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Opinions of Thursday, 13 July 2006

Columnist: Asante Fordjour

Unfulfilled Aspirations?

Law and Development: Control of Land Use

When the British Colonial Administration and the Convention Peoples Party laid the foundation stone for the construction of the Tema Township and the Nyaniba Estates, they demonstrated to future generations the direction in which the use and control of our lands shall be going. However, pressing demand for individual homes due to decades of ineffective state input in providing affordable homes for the masses, seems to have swung this decisive force anticlockwise and the sad effect is environmental filth.

A drive on our motorway or a visit to most of our cities and villages, now, sparks an unfulfilled dreams. Perhaps without thought of effect of road accidents, residential homes are built very close to this highway that once upon a time, enjoyed emergency telephone services. Undoubtedly, the future of our few conserved areas is under siege So, we are on an expedition to expose these national treasures from being lost forever.

Land is said to be precious and indeed, limited in supply. So most constitutions contain provisions relating to overcrowding, slum clearance and the repair and improvement of housing as well as regimes that control land use. Thus, as more cases of multiple land sales surface and tales of mounting pressure on our courts; Land Tribunals and Land Title Registry continue to hit the headlines in conjunction with those regarding Diasporas on both sides of the Atlantic and our ever-growing population, one wonders whether our Constitution has had some of these measures at all.

In most developed countries, the most extensive set of public law controls, are the controls on development arising under the Town and Country Planning legislation. The leading statute currently in force in England and Wales which, we presume it to be persuasive in Ghana, is the Town and Country Planning Act ((1990)) together with the Planning and Compensation Act of ((1991)). For example, section 57 of the 1990 Act requires that planning permission must be obtained for any development of land. This explains that without authorisation from appropriate department, we can but not just wake up with our tools and start developing our lands either for residential or industrial purposes. A civil vocabulary that seems to be fading out in Ghanaian society.

However, Art *258(1) of the *1992 Constitution establishes a Lands Commission which shall, in co-ordination with the relevant public agencies and governmental bodies, perform on behalf of the Government, the following: (a) manage public lands vested in the President or by any other law or any lands vested in the Commission; (b) advise the Government, local authorities on the policy framework for the development of particular areas of Ghana to ensure that the development of individual pieces of land is co-ordinated with the relevant development plan for the area concerned; (c) formulate and submit to Government recommendations on national policy with respect to land use and capability; (d) advise on, and assist in execution of, a comprehensive programme for the registration of title to land throughout Ghana.

With these, we are tempted to (mis)construe this as a defeat to the manifest purpose of the Legislative Assembly in drafting the sections to which reference has been made if ruthless land guards, greedy landowners and officials were to be allowed to dictate off beam track to our current town and country planning objectives. Whereas Art *267(1) provides that all stool lands in Ghana shall vest in the appropriate stool on behalf of, and in trust for the subjects of the stool in accordance with customary law and usage, sub-section 3 explains that there shall be no disposition or development of any stool land unless the Regional Lands Commission of the region in which the land is situated has certified that the disposition or development is consistent with the development plan drawn up or approved by the planning authority for the area concerned.

Art 257(1) says that all public lands in our homeland shall be vested in the President on behalf of, and in trust for, the people of Ghana. Sub-section 6 makes it clear that: every mineral in its natural state in, under or upon any land in Ghana, rivers, streams, water courses throughout Ghana, the exclusive economic zone and any area covered by the territorial sea or continental shelf is the property of the Republic of Ghana and shall be vested in the President on behalf of, and in trust for us all- the rich and poor. Therefore, governments and for that matter, its leadership, owes us a duty to ensure that our lands, forests and its wealth are well controlled and managed for our benefits

With these, one could authoritatively assume that we have all the required ethics similar to that of England and Wales for a well planned towns and cities which take care of our environment. Part III of English Environmental Protection Act 1990 contains provisions concerning statutory nuisances where the use or state of land is in certain ways “prejudicial to health or a nuisance”. The Act also contains provisions controlling air pollution from stationary sources, other polluting processes and waste management and disposal. Water Resources Act 1991 controls water conservation and pollution. And the Environment Act 1995 deals with liability for contaminated land. Equally true could be said of the Housing Act 1985 which contains provisions relating to overcrowding, slum clearance and the repair and improvement of housing.

