environmental law notes

ENVIRONMENTAL LAW

The subject of environmental law is focused on how environmental activities are managed. This unit focuses on the legal regimes in Kenya and dwells on national environmental law.

The focus basically covers:- The history of modern environmental law, - Theories and justifications for environmental law- Various sectors of environmental law, which are dealt with- Laws relating to physical planning, management of water resources, waste

and biological diversity

Environmental lawThe term describes the interaction between human activities and mechanisms that exist for regulating the impact of human activities on the environment. The environment has been described as everything that is not me – this is attributed to Albert Einstein who said ‘the environment is everything that is not me’ an all-encompassing definition that covers everything. In terms of management the environment is therefore dealt with thru sectors and so there is a system for managing the natural environment, the physical environment, the economic environment, the political environment, the social environment etc.,

The subject matter here is the physical environment. The natural environment is that component of the environment constituted without primary human intervention. Human intervention to the extent that it exists is indirect. We are not saying that they have had nothing to do with it but they had no primacy to do with it. The natural environment exists in and on itself but human intervention forms part of the dynamism of the natural environment.

Human beings themselves are part of nature and humans exist in two worlds, the natural world and the human world. This means they are part of nature but at the same time independent of nature. The way humans define nature depends on the way humans appreciate nature. For instance, some human beings may think of the forest as a dangerous place and others as a beautiful recreational ground and yet others as a good source for timber poles.

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Humans have an impact on nature because humans depend on nature for their sustenance. They cut down trees, hunt animals and so on. This is part of natural processes. Nature has the capacity to absorb the impact of human activity. Nature is dynamic, subject to constant change. Part of that change arises from human activity. Consequently, human reliance on the environment for sustenance is a natural process. With the development of human society, the ability of human beings to have an impact on nature has also increased. This increased ability has arisen from on the one hand an increase in human population and on the other an increase in technological capability. The combined effect of increased technological effect and human activity means that present day human society has a far superior ability to cause an impact on nature than earlier human societies. The increased impact of human activity on nature tends to destabilize the natural balance. Instability in the natural balance manifests itself in environmental degradation.

The subject mater of environmental law is to put in place measures to ensure that human activities do not lead to environmental degradation. Modern environmental law can be traced to the 1960s. It was triggered by the experience of industrial pollution in western industrialized countries. In the period after the Second World War western countries developed their industries as a response to the economic problems that they were then experiencing. The development of industries in the west created serious congestion in urban areas as labour migrated into towns but it also created serious industrial pollution because the industries emitted gasses and discharged wastes into watercourses.

In the late 1960s proposed to hold a conference to discuss the implications on the environment of the industrialization that was then going on in the west. The conference was planned for Stockholm, Sweden and the agenda of the conference focused on industrial pollution and urban settlements. The non-industrialised countries at the time took the view that the proposed conference was not going to address their problems. Their problems arose from poverty and the low level of economic growth whereas the conference was preoccupied with urban settlements and industrial pollution. They therefore showed no interest in attending the conference.

In 1969 the UN convened a meeting at a town called Founex, Switzerland to discuss the concerns of the non-industrialised countries and it was agreed that ways be found to factor in issues of poverty into the conference. The UN Conference on Environment and Human Settlements was held in Stockholm in June 1972. The outcome of the conference was the establishment of a program of the UN to deal with environmental issues. That program was the United Nations Environment Program - UNEP and in 1974, its headquarters was located in Nairobi. The conference established also a center for human settlements known as the UN Center For Human

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Settlements and that center was also located in Nairobi. Subsequently, the center was renamed HABITAT. Two outcomes were thus the establishment of UNEP and HABITAT (focused on human urban settlements.)

In 1982, UNEP recommended to the General Assembly that discussions needed to be continued on the question of the relationship between poverty and environmental concerns. The UNGA established a commission known as the UN Commission on Environment and Development chaired by the then PM of Norway, Ms Groharlem Brundtland. The Commission published their report in 1987, commonly known as the Brundtland Report but whose official is known as ‘Our Common Future: The Report of the UN Commission on Environment and Human Development’. It discussed the relationship between environment and development and argued that environmental protection was not necessarily contrary to economic growth. It argued that economic growth could be made compatible with environmental protection and that it was necessary to make economic growth compatible with environmental protection because that was the only way in which development could be made sustainable. The Commission defined sustainable development as development which meets the needs of the present generation without compromising the ability of future generations to meet their own needs.

Sustainable development as a concept quickly gained widespread support. In June of 1992 the UN General Assembly held a 20th anniversary conference to the Stockholm conference in Rio De Janeiro, Brazil. The UN Conference on Environment and Development – changed from the UN Conference on Environment and Human Settlements in 1972. At the 1992 Conference, the International Community endorsed the concept of sustainable development. The UN Conference on Environment and Development approved the Rio Declaration which endorsed the principle of sustainable development as the way to reconcile the demands for economic growth and the imperative to protect the environment. The conference also approved the document known as Agenda 21 which is the statement of principles of how to achieve sustainable development in the 21st century. The concept of sustainable development provides the philosophical underpinnings for modern environmental management.

The concept appeared to satisfy both developing and developed countries – a way in which both could rally around the idea of environmental protection. The rationale for it is the idea of prudent management of resources. The Brundtland Commission adopted the analogy of capital and interest. Capital is the inherited sum. One was to think of the resources as capital, we had to live off them but leave them intact for future generations so that the capital was always there. Hence slogans like if u cut one tree, u plant two others.

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The philosophy was very attractive and the concept of sustainable development came to dominate the way people think of environmental management. A small group has continued to express dissatisfaction though and have highlighted two fundamental weaknesses:

- The concept is unduly centered on human interest (anthropocentricity). The Rio Declaration principle 1 in fact states that human beings are at the center of concerns for sustainable development. Thus critics say the concept subjects other components of nature to satisfying the needs of human beings. This means human beings determine whether other parts of nature will die or survive depending on whether human beings like it or not. This they argue is not nature but nature as created by human beings. The world inherits resources not exactly as they were. They argued for a biocentric system, a concept centered on all living organisms.

