Online edition of the Sunday Island: Feature: 27/03/2005 by Ruana Rajepakse
It was recently announced that the Urban Development Authority had delegated to the relevant local authorities its powers in regard to the coastal zone. The local authorities are accordingly charged with enforcing the 100 metre no-construction zone in the South and, theoretically at least, the corresponding 200 metre zone in the East.
Among the incidents reported after this delegation of power is that of a local authority in the Kalutara District prohibiting persons who are still living in the zone from repairing their damaged toilets.
While directives of this sort may have a farcical ring to readers, they pose a severe problem to those at the receiving end. If obeyed, such directives are likely to lead to serious health and sanitation problems in the tsunami-affected areas.
However the bottom line is that such directives are presently being issued without any legal authority. No regulations pertaining to 100 or 200 metre "buffer" zones have yet been gazetted.
Furthermore, the UDA and any local authority acting under powers delegated by the UDA can only prohibit "development activity" from being carried out without a permit. "Development activity" as defined in the UDA Law No. 41 of 1978 as amended by Act No. 4 of 1982 does not include "the use of any land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of a dwelling house, not involving any building operation that would require the submission of a new building plan."
In other words, it does not include the clearing out, repair or reconstruction of an existing toilet or any part of an existing house.
However the present legal predicament over the "buffer" zones does not end there. Let us take the legislative history in sequence.
The UDA was created by Law No. 41 of 1978. Under this law, whenever the Minister in charge of urban development "is of opinion that any area is suitable for development, he may, by an order published in the gazette, declare such area to be an Urban Development Area."
Initially, by Government Gazette No. 4/1 of 30.09.1978, Colombo and a number of other major towns were listed as such areas and this list was extended from time to time.
In 1981 the Coast Conservation Act was passed for regulating and controlling development activities within the "coastal zone" and for preparation of a "coastal zone management plan".
This "coastal zone" is defined in the body of the Act itself as "the area lying within a limit of 300 metres landwards of the Mean High Water line and a limit of 2 kilometres seawards of the Mean Low Water Line", with certain special provisions for the measurement of the zone where there are rivers and lagoons.
The coastal zone as thus defined is to be inventoried and managed by the Director of Coast Conservation in terms of a "coastal zone management plan" that has to be revised every four years. This plan and every revision thereof is put up for public comment for 60 days prior to being submitted to Cabinet for approval.
As part of this plan, it has been the practice of the Coast Conservation Department to impose reservations ranging from 55 to 200 metres along different parts of the coast depending on local conditions. This included reservations in urban areas that formed part of the coastal zone.
In December 1982 the then Minister of Urban Development ("R. Premadasa") issued a gazette notice under section 3 of the UDA Law declaring the "Coastal Zone of the Republic of Sri Lanka" to be an "urban development area". This coastal zone is defined in the gazette as "the area lying within the limits of 1 kilometre landwards of the Mean High Water line of the sea."
Thus there are now two coastal zones having different metes and bounds, and falling under the jurisdiction of two different public bodies.
Hitherto this 1982 gazette does not appear to have been used in a manner that cut across the functions of the Director of Coast Conservation. Even when the Coast Conservation Department last revised its Management Plan in 2004 (some time before the tsunami) it is this department that prescribed the coastal setback limits for the towns including Colombo (55 metres).
After the tsunami the UDA appears to have been seized by a takeover mentality and is now seeking to impose the 100 and 200 metre setback limits on the strength of the 1982 gazette.
However others object, saying that a mere gazette notice issued in 1982 cannot override the substantive provisions of an Act of Parliament, namely the Coast Conservation Act of 1981, under which the coastal zone is defined and the Director of Coast Conservation is given the exclusive power to determine what type of development will be permitted within it.
The fact that no gazette has yet been issued, three months after the tsunami, appears to indicate that the Government’s legal experts are having some difficulty with it.
