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Solomon Islands Sessional Legislation |
TOWN AND COUNTRY PLANNING (AMENDMENT) ACT 2017
(NO. 1 OF 2017)
TOWN AND COUNTRY PLANNING (AMENDMENT) ACT 2017
(NO. 1 OF 2017)
PASSED by the National Parliament this thirteenth day of February 2017.
(This printed impression has been carefully compared by me with the Bill passed by Parliament and found by me to be a true copy of the Bill)
Clezy Rore
Clerk to National Parliament
ASSENTED to in Her Majesty’s name and on Her Majesty’s behalf this seventeenth day of March 2017.
Mr. Ajilon Jasper Nasiu
Acting Governor-General
Date of Commencement: see section 2.
AN ACT TO AMEND THE TOWN AND COUNTRY PLANNING ACT (CAP. 154).
ENACTED BY THE NATIONAL PARLIAMENT OF SOLOMON ISLANDS.
TOWN AND COUNTRY PLANNING (AMENDMENT) ACT 2017
Table of provisions
TOWN AND COUNTRY PLANNING (AMENDMENT) ACT 2017
PART 1 PRELIMINARY MATTERS
This Act may be cited as the Town and Country Planning (Amendment) Act 2017.
This Act commences on the day appointed by the Minister by Gazette notice.
PART 2 AMENDMENT OF TOWN AND COUNTRY PLANNING ACT
This Part amends the Town and Country Planning Act (Cap. 154) (the “principal Act”).
Section 1 of the principal Act is amended by deleting “Town and Country Planning Act” and substituting “Planning and Development Act”.
(1) Section 2 of the principal Act is amended by deleting the definitions of “customary land”, “Local Planning Area” and “Local Planning Scheme”.
(2) Section 2 of the principal Act is amended by inserting the following definitions in alphabetical order:
“City Clerk” means the City Clerk mentioned in section 42 of the Honiara City Act 1999;
“class 1 development” has the meaning given in section 14(2);
“class 2 development” means a development in an area to which a Local Planning Scheme applies that is identified as a class 2 development in the Local Planning Scheme;
“class 3 development” means:
(a) in an area to which a Local Planning Scheme applies – a development that is identified as a class 3 development in the Local Planning Scheme; or
(b) in an area to which no Local Planning Scheme applies – any development other than a class 1 development;
“class 4 development” means a development in an area to which a Local Planning Scheme applies that is identified as a class 4 development in the Local Planning Scheme;
“Director of Physical Planning” means the person in charge of planning matters within the Ministry responsible for the administration of this Act;
“Honiara City Council” means the Honiara City Council established by section 4 of the Honiara City Act 1999;
"Local Planning Scheme" means a Local Planning Scheme approved under section 11;
“Planning Appeals Tribunal” means the Tribunal established by section 28A;
“Provincial Plan” means a Provincial Plan approved under section 5A;
“registered land” means land registered under the Land and Titles Act (Cap. 133);
“zone”, in relation to a local planning scheme, means a classification applied to land to control the types of land uses and developments that may be carried out on that land.
(3) The definition of “Board” in section 2 of the principal Act is amended by deleting “Town and Country Planning” and substituting “Planning and Development”.
(4) The definition of “Minister” in section 2 of the principal Act is amended by deleting “town and country”.
Section 3 of the principal Act is amended by deleting “land” (wherever occurring) and substituting “registered land”.
Section 4 of the principal Act is amended by deleting “land other than customary land” and substituting “registered land”.
(1) The heading to section 5 of the principal Act is amended by deleting “Town and Country Planning” and substituting “Planning and Development”.
(2) Section 5(1) of the principal Act is amended by deleting “Town and Country Planning” and substituting “Planning and Development”.
(3) Section 5 of the principal Act is amended by inserting the following after subsection (4):
“(5) A Board may appoint authorised officers to exercise powers or perform functions of the Board under the direction of the Board.
(6) At any time during which a Board has not been appointed, the powers and functions of the Board may be exercised and performed by:
(a) in the case of a Province, the Provincial Executive; or
(b) in the case of Honiara, the Honiara City Council.”