- As a concept, it promotes a false notion of equity. There are two kinds of equity: Equity between the present generations (intragenerational equity) and between the present generations and future generations (intergenerational equity). Sustainable development focuses on intergenerational equity. One of the leading proponents of sustainable development, Edith Brown Lee wrote ‘In fairness to future generations’. The critics argue that in encouraging us to think of future generations it takes away our attention from the unfairness to present generations. There is no fairness in the way the resources of the world are distributed for instance. Africa has 1% of the wealth of the world and instead of focusing on that unfairness today we are thinking of the future.

Thus, the critics argue that the concept of sustainable development is flawed. Nevertheless, the concept has taken center stage in the way in which we manage environmental resources. The subject of environmental law revolves around this.

The Law Dealing with Physical PlanningPhysical planning refers to the management of the use of physical space. The history of physical planning dates back to the common law in 18th

century England under which the landowner has rights of use and abuse of the land which the particular landowner has. The right to use the right to put the land to productive purposes while the right to abuse is the right to commit waste on the land. The landowners right of use and abuse is only limited by an equal right of use and abuse in neighbouring landowners. Where the use or abuse to which landowner puts land cause or threatens to cause damage to neighbouring land the neighbouring landowner has a remedy under the law of nuisance to stop the damaging use or abuse.

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Nuisance is a remedy available to protect owners or occupiers of land from the damaging effects of the unreasonable use of land by a neighbouring landowner. The right of action available to one landowner is equally available to all landowners. With the development of the modern state, the state arrogated to itself the right to take action to protect land from damaging use arising from unreasonable use by neighbouring landowners, and what the state assumed was the power available to all landowners to protect land from damaging use. The state power in this regard is referred to as police powers.

When the state acts in exercise of police power it may restrict the use to which the landowner may put his or her land. Because the restriction is intended to prevent damaging use of the land no compensation is payable to the landowner whose use of land is restricted. The implication of the states exercise of police power is that the landowners right to develop his or her land may be curtailed.

It is upon this premise that the law of physical planning has arisen. Physical planning controls the use of physical space. It comprises two parts.

1. The physical plan2. Development control

The physical plan is a statement of the objectives which it is sought to achieve in using particular physical space whereas development control is the process of subjecting proposed developments to consideration with a view to determining whether the proposed developments conform to the physical plan.

Westlands

Residences, churches, police station

Eastlands

Industries, landfills, army, prisons

Southlands

Entertainment spots, national parks

Northlands

Institutions, universities

The key purpose to achieve is to ensure that incompatible uses are separated one from the other in order to ensure that nuisance is minimized.For instance above, residences to be near churches and institutions away from national parks. The industries are not too far to avoid long commuting distances.

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The second step is to ensure proposed developments conform to the plan.

The law relating to physical planning in Kenya This is dealt with in the Physical Planning Act CAP.286 of the Laws of Kenya. It is complemented by two other statutes:

Land Control Act – CAP 302 Environmental Management and Coordination Act of 1999

The Land Control Act is not predominantly perceived as a means of physical planning but in fact it is. It is an act whose objective is to regulate developments in agricultural land. It establishes land control boards and subjects transactions in agricultural land to the requirement for an approval by the land control board. Anybody proposing to transfer, transmit or subdivide agricultural land must obtain the permission of the land control board.

Transfer occurs inter vivos when both parties are alive, transmission occurs where the owner has died.

The objective of the Land Control Act is to ensure that good husbandry/agricultural practice is promoted. That one does not subdivide beyond the point that it is possible to use it for agriculture.

The Environmental Management and Coordination Act is an act designed to provide a system for coordinating activities which have an impact on the environment. Part IV of the Act provides for environmental planning. It establishes a National Environment Action Plan Committee. The function of the Committee is to prepare a National Environment Action Plan at least every five years. The National Environment Action Plan is required to contain among other things guidelines for the use of land. The process of preparing the plan is that at district level the district environment action plan is prepared which gives guidelines for the use of land in the district. All the district plans are then assembled at the province and the provincial environment action plan is prepared. Finally, the Provincial Environment Action Plan is incorporated with plans from other provinces to constitute the National Environment Action Plan.

Presently, the Environmental Action Planning process has not started and the ways in which this plan will relate to the physical plan is not yet clear

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but the idea is that for purposes of environmental management there will be a plan. The physical planning Act replaced two earlier statutes:

- The Town Planning Act- The Land Planning Act

Both Acts were repealed when the physical planning Act came into effect in November of 1998.

The Act provides for the preparation and implementation of physical development plans. It establishes the office of the director of physical planning whose job it is to formulate national, regional and local physical development and advise commissioner of the lands and local authorities on the most appropriate use of land including land management.

It establishes physical planning liaison committees at national, provincial and district levels and the function of the committees is to act as an appeal body against the decisions of the director of physical planning and his officials.

The Act provides for two kinds of plans:

A regional physical development plan

A local physical development plan

The regional physical development plan is prepared by the director with reference to any government land, trust land or private land within the area of authority of the county council whereas a local physical development plan is prepared by director with reference to government land, trust land or private land within the area of the city, municipal, town or urban council or a trading or marketing center.

Under section 23 of the Act, the director may declare an area with unique development potential or problems to be a special planning area and for this purpose may prepare the physical development plan for the area irrespective of whether it lies within another local authority. The regional physical development plan has the purpose of improving the land and providing for the proper physical development of the land and finally to secure suitable provision for transport, public purposes, utilities and services – commercial, industrial, residential and recreational areas including parks, open spaces and reserves. The plan shall consist of a technical report on the commissions resources and facilities of the area and a statement of the policies and proposals of the area. What are the policies with regards to the allocations of resources and locations of development within the area?

