LAND LAW CUZL222

TOPIC 4: STATUTORY CONTROL OF LAND DEVELOPMENT

TOWN AND COUNTRY PLANNING ACT CAP 162
Introduction

• SUBTOPICS
• Statutory control of Land Development (Town and country
planning Act, CAP 192
STATUTORY CONTROL OF LAND USE IN ZAMBIA

• Introduction.
• At common law, any land owner was free to use and develop his
land in any way he wished provided he did not commit a nuisance
or trespass against his neighbor’s property.
• The need to provide for a rational and integrated pattern in the
process of land use and development necessitated the involvement
of the legislature.
• The primary object of planning is to ensure that all land is put to
the use which is best from the point of view of the community.
Town and Country Planning of 1932.

• Before 1909, there was no provision for the local authorities to

control the use of land.
• A number of successive statutes culminated in the development of
the Town and Country Planning of 1932.
• It was a requirement for the local authorities to prepare a scheme
to indicate what kind of development would be permitted in a
particular area of a town or district.
• There were powers of enforcement against land owners who
carried out development in contravention of the scheme.
First law was the Town Planning Ordinance of 1929.

• Legislation of town planning (such as the Rent Act and the landlord and
Tenant (Business Premises) Act found its way in Northern Rhodesia
• The first law was the Town Planning Ordinance of 1929. (Megarry and Wade,
the law of real property, London 4th ed, Stevens and Sons Limited, London,
2000 p.1086-1087).
• The general object of the Ordinance was to secure proper sanitary
conditions, amenity and convenience in connection with laying out and use of
land.
• The Ordinance, which only applied in Crown land, gave powers to prepare
planning schemes for proclaimed or private townships with very restricted
powers of control and to control subdivisions under 20 acres.
Repeal of the 1929 Planning Ordinance in 1962

• The ordinance provided for the appointment of a Town Planning

Board with the power to prepare a plan for any town referred to it
by the Governor and impose building standards.
• In 1962 the 1929 Planning Ordinance was repealed
• The new ordinance controlled of all subdivisions, wider powers of
control of development over peri-urban areas, provision for
appeal, compensation and for planning of regions and the inclusion
of reserves, trustland if needed.
Town and Country Planning Act of 1964.

• Provisions for appeal, compensation and for planning of regions

and the inclusion of reserves, trustland were not part of the 1929
ordinance.
• The 1962 ordinance became the Town and Country Planning Act in
1964.
• The current Town and Country Planning Act is modelled on the
1947 English Planning Act
Objectives of the Town and Country Planning Act

• To make provision for the appointment of planning authorities;

• To establish a Town and Country Planning Tribunal;
• To provide for the preparation, approval and revocation of local
and structural plans;
• To provide for the control of development and sub-division of
land;
Objectives cont’d.

• To provide for the assessment and payment of compensation in

respect of planning decisions;
• To provide for the preparation, approval and revocation or
modification of regional planning, and;
• To provide for matters connected with and incidental to the
aforementioned
Application of the Act

• In terms of application of the Act, the Republic is not bound by

the provisions of the Act. (See section 3 (1) of Chapter 283 of the
Laws of Zambia).
• The Act does not also apply to customary areas. However, the
President may, by statutory order apply all or any of the provisions
of the Act to any customary areas.
• Part VIII, states that the provisions of the Act shall not apply to
the area of any mine township.
Disagreement between Republic and Planning
authority

• Section 4 of the Act provides that the Republic shall not carry out
any development or subdivision of land in an area subject to an
approved structure or local plan without prior consultation with
the planning authority.
Minister is not bound

• In case of disagreement between the Republic and the Planning

authority there is a requirement under the section to refer the
matter to the Town and Country Planning Tribunal for an opinion.
• However, the Minister is not bound by the opinion of the Tribunal.
• The decision of the Minister on any written submission made to
him shall be final and not amenable to challenge in any
proceedings.
Appointment of Planning Authorities

• Section 5(1) provides for the appointment of Planning Authorities.

