacher’s Resource Centre on September 15th and the Road Primary School on September 22nd did not, for the most part, allow for any such fruitful dialogue or useful exchanges. As an elected member and a Minister of the present Government I attended all of these meetings. And in the absence of the Chief Minister, Honourable Osbourne Fleming and the Special Assistant for Public Relations, Mr. Curtis Richardson at the Teachers Resource Center I had the privilege to act as Chairman.
The behaviour of a number of Anguillian professionals at these last two meetings, particularly some from the legal calling, made all our efforts to conduct the proceedings in an atmosphere of mutual respect and adherence to parliamentary procedure ---impossible. In fact, the technical officers who were invited to shed light on the interpretation of aspects of the bill were so intimidated by the hostile nature of the audience that they became unwilling to continue. It was at that point that Government decided that the town hall meetings were counter-productive and accordingly postponed the meeting scheduled for West End until further notice. Naturally, many residents of that community expressed dissatisfaction with that decision. While we apologize for the postponement we feel that to hold any meeting under those conditions would be pointless. In fact, even the West End meeting held in our absence sounded on radio to be just as chaotic.
In my position as Minister for Economic Development, I feel compelled to comment on the situation arising from these efforts by Government to be open and transparent in bringing these two pieces of legislation to the public for its response. Especially, since it would appear from the current chatter that the objectives and purposes of the Bill are being coloured by interpretations totally different to those of policy makers in Government. Furthermore, because the main factors in economic development are land, labour and capital --- these bills relating to the first two factors must of necessity concern my ministry. In line with this, I have therefore asked the Chief Minister as Minister of both Lands and Labour to allow me to respond to the present “protest” which was described by one of the participants as “democracy at work”.
Let me first of all defend those persons who have been shamelessly and unfairly attacked as being the proponents of this legislation, namely, the drafting department in the Attorney General’s Chambers and in particular the Attorney General. To begin with the public needs to be aware that the content of legislation, especially legislation dealing with technical matters such as the Bills being discussed, does not have its source in the AG’s Chambers.
Drafting is a specialist area and persons who take up that focus in the legal profession are rare and in high demand. They are rare, I would suggest, because of the tedious and painstaking nature of their job. We frequently advertise for drafters in Anguilla and the region but in recent times, only one person with such interest, who is Anguillian, has come forward. That person now works in the AG’s Chambers. Let me reemphasize a section of a press release from the AG’s Chambers: “a legal draftsperson in Anguilla must have a good command of the English Language and the rules of English grammar …… regards to the limits that the Anguilla Constitution places on the law-making powers of the Legislature and any other named functionary, the technical rules of statutory interpretation, the presumptions normally employed in the construction of statutes, the approaches which the Courts may adopt in applying a statutory provision, rules of civil and criminal procedure as well as several legal principles including the principle of the unity of law”
In short, the legal draftsperson converts government policy previously agreed in the Executive Council into legislative language. The legal draftsperson does not, as is being suggested, determine what policy decisions go into the law. If Anguillians are not happy with the content of any bill, the blame should and must rest squarely on your elected government --- not those diligent and dutiful draftspersons or for that matter the Attorney General. But what is even more unwarranted in the present talk is to suggest that a prerequisite for drafting appropriate legislation for Anguilla is to be Anguillian. If that were the case we would never be able to keep up with the requirements for drafting in an island struggling to keep pace with the volumes of critical legislation required for the governance and regulation of a modern society. It is because of this reality that we still have legislation on the books from “Bradshaw Times”.
The campaign to derail the passage of the Physical Planning Bill is being assisted by a dishonest and irresponsible propaganda leaflet distributed by the leaders of this protest. I was in the right place at the right time to receive my copy from two young and energetic female lawyers riding around in a light-tan pickup truck. This leaflet to my mind appears to be merely intended to incense Anguillians who traditionally hold land dear to their hearts --- and quite rightly are prepared to resist any law which would appear to jeopardize the enjoyment of their property in an unfair and inequitable manner.
It is in this context that I would want to remind my fellow Anguillians that all the laws which we as legislators make apply to us as well. They apply now while we are elected as well as after the people would have made other choices for representation in the future. We too have land. We too have children. We too build houses. We too are Anguillians. I repeat we too are as Anguillian as any one in this campaign. And equally proud! So would we be so daft as to believe that we are exempted from the provisions of any Bill that would seek to “betray” our Anguillianism as the proponents of this campaign wish to suggest. Get Real!
Let me systematically respond to these statements in that dishonest and irresponsible propaganda leaflet which may have been designed to omit, deceive, mislead and incense unwitting audiences.
Statement: “YOU CANNOT use your land as you wish without a development permit.” First of all the term “development permit” is for all intents and purposes the same as the term “planning permission”. Everyone who wishes to develop his/her property must seek and receive planning permission. In other words the assertion that the passage of this new Bill will create a condition which does not now exist is misleading. This new Bill simply reaffirms that requirement which already exists in the present legislation and ensures that breaches can be dealt with effectively. In other words, the Bill recognizes the important principle that legislation can only be effective if it can be properly enforced.