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Thirdly, an explanation and justification of the policies and proposals. Maps and plans showing the present and future land uses and development in the area.

With regards to the local physical development plan it is prepared for the purposes of guiding and coordinating the development of infrastructure and services in the area. It consists of the survey in respect of the area and maps and descriptions which indicate the manner in which the land may be used.

In the 3rd Schedule to the Act provision is made for what must appear in that document. Provision must be made for:

- the locations of factories and industries generally- buildings for commercial purposes- open spaces- public and private use- and facilities for waste disposal

The process for developing the plans requires that the director prepares the plan and within 30 days he notifies the local authority of the existence of the plan and publishes the notice in the gazette. Within 60 days anybody with objections to the plan must notify the director giving reasons. IF the director rejects the objections the objector may appeal to the relevant to the relevant physical planning liaison committee. If no objections are received or if the ones received have been dealt with, the director shall certify the plan and give it to the minister for his approval. The minister (for Lands) may approve the plan with or without modifications or he may require the director to prepare another one.

Within 14 days of the minister’s approval the plan shall be published in the gazette and the notice shall state where it may be inspected. An approved plan shall have full force and effect in the area to which it relates and every person shall comply with its requirements and no development shall take place on any land unless it is in conformity with the plan. A plan that has been approved may be amended or modified and the reasons for this may be that there are practical difficulties in its implementation or enforcement or that there has been a change of circumstances since the plan was approved. If there’s a proposal to modify, then the proposed modifications must be published in the gazette and people given a chance to make representations or to object. If there are no objections or if the objections or if the objections that are received have been dealt with then the director will submit the proposed modifications to the minister for his approval. The same process will take place afterwards.

The role of local authority here is merely to make comments, a big change from the position before 1988 under which the local authorities made the

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plans. Now the director makes the plans. This was because of the unreliability and inefficiency associated with local authorities.

EXERCISE OF DEVELOPMENT CONTROL

1. Section 30 PPA: no person shall carry out development within the area of L.A without development permission.

2. It is an offence punishable upto a fine of sh 100,000 and an imprisonment term up to 5 years or both to carry out development without development permission. Any development traditionally which carried out without development permission is null and void and the L.A. will require the developer to restore the land on which such development has taken place to its original condition within a period of 90 days.

3. If after 90 days the developer has not restored the land as required the L.A. itself may restore the land and recover the cost incurred from the developer. L.A. is able to demolish the building.

4. No licencing authority shall grant a licence for commercial or industrial use or occupation for any building or in respect of any premises of land for which no development. Permission has been granted by the L.A.

Commercial use includes shops, offices, hotels, restaurants, bars, kiosks, markets and similar businesses.Industrial use includes manufacturing, processing, distilling and brewing, warehouses and storage, workshops and garages and petroleum filling stations.The L.A. itself may not grant development permission without a certificate of compliance issued by the director of physical planning. Advises L.A. minister in respect of development of land.Development is defined in section 3 of the Act and means the making of any material change in the use or density of any land or buildings on land or the subdivision of land or alternatively the erection of buildings or works provided that;

1. Carrying out of works for the maintenance or improvement or other alteration or addition to any building where the alteration or addition to any building where the alteration or addition does not exceed 10% of the floor area of the building measured on the date this Act becomes applicable to the area shall not constitute development.

2. Carrying out by a competent authority of any works required for the construction or improvement or maintenance of a road shall not constitute development.

3. Carrying out by an L.A. or statutory body of works for the purpose of preparing or inspecting or renewing sewers, mines, pipes, cables or

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other apparatus including the breaking open of the street for purposes of installing services shall not constitute development.

NB: a) The deposit of refuse/waste material of land involves the change of use of

land.b) The use of two or more dwellings for a building previously used as one

dwelling shall constitute developmentc) The erection of more than one dwelling or shop or the erection of both

dwelling and shop on one plot constitutes development.d) Display of any advertisement constitutes development.e) The use of any building or land within the curtiledge(areas adjoining) of a

dwelling for purposes incidental to the enjoyment of the dwelling constitutes development.

Under section 29, each L.A. has power to i) Prohibit or control the use of land development of land and buildings in the

interest of proper and orderly development of its area.ii) Control or prohibit the subdivision of land into small areasiii) Consider and approve all development applications and grant all

development permissionsiv) Ensure the proper execution and implementation of physically approved

areasv) Formulate by-laws to regulate zoning in respect of use and density of

development.vi) Reserve and maintain all the land planned for open spaces, parks, urban

forests and green belts.

A person requiring a development permission shall make an application to the clerk of the L.A. responsible for the area in which the land is situated.

The application shall be accompanied by such plans and particulars as are necessary to indicate the purposed use and density of the development.

Upon receipt of the application the L.A. within 30 days refer it to the director of Physical Planning for his comments. Additionally, the L.A. may consult any of the following officers:

1. Director of survey2. Commissioner of lands3. Chief Engineer of Road4. Chief Public Health Officer5. Director of Agriculture6. Director of Water and Development7. Director of Urban Development 8. Director of Livestock Development9. Chief Architect

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10. Director of forests

In considering the application, the L.A. shall be bound by the relevant regional or local physical development plan. It shall have regard to the health, amenities and convenience of the community generally and to the proper planning and density of land use in the area. It shall have regard to any comments received.If the development application requires the subdivision or change of use of agricultural land the L.A. shall require the application be referred to the relevant LCB.The L.A. may grant or refuse to grant planning permission. If it refuses, it shall state its reasons. If it grants, it may improve conditions.A person who is dissatisfied with the L.A.’s decision, may appeal to the relevant P.P. liaison committee. A further appeal lies from the P.P. liaison committee to the H.C. Under section 36 if in connection with a development application, a L.A. is of the opinion that the proposal will have an injurious impact on the environment then the L.A. may require the developer (applicant) to submit on an environmental impact assessment report (EIA). Where development permission has not been obtained the registrar of lands may refuse to register the documents relating to the development unless development permission is granted.