The section provides that-:
• 5. (1) The Minister shall designate the Director as the strategic
planning authority to-
• (a) exercise such other functions as the Minister may delegate to
the Director under section twenty-four; or
• (b) exercise such other functions as may be prescribed by the
Minister;
Planning Authorities

Under the Schedule the following are among the authorities with
delegated powers- City of Lusaka -City Council of Lusaka, City of
Ndola-City Council of Ndola, City of Kitwe-Council of Kitwe, Kabwe
Municipality-Municipal Council of Kabwe, Livingstone Municipality
Municipal Council of Livingstone.
By Statutory Instrument 192 of 1996, the Minister approved the
Municipal Councils of Choma, Mansa, Mazabuka, Mbala, Mongu and
Solwezi as Planning authorities for their respective Municipalities.
Settlement of Disputes – The Town and Country Planning Tribunal.

• The Tribunal consists of the President or Vice President and such

members not less than two in number as may be appointed by the
Judicial Service Commission from time to time and surveyor.
• One of the members of the tribunal appointed by the Judicial
Service Commission should be a qualified surveyor..
• The Secretary to the Tribunal is appointed by the minister.
Appeals to the Tribunal

• Section 11 (1) of the Act provides for appeals to the Tribunal.

• (a) any person whose interest in any land may be affected by any
decision of an appeal by the Tribunal shall have the right to
appear and be heard on the hearing of any such appeal;
• (b) the Tribunal shall hear and determine the matter of the
appeal and may make such order therein in addition to, or in
substitution for, the matter appealed against as it thinks fit,
including the award of costs to any party to an appeal, subject to
the provisions of paragraph (c);
Minister or planning authority to have
representation

• (c) if the Tribunal, after considering any matter brought before it

under this section, is of the opinion that the appeal should be
allowed, it shall, before making any order under the provisions of
paragraph (b), afford the Minister or planning authority an
opportunity of making representations as to any conditions or
requirements which he or it considers ought to be included in the
order and shall afford the appellant an opportunity of replying
thereto, and thereafter the Tribunal may make such order in the
matter as it thinks fit, and any such order shall be binding on the
Minister, planning authority and the appellant:
Tribunal not to operate in conflict

• Provided that the Tribunal shall not make any order which would
operate in conflict with any provision of an approved structure
plan or local plan;
• (d) all matters requiring to be determined by the Tribunal shall
be decided by a majority of votes and such decision shall be the
determination of the Tribunal:
Matter of fact or matter of law shall be made
solely by the President or the Vice-President

• Provided that-
• (i) any decision on a matter of law or on whether a matter for
determination is a matter of fact or a matter of law shall be
made solely by the President or the Vice-President;
• (ii) the President, the Vice-President and each member shall have
and shall exercise one vote, and no adviser to the Tribunal shall
be entitled to vote on any matter before the Tribunal.
Appeal lies with the High Court

• (2) Where any person who has appealed to the Tribunal

• under the provisions of this Act is dissatisfied with the decision of
the Tribunal, he may, within twenty-eight days of such decision,
appeal to the High Court against such decision.”
Structure Plans or Local Plans

• Part three of the Act covering ss 15 to 18 deals with structure or

local plans
• Before the amendment of 1997 structure plans and/or local plans
were collectively called development plans
• local plan means “ the plan prepared by a planning authority
under the direction of the Director in accordance with section
16A”
Minister may order a structure plan or local
plan preparation

• Section 15 provides that:-

• (1) The Minister may by statutory notice-
• (a) order a structure plan or local plan to be prepared for any
area specified in such notice and may stipulate after consultation
with the planning authority the time to be granted to the
planning authority for the preparation and submission of the plan
to him, and may extend such time;
• (b) change the structure plan or local plan by additions or
exclusions;
Notice changing the area of a local plan or an approved
development plan shall not become operative until forty-five days

• (c) change the area of an approved plan by exclusions:

• Provided that the order to prepare a structure plan or a notice changing
the area of a local plan or an approved development plan shall not
become operative until forty-five days after the date of publication of
the said order or notice, and any interested person may, within twenty-
one days after the date of the said publication, object to the Minister
to the preparation of such a plan or such change in area and, where any
person does so object, the Minister may, prior to the expiry of the said
forty-five days, order a public inquiry thereinto under section forty-
nine, in which case the said order or notice shall not become operative
until the Minister by statutory notice so declares.
Approval of structure plans or local plans

• Section 17 deals with approval of structure plans or local plans.

