Planning and Development Practice

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Table of Contents

Introduction
Section 6 of the LCA 1961 and the Pointe Gourde rule
Section 7 of the LCA 1961
Section 8 of the LCA 1961
Section 7 of the 1965 CPA
Ransom strips
The “Hovering ham Gravels” problem
Compensation for disturbance
Conclusion
Reference

Introduction

Planning and development is a vital strategy which enhances economic and social growth of any given country. Due to the current population increase in the world, governments in the respective states have been forced to increase the various public utilities for sustainability. The action is mostly taken in order to ensure infrastructural growth within the designated regions. The governments are therefore obligated to compulsory purchase some of the lands which are owned by residents in order to affect their development agendas. Since all the persons who will be forced to sell their land will be affected in one way or the other, the state or the acquiring authority will be under a legal obligation to fairly compensate the affected persons.

There are various rules and laws which are either expressed through the court of law or encrypted in the statutory provisions in order to determine the legality of the compensation. An in-depth valuation process is usually undertaken in order to determine the damage together with the real figure for the acquired land. The court precedents together with the statutory provisions also determine the legitimate claimant. This paper seeks to address some of the planning and development practice which the state undertakes in compensating the injured parties.

Section 6 of the LCA 1961 and the Pointe Gourde rule

The section 6 of the LCA 1961 applies the principle of equivalence; this is where the displaced owner is entitled for equal reimbursement of the land taken. The law requires that the compensation be done in a fair manner. The amount to be compensated should be equal to the amount the owner would realize if the land is sold willingly without any pressure. Conversely, the owner should be compensated the amount of loss attributed to the haste displacement from the land.

The Pointe Gourde rule on the other hand emphasizes that no increased value should be earned as a result of the underlying acquisitions. The true and fair value therefore must be arrived at in order to discourage the unnecessary gains. According to the rule, there should be no schemes aimed at benefiting the affected person, instead the affected person should be reinstated to his or her original status.

The compensations rule Marjory affected the people who resided in lands which the state authority intended to put up a public utility to benefit the general public. Such people utilities included the road bypasses, railway route, wild life and national park reserves, and the expansion of public institutions and complex i.e. airports, bus stop and the like. The affected persons are all the people residing around those regions. The state or government in this case is required to make a fair compensation considering the fact that the displaced people are severely affected by the move. Incase of an incident where the land is taken for a railway project, the compensation should not reflect the benefits which accrue to the land after the completion of the project. This is because the project will be directed towards bettering the lives of the general public including the affected persons.

The main purpose of the Pointe Gourde principle is to prevent the state from incurring inflated compensations values for the acquired lands. Although the benefits resulting from the enhancement of the utility is disregarded, the valuer is not limited to use all the other factors when coming up with the actual value of the land. It is important to understand that the Pointe Gourde principle works hand-in-hand with statutory provision section 6. This therefore implies that the two rules are superior and can be used concurrently to settle any given land dispute. The Pointe Gourde rule is nevertheless more applicable as it embraces all types of land in the scheme. The statutory provision section 6 on the other hand applies only to the development lands (The law commission, 2001). Section 6 therefore excludes other lands in the scheme which are not meant for development purposes. The development lands are as stipulated in the first schedule of the LCA 1961. The state acquires the land through the owner’s permission, but the public demands also allow the state to proceed with its acquisition process. It is assumed that more benefits will accrue to the public if the infrastructure is well established in the area, the advantages obtained from the projects empowers the government to take up the land.

Section 7 of the LCA 1961

Section 7 of the LCA 1961 requires that the land acquired is retained by the state in order to avoid future controversies. In this case a tangible compensation program is used to settle the affected persons. In most cases the process is done through re-settling the affected person in the adjacent land. The provision applies a set-off principle which advocates for a settlement of the affected persons in the adjacent lands. The main reason why the set-off principle is used is to ensure that the person get to enjoy the project benefits. It also aims at ensuring that the compensated land value rises due to the project completion. This statutory provision is usually similar to the section 7 of the 1965 CPA Act. All what the section tries to do is to ensure fair and just compensation to the displaced persons. There is also a tendency which seeks to evaluate the severity of the displacement. The statutory also requires that compensation be assessed and valued from the depreciation aspect that arises as a result of the project’s work. This applies in case the project uses a part or whole of someone’s land to obtain some materials or any other resources. The benefits strictly apply within the statutory powers, meaning that unauthorized act can lead to injunction.