The principal Act is amended by inserting the following after section 5:
(1) A Board for a province may approve a Provincial Plan for the development of land in the province.
(2) The Provincial Plan must include the following matters:
(a) the location and extent of registered land and customary land in the province;
(b) an outline of the existing and proposed uses of land in the province, including the location of existing and proposed:
(i) roads and other transport infrastructure; and
(ii) community settlements, schools and clinics; and
(iii) industrial infrastructure; and
(iv) areas for agriculture, forestry and mining activities;
(c) the long-term strategy for development in the province;
(d) in relation to a provincial plan for Guadalcanal Province, the relationships and links between existing and proposed land uses in the province and in Honiara;
(e) any other matter relevant to the development of the province that the Board considers relevant or the Minister directs the Board to include in the Plan.
(3) Before approving a Provincial Plan, the Board must:
(a) consult the Provincial Executive of the province; and
(b) publish a notice in a newspaper circulating in the province inviting the public to make submissions to the Board about the content of the Plan:
(i) in writing, within a specified time; or
(ii) orally, at a public meeting of the Board held at a specified time and place at least one week after the publication of the notice; and
(c) consider any submissions made by the Provincial Executive or a member of the public.
(4) As soon as practicable after approving the Provincial Plan, the Board must publish a notice in the Gazette stating:
(a) that the Plan has been approved; and
(b) where copies of the Plan can be inspected.
(5) The Provincial Plan takes effect on the date the notice is published in the Gazette.
(6) The Board may review and modify the Provincial Plan from time to time.
(7) Subsections (3), (4) and (5) apply to any modifications made to the Plan as a result of a review.”
(1) Section 6(1)(a), (b), (c), (d) and (f) of the principal Act are amended by inserting “and” at the end.
(2) Section 6(1) of the principal Act is amended by inserting the following after paragraph (f):
“(g) to address any social, environmental or economic issues identified in a study carried out under section 8, including any risks to land uses and developments caused by climate change;
(h) to reach a general consensus amongst residents of the area covered by the Local Planning Scheme and other stakeholders on appropriate land use and development policies through a participatory process.”
(3) Section 6(2) of the principal Act is repealed and replaced with the following:
“(2) Subject to any regulations about the form and content of Local Planning Schemes, a Local Planning Scheme must:
(a) include maps and descriptions to illustrate the proposals included in the Local Planning Scheme with the degree of particularity that is appropriate to the area covered by the Local Planning Scheme; and
(b) specify the population of the area covered by the Local Planning Scheme; and
(c) indicate the zones to be applied to the area covered by the Local Planning Scheme, which may include the proposed permissible building and population densities for each zone; and
(d) state the overall objective of the Local Planning Scheme and the objective of each of the zones in the Scheme; and
(e) display and describe the existing and proposed land uses, including the location of existing and proposed:
(i) roads and other transport infrastructure; and
(ii) settlements, schools and clinics; and
(iii) industrial infrastructure; and
(iv) areas for agriculture, forestry and mining activities; and
(f) for each zone in the Local Planning Scheme, classify types of development as a class 1, 2, 3 or 4 development; and
(g) describe how the Local Planning Scheme gives effect to any Provincial Plan in place.”
Section 7 of the principal Act is repealed and replaced with the following:
“7 Areas for which Local Planning Scheme may be prepared
A Local Planning Scheme may be prepared for any area of registered land.”
(1) The heading to section 8 of the principal Act is repealed and replaced with the following:
“8 Study before preparing Local Planning Scheme”
(2) Section 8(1) of the principal Act is repealed and replaced with the following:
“(1) For the purpose of preparing a Local Planning Scheme for an area, the Board must first institute a study to examine the matters that may affect the development of the area or the planning of its development.”
