BACKGROUND
Over the past six months or so, our princely Pitons have been in the news for all the wrong reasons. At the heart of the contretemps is a vast vacation home being built by Canadian billionaire (Geoffry Robillard) on 79 acres of land purchased from a local landowner (Mondesir Estates). The contention is that this land situated at Anse L’lvrogne falls within the Piton Management Area (PMA) – a “no development area” established as a condition of “World Heritage Status” assigned to the Pitons.
Understandably, the development has evoked the ire of locals and foreigners from all walks of life, with unsubstantiated allegations of underhand dealings by former officials of the Development Control Authority (DCA). Over 20,000 aggrieved people signed a petition calling on the Government to stop the development on the grounds that “…its existence, expanse and composition threatens the natural beauty, historical significance and heritage of our people and country.” I share the anger of petitioners, but for entirely different reasons. I do not fault the developer as much as I fault the State for the contentious situation that has emerged. Let me explain.
The Land Management Challenge
The PMA is a multiple use area encompassing 1,134 hectares of land and 875 hectares of sea-referred to as the Marine Management Area (MMA)- totaling 2,909 hectares. The diverse habitats of the MMA, which include the Soufriere Marine Management Area (SMMA) host important marine life such as the Hawksbill Turtles, Whale Sharks, and Pilot Whales. About half of the PMA is on public (government) land with the remaining lands in private ownership. While the conservation areas and the marine portions of the PMA are uninhabited, there are roughly 1,500 residents living in other parts of the PMA.
This combination of land, coastal and marine features and land uses underscore the challenges that have emerged in attempting to reconcile active and passive (conservation) land uses within the PMA. In fact, at the time World Heritage Status was sought, it was clear that effective land management and systematic monitoring and law enforcement within the PMA and its adjacent communities would be needed to maintain the global heritage status of the PMA. Further, it was recognized that the State would have had to consider buying private land under certain circumstances.
The Legal Framework
The Physical Planning and Development Act of 2001 is the main instrument available to Government to manage the land use conflicts within the PMA. It was under this Act that the Cabinet Decree establishing the PMA was Gazetted. This Act also provided cover for the declaration of the PMA as an Environmental Protection Area in 2003, and as a Special Enforcement Area in 2011. Additionally, the Fisheries Act was used to establish the Soufriere Marine Management Area (SMMA) in 1994. There are other laws that apply to the PMA, in areas such as agriculture, forestry, fisheries, soil and water conservation and wildlife protection.
Actions and Omissions of the State
In successive reports to the World Heritage Committee (WHC), the Government of Saint Lucia acknowledged that “demarcating the boundaries of the PMA remains a priority activity, in particular defining the zonation within the property, buffer zone boundaries, as well as the marine boundaries.” The cardinal omission which helped to fuel the brouhaha between the developer and the State was the latter’s failure to incorporate the guidelines of the Limits of Acceptable Change (LAC) study in the country’s legal and regulatory framework, primarily in the Physical Planning and Development Act. This was not done at the time the developer filed his initial and revised plans and it remains to be done. Consequently, I was not at all surprised when the Eastern Caribbean High Court in a July 25, 2023, decision, ruled that the Development Control Authority (DCA) had no sound legal basis to reject the developer’s application. The judge also noted the absence of any definitive physical plan demarcating the precise area designated as the PMA. Judge Shawn Innocent concluded thus:
“Restrictions must be embodied in some discernible law, statute or regulation ordained by such and applied in a manner that is consistent with the due process of law so as not to result in the abrogation of any private or public right guaranteed under the Constitution.”
The learned Judge also opined that “unless the State acts assiduously in taking the necessary legislative steps to protect the patrimony, Saint Lucia may very well lose its standing as a World Heritage Site under the Convention.” I thought he went beyond his judicial remit with this statement. The Court ordered the DCA to reconsider Mr. Robillard’s application. However, the State decided to appeal the judgement and lost, on similar grounds as in the High Court.
The painful irony is that Mr. Robillard relied on the “Special Development Area” status of the PMA to petition the State for a 50% percent stamp duty and vendors tax on the land transaction. In December 2015, Mr. Robillard was granted Approved Developer” status “…subject to the resolution of all outstanding issues regarding the status of that part of the property which falls within the World Heritage Site.”