Section 8 of the LCA 1961

The rule supports compensation with adjacent land. This is where the affected person is given land near to the displacement areas in order to ensure total gain from the utility establishment. In this case, the land value includes that of the betterment or enhancement price. The price also includes the depreciated value. This provision mostly affects the agricultural land which might end up being degraded by the transport ministry in their expansion program.

Incase of an acquisition of an agricultural land, the authority is bound to compensate the claimant the actual price of the land or relocate him or her to a similar land with similar value. The prices of this land are usually obtained after a thorough valuation of a similar land, same size but from a different location. An accurate evaluation justifies the legality of the claim. The owner is also entitled to recover any compensation for structures or fixtures in the acquired piece of land. The market price of such properties determines the compensation amount in that given piece of land. The tenant-right also qualifies the owner-occupier in an agricultural land to claim for compensation. The most affected community which may require the execution of section 8 of the LCA 1961 includes; those who reside near wildlife reserves, public beaches, major hospitals, power plants and alongside road and railway transport systems.

The provision also seeks to account for the severity of the damage. The severity enhances fair determination of the affected persons. The determination of the severity is also determined by the activity intended for the land. Where the piece of land is acquired for the bridge construction the acquiring authority has power to take up the land as people will end up benefiting from the activity. In such a scenario, the owner of the land will be offered the price but will not have a choice since it will be a take-it or leave-it situation. Although the government or the acquiring authority may have power over the affected persons, they are required by the law to fairly compensate the affected individuals (Johnson, Davies & Shapiro, 2000, pp.574&576).

Section 7 of the 1965 CPA

The statute requires that the land owner be compensated for the value and also the damages caused by the unpredicted move. According to this provision there are some damages which are usually brought about by the compulsory evictions. Among the damages includes the convenience of the place to other infrastructural services such as road, electricity, water, urban centers, hospitals and other necessary services. The injurious affected in this case should be those very near and close to the designated areas. In this case only the affected culprits are liable for compensation. The statutory also requires that compensation be assessed and valued from the depreciation aspect that arises as a result of the projects work. This applies incase the project uses a part or whole of someone’s land to obtain some materials or any other resources. The benefits strictly apply within the statutory powers, meaning that unauthorized act can lead to injunction. Prior notice nevertheless needs to be given to the affected persons in order to arrange and organize for the abrupt changes (Rees & Hayward, 2001, pp.269&270).

According to section 7 of the CPA 1965, the affected party can claim for the disturbance allowance if there is persistent and consistent action which destabilizes the peaceful and harmonious environment that was previously enjoyed. The claim though must be based on the land taken.

Ransom strips

This is a piece of land which links a given piece of land to the infrastructural facilities such as road. The strip in this case limits the property developer to access the infrastructural services. In most cases this section of land is usually not owned by the property developer and neither does it fall under the responsibility of the highway authorities. Some people may therefore take the advantage of such lands to charge fees or charges to the people who access the road of water facilities through that piece of land. The lands are intentionally retained by the land owners in order to benefit them from future development of the land. Since the land is near the road, some natural features of the road may result to some demolitions and tree cuttings in this land. Since the road is a public utility and safety should be the key, the transport has the authority to exercise all the measures which will eventually ensure the safety of the road users. In case of such a scenario, the ministry proportionately compensates the affected person by paying up the damages. The compensation is done by valuing the actual value of the damage caused to the claimant.

The “Hovering ham Gravels” problem

The court ruled that the claimant can only be compensated if there is injurious affection which causes the depreciation of the retained land. The rule therefore disqualified the claims which were as a result of the acquired land. Nevertheless, the rule was meant to increase fairness in the compensation process as an overall base was used. According to the rule no compensation should be given by the land developer even if there is injurious affection to the acquired land. This is because the court should precisely analyze the section 7 of the LCA 1961 in order to determine the injurious affection. The rule therefore advocated for the compensation of those people near the acquired land. According to the rule the developer may initiate some work on the land and eventually tamper with the neighboring lands.

The initiative might result to a huge depreciation in value of land and may end up destabilizing the economic potential of that land. Activities such as mining can greatly contribute to such an occurrence. The rule therefore approves compensation of such parties who have been severely affected by the acquisition. In this case the compensation will not be given to the original owner of the land but will be given to the people affected by the activity. The injurious affection is mainly to the people whom the statutory authority did not acquire land from. It is mainly brought about by the tort from the developer’s activities (Primmer & Dubben, n.d).