To expose the nonsense of this statement we must only reflect on a scenario where a landowner contends “this is my land and not a soul can tell me what to do with it.” This would be a recipe for chaos. How would you feel if feel if your neighbour started a pig farm or set up a garage to spray paint cars four feet from your bedroom window. Owning a piece of land does not give you the right to prohibit your neighbour of the right to use or enjoy his/her land in comfort. They too worked hard to secure their property. And someone has to regulate that coexistence. The Bill is designed to ensure that right and the development permit or planning permission gives you the land owner that opportunity to do so in harmony with your neighbour.
Statement: “YOU CANNOT subdivide or leave your land to your children (like in a will) or sell or lease without a development permit.” This statement fits two of the above categories --- it has the capacity to incense someone who feels he/she is restricted from “willing” his land to his/her child and it also misleads because it implies that you need a development permit to sell or lease your land. NONE! I repeat NONE of these conjoined statements are true! As it now stands all subdivisions require planning division or a development permit. This was so since “Bradshaw days” under the present Land Development Control Ordinance 1966. So if you are not subdividing your land you can will it your child or sell, mortgage or lease it to whomsoever is qualified to inherit or purchase it. The provisions for subdivision in this new Bill are the same as existing legislation. Again I repeat from “Bradshaw times.”
Statement: “YOU CANNOT occupy your house if it is not completed. You are not allowed to build your house over time.” This statement again fits two of the above categories. It is intended to incense persons who may feel that the Bill changes the way Anguillians have been able to acquire their homes over the years as well as misleads one in to believing that you cannot build your house in stages. It is also possible that the architects of the propaganda leaflet are not aware that the Anguilla Building Code which is a policy document that has been used for the last ten years will form part of the regulations under this Bill.
This Bill is intended to ensure that builders build your home to a standard that is fit for occupancy. The onus is on the builder to show that he has done the right thing. Like in other developing countries in our region the building inspection section of the Physical Planning Department ensures that from foundation to roof your property is constructed according to specifications in the building code and is in compliance with the Building Permit. Builders who have worked in the Virgin Islands for example are accustomed to this. And the Anguilla Building Code specifically states that a temporary certificate of occupancy may be used for a portion or portions of the building which may be safely occupied prior to the final completion of the building.
Again it must be reiterated that the policy is not intended for homeowners to get a certificate of occupancy to live in their house. The Board and the Government want to ensure that the structural integrity of the building is not compromised and for example the plumbing and electricity wiring are safe. This provision is especially important for Anguillians who have to rent houses or apartments. And is helpful to the homeowner that requires a Bank or Insurance Company to approve his/her home for a loan for coverage.
With regards the statement that you cannot build your house over time --- Section 59 of the Bill explains that even though a Building Permit lapses after ten years the lapse of the permit does not prevent a person from applying for a permit to finish the building. The fact is that this provision already exists under the Building Act of 1974 under which we are now operating --- this is not a new provision as is being suggested.
The passing of this new Bill will not change the provisions on the duration of a building permit. The sole reason for this provision is in the interest of heath and safety. For example after ten years the exposed steel in an unfinished building in our climate would have corroded. The electrical and plumbing fittings may have deteriorated. Hence the structural integrity, the health and safety of the building could be seriously compromised. We must put these erroneous extrapolations in their correct context.
Statement: “YOU CANNOT determine the size of your house or building, the design of your house or building, or the colour of your house or building.” This statement represents to my mind a deliberate omission of the fact that such authority by planning can only exist if it is agreed to be included in a development plan. Where a development plan does not address specific requirements as to design, size and colour NO ONE I repeat NO ONE can enforce any such requirement. I consider this omission deliberate because anyone with even a limited knowledge of legal language is aware of the difference between the word “may and shall” in a legal document. The Bill clearly states in Schedule 2 that a requirement for such particularities may be agreed in a development plan that is produced after a careful preparation and approval process which includes widespread public consultations and representations. No where in the Bill does it ever suggest that such particularities shall or must be agreed.
But given that it may be found desirable to designate such matters as colour, size or design for a particular area. What could be some of the reasons for such a decision? Here is a scenario. Anguillians may wish to designate an area as having historical or archaeological importance. To do so they may require certain buildings to remain in their original form or --- refuse permission for some form or design of development that may distract from the esthetics and/or amenity of the area. But the process for such designations can only be enacted after of wide consultation. In St Barths for example there is a development ruling that all house roofs be painted red. There may be some cultural reason for this ---- but it does create a wonderful site on those hilly landscapes. What is the big deal if we all agreed to some uniformity in a particular planning zone?
Statement: “GOVERNMENT CAN designate your land to be agricultural, commercial, residential, industrial or for conservation.” This statement is misleading. The Bill does not give any one the authority to designate your land to be in one of these categories in an ad hoc or subjective manner. It must be a part of a comprehensive zoning exercise which can only be decided through a process of wide consultation. The aim of a Physical Planning Bill must be to facilitate and stimulate the development process in a balanced and orderly arrangement of land use. Land must be allocated for residential, commercial, tourism, industrial, institutional, recreational and infrastructural uses. Is it not desirable for Physical Planning to ensure that a land owner next to Cap Juluca, Paradise Cove or Royale Caribbean does not put a junk yard or a poultry farm near to the hotel? The Bill allows that such critical measures may and I emphasize may --- be included in an approved development plan.