In terms of enforcement, section 38 gives the L.A. power to issue an enforcement notice where development permission has not been obtained or where the conditions of a development permission have not been complied with.

The enforcement notice shall specify the development alleged to be carried out without development permission or the conditions which have been contravened. It shall state also the period of time within which action shall be taken to restore the land to its previous condition. The notice may require the demolition of the building or the discontinuance of any use of the land or the discontinuance of carrying out any activities on the land.

The person aggrieved by the notice may appeal to the PPLC and a further appeal to the H.C. If the notice is not complied with the L.A. may enter the land and take the measures required and recover costs incurred from the person on whom the notice was served.

Finally, the Act prohibits subdividing land unless permission has been given the L.A. to subdivide the land. When an application for subdivision is made the L.A. shall publish a notice in the gazette and also in newspapers circulating in the area. If it receives an objection to the application it shall notify the applicant of the objections and give the applicant an opportunity

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to respond to the objections and following that, it may then determine the application.

ENVIRONMENTAL IMPACT ASSESSMENTEIA may be called for, as in section 36, where the L.A. is of the view

that the proposed development may have an injurious impact on the environment. The provision under the P.P.A. does not impose a mandatory requirement for environmental impact assessment.

Under the EMCA part VI there is a mandatory requirement for EIA. EIA is the procedure for carrying out a study about the potential environmental impacts of the proposed development and for using the results of the study to make a decision about whether or not the proposed development should be granted planning permission.

In Kenya, it is provided for under Part IV of EMCA which states that notwithstanding any approval, permit or licence granted under this or other law in force in Kenya before financing, commencing, proceeding with, carrying out, executing or conducting any undertaking which is listed in schedule 2 of the Act, the project proponent shall apply for EIA licence.

There are four things to note:1. This requirement is additional to any other licences or permits that may

have been obtained already e.g. planning permission, business licence, water pollution discharge licence etc

2. The responsibility to obtain to apply for the EIA licence is on the project proponent (person proposing to finance, carry out etc the project)

3. The requirement with respect to projects so that the EIA we have is a project based environmental impact assessment.

This means that the requirement applies at the point when the project has been conceived.

Project Development Cycle Stage 1: Policy (idea/objective) to introduce free primary educationStage 2: Develop a plan or a programme (strategic plan) it is within this plan that one develops how one will achieve the idea of introducing free primary education.Stage 3: Project, location specific

It is the project that is subjected to EIA

According to EMCA, one does not carry out an EIA on the policy nor the plan but on the project only. Project based EIA suffers from fundamental weakness in its ability to influence the outcome of the application. EIA is only carried out at the project level, reason being the methodology for carrying out EIA at earlier stages of decision making is not yet developed.

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4. Provided for in the Act. The activities to be subjected to an EIA are defined in schedule 2 of the Act and has the following list of activities;

a) an activity out of character with its surroundingsb) any structure of a scale not in keeping with its surroundingsc) major changes in land used) other activities involving urban development, transport, water resources,

mining, forestry, agriculture, manufacturing, waste disposal, nature conservation including the creation of national parks, nuclear reactors, major developments in bio-technology including the introduction of genetically modified organisms.

All activities in these areas require an EIA. What is not clear is whether every single activity in that list requires an EIA. The Act does not distinguish activities on a small scale and activities on a large-scale.

It is therefore, not possible to determine in advance the range of activities and the scope of activities that must be subjected to an EIA. The way in which other countries have dealt with this is by imposing some thresholds which is a quantitative limit. It is an assignment of a certain limit which determines the point at which the need for an EIA comes in e.g. a threshold could say a housing estate involving construction of 20 houses and more will require an EIA. 19 houses and less do not require EIA therefore people will be informed on what development requires an EIA.

The requirement for an EIA is defined in Part VI in EMCA. The application for an EIA licence is made to NEMA. At the moment the applications are made to the headquarters of NEMA in Nairobi regardless of where one is because NEMA has not established regional offices.

Application commences on the submission of the project brief report. It is a brief description of the project with an indication of the likely significant environmental impacts e.g. in a housing estate, significant environmental impact is how they will deal with the waste.

NEMA will decide whether a full EIA study is required. If it decides that a full EIA study is required, the developer shall engage a team of consultants known as Environmental Impact Assessors. These consultants are paid for by the developer, but the developer is required to select them from a list of experts which is maintained by NEMA.

These experts carry out the study and submit a report to NEMA. Once NEMA receives the report, its required to advertise the application for the licence in the gazette and in newspapers. NEMA is to provide on indication as to where you can get the report if you wish to study it and the advert shall invite comments.

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Additionally, NEMA may set up a committee of experts known as a technical advisory committee to advise it on the report. The reason is because NEMA does not have all experts it needs in house e.g. it may need experts in nuclear activity, which it may not have experts.

On the basis of the report, the recommendations of the T.A. (and any comments received from the public, NEMA is required to give a decision either granting the licence or refusing the application for the licence.)

The Act requires NEMA’s decision to be given within a period of 90 days (on application). NEMA has interpreted this as 90 days from the time the EIA study report is submitted to it. In granting the licence, NEMA may impose conditions dealing with how the negative impacts that have been identified will be mitigated. This is often contained in an environmental mitigation plan. A EMP demonstrates how the developer intends to mitigate the impacts that the study has presented and this becomes a condition for the licence.

The government is not exempt from the EIA. It should apply for an EIA licence but in practice it is not the case.

Under section 62, authorities may require the project proponent to carry out a further study if it is necessary to ensure the report is as accurate as possible. Also, a fresh EIA report may be required where there is a substantial change or modification in the project or in the manner it is being carried where the project causes an environmental threat that could not be foreseen initially of if it is established that information given by proponent was false inaccurate or intended to mislead.