The injurious claims are quantified similarly with the severance claims, which measure the magnitude of damage caused by the action. It also checks on depreciation of value in that given piece of land. The losses can be attributed directly or indirectly. Direct affections can be as a result of the increased noise from the developer’s activities. Other nuisances which hamper their drainage and sewerage systems can also be compensated. Since there is no limitation of the claims to be sort, if the affected person can be able to prove that the developers activities intrudes his personal privacy, then he or she will be legible for compensation (Gibbard, 2001, p.6&7).

Where the acquiring authority had only obtained a portion of the land from the claimant, in an attempt of mitigating the increasing loss of value, the claimant can force the authority to purchase the remaining section of the land. The act is mainly supported by section 8 of the compulsory purchase Act 1965.

Compensation for disturbance

All the displaced individuals are entitled to disturbance compensation if and only if the displacement occurred legally. The claimant also should have lawfully possessed the land before the acquisition. It is also lawful for the occupier of an unfit house to claim for disturbance compensation in case his or her house is acquired by the legal authority. It doesn’t matter whether the house was in a worse condition since it is assumed that he or she was comfortably residing in the premise. The condition is mostly applicable to the slum evictions incase the state needs to establish an infrastructure within the area. The disturbance which is compensated here is the re-location of the claimant from his or her usual residence. The disturbance compensation is done in line with section 37 of the LCA 1973.

The disturbance compensation is not limited in any way since there is no specific formula or basis for computing it. The claimant therefore has to prove beyond reasonable doubts that they suffered loss due to the disturbance caused. Among the damages to be sort for compensation, includes the construction expenses which the claimant suffers as a result of acquisition. The government usually reviews the compensation for disturbance caused through home loss. The review is nevertheless done periodically. There is that cost which is wholly attributable for the resettlement purposes. The amount is given to the person who happens to be moved by the acquiring authority.

There are also other firms that acknowledge the disturbances caused to the tenants residing in the subject residence. The amount of compensation should be reasonable enough to avoid unfair movement by the claimant. The disturbance compensation is received during the normal selling process of the property (Land compensation manual, n.d.). The claimant though should prove that he or she truly suffered due to the displacement process. The disturbance in this case must be real and experienced by the real claimant. Under section 37 of the statutory Act the compensation for disturbance are not only payable to the affected land lord but to the tenants as well (Baum & Sams, 1990, p.19).

Conclusion

The government has to establish strong and effective plans for the future infrastructural expansions. This move will reduce the events of public displacement which is an extra budget for the government. Planners ought to have long-term forecasting in order to discourage future displacements. In order to take care of the actual situations of the people who are currently displaced the government should follow the compensation rules to the later. This is because only this can assure fair treatment of all citizens regardless of their wealthy status. The compensations rule Marjory affects people who reside in lands which the state authority intends to put up a public utility to benefit the general public. Such people utilities included the road bypasses, railway route, wild life and national park reserves, and the expansion of public institutions and complex i.e. airports, bus stop and the like. The affected persons are all the people residing around those regions.

The state or government in this case is required to make a fair compensation considering the fact that the displaced people are severely affected by the move. Incase of an incident where the land is taken for a railway project, the compensation should not reflect the benefits which accrue to the land after the completion of the project. Since the road is a public utility and safety should be the key, the transport has the authority to exercise all the measures which will eventually ensure the safety of the road users. In case of such a scenario, the ministry proportionately compensates the affected person by paying up the damages. All the concerned parties i.e. the ministry of transports, environment, wildlife and tourism should all design a just mechanisms in which the displaced persons should be moved and reinstated fairy.

Reference

Baum, A. & Sams, G., 1990. Statutory valuations. London, Taylor & Francis. (Online). Web.

Gibbard, R., 2001. The compulsory purchase of farm land: Identifying severance and the injurious affection claims. (Online). Web.

Johnson, T., Davies, K. & Shapiro, E., 2000. Modern methods of valuation of land, houses and buildings. London, Gulf Professional Publishing. (Online). Web.

Land compensation manual, N.d. Land compensation manual -section 4- practice note 2: Disturbance payments for persons without compensatable interests. (Online). 2010. Web.

Primmer, F. & Dubben N., N.d. The land of make believe: An overview of the assessment of compensation for land taken on compulsory acquisition in the United Kingdom. (Online). 2010. Web.

Rees, W. H. & Hayward, R. E. H. 2001. Valuation: Principles into Practice. London, Elsevier. (Online). Web.

The law commission, 2001. Compulsory purchase and compensation: Disregarding “the scheme”. (Online). Web.

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