Statement: “GOVERNMENT CAN determine if your house or building should be demolished if it seems to them to be dilapidated and have the powers of injunction to remove you from your house or building. Another misleading statement! The demolition of any building can not occur arbitrarily. Under Section 44 of the Bill clearly outlines the process which includes a decision of the Board and a right of appeal under the Appeals Tribunal. I am quite sure that if there is a dilapidated building in your area which is structurally unsound you would wish to know that some one has the power to order its demolition or removal if there is a serious hurricane approaching. The Bill makes provision for such an order to be enforced if required.
Statement: “GOVERNMENT CAN form a development plan for the area where you live and do not ever have to purchase the land from you but in the meantime any plan which you apply for to use your land will be rejected if it is inconsistent with the development plan for the area.” This statement suggests that this Bill is putting forward something novel --- but it also implies that when a plan is rejected for development of property you own in a development zone you have no recourse. The fact is that in the case of at least one infrastructure project in Anguilla such a situation existed. For example the planned expansion of Wallblake Airport! Anyone who was rejected for building permission who owned land was given the option of exchange for an alternative site. And more recently when the expansion began persons whose houses had to be removed or abandoned were able to negotiate compensation or relocation. The passage of this Bill does not change this already existing provision which is enshrined in the principle of acquisition for a public purpose or the principle of eminent domain.
It has not been my intention to be exhaustive of all the comments made by leaders of this protest against the Planning Bill. But rather to give you an idea of what I cannot but describe as a strategy to derail the passage of the Bill by putting forward statements which do not accurately represent the content or context of the legislation. Neither is it my intention to say that of the Bill is a perfect document. No Bill can have that attribute. After all that is why the Chief Minister suggested that we go to the public for their views in a non-partisan setting in the first place. All legislation is dynamic. It is always subject to amendment to fit the changing circumstances and times. This Bill is no different.
What I am saying however is that the furor which now exists is unnecessary. The concerns being expressed misguided or otherwise require no civil disobedience to be recognized. Government itself has flagged up and has become aware of useful changes which could improve the quality of the Bill. Many of these have come up even in some of these unruly discussions. But simply because a certain member of the legal profession puts forward a particular interpretation of some aspect of the Bill, loudly and even articulately does not mean he /she is correct. Lawyers can very often differ on points of law --- that is why we have judges in the court. You do not make your case in Court by shouting louder than the other advocate --- the same holds true for life in the community.
Let me list a number of concerns which are disturbing. It is disturbing that persons who make a living by upholding the law seem inimical to laws, regulation and orderly conduct. It is disturbing that persons who have had distinguished careers in another man’s country would seek to degrade professionals of high integrity from this region and other parts of the developing world seeking to do a fair, equitable and honest job. It is disturbing that some Anguillians are not prepared to allow their own public officials to express opinions relevant to their area of expertise in public fora. It is disturbing that some Anguillians openly express that they do not trust local professionals to be on Regulatory Boards. And most of all it is disturbing that many Anguillians prefer to listen to gossip and rumour than to read and try to understand before they take a radical position on issues which can affect their lives and their country.
So I cannot help but be cynical as to the motives of some of the leaders of this protest. It is interesting to note that most of them have land related issues with the Government and People of Anguilla. Some of them have active cases in Court --- others have disputes about Government decisions on planning matters. These include reluctance to contribute land for infrastructure development, rejections for planning permission, squatting on Government property, objection to government policy decisions on specific projects and general opposition to this newly elected Government. While I hope that my cynicism is unfounded the rallying of persons vehemently opposed to this government and the unwillingness to discuss these issues in an orderly and controlled setting as we have requested --- gives some credibility to such observation.
The comments on regional and international media by respected Anguillian professionals could suggest that a view exists that this Bill could be a part of an ongoing scheme to establish a land Bank. Conspiracy theories sometimes take on a life of their own and are extremely difficult to dispel. But if it would be helpful to those large or even small landowners who believe that the United Front has designs to arbitrarily acquire their property to establish a land bank please be advised that there is no such plan.
Finally, let me inform all Anguillians that the Physical Planning Bill is designed to provide for a physical environment, which is essential for the promotion of a healthy, civilize life style, whereby creating and maintaining a sound social, environmental, political, economic and investment climate for all Anguillians and residents alike. No longer will any one have to lie down in front of Backhoes and Bulldozers to secure his/her rights. This new Bill as it evolves with your suggestions and contributions will seek to ensure that we live in a society where harmonious condominium of people from all walks of life can be achieved. Let us not allow personal agendas to lead us away from this noble objective. God Bless You All. I do thank all you very much for your kind and patient attention.
Victor F. Banks
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