The authority may revoke, withdraw or suspend licence if the project proponent does not comply with conditions. There is a fee for the licence i.e. it is set at 0.1% of the project cost.

Additionally, section 28, provides:The authority may require that persons engaged in activities likely to have a significant adverse effect on the environment shall deposit bonds with the authority which may be confiscated if the person breaches conditions of the licence.

Section 25 establishes the National Environment Restoration Fund (NERF) consisting of:

(a) A proportion of fees or deposit bonds which have been paid to the authorities.

(b) Other sums/funds levied on project proponents as a contribution towards the restoration fund.

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NERF is a supplementary insurance for the mitigation of environmental degradation where the perpetuator has not been identified or where there are exceptional circumstances that the authority is required to intervene to mitigate environmental degradation e.g. where a perpetrator is identified but is unable to pay or where no one single perpetrator can be pinpointed as in pollution of Nairobi river. The authority can resort to the NERF

Part 7: provision for environmental monitoring and auditing. The practice of auditing is applied to environmental degradation. Auditing is a verification of the activities of a company to ensure it complies to the licence.An environmental inspector may enter any land/premises to determine how far the activities the activities carried out on land/premises or land conform to the EIA report. Owner of the premises should keep records and submit them to the authority on an annual basis describing how far the operation of the project conforms with the EIA report. Where there are matters that were not contemplated in the report, the project t proponent shall take measures to mitigate those matters as well.

On June 13th, 2003, the authority gazetted rules i.e. EIA and Audit Regulations. They state:‘all projects commenced after 13th June, 2003 shall require an EIA licence and all projects which were ongoing as on 13th June, 2003 shall require an Environmental Audit. In June 2004, notice put up by authority to require all industries to submit an audit by December 2004. Estimated that about 5000 operators submitted reports.

All applications and licences are handled in Nairobi, shortcoming, backlog.

MANAGEMENT OF WATER RESOURCESDealt with in the Water Act 2002 this replaced the Water Act cap 372 (repealed)

Kenya’s water law is founded in common law provision i.e. under common law, the land owner is presumed to own everything on the land i.e. from the sky to don the center of the earth. Except that statute has qualified the rights of an owner on land e.g. under the Mining Act, Aviation Act

The common law holds the principle that running water, air and light are the things whose property rights belong to no one person but belong to the use of all mankind. See: Higgins v Inge 131 ER 263Landowners have no property in air, water and light, he only has the “right of use which is incidental to the land ownership. These come naturally with the land.

A landowner whose land adjoins (or abats) a watercourse is known as a riparian owner. A riparian owner has a natural right to running water. See:

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Stockpost Waterworks Corporation v Potter 159 ER 545. This is the right to use the running water as of right. (W/o requiring permission)

A non-riparian owner can only exercise the right to running water if he has an agent with the riparian owner, allowing him access over the riparian owner’s land without such an agreement, the NRO would be committing a trespass were he to cross over the riparian owner’s land to gain access, therefore the key thing regarding water is access. Such an agreement is called an easement (right of way or right to cross over another’s land)Since the right to riparian water is shared by all riparian owner’s, its use must be reasonable. No one owner will use the water in a way that prejudices the use of other owners. See: Embry v Owens i.e. use of water must be reasonable

Under common law each riparian owner has a right of action against unreasonable and prejudicial use by other riparian owners.

The scope of reasonable use consists of three rights:(a) Right of access and navigation(b) Right to the Natural Quantity of water in the watercourse(c) Right to the Natural Quality of water in the watercourse

The above are called Riparian rights.

A tidal river is one which is affected by the rise and fall of the sea i.e. it flows into the sea. River water is fresh while sea water is salty, the portion affected by the sea at the entry point consists of both and is called the tidal part.

Under common law the bed of the tidal river and the bed of the sea up to the territorial (sea) waters is owned by the sovereign. The bed of the rest of the watercourse which is non-tidal is owned by land owners on both sides of the water up to the median (middle) line of the river. However, the Agriculture Act states that the landowner may not cultivate or graze cattle up to a distance of two meters from edge of the watercourse.

Where the breath of the watercourse exceeds two meters, the landowner may not cultivate up to a distance of thirty meters from the river. This portion is called the riparian reserve (sides of a watercourse that should not be used for cultivation).

Within urban areas, the same restrictions on the use of the riparian reserves are imposed by LA by-laws. Note: the use of the bed of the watercourse is restricted.

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The right to navigate tidal river belongs to all members of the public because ownership of the bed belongs to the state. But only a riparian owner has a right of access to use his land which allows him to embark and disembark on his land. See: Lyon v Fishmongers Co. (1876) 1 App. Case

The riparian owner’s right to quantity enables him to abstract(take out), obstruct, divert or impound (dam) the water. The water which is abstracted may be used for ordinary domestic purposes such as drinking and other culinary purposes and for extraordinary/secondary purposes e.g. irrigation. It may also be used for foreign purposes i.e. use of water on non-riparian land.

When a riparian owner uses water for ordinary purposes there is no restriction as to the quantity he abstracts, even if he uses all of the water. See: Londonderry v Lough Smiley Railways Co. 1904 AC 301Significance, upstream riparian owners have a prior right to use of water.In USA they have a principle of prior appropriation i.e. the first person to get to the water can use it all. Not the same as the Kenyan principle regarding the prior right of upstream users.

Where the Riparian owner uses the water for secondary purposes, the use is restricted in so far as it is subject to the use of other Riparian owner’s. See: Swindon Waterworks v Wilks & Berks Canal Navigation Co. 1875 7LRThe moment the use of water for secondary purposes affects the rights of lower Riparian owner’s adversely, such use becomes unreasonable.