The section provides that:-
• (1) The Minister or Director may after considering a structure
plan or local plan submitted under sections sixteen and sixteen A,
as the case may be -
• (a) approve it in whole, or in part with or without modifications
or
Approval of structure plans or local plans

• (b) reject it.

• (2) The Director may on considering a local plan refuse to
• approve such local plan if-
• (a) the Director is not satisfied that the objectives of the
• local plan has been achieved; or
• (b) it does not conform to the structure plan as approved by
• the Minister.
Alteration of structure plans or local plans

• Section 18 deals with alteration of structure plans or local plans.

The section provides that:-
• (1) A planning authority may at any time after the approval of a
structure plan or local plan in respect of any area, on its own
initiative or upon directives from Minister or Director, as the case
may be -
• (a) within the period prescribed as may be specified in the
direction from the Minister or Director, as the case may be;
Submission to the Minister or Director for
approval

• submit to the Minister or Director for approval, proposals for the

alteration of an approved structure plan or local plan.
• (2) The planning authority shall furnish to the Minister or
Director, as the case may be, a report comprising such
modifications to the structure plan or local plan as may be
necessary.
Control Of Development And Subdivision Of
Land - Planning Permission

• The central concept under the Act is planning permission. Planning

permission is required for any development or subdivision of land.
Section 22 of the Act provides that:-
• (1) Subject to the provisions of this section and to the following
provisions of this Act, permission shall be required under this Part
for any development or subdivision of land that is carried out
after the appointed day.
Development And Sub-division

(2) The provisions of this Part, in so far as they relate to development,

shall apply only-
• (a) in areas in respect of which there is an order, made under the
provisions of this Act, to prepare a structure plan or local plan; and
• (b) in areas subject to an approved structure plan or local plan: and
• (c) in such areas as are within a distance of twenty miles from the
boundaries of any area mentioned in paragraph (a) or (b); and
• (d) in such other areas as may be specified by the Minister by
statutory notice.
Meaning of subdivision

• Section 22 (3) of the Act defines “subdivision” in relation to land

to mean:-
• the division of any holding of land into two or more parts,
whether the subdivision is effected for purposes of conveyance,
transfer, partition, sale, gift, lease, mortgage or any other
purpose, and "subdivide" has a corresponding meaning.
Meaning of development

• The term ”development” is central to the power of planning

authorities to control the use and development of land in
Zambia.
• Development means “the carrying out of any building, rebuilding
or other works or operations on or under land, or the making of
any material changes in the use of land or buildings but shall not
include-
Excludes changes of use of land or buildings

• (a) changes of use of land or buildings where the existing and the
proposed uses both fall within the same group of land or building
uses which may be prescribed;
• (b) the carrying out of works for the rebuilding, maintenance,
improvement or other alteration of any building, being works
which affect only the interior of the building or which do not
materially affect the external appearance of the building;
Construction of roads

• (c) the construction of roads in an area not subject to a structure

plan or local plan or approved structure plan or local plan, in
respect of which the Director of Roads is the highway authority;

• (d) the carrying out by a highway authority of any works required

for the maintenance or improvement of a road, being works
carried out on land within the boundaries of a road or road
reserve;
Delegation

• Under section 24 of the Act the Minister may delegate to any

planning authority his functions under subsections (1) and (2) of
section 25 relating to the grant or refusal of permission to develop
or subdivide land.
• Section 25 deals with application for planning permissions (which
is required under section 22 of the Act).
• The section provides that:-
Minister or planning authority may grant
permission either unconditionally or otherwise