Admittedly, the basic principle of the common law regarding the use of land as was stated by Lord Blackburn in Wilson v Waddell established that “The owner of one piece of land has a right to use his(/her) land if it in the natural course of user, unless in doing so he interferes with some right created either by law or by contract.” This was upheld and exemplified by the classic case of Bradford Corporation v Pickles where a landowner sunk wells on his land so interrupting the water supply to a nearby local authority reservoir. The House of Lords held that he was under no liability for having done so, even if his motive was deliberately to cause the interruption. To dig wells and abstract percolating water, the Law Lords said, is a natural use of land.

Natural user of the land in this context was interpreted to include the right to build. But, it is doubtful whether private nuisance involving activities, or failures to act, on land causing a foreseeable and substantial interference, that could be described as a gross disregard of law and order vis-à-vis ''mutual respect'' in most residential areas as land guards seem to have usurped the throne of town planners and lawmakers, would be acceptable. So how come, some landlords even parcel out lands for sale without thought of schools; recreational centres, designate areas such as parks, hydrants and areas of outstanding natural beauty and conservation areas?

Of course in Hunter v Canary Wharf Ltd., a case concerning a building that interrupts with television reception, the House of Lords confirmed that generally there is no common law liability arising from having done so even though the building interferes with television signals or with a neighbour’s view or with the flow of air or causes a retaining wall on adjoining property to collapse. So we find it easier to ask that what would be the position, if, for example, a Kwesi Mensah acquires a leasehold of 99 years from Nii Boye Lamptey, for residential purposes only, and 'co-incidentally' operates later from that house a 24-hour church services, seven days in a week? Or as an industrial complex, where industrial machines wail without ceasing? Can Nana Akwasi Amofa, without a reasonable notice, set a dodgy dadefidie in his own forest?

In England, the above mentioned scenario is subject to many restrictions. For example, under the Occupier’s Liability Act 1957 the occupier owes a duty to his/her visitors to take such care as in all the circumstances of the case is reasonable to ensure that they will be reasonably safe in using the premises or site for the purposes for which they are invited or permitted by the occupier to be there. Yes, under the OLA 1984, a more limited duty is owed to others (trespassers) who come on to the land.

We suggest therefore, that whenever our governments and Nananom mortgage our lands and forests for timber carting or mining, the duty is to take such care as is practical in all the circumstances of the case to see to it that those coming on to the land do not suffer injury by reason of a danger that the occupier, here, foreign corporations and their local agents too, know or has reasonable ground to believe exist on the property against which, in all the situations of the case, they may reasonably be expected to offer him/her some armour where the occupier is aware of or has reasonable grounds to believe that someone may certainly come into that locality of the threat concerned. . In the United Kingdom, development is broadly defined in s.55 of the Town and Country Planning Act ((1990)) and has two pillars. The first is operations development - “the carrying out of any building, engineering mining or other operations in, over or under land”. The other is “the making of any material change in the use of any buildings or other land”. Planning permission is of two types. General permissions for specific types of “permitted development” may be specified by statutory instrument, at present the Town and Country Planning (General Permitted Development) Order 1995. If a development is not sheltered by a permissible development order, consent must be obtained from the local planning authority.

A major feature in the consideration of applications will be the “fit” of the proposed development with the local development plan, which is largely implemented by the unenthusiastic means of not allowing development that conflicts with it. Relevant factors in the consideration of applications will include the effect on local amenities and on neighbouring properties. the National Parks and Access to the Countryside Act 1949 provides for local authorities to enter into access agreements with owners of “open country”. Under the Countryside and Rights of Way Act 2000 the public has a general right of access for recreation to all open country and registered common land as shown in the maps which the Act requires the Countryside Agency to maintain and review every 10 years because of .statutory right of public access for recreation.

We think that there is still some prudence in Dr Nkrumah’s machinery of state planning which appears to have been subverted by land guards and their masters, who have assume that once they succeed in building/developing on a land that they have no legal title to it, the doctrine of actual occupation, the law would be applied in their favour.

But could this not hamper our town and country planning objectives as they own no building permits? Yes, it could. If we were to develop to meet international standards, as the Osagyefo had aspired for Tema Township, then the courts must indeed be robotic in its analysis of easements, covenants and the doctrine of occupation and possession.



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