Under common law, the use of water for foreign purposes is considered to be automatically unreasonable. The right to use is attached to the riparian land e.g. you cannot take it to others.

The Riparian owner’s right to quality entitles him to the flow of water on his land in its natural state and purity, undeteriorated by obnoxious matter discharged on it by others. See: Jones Landwrist v District Council 1911 Ch.Div 393

NB: The common law does not restrict the use of underground water

There’s no property in water but the use of water is available to all.

The Water Act 2002 replaced the Water Act Cap 372 (repealed) and came into effect in March 2003. Section 3 vests every water resource in the State. Water resource means any lake, pond, swamp, marsh, stream, waterfalls, estuary, acquifer (underground layer of water), artesian basin (underground lake), or other body of flowing or standing water whether below or above the ground.

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The right to use water from any water resource vests in the Minister and under section 6, no conveyance, lease or other instrument shall be effectual to convey, device, transfer, or vest in any person any property, right or interest or privilege in respect of any water resource except as provided for under this Act.

Note: Under common law, the right to use water is incidental to ownership of land (section 6 seems to contradict this common law notion)

Under section 25, the permit is required for the use of water from any water resource, for the drainage of any swamp or any land, for the discharge of a pollutant (something causing pollution) into a water resource.

Use in relation to water resources means the obstruction, abstraction or diversion of the water, alternatively the discharge of materials or substances into the water. All this requires a permit. The circumstances where a permit is not required are:

1) For the abstraction or use of water without the employment of works from or in any water resource

2) For domestic purposes;3) By any person having lawful access to the water

What is ‘works’? Act says it is any structure, apparatus, device or thing for carrying, conducting, providing or utilizing water but does not include hand utensils. Hand utensils are pots, buckets etc as opposed to e.g. a pump.

With respect to underground water, the law says that where none of the works necessary for the development of the underground water are situated within 100 meters of any body of surface water or within a ground water conservation area, then a permit is not necessary i.e. works not used, outside 100 meters, outside GCA(Groundwater conservation area) – no permit.

GCA is defined in section 44 of the Act as an area where special measures are necessary for the conservation of ground water. GCA is declared to be GCA by the Water Resources Management Authority (WRMA).

A permit is not required for storage of water in, or the obstruction of water from a dam which is constructed in any channel or depression which does not constitute a water course. Water course means any natural channel/depression in which water flows regularly or intermittently (every now and then), i.e. if you have a natural channel in which water flows, even if you find it dry, it still is a water course. If you dry your own drain at home to encourage water to flow, you require no permit. You shouldn’t connect it to the natural channel. In every other case, a permit is required for the use of water.

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To use water without a permit is an offence punishable with imprisonment of upto 12 months and a fine of Kshs 100,000. An application for permit is made to the authority known as WRMA established under section 7 of the Act. The Act is required to advertise the application to allow people opposed to the grant of the application the opportunity to object.

In considering the application, the Act shall consider the following:

1) The existing lawful uses of the water2) Efficient and beneficial use of water in the public interest3) The likely effect of the proposed water use on the water resource and the

other water users4) The class and resource quality objective of the water resource5) The strategic importance of the proposed water use6) The quality of water in the water resource7) The probable duration of the activity for which the water use is to be

authorized

Under section 12, the Act is required to classify water resources: e.g. International water bodies like Lake Victoria; of strategic importance like Tana River for H.E.P. After that, it is also required to assign each class resource quality objective i.e. the level to be achieved and maintained with respect to each water resources. The minister is required to specify for each water resource, a reserve.

The reserve means the quantity and quality of water required to satisfy basic human needs of all people who are or who may be supplied from the water resource, and to protect aquatic eco-systems (habited) i.e. the life forms which live in water. (This reserve is the minimum standard)

In considering applications for permits, the use of water for domestic purposes shall take precedence over the use for any other purposes.

In the event of a drought, the authority may vary the permit in order to give priority to domestic use. Permits run with the land and the particular portion of the land to which the permit is appurtenant (fixed or refers to) must be specified. Hence in reality it is not possible to have permit in gross.

There are arguments that a permit should not be attached to land as this is unfair for landless people. For a person with land but no access to water he can only acquire a permit but must obtain an easement. The permit should be used on the land you applied under. Permits may be varied because there’s a shortage of water for domestic purposes, deterioration of quality of water or inequity in use.

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However, it cannot be varied without notice to permit holder who should be given an opportunity to show cause why it should not be varied. A permit may be cancelled but the holder must be given an opportunity to show cause why it should not be cancelled.

The Act is required to establish a register of permits which is a public document and any person may examine it.

Section 7 establishes the WRMA whose role is to receive and determine applications for permits and to monitor and enforce the conditions for the permit. The Act is required to divide the country into catchment areas/basin. A catchment area is where water collects i.e. from which rain water flows into a water course. The Act ahs created certain catchment areas:

- Lake Victoria North- Lake Victoria South- Rift Valley- Athi River Catchment Area- Tan River Catchment Area- Ewaso Nyiro Catchment Area- Coast Catchment Area

In each catchment area, the authority is required to establish a regional office.The Act is required to establish a catchment area management strategy which will describe the water allocation plans for that catchment and the arrangement for development and conservation of water for that catchment.

At national level, the minister is required to establish the natural water resource management strategy. The CA management strategy is also required to establish ways of enabling communities participate in managing water resources within the CA. In particular the strategy shall encourage the establishment of water resource users associations. These are fora for the cooperative management of water resources and conflict resolution. These associations involve the community.

Water ServicesFor urban areas, tap water is relied on. Piped water is dealt with under water services or water supply. Water surfaces relate to water which is provided for purposes of consumption. Water Act 2002 is titled Water Supply and Sewerage.

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Essentially, water services is provided by persons appointed by the minister. Under s.49 of the Act, the minister is required to develop a National Water Services Strategy. The Strategy shall

(d) institute arrangements to ensure at all times there is in every area of Kenya a person capable of providing water supply.