Meanwhile, the contents of the proposed gazette have been published by TAFREN in a full page advertisement, as if they were law, and are as follows:
The 100 metre buffer zone will apply to the districts of Killinochchi, Mannar, Puttlam, Gampaha, Colombo, Kalutara, Galle, Matara and Hambantota. The 200 metre zone will apply to the districts of Jaffna, Mullaitivu, Trincomalee, Batticaloa and Ampara.
The TAFREN advertisement states that no "development activity" will be permitted in these zones except for coast conservation structures and vegetation; activities in connection with the fisheries industry such as harbours, piers, anchorages, warehouses and ancillary facilities; agricultural activities approved by the Coast Conservation Department; historical monuments and archaeological sites; and essential infrastructure facilities.
In fact several of these exempted items do not even fall within the definition of "development activity" in terms of the UDA Law and thus illustrate the anomaly of trying to give effect to coastal buffer zones through that Law.
Meanwhile sources at the Tourism Ministry have been quoted in the media as saying that tourist hotels would be exempt from these regulations, thereby increasing the confusion and the heartburn felt by ordinary residents.
A further touch of farce was added recently, when officers of the UDA and the Coast Conservation Department who had both started putting markers indicating the 100 metre buffer zone, ended up drawing two different lines. As a result some persons who had thought they were putting up houses outside the buffer zone were suddenly told they are within it and asked to demolish their structures.
This kind of approach not only adds to the trauma of the displaced, but also strains the patience of those foreign and Sri Lankan groups that have been organizing, financing and often physically participating in the rebuilding effort.
Clearly there must be only one authority in charge of the coastal zone, and one definition of the metes and bounds of that zone.
These events also raise a major policy issue as to whether there is justification for departing from the concept of integrated coastal zone management under the Coast Conservation Act, in favour of a policy of coastal zone evacuation which is what the UDA policy amounts to. Furthermore, does the State have the land and financial resources to undertake such a massive relocation; and if not, will many people be left in a state of limbo for years?
In January, the Asian Development Bank, Japan Bank for International Cooperation and World Bank jointly released a "Preliminary Damage and Needs Assessment" for post-tsunami Sri Lanka.
Referring to the 100-200 metre no-construction zone, the report observes that "Even if this is not implemented as a blanket rule, but only applied in specific high risk areas, there will be considerable relocation of people."
Elsewhere the report calls for a multi-hazard risk approach to ensure that communities and assets are less vulnerable to impacts of future disasters "while balancing the costs of excessive resettlement".
It also calls for local communities to be consulted, and empowered to make their own decisions. The report also declares that "communities should be assisted to return to their original homes as swiftly as possible wherever possible."
Thus coastal zone evacuation is not what the donors envisage. Nor is the proposed buffer zone going to save lives in the event of another tsunami, as it is widely acknowledged that the waves went in much further than 100 - 200 metres in most areas. For disasters on the scale of a tsunami there is no substitute for early warning and speedy evacuation.
On the other hand it has also been observed that the preservation of natural barriers such as sand dunes and vegetation were more effective than distance in mitigating the force of the waves. Coastal communities can be actively involved in environmental preservation projects, on the lines of participatory forestry projects.
In short there are many ideas that need to be discussed and evaluated in order to reach the best consensus. The Coast Conservation Act has two salutary features in this regard: Firstly it requires an overall management plan to be prepared on a scientific basis with surveys, inventories of resources and proposals on dealing with human settlements, land use, tourism and the like. Secondly, it allows 60 days for public discussion of the plan before it is finalized, thus complying with international best practices of public consultation and participation.
Following the tsunami there will obviously need to be a revision of the 2004 Coastal Zone Management Plan. This could form the basis for a scientifically sound and socially conscious discussion of how best to rebuild and preserve this devastated area within a realistic budget framework.
Critics will no doubt point to shortcomings in the work of the Coast Conservation Department, particularly the fact that many unauthorized structures were allowed to come up on the beaches. However, there is no guarantee that similar lapses will not occur in the proposed 100 and 200 metre buffer zones. Residents of Colombo will be aware of the many violations of UDA zoning regulations that are presently taking place in the city.
This is a problem of law enforcement that must be tackled separately. First one must ensure that the law is validly enacted and based on sound principles.
