Physical Planning is basically the mechanisms for the management of the environment and in the majority of countries it served for a long time as the only framework for environmental management. Physical Planning essentially refers to the organisation of the use of physical space and its environmental role arises from its ability to separate incompatible uses because incompatibility in use tends to be the primary positive factor in the perception of pollution. The background to physical planning is to be found in the common law specifically in the law relating to property interests in land.
Under the Common Law a landowner has the right of use and abuse of the land and the right of use and abuse is the right to use the land productively or to commit waste on the land. The commission of waste may extend to environmental degradation of the land. The primary limiting factor to the landowner’s right of use and abuse is a correlative right enabling land owners all sorts of use and abuse. This means that each landowner has a comparable right of use and abuse. The common law gives to each landowner the right to prevent a use from neighbouring land which would interfere with his land. Under the common law the principle mechanism for a landowner to protect the right of use is the law of nuisance. It enables landowners to take action to prevent unreasonable use which unjustifiably interferes with the reasonable comfort and enjoyment of an occupant of land.
The common law action of nuisance is reactive in nature which means that it comes into play when the unjustifiable interference occurs. It is not pre-emptive in nature.
With the development of the modern State, legal jurisprudence began to develop to the effect that the State could assume cumulatively the individual rights of each of the landowners to prevent unreasonable use which causes unjustified interference with the enjoyment of land. Jurisprudence began to develop allowing the State to act on behalf of all the landowners who could individually take action, this was developing because of the growth of the Modern State. the action by the State on behalf of individual landowners is known under the common law as the exercise of Police power. Police power essentially relates to the State taking action to prevent unreasonable use of land which interferes unjustifiably with neighbouring landowners.
In the exercise of Police Power the State can act only to prevent unreasonable use of land and it is in that context that the State can act to prevent use of land which can cause environmental degradation. During the development of police power, the State has not restricted itself to reactive action but has gone further to take pre-emptive action and the pre emptive action has taken the form of planning the use of physical space and therefore the State has developed mechanisms for putting in place measures to prevent individual landowners from using their land in such a way that environmentally degrading acts are committed.
In the legitimate exercise of police power the State can prevent a landowner from developing the land but as long as the action is taken in order to protect the interest of other landowners then the State is not obligated to pay compensation to the landowner whose rights of use have been restricted. If on the other hand the State takes action to confer a benefit on the other landowners then this would amount to an exercise by the State of its power of Eminent Domain and for this compensation is payable. An example is the case of Just V Marinette County 201 N.W. 761 This is a case in which in 1961 a couple known as the Justs purchased land along a lake. Subsequently a law was passed which designated the land and the lake as a protected swamp (wetland) following the passage of this law in 1968 the Justs commenced building on their land and dug and started placing the material that they dug out of the building site on to the wetland as a way of getting rid of it. The County sought an injunction to restrain the Justs from filling the wetland without obtaining a permit as required by the law. The Justs argued that to prevent them from using their land in this way amounted to a compulsory taking of their land without compensation. The County argued that the restrictions were a proper exercise of police power and did not merit compensation. The court held that this was a restriction on the use of property not to secure benefit to the public but to prevent harm from the change in the natural character of the property. The public purpose sought to be obtained by the law was to protect navigable waters and the public rights in them from degradation which could result from uncontrolled use and development of shore lands.
The outcome of the common law position has been the development of the branch of law known as physical planning law and as we’ve indicated physical planning relates to the organisation or use of physical planning. It has two components, planning and development control.
The planning of the use of physical space may be defined as the establishment of the objectives to be achieved in the use of given physical space.
This relates to the mechanisms to ensure that development activities comply with the statement of objectives or comply with the plan.
The two components must be there to have a system of physical planning. In Kenya we seem to have the plan but no effective system for ensuring compliance.
There is no necessary correlation between the existence of a physical plan and the achievement of environmental objectives, the two don’t need to go together. Physical planning is an indication to be achieved with regards to physical space. In our time physical planning has been used expressly for purposes of environmental management and the tool which is used to ensure that physical planning serves an environmental management purpose is an Environmental Impact Assessment.
There are 3 components
2. Development Control
3. Environmental Impact Assessment this is the system that ensures that physical planning serves an environmental purpose.
In the USA physical planning is referred to as zoning because in practice users of physical space are specified on the basis of zones. The term zoning is quite illustrative of the activity taking place. In order to ensure that one minimises pollution issues, one has to ensure that users within one zone are compatible users, i.e. industries with industries and residents with residences.