(e) design a program to bring about the progressive extension of sewerage to every centre of population in Kenya

Sewerage system is a piped network for the disposal of used water. Essentially, from a house or premises, the water drains down the plumbing into the system of pipes called the sewerage. The used water is the sewer. It goes into a treatment plant and through the action of bacteria, the sewer is broken down until only water is left. This is directed back to the river and reused. There are two systems:

the water treatment palnt where the water is tapped from the river (through the use of chlorine) and;

the sewerage treatment plant for the treatment of sewer and direction of water back to the river

We have Dandora Works and a Treatment Plant in Gigiri.Under s.51, the Minister is required to establish a Water Services Board responsible for the efficient provision of water services.Six boards have been established in the country. The boards are established along the catchment areas e.g. Rift Valley WSB, Lake Victoria North WSB etc. The Boards are agencies for providing water services.This is a marked departure from the situation prior to 2002 as there was no body in law responsible for providing water services.

Water services means the supply of water and the provision of sewerage. The purpose of the board is to then supply the water and handle sewerage. Under s.55 of the Act, the board is required to identify a person known as a water services provider to provide water services as the Board’s agent. The water services provider is a company, NGO or a person which provides water services in an agreement with the board.The board itself is not allowed to provide water services directly to consumers unless it is impossible to identify water service providers in that area.

W.S. Regulatory Board > W.S. Board > W.S. Provider > Consumer

The design: There is the legal responsibility that there must be someone in every area responsible for providing water services. In law, you cannot impose a responsibility like that on bodies not public bodies and hence the reason why W.S.B. is not allowed to carry out the services of W.S. directly to consumers.

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At the same time, the Act recognized that if you give jobs to public bodies the work would be shoddy and hence ineffective.

Under s.53 the board is prohibited from delivering water services directly, the board must engage the water services provider to provide the water on its behalf.

Under s.56, no person shall provide water services to more than 20 households or supply more than 25,000 liters a day for domestic purposes without a licence. The licence is applied for to the Water Services Regulating Board (WSRB) established under s.46 of the Act. Its object is to licence suppliers of water and to regulate service.

In order to obtain a licence to supply water services, the applicant must show technical and financial capability to supply water services. The water services provider is allowed to charge for the water services provided and in charging for the services, the provider may include a levy. Sewerage service levy is supposed to cover a reasonable part of the cost of disposing the water supplied.

Default by the BoardSupposing the board defaults by for instance, failing to identify a provider, or one who has no capacity, squandering of money.The Act gives the minister reserve powers to provide water services in case of default by the board. The minister does not have the technical capacity to provide water services. Under s.22, provision is made for a parastatals known as national water conservation and pipeline cooperation(NWCPC).

1. They provide water services in case of default by the water services board

2. They are responsible for state schemes – schemes which are funded by the state for provision of bulk water supply or alternatively for water conservation purposes. Bulk water supply is basically the big dams whose water is gathered in bulk for supply e.g. Ndakaini dam. The corporation gathers the water in dams and supplies it. The corporation is also involved in conservancy e.g. from floods.

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The Management of EffluentIt is the waste that is discharged from premises. Some effluent is sewage (domestic) but there is also industrial effluent/trade effuent. S.76 states no person shall discharge any trade effluent from any trade premises into the sewers of a licencee without the consent of the licencee (but if the effluent is domestic, no licence is required).An application for the consent shall state the nature and the composition of the trade effluent (H2SO4, Paper etc)The maximum quantity of the effluent proposed to be discharged on any one day. The highest rate at which it is proposed to discharge the effluent. The licencee may give his consent subject to conditions including a condition that there will be a charge for the discharge of the effluent. If the licencee declines to give consent there is an appeal to the Water Appeal Board.

SanitationIt is cleanliness. An aspect of sanitation is the sewerage system – it is the system for disposal of used water. The sewerage system depends on a piped network. This raises two questions:

1. How do you dispose of non-liquid items through pipes?2. What happens where there are no sewerage systems?

The country with the highest network of piped sewerages is UK with a rate of about 99% of the population. In Kenya, even in Nairobi, the majority of the population does not have a piped system.

Liquid waste is managed by:i) The sewerage systemii) Septic tanksiii) Conservanciesiv) Latrines

The key issue with regard to latrines is that it is a system which can adequately manage liquid waste in an area with low density. The volume can easily be disposed off by bacteria. When you are in high density area and you use the same it becomes dangerous because they are not disposed off as quickly.

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The conservancy is a modified form of a latrine – it is constructed so that there is no contact between the ground and the liquid waste. Periodically, exhausters (tankers) come and suck up the waste. They can be useful in high density areas.

The septic tank is also a hole in the ground designed to allow the liquid degradation and therefore it depends on having sufficient ground areas for the liquid waste to degrade (needs big areas)

These are systems of sanitation for solid waste.

Sanitation is regulated under the Public Health Act (Cap 242), Local Government Act (Cap 265)

The Public Health Act makes it the duty of all the local authorities to provide a system of sanitation within its area and to require owners of premises to provide sanitary services within those premisesThe local authority is supposed to regulate that for owners of premises through public health officers – officers of the ministry of health who are based within the local authority offices.In rural areas public health officers are based at the districts. His job is to regulate the sanitary arrangements of sanitary services within the area e.g. inspect latrines, septic tanks etc

The local authority itself is also a provider of sanitary services for public use e.g. it is their job to provide public toilets.

The Local Government Act Cap 245 makes provisions for the kind of facilities that must be provided. Under it, some by-laws known as the building code have been adopted by the Act. It provides:

i) Within urban areas, latrines are prohibited except during the course of the construction of a building which are temporary and for the duration of construction.If one intends to use conservancies, there must be within that area, provision for exhauster service. The council is required to run an exhauster service for which it charges. It is also required to licence the exhauster appropriately.If you intend to rely on the septic tank, the tank must be constructed by registered plumbers. The land area must not be less than half an acre and the septic tank must not be built within black cotton soil. The council must approve the soil within which the septic tank is in.