• (1) Subject to the provisions of this section, where application is

• made to the Minister or planning authority to whom functions
have been delegated under section twenty-four for permission to
develop or subdivide land, the Minister or planning authority may
grant permission either unconditionally or subject to such
conditions as he thinks fit, or may refuse permission and, in
dealing with any such application, the Minister or said planning
authority shall have regard to the provisions of the structure plan
or local plan approved structure plan or local plan, if any, so far
as material thereto, and to any other material considerations:
Consultation with other authorities

• An application for planning permission must be filed in the

prescribed manner, accompanied by prescribed plans and
drawings.
• On receipt of the application, the planning authority normally
consults other authorities so as to ensure that the proposed
development does not violate public health and road traffic laws.
Application to the Minister to assess nature
of development

• Any person who proposes to carry out any operation on land or

make any change in the use of land or buildings who wishes to
have it determined whether the carrying out of those operations
or the making of that change in the use of the land or building
would constitute or involve development within the meaning of
the Act and if so, whether an application for permission in respect
thereof is required under the Act, may apply to the Minister or
planning authority as the case may be to determine that question.
Additional Provisions for Appeal to the
Tribunal

• (1) Where application is made under this Part to the Minister or

planning authority to whom functions have been delegated under
section twenty-four for permission to develop or subdivide land, or
for any approval of that planning authority required under a
development order or subdivision order, and that permission or
approval is refused by the Minister or planning authority, or is
granted subject to conditions, then, if the applicant is aggrieved by
the decision, he may, within twenty-eight days from the receipt of
notification of the decision or such longer period as the Tribunal in
writing may agree, and in the manner prescribed, appeal to the
Tribunal.
The Revocation and Modification of Planning
Permission by Minister

• Section 30 (1) empowers the Minister to revoke and modify

planning permission on certain grounds. The section provides
that:-
• (1) Subject to the provisions of this section, if it appears to the
Minister or planning authority to whom functions have been
delegated under section twenty-four that it is expedient, having
regard to the structure plan or local plan, approved structure
plan or local plan and to any other material considerations,
The Revocation and Modification of Planning
Permission by Minister

• that any permission to develop or subdivide land granted by a

development or subdivision order or on an application made in
that behalf under this Part should be revoked or modified, he may
by order revoke or modify the permission to such extent as
appears to him to be expedient as aforesaid.
Enforcement of Planning Control- Enforcement Notice

• Section 31 deals with enforcement of planning control.

• (1) If it appears to the Minister or planning authority to whom
functions have been delegated under section twenty-four that any
development or subdivision of land has been carried out after the
appointed day without the grant of permission required in that
behalf under this Part, or that any conditions subject to which
such permission was granted in respect of any development or
subdivision have not been complied with, then the Minister or
planning authority may…
Enforcement of Planning Control-
Enforcement Notice

• …within four years of such development being carried out, or, in

case of non-compliance with a condition, within four years after
the date of the alleged failure to comply with it, if he considers it
expedient so to do having regard to the provisions of the
appropriate structure plan or local plan or approved structure
plan or local plan, if any, and to any other material
considerations, serve on the owner and occupier of the land a
notice (hereinafter called an enforcement notice) under this
section.
Acquisition of Land

Part VII of the Act, covering sections 40 – 43, deals with Acquisition
of land. Section 40 of the Act provides that:-
Where any land is required to be included in a
structure plan or local plan or approved structure plan or approved local
plan the Minister may recommend to the President that the Land may be
acquired by the President in accordance with
Power to Hold or Cause the Holding of
Public Inquiries

• Section 49 (1) empowers the Minister for the purposes of executing

his functions under the Act to hold or cause the holding of public
inquiries.
• Building Control- Local Government Act and Public Health Act
• Local Authorities have powers under the Local Government Act
and the Public Health Act to control the erection of buildings and
to control the demolition and removal of buildings which do not
conform to approved plans or are a danger to public health or
safety.
Acquisition of Land

the Lands Acquisition Act.