It was recently announced that the Urban Development Authority had delegated to the relevant local authorities its powers in regard to the coastal zone. The local authorities are accordingly charged with enforcing the 100 metre no-construction zone in the South and, theoretically at least, the corresponding 200 metre zone in the East.
Among the incidents reported after this delegation of power is that of a local authority in the Kalutara District prohibiting persons who are still living in the zone from repairing their damaged toilets.
While directives of this sort may have a farcical ring to readers, they pose a severe problem to those at the receiving end. If obeyed, such directives are likely to lead to serious health and sanitation problems in the tsunami-affected areas.
However the bottom line is that such directives are presently being issued without any legal authority. No regulations pertaining to 100 or 200 metre "buffer" zones have yet been gazetted.
Furthermore, the UDA and any local authority acting under powers delegated by the UDA can only prohibit "development activity" from being carried out without a permit. "Development activity" as defined in the UDA Law No. 41 of 1978 as amended by Act No. 4 of 1982 does not include "the use of any land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of a dwelling house, not involving any building operation that would require the submission of a new building plan."
In other words, it does not include the clearing out, repair or reconstruction of an existing toilet or any part of an existing house.
However the present legal predicament over the "buffer" zones does not end there. Let us take the legislative history in sequence.
The UDA was created by Law No. 41 of 1978. Under this law, whenever the Minister in charge of urban development "is of opinion that any area is suitable for development, he may, by an order published in the gazette, declare such area to be an Urban Development Area."
Initially, by Government Gazette No. 4/1 of 30.09.1978, Colombo and a number of other major towns were listed as such areas and this list was extended from time to time.
In 1981 the Coast Conservation Act was passed for regulating and controlling development activities within the "coastal zone" and for preparation of a "coastal zone management plan".
This "coastal zone" is defined in the body of the Act itself as "the area lying within a limit of 300 metres landwards of the Mean High Water line and a limit of 2 kilometres seawards of the Mean Low Water Line", with certain special provisions for the measurement of the zone where there are rivers and lagoons.
The coastal zone as thus defined is to be inventoried and managed by the Director of Coast Conservation in terms of a "coastal zone management plan" that has to be revised every four years. This plan and every revision thereof is put up for public comment for 60 days prior to being submitted to Cabinet for approval.
As part of this plan, it has been the practice of the Coast Conservation Department to impose reservations ranging from 55 to 200 metres along different parts of the coast depending on local conditions. This included reservations in urban areas that formed part of the coastal zone.
In December 1982 the then Minister of Urban Development ("R. Premadasa") issued a gazette notice under section 3 of the UDA Law declaring the "Coastal Zone of the Republic of Sri Lanka" to be an "urban development area". This coastal zone is defined in the gazette as "the area lying within the limits of 1 kilometre landwards of the Mean High Water line of the sea."
Thus there are now two coastal zones having different metes and bounds, and falling under the jurisdiction of two different public bodies.
Hitherto this 1982 gazette does not appear to have been used in a manner that cut across the functions of the Director of Coast Conservation. Even when the Coast Conservation Department last revised its Management Plan in 2004 (some time before the tsunami) it is this department that prescribed the coastal setback limits for the towns including Colombo (55 metres).
After the tsunami the UDA appears to have been seized by a takeover mentality and is now seeking to impose the 100 and 200 metre setback limits on the strength of the 1982 gazette.
However others object, saying that a mere gazette notice issued in 1982 cannot override the substantive provisions of an Act of Parliament, namely the Coast Conservation Act of 1981, under which the coastal zone is defined and the Director of Coast Conservation is given the exclusive power to determine what type of development will be permitted within it.
The fact that no gazette has yet been issued, three months after the tsunami, appears to indicate that the Government’s legal experts are having some difficulty with it.
Meanwhile, the contents of the proposed gazette have been published by TAFREN in a full page advertisement, as if they were law, and are as follows:
The 100 metre buffer zone will apply to the districts of Killinochchi, Mannar, Puttlam, Gampaha, Colombo, Kalutara, Galle, Matara and Hambantota. The 200 metre zone will apply to the districts of Jaffna, Mullaitivu, Trincomalee, Batticaloa and Ampara.