The Compensation Issue
In my lay opinion, there is another overlooked dimension to the case. As was noted earlier, at the start of the WHS application process, the State was fully aware of the mixed land uses within the PMA. Technically, the declaration of the PMA as an “Environmental Protection Area” and later as a “Special Enforcement Area” as well as the planned incorporation of the LAC Guidelines within the Planning Act, means that new zoning regimes are being introduced that may affect existing land uses.
The Physical Planning Act asserts that before a physical plan for an area has been approved by the House of Assembly, the Minister may make an order to be published in the Gazette declaring any area to be a zoned area and reserving it for specific purposes. After this is done, the Head of the Physical Planning and Development Division “…shall not approve any application for the development of land in that area which is inconsistent with the purposes for which the area is reserved.” Moreover, “…where any land within an area zoned in accordance with the Act depreciates in value as a result of such zoning, adequate compensation shall be paid to the owners of that land.” Adequate compensation must also be paid in respect of an environmental protection order.
Once the legal irregularities with the PMA are resolved and a zoning regime is introduced, affected landowners will be entitled to seek compensation from the State. Consequently, a clear strategy will be needed to address this. Based on the price Mr. Robillard paid for his 32 hectares of land (approximately EC$700,000 per ha.), I estimate that the State would need to raise approximately EC$350 million to acquire the nearly 500 hectares of land within the PMA that is privately owned. This is financially prohibitive, unless the State wins a lotto or the likes of Bill and Melinda Gates, Warren Buffet, Elon Musk, or Donald Trump step in. Bloomberg says Donald Trump doesn’t belong in that list; so, we will scratch him. The government should seek advice from UNESCO and from international financial institutions (IFIs) on ways of navigating this financing challenge.
In my experience as a trained Urban Planner and former Executive Secretary of the DCA, I am not aware of any landowner in Saint Lucia being compensated because of a formal (legal) adoption of a zoning plan. Moreover, I am not aware of any zoning plan being legally adopted, even though such plans have been developed over the years and have been used by the DCA to determine planning applications. When this practice was challenged, as it was by Mr. Robillard, the DCA was exposed as the proverbial emperor with no clothes.
The truth is that we have not been as disciplined as we should be, in our management of our legal framework, and in particular, our planning laws. There are numerous cases of principal laws on our books with no supporting regulations. The Land Development (Interim Control) Act of 1971 remained in effect for THIRTY YEARS until it was superseded by the Physical Planning and Development Act. No Regulations were passed for this Act, perhaps because it was meant to be an interim law. Consequently, whenever developers challenged the interim planning law in court, invariably they won. It’s a mystery to me how the State was able to achieve any modicum of planned development using this wholly inadequate, interim planning law. Even now, the DCA continues to exist, thanks to strange language in the Physical Planning and Development Act, that basically says, that while the DCA is meant to be replaced by an Advisory Committee, it will continue to exist, until it’s decided that it will die. Now, 22 years later, a decision has yet to be made on the DCA’s future. It’s clear that both administrations wish to retain the DCA; in which case the law should be purged of all uncertainty regarding the DCA’s future.
Next Steps
The preservation of the World Heritage Status granted to the Pitons rests squarely with the Government. To be fair, the WHC has shown considerable patience with the Government which has not kept key pledges it made to UNESCO regarding the PMA. For example, the Government pledged that the 2003 Management Plan for the property would have been implemented in 2020. The WHC has called on the Government to ensure that projects within the PMA, especially at Sugar Bay, are fully compliant with the Policy Area Design Guidelines of the LAC. Additionally, noting that exploratory drilling for geothermal energy has been agreed under the Renewable Energy Sector Development Project (RESDP), the WHC has asked the government to confirm that exploratory drilling will not be undertaken in the PMA and to ensure that the property remains off-limits for any geothermal development activities in the future in line with previous Committee decisions. I am deeply uncomfortable with this stipulation but will leave that for another time.
Finally, the government must submit to the WHC, by 1 December 2024, an updated report on the state of conservation of the PMA for examination at its 47th session. So essentially, Saint Lucia has a year to free itself of the legal maltet with the PMA. Only time will tell.