(3) Section 8(2) of the principal Act is amended by repealing the opening words from “Without prejudice” to “the following” and replacing them with the following:
“Without limiting subsection (1), the following matters must be examined in the study:”
(4) Section 8(2)(a) of the principal Act is repealed and replaced with the following:
“(a) the principal physical, environmental, social and economic characteristics of the area (including the principal purposes for which land is used and the factors that may affect how the land can be used) and, so far as they may be expected to affect the area, the principal physical, environmental, social and economic characteristics of any neighbouring areas;”
(5) Section 8(2) of the principal Act is amended by inserting the following after paragraph (c):
“(ca) the information and data available in relation to the impact of climate change and natural hazards on the area;”
(6) Section 8(2)(f) of the principal Act is amended by deleting “changes already” and substituting “future land use needs or changes”.
(7) Section 8(2)(b), (c) and (f) of the principal Act are amended by deleting “Local Planning Area” (wherever occurring) and substituting “area”.
Section 9(1) of the principal Act is amended by deleting “Local Planning Area” and substituting “area”.
Section 12(1) of the principal Act is amended by:
(a) deleting “for any Local Planning Area”; and
(b) deleting “that Local Planning Area” and substituting “the area covered by the Local Planning Scheme”.
Section 13 of the principal Act is repealed and replaced with the following:
This Part applies to all registered land.”
(1) Section 14(1) of the principal Act is amended by deleting all the words from “that is” to “Part apply” and substituting “other than a class 1 development”.
(2) Section 14(2) of the principal Act is amended by:
(a) inserting “the subdivision of land” after “means”; and
(b) deleting all the words from “that the following” to “that is to say” and substituting “any of the following (a “class 1 development”); and
(c) inserting “unless a Local Planning Scheme provides otherwise” after “forestry” in paragraph (e); and
(d) repealing paragraph (f) and replacing it with the following:
“(f) any use or development of land identified in a Local Planning Scheme or prescribed by regulation as a class 1 development.”
(1) Section 15(2) of the principal Act is amended by:
(a) inserting “and” at the end of paragraphs (a), (b) and (d); and
(b) inserting the following after paragraph (d):
“(e) if the person is not the registered owner of the land, include a letter from each registered owner authorising the development; and
(f) include any additional information that is reasonably necessary to enable the Board to assess the application in relation to the matters listed in section 16(1).”
(2) Section 15 of the principal Act is amended by inserting the following after subsection (4):
“(5) A person may not apply for permission to develop land if the proposed development is a class 4 development.”
The principal Act is amended by inserting the following after section 15:
“15A Requirement to publicise application
(1) As soon as practicable after the Board receives an application for permission to develop land, the Board must publicise the application as required by the regulations.
(2) The Board must not decide the application under section 16 until 28 days after all the requirements to publicise the application have been met.
(3) The Board’s decision on the application is not invalidated only because it failed to meet all the requirements to publicise the application if:
(a) the Board substantively complied with the requirements to publicise the application; and
(b) the Board believed in good faith that all the requirements to publicise the application had been met.”
Section 16 of the principal Act is repealed and replaced with the following:
“16 Power of Board to deal with application
(1) Subject to subsection (5), the Board must consider the following matters before deciding an application for permission to develop land:
(a) whether the proposed development is consistent with any relevant Provincial Plan, Local Planning Scheme or other applicable development strategy of the national or provincial government;
(b) whether granting permission for the development would be consistent with the regulations and any directions given by the Minister under section 5;
(c) whether the proposed development is consistent with any applicable law;
(d) any submissions received from anyone other than the applicant in relation to the application;
(e) whether the land is susceptible, or likely to become susceptible, to any hazards to health or safety, including landslip, soil instability, soil erosion, flooding, storm surge, tsunamis, fire, pollution and contamination, and whether the application outlines measures to adequately respond to those hazards;
(f) whether the proposed development is appropriate in relation to the following:
(i) the existing condition and use of the land;
(ii) the existing condition and use of adjoining land;
(iii) the impact of the development on anything of heritage, architectural or scientific value;
(iv) traffic safety, including the proposed points of entry and exit into passing traffic and the estimated speed of passing traffic;
(v) any easements attached to the land;
(g) whether the proposed development will be supported by adequate infrastructure and services, and, if it will be necessary to make changes to existing infrastructure and services, whether this will disadvantage existing users;
(h) whether the proposal for the development makes adequate provision, if appropriate, for landscaping;
(i) the effect of the proposed development on the health, safety and social wellbeing of the general public;
(j) the environmental impact of the proposed development, including:
(i) the likely emission of pollutants from the proposed development;
(ii) the energy required to support the development and whether it will be generated from renewable sources;
(iii) the impact of the development on flora and fauna.
