Legal Aspects of Implementing the Crown Land Policy

Legal Aspects of Implementing the Crown Land Policy Presentation to the Ministry of Natural Resources, Government of the Turks and Caicos Islands By Professor Tom Johnson York University and Terra Institute Ltd. October 16, 2007 © 2007 Tom Johnson 1

Crown Land Policy o Government Objectives - Clause 14 of Crown Land Policy n “Government will take the necessary actions to draft and pass legislation to regulate, the inventory, allocation, pricing and management of Crown Land. This will ensure that the current policy of equitable allocation and sustainable use of Crown Land is effective in the long-term, and not easily modified by future Cabinet decisions or future political mandates. Therefore, the establishment of a Crown Land Ordinance will go a long way to empower, sustain and protect the rights of the Belonger community well into the future. ” 2

Drafting Objectives: o In keeping with best international practice: n Establish the Crown Land Department in accordance with the Crown Land Policy, and to the extent possible, incorporate the policies contained in that document; n Clarify and provide for the rights, duties and obligations of all parties involved in management and administration of Crown land; n Provide for the orderly and efficient allocation of Crown lands, in a manner that conforms to the principles of due process and natural justice; and n Provide sufficient resources, training, enforcement mechanisms and sanctions to ensure that the purposes of the proposed ordinance are not defeated 3

Overview: o Focus this session n o Legal aspects - allocation of Crown Land o Basic Assumptions o Legal aspects in light of current legislation and best international practice Proposed Ordinance n Deal with in the second session, after the break 4

Grant of Interest in Crown Land o Allocation n By what process? o Government grant n o Freehold, CPL etc When does a grant take effect? n n n Execution of grant by Governor – section 94 of the Constitution, 2006 o Binding on parties Registration: o Binding on third parties But what is the process prior to that? 5

Orderly delivery of Crown land to match demand o Assumption 1: n n o Demand is for development purposes o In order to meet the objective of “…sustainable use of Crown Land. . ” Crown should be granting land for development purposes only Process: o Development, including subdivision, requires development permission o Therefore, development permission should precede grant Assumption 2: o National Development Plan essential to Dev. Permission 6

Proposed process for orderly delivery: o o Subdivision of block in accordance with planning requirements Allocation of parcels within that block n o o Residential and Commercial Requires development permission Development permission in accordance with the National Development Plan / Local Plan 7

Current legislative provisions for development permission o Physical Planning Ordinance n n n Section 2(1) - “Development”: o “…means the carrying out of building, engineering, mining or other operations in, over or under any land, the making of any material change in the use of any building or land or the subdivision of any land: …” [emphasis added] Section 2(1) – “Development Permission”: o “…means permission for development given under the provisions of Part V; …” Section 90: o “This Ordinance shall bind the Crown and the Government. ” 8

Development Permission – Part V o Section 28(1): n “No person shall carry out any development unless, prior to the commencement of such development, approval therefor has been obtained under the provisions of this Ordinance…” 9

Development Permission - Process o o o Issued by the Physical Planning Board appointed by Governor Independence of the Board ensured through appointment process and conflict of interest provisions (sections 4, 9 and 10) 10

Development Permission – Process: Policy o General policy directions – section 16 n n “The Governor acting in his discretion or the Minister may give directions in writing to the Board as to the general policy to be pursued as to the grant of development permission. ” Suggests, by negative inference, Governor and Minister would not be involved in the first stage of the process at the decision-making level o this understanding is reflected in the appeal provisions as well 11

Development Permission Process o Expert advice n Director acts as “…principal advisor to the Governor, the Minister and the Board. . ” on planning matters n What is the legal effect of this advisory role? o o Reliance on expert advice insulates decisionmakers and public officers from liability Compare to best international practices: n Independent decision-making authority; and n Provision of expert advice 12

Development Permission – Process o o o Applications submitted to Director Board makes a decision, taking into consideration the matters listed in s. 34 n Includes comparing application to National Development Plan Note section 35: n Board, with advice of Director and consent of Governor, may enter into discussions with any person regarding development agreement 13

Development Permission - Process o o Board has full discretion in reaching a decision - s. 36 Section 37: Development permission lapses: n one year after grant of outline DP n 3 years after grant of detailed development permission if construction not completed [emphasis added] n Provision for returning to Board to request an extension n Time period tied in with 3 year Conditional Purchase Lease 14

Appeal from Bd’s decision o If application for development is rejected bythe Board: n n o o Right of appeal to Minister – section 82 Ordinance (ss. 82 ff) provides for the process to be followed by the Minister in such instances o Appointment of inspector etc to investigate an report to Minister makes a decision If development permission still denied, right of appeal to Governor by way of petition – s. 87 Governor’s decision on the matter final 15

Development and Grants o o o Currently, the Physical Planning Ordinance provides for a careful, elaborate, procedurally precise, and transparent mechanism for the issuance of development permission To what extent should this process be replicated or modified in the proposed Ordinance? Assuming development permission would be a condition precedent for allocation of Crown land, the current system under the Physical Planning Ordinance would provide for orderly delivery of Crown land onto the private market. 16

Proposed Process: o o o Demand from applicants would be assessed by Director of Planning and Commissioner of Crown Lands Commissioner would act as administrative agent Government would make the policy decision n o o o This step is necessary for allocation of Government funds to support the proposed development Independent body – Planning Board – would consider the application(s) from planning perspective, and essentially that decision would be the allocation mechanism, subject to right of appeal National Development Plan essential Decision would proceed through the appropriate administrative channels to grant of an interest in Crown land, and registration 17

Crown Land Policy - Clarification of outstanding issues o Belonger discounts o o Clarification Appeal process n By whom, to whom? 18