The TAFREN advertisement states that no "development activity" will be permitted in these zones except for coast conservation structures and vegetation; activities in connection with the fisheries industry such as harbours, piers, anchorages, warehouses and ancillary facilities; agricultural activities approved by the Coast Conservation Department; historical monuments and archaeological sites; and essential infrastructure facilities.
In fact several of these exempted items do not even fall within the definition of "development activity" in terms of the UDA Law and thus illustrate the anomaly of trying to give effect to coastal buffer zones through that Law.
Meanwhile sources at the Tourism Ministry have been quoted in the media as saying that tourist hotels would be exempt from these regulations, thereby increasing the confusion and the heartburn felt by ordinary residents.
A further touch of farce was added recently, when officers of the UDA and the Coast Conservation Department who had both started putting markers indicating the 100 metre buffer zone, ended up drawing two different lines. As a result some persons who had thought they were putting up houses outside the buffer zone were suddenly told they are within it and asked to demolish their structures.
This kind of approach not only adds to the trauma of the displaced, but also strains the patience of those foreign and Sri Lankan groups that have been organizing, financing and often physically participating in the rebuilding effort.
Clearly there must be only one authority in charge of the coastal zone, and one definition of the metes and bounds of that zone.
These events also raise a major policy issue as to whether there is justification for departing from the concept of integrated coastal zone management under the Coast Conservation Act, in favour of a policy of coastal zone evacuation which is what the UDA policy amounts to. Furthermore, does the State have the land and financial resources to undertake such a massive relocation; and if not, will many people be left in a state of limbo for years?
In January, the Asian Development Bank, Japan Bank for International Cooperation and World Bank jointly released a "Preliminary Damage and Needs Assessment" for post-tsunami Sri Lanka.
Referring to the 100-200 metre no-construction zone, the report observes that "Even if this is not implemented as a blanket rule, but only applied in specific high risk areas, there will be considerable relocation of people."
Elsewhere the report calls for a multi-hazard risk approach to ensure that communities and assets are less vulnerable to impacts of future disasters "while balancing the costs of excessive resettlement".
It also calls for local communities to be consulted, and empowered to make their own decisions. The report also declares that "communities should be assisted to return to their original homes as swiftly as possible wherever possible."
Thus coastal zone evacuation is not what the donors envisage. Nor is the proposed buffer zone going to save lives in the event of another tsunami, as it is widely acknowledged that the waves went in much further than 100 - 200 metres in most areas. For disasters on the scale of a tsunami there is no substitute for early warning and speedy evacuation.
On the other hand it has also been observed that the preservation of natural barriers such as sand dunes and vegetation were more effective than distance in mitigating the force of the waves. Coastal communities can be actively involved in environmental preservation projects, on the lines of participatory forestry projects.
In short there are many ideas that need to be discussed and evaluated in order to reach the best consensus. The Coast Conservation Act has two salutary features in this regard: Firstly it requires an overall management plan to be prepared on a scientific basis with surveys, inventories of resources and proposals on dealing with human settlements, land use, tourism and the like. Secondly, it allows 60 days for public discussion of the plan before it is finalized, thus complying with international best practices of public consultation and participation.
Following the tsunami there will obviously need to be a revision of the 2004 Coastal Zone Management Plan. This could form the basis for a scientifically sound and socially conscious discussion of how best to rebuild and preserve this devastated area within a realistic budget framework.
Critics will no doubt point to shortcomings in the work of the Coast Conservation Department, particularly the fact that many unauthorized structures were allowed to come up on the beaches. However, there is no guarantee that similar lapses will not occur in the proposed 100 and 200 metre buffer zones. Residents of Colombo will be aware of the many violations of UDA zoning regulations that are presently taking place in the city.
This is a problem of law enforcement that must be tackled separately. First one must ensure that the law is validly enacted and based on sound principles.