(2) In assessing the proposed development in relation to the matters mentioned in subsection (1), the Board must consider the design, location, size and appearance of the proposed development.
(3) Subject to subsection (5), having considered the application, the Board may:
(a) grant permission for the proposed development; or
(b) refuse to grant permission for the proposed development.
(4) A permission to develop land is subject to the following conditions:
(a) any conditions prescribed by the regulations;
(b) the conditions of any development consent issued under Part III of the Environment Act 1998 for the development;
(c) any additional conditions the Board considers appropriate and specifies in the permission, including conditions:
(i) regulating the development of other land under the control of the applicant, or requiring work to be carried out on such land, if it is necessary or desirable to do so for the purposes of the development authorised by the permission; or
(ii) limiting the period of the permission and requiring the removal of buildings or equipment and the rehabilitation of the land before the expiry of the period.
(5) The Board must not consider an application, or grant permission, for:
(a) a class 4 development; or
(b) a development that is a prescribed development under Part III of the Environment Act 1998, unless the application is accompanied by a copy of the development consent or exemption from the requirement to obtain development consent issued under that Act.
(6) The Board may delegate its power under subsection (3) to determine an application for a class 2 development to:
(a) for a class 2 development within Honiara City – the City Clerk (or his or her nominee); or
(b) for any other class 2 development– the Provincial Secretary of the province in which the proposed development will take place (or his or her nominee).
(7) A person who determines an application under subsection (6) must submit a written report detailing the outcome of the application, including any conditions imposed on the development, to be tabled at the next meeting of the Board.”
(1) Section 17(1) of the principal Act is repealed and replaced with the following:
“(1) A permission granted under section 16 lapses if the development has not been substantially completed to the satisfaction of the Board within the following period after the permission is granted:
(a) for a class 2 development – 12 months;
(b) for a class 3 development – 3 years.
(1A) For subsection (1), the Board must determine whether a development is substantially completed on reasonable grounds.
(1B) However, the Board may extend a permission for a period not exceeding the original period of the permission if the holder of the permission applies for the extension at least 28 days before the expiry of the permission.”
(2) Section 17(2) of the principal Act is amended by deleting “Subject to subsection (1), any” and substituting “An”.
(1) The heading to section 19 of the principal Act is repealed and replaced with the following:
(2) Section 19(1) of the principal Act is amended by deleting all the words from “Minister” to “Minister” and substituting “Planning Appeals Tribunal”.
(3) Section 19(2) of the principal Act is amended by:
(a) deleting “Minister” and substituting “Planning Appeals Tribunal”; and
(b) deleting “him that” in paragraph (b) and substituting “the Tribunal that”; and
(c) deleting “him under this Act” in paragraph (b) and substituting “the Minister under this Act”.
(4) Section 19(3) of the principal Act is amended by:
(a) deleting “Minister” and substituting “Planning Appeals Tribunal, having applied the requirements of section 16 in relation to the decision,”; and
(b) deleting “him” and substituting “the Tribunal”.
(5) Section 19(5) of the principal Act is amended by:
(a) deleting “Minister” and substituting “Planning Appeals Tribunal”; and
(b) deleting “to him”.
The principal Act is amended by inserting the following after section 20:
“20A Modification of permission on application
(1) A person who has been granted permission to develop land under section 16 may apply to the Board for a modification of the permission, provided that the proposed modification would not:
(a) change the use of the land; or
(b) increase the floor space of any building approved under the original permission by more than 50%.
(2) The Board may only approve the application if the development, as modified, continues to meet the requirements of this Act.”
(1) The heading to section 21 of the principal Act is repealed and replaced with the following:
“21 Revocation and modification of permission on Board’s initiative”
(2) Section 21(1) of the principal Act is amended by deleting all the words from “Provided” to “expedient”.
