Town Planning and Development Control as Environmental Law

Facts. In T. Damodhar Rao v. Special Officer, Municipal Corporation of Hyderabad, AIR 1987 AP 171, land shown in the development plan as a recreational park was sought to be built upon by its owners. Held. The Andhra Pradesh High Court held that the enjoyment of life guaranteed by Article 21 embraces the protection and preservation of nature's gift, that the use of the land contrary to the development plan was contrary to law, and that environmental pollution amounts to a slow poisoning and a violation of Article 21. Why it matters here. It is the earliest Indian decision linking a development plan reservation to a constitutional right.

Facts. In Bombay Dyeing and Manufacturing Co. Ltd v. Bombay Environmental Action Group, AIR 2006 SC 1489, an amendment of 2001 to the development control regulations for Greater Mumbai governed the redevelopment of textile mill lands and the share of their open land to be surrendered for public open space and housing, and it took land that became vacant when mill structures were demolished out of that share. The Bombay High Court read the regulation down so that such land was shared as well. Held. The Supreme Court set aside the High Court's judgment and decided the principal question of what land had to be surrendered in the mill owners' favour, holding the regulation and the State's clarification of 2003 valid and the regulation "not contrary to the principles governing environmental aspects including the principles of sustainable and planned development". It added that a regulation of this kind, made to control the use and development of land, is not a provision for compulsory acquisition or for reservation in a development plan. Why it matters here. It is a leading Supreme Court decision on how far a court will review a development control regulation on environmental grounds, it is a Mumbai case, and it shows that a regulation is read for what it provides rather than stretched to secure more open space.

Facts. In M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu, AIR 1999 SC 2468, a municipal corporation permitted an underground shopping complex beneath a historic public park. Held. The agreement was set aside and restoration of the park directed, the Court applying the public trust doctrine to a public open space held by a local body. Why it matters here. It is the case that joins planning law to the public trust doctrine.

Worked example

A developer proposes a twenty-storey building on a plot in Mumbai part of which is shown on the development plan as a recreation ground and which lies two hundred metres from a creek.

The planning question. Development contrary to the reservation is not permissible; the reserved portion cannot be built on, and the permissible floor space is computed on the balance.

The coastal question. A creek is a tidal influenced water body, so the coastal regulation zone extends landward from its high tide line, and the notification of 2019 applies independently of the plan. In Greater Mumbai, paragraph 10.3 of that notification requires all open spaces, parks, gardens and playgrounds indicated in development plans within CRZ-II to be categorised as No Development Zone, with a floor space index of up to fifteen per cent allowed only for civic amenities and sports facilities.

The environmental clearance question. A building project above the threshold in the Schedule to the notification of 2006 requires prior environmental clearance.

How the three fit. They are cumulative. Permission under the plan does not dispense with coastal clearance, and coastal clearance does not dispense with environmental clearance. A student who treats them as alternatives has made the commonest error in this part of the paper.

What it does NOT mean

It does not mean a development plan is a pollution control instrument. It fixes no standards and measures nothing.

It does not mean a reservation is permanent. A plan may be revised, and a reservation may lapse if the land is not acquired within the statutory period after a purchase notice, which is a frequent source of litigation.

It does not mean planning permission cures an environmental breach. The clearances are cumulative, and a building lawful under the plan may still be unlawful under the coastal notification.

It does not mean planning law is State law only in name. It is genuinely State law: the Act, the plan, the regulations and the authority are all of the State, and the central environmental statutes assume them.

Limits and criticism

Plans are revised, and reservations disappear. The commonest mechanism by which urban open space is lost in India is not an illegal building but a lawful amendment of the plan.

Enforcement is weak. Unauthorised development is widespread, and regularisation schemes have repeatedly followed.

The environmental purpose is implicit. Nothing in the planning Act says the environment is its object, and the environmental content of a plan depends on the authority's own choices.

It is nevertheless the most powerful instrument available. Because it operates before the harm, applies to every parcel of land, and reaches development that no pollution statute touches.

Quick revision

• The Maharashtra Regional and Town Planning Act 1966 is the State instrument; the plan, the reservations and the development control regulations are its output.
• Development is widely defined and includes a material change in use; no development without permission.
• Reservations for gardens, playgrounds and recreation grounds are the environmental heart of a plan.
• Damodhar Rao (1987): building contrary to a plan reservation offends Article 21.
• Bombay Dyeing (2006): Mumbai's mill-land regulation upheld as consistent with sustainable development, and the High Court's reading down in favour of open space set aside.
• Planning permission, coastal clearance and environmental clearance are cumulative and not alternatives.

Test yourself

1. Why is planning law described as environmental law that operates before the harm? Because it controls what may be built and where, and a refusal or a reservation prevents the activity from coming into existence at all. Pollution law by contrast regulates an activity that already exists, by fixing standards for its emissions and discharges, so it can reduce harm but not prevent the siting decision that made the harm likely.

2. Give two things a development plan controls that no pollution statute reaches. The reservation of land for open space, so that a garden or a playground cannot be built on, and the zoning of land use, so that a hazardous industry cannot be sited in a residential area. Neither is a matter of emissions, so neither is reached by a consent or a standard under the water, air or environment statutes. Filling a wetland and building on a flood plain are two further examples.

3. A builder has planning permission for a project two hundred metres from a creek in Mumbai. Is that enough? No. The three approvals are cumulative. He needs permission under the development plan and the development control regulations; he needs clearance under the Coastal Regulation Zone Notification 2019, because a creek is a tidal influenced water body and the zone runs landward from its high tide line, and paragraph 10.3 of that notification treats open spaces shown in the development plan within CRZ-II as No Development Zone; and if the project crosses the threshold in the Schedule to the notification of 2006 he needs prior environmental clearance as well.