(3) Section 21(2) of the principal Act is repealed and replaced with the following:
“(2) The Board must give written notice of the revocation or modification to the occupier of the land and any other person who has an interest in the land or permission.”
(4) Section 21(4) of the principal Act is amended by:
(a) deleting “by an Order made”; and
(b) deleting “the making or the Order” and substituting “receiving written notice of the revocation or modification”.
Section 22 of the principal Act is amended by inserting the following after subsection (4):
“(5) The Board must serve an enforcement notice as required by the regulations.”
(1) Section 27(2) of the principal Act is repealed.
(2) Section 27(3)(b) of the principal Act is repealed.
(3) Section 27(4) of the principal Act is repealed.
(4) Section 27(5) of the principal Act is amended by inserting “or topping or lopping of parts of trees that overhang a property boundary (unless such topping or lopping would kill the tree)” after “Act,”.
(5) Section 27 of the principal Act is amended by inserting the following after subsection (6):
“(7) The owner or occupier of land on which a tree that is subject to a tree preservation order is located may appeal to the Planning Appeals Tribunal against the making of the order, and section 19 applies to the appeal as if it were an appeal in relation to a development.
(8) The owner or occupier of land on which a tree that is subject to a tree preservation order is located may apply to the Board for revocation of the order under section 16, as if the application for revocation were an application for permission for a class 3 development.”
(1) The heading to section 28 of the principal Act is repealed and replaced with the following:
(2) Section 28 of the principal Act is repealed and replaced with the following:
“(1) The Board may make an order (a “nuisance order”) requiring the owner or occupier of land to remove or mitigate a hazard or nuisance, or potential hazard or nuisance, on the land.
(1A) Without limiting subsection (1), the Board may make a nuisance order in relation to any of the following:
(a) excessive noise;
(b) pollution;
(c) pests;
(d) rubbish disposal;
(e) antisocial behaviour;
(f) the maintenance of land or buildings.”
(3) Section 28(2) of the principal Act is amended by deleting “notice served under this section” and substituting “nuisance order”.
The principal Act is amended by inserting the following after section 28:
“28A Planning Appeals Tribunal
(1) The Planning Appeals Tribunal is established.
(2) The Tribunal consists of the following permanent members:
(a) a legal practitioner of at least 10 years standing, appointed by the Minister, who is the chairperson of the Tribunal;
(b) the Director of Physical Planning, who is the Secretary to the Tribunal.
(3) In addition, for the hearing of a particular appeal, the Tribunal consists of the following temporary members:
(a) for an appeal relating to a development or matter within Honiara City – the City Clerk; or
(b) for an appeal relating to any other development or matter – the Provincial Secretary of the province in which the development (or proposed development) is located;
(c) up to 2 other members with expertise relevant to the appeal appointed by Gazette notice by the Director of Physical Planning.
(4) The permanent and temporary members of the Tribunal are entitled to the remuneration prescribed by the regulations.
(5) Subject to this Act, the Tribunal may determine its own procedures and rules.”
The principal Act is amended by inserting the following after new section 28A:
“PART IVA EXISTING USE RIGHTS
28B Existing permission to develop land
(1) This section applies in relation to a permission to develop land granted under section 16 that is in force immediately before the approval or commencement of a Local Planning Scheme (an “existing permission”).
(2) The approval or commencement does not affect or alter the validity of the existing permission.
(3) If the Local Planning Scheme defines the development as a class 4 development, any application to modify the existing permission is taken to be an application for permission for a class 4 development.
(4) However, the application to modify the existing permission is taken to be an application for permission for a class 3 development if the proposed modification will not result in:
(a) a significant intensification or alteration of the development, in the opinion of the Board; or
(b) an increase in the floor space of any building approved under the existing permission by more than 50%.
28C Existing developments not requiring permission
(1) In this section:
“amendment date” means the date the Town and Country Planning (Amendment) Act 2016 commences.
(2) This section applies to a development:
(a) on land to which Part IV did not apply immediately before the amendment date; and
(b) that had commenced but not been completed immediately before the amendment date.
(3) Part IV does not apply to the development if the development is substantially completed to the satisfaction of the Board within the following period after the amendment date:
(a) for a class 2 development – 12 months;
(b) for a class 3 development – 3 years.
(4) For subsection (3), the Board must determine whether a development is substantially completed on reasonable grounds.”
(1) Section 33(1) of the principal Act is amended by:
(a) inserting the following after paragraph (b):
“(ba) prescribe types of development as class 1 development, either generally or in relation to a specific area of land;”; and
(b) deleting “Minister,” in paragraph (c) and substituting “Planning Appeals Tribunal”.
(2) Section 33(2) of the principal Act is repealed.
(1) Clause 1(1) and (2) of the Schedule to the principal Act are repealed and replaced with the following:
“(1) In this Schedule, “appointing authority” means:
(a) in the case of the Board for a Province, the Provincial Assembly of the Province; or
(b) in the case of the Board for Honiara, the Honiara City Council.
(1A) Each Board consists of:
(a) a Chairman, who is:
(i) in the case of the Board for a Province, the Provincial Secretary of the Province; or
(ii) in the case of the Board for Honiara, the City Clerk; and
(b) the person in charge of planning matters for the appointing authority; and
(c) at least 4 but not more than 6 other members appointed by the Minister acting in accordance with the advice of the appointing authority, including:
(i) an employee of the Solomon Islands Water Authority established by section 5 of the Solomon Islands Water Authority Act (Cap. 130); and
(ii) an employee of the Solomon Islands Electricity Authority established by section 3 of the Electricity Act (Cap. 128); and
(iii) an officer of the Ministry responsible for the environment; and
(iv) an officer of the Ministry responsible for infrastructure.
(2) If, in the case of a particular Province, it is not possible to appoint a person mentioned in subclause (1A)(c), the Minister must appoint a person with expertise in the relevant field.”.
(2) Clause 1 of the Schedule to the principal Act is amended by inserting the following after subclause (3):
“(4) If the composition of a Board does not meet the requirements of subclause (1A) on the commencement of the Town and Country Planning (Amendment) Act 2016, the Minister must revoke and appoint new members as necessary to ensure the composition of the Board meets the requirements of subclause (1A) within 12 months after the commencement of that Act.”
(3) Clause 2 of the Schedule to the principal Act is repealed and replaced with the following:
(1) The appointing authority must appoint a person to be the Secretary to the Board who holds a tertiary qualification in town or urban or physical planning, or urban design.
(2) The Secretary is not a member of the Board.”
(4) Clause 5 of the Schedule to the principal Act is repealed and replaced with the following:
“5 Authentication of decisions
The decisions of the Board must be authenticated:
(a) by the signature of the Chairman or, if the act or decision was made at a meeting at which an acting Chairman presided, the acting Chairman; and
(b) only after the minutes recording the decision have been confirmed by the Board.”
The principal Act is amended as specified in the following table:
| Provision amended | Delete | Substitute |
| Section 24(3) | five hundred dollars | 5000 penalty units |
| | fifty dollars | 500 penalty units |
| Section 25(1) | five hundred dollars | 50,000 penalty units |
| | fifty dollars | 1000 penalty units |
| Section 26(3) | five hundred dollars | 500 penalty units for each day the development continues |
| Section 27(6) | five hundred dollars and, in case of a continuing offence, to a further fine not exceeding fifty dollars for every day after the first
day during which the contravention is so continued | 50,000 penalty units |
| Section 30(3) | fifty dollars | 1000 penalty units |
| Section 30(4) | five hundred dollars or to imprisonment for a term not exceeding three months | 50,000 penalty units |
| Section 32 | fifty dollars | 1000 penalty units |
PART 3 AMENDMENT OF SUBSIDIARY LEGISLATION
The definition of “Board” in regulation 2 of the Town and Country Planning (Tree Preservation) (Honiara) Regulations (LN 97/1986) are amended by deleting “Town and Country Planning” and substituting “Planning and Development”.
Each declaration of a Local Planning Area made under section 7 of the principal Act and in force immediately before the commencement of this Act is revoked.
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