If one is planning to dispose of the waste using a sewerage system, the dimensions of the pipe are prescribed in the building code and the plumbing works must be undertaken by a registered plumber.

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The council regulations provide specifications for disposal of liquid waste which are related to the number of the occupants of the house. Additionally, there must be drains provided for draining liquids from other wet areas like kitchen and shower and roof. That drainage system must be channeled away from these sanitary services.

THE MANAGEMENT OF SOLID WASTEWaste is an item that does not have utility value to the holder of the item. This is because it may be residue, used material, or has simply lost its utility. An item may not have value to one person but it may have value to another person. For example, mitumba clothes have no value to one person but value to someone else.

Because waste has no value to the holder, he has the temptation to dispose of it at least cost to himself. A holder of an item typically will dispose of it onto the environment which presents the available that does not saddle the burden with any costs.

In economics, the term used is externalities. It means you externalize a problem, u make your problem somebody else’s problem.

Its necessary therefore to put in place mechanisms for ensuring proper waste disposal methods are adopted. Those mechanisms force the holder to internalize the problem.

There are certain categories of solid waste that have features that make them dangerous.

Solid waste management is carried out at three stages:i) Generationii) Transport andiii) Disposal

This is the waste management cycle.

At generation, the waste management techniques are reduction, reuse and recycle. This is the stage at which waste is created. The principle of waste management is to reduce the quantity and quantity that is created.

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To force people to create less waste, techniques have been developed and the most famous reduction technique is called the take-back requirement for packaging.

(a) Take-back requirementIt is the requirement that the producer of packaging is required to take back the packaging after it has been used. The take-back requirement had one dramatic effect i.e. producers of packaging stopped producing packaging (how do you take back the packaging)

In Europe, they began a system of levying and so they stopped packaging.

(b) Re-useThis refers to the use of the same material once again and this means that it is not placed into the waste management cycle. The best example is a bottle used for beverage and this is encouraged by the ‘deposit and return policy’.

(c) RecycleIt refers to using item in a different form. The best example is wood which can be used as timber, then writing paper and then toilet paper and so on.

All these methods reduce waste placed in the waste management cycle.

In the Transport category, the solid waste is separated into its component parts. Separation is the first phase therefore.

The second phase is tracing i.e. waste should be traced from origin to destination. There should be a record of who has taken waste and who has received it so as to prevent fly-tipping – the practice whereby waste transporters dump the waste at some location by the roadside or in a bush.

In the Disposal phase, waste is then removed from the cycle by being permanently deposited at some site. There are two methods of waste disposal:-

a) Land fillingb) Incineration

Landfilling is the practice of depositing waste in a hole in the ground. Incineration is the practice of burning waste at high temperatures. Land-filling is the most common way of disposing waste usually because it is cheap. Landfilling results in two by-products:

- Leachate- Methane gas

Leachate is a liquid effluent that comes out of decomposing waste. It is highly polluting to ground water. In order to deal with the risk of leachate

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polluting ground water, the bottom of the landfill should first be covered by a layer of polythene. It will then be pumped out occasionally and treated.

Methane is gas generated by the waste because it is decomposing at low temperatures. If it was at high temperatures it would be carbon dioxide. Methane is highly polluting to the atmosphere and is easily combustible. It should be vented out through a pipe.

The other problem with landfill is smell and unsightliness. To deal with them, then the waste should be covered by a layer of soil, everyday after disposal. If this is not done then one ends up with a very messy dumpsite.

Incineration is an expensive method because it involves burning waste at high temperatures and is a requirement only in certain dangerous categories. For example, clinical waste – This is waste that has been generated from hospital.

In Kenya, waste management is provided for in a number of statutes, most important is the Public Health Act (CAP 242), The Local Government Act (CAP 265) and a few other acts.

S 16 of PHA imposes a duty on every Local authority to take all local necessary and reasonably practical measures for maintaining its area at all times in a clean and sanitary condition and for preventing the occurrence therein of any nuisance or of any condition liable to be injurious or dangerous to health.

S 118 of PHA defines nuisances including ‘any street, road, garbage receptacle, dustbin, refuse pit or manure heap which is so far off or in such a state as in the opinion of the medical officer of health to be offensive or injurious or dangerous to health. Any accumulation of stones, timber or other material which is likely to harbour rats or other vermin or any area of land which is kept or permitted to remain in such a state as to be offensive or liable to cause any infectious, communicable or preventable disease or injury or danger to health.

The Act provides a procedure for abetting nuisance which is found in part IX fo the Act.

Nuisance Abetment Steps1. The Local authority shall serve a notice on the author of the nuisance

to remove it.

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2. If the author of the nuisance cannot be found it shall be served on the occupier or the owner of the premises

3. It shall specify the things to be done and the period within which they must be done.

4. If the person responsible fails to comply with the notice the Medical Officer of Health (MOH) shall make a complaint before a magistrate and the magistrate shall issue a summons and the summons shall require a person to appear before a court. If the court is satisfied that a nuisance exists, it shall require the author to remove it.

5. The court may also impose a fine for everyday on which the nuisance continues.

6. If the person still does not comply, then the local authority may itself go in and remove the nuisance and recover its costs from the person involved. This may require demolition of the building.

There are two aspects of this procedure:-The role of the local authority to deal with nuisance caused by others -At the same time, the act imposes a duty on the local authority to keep its area clean.

In order to comply with the statutory duty in S 116 of PHA, S 160 of the LGA gives the Local authority power to establish and maintain sanitary services for the removal and destruction of otherwise dealing with all kinds of refuse and to compel the use of services by persons to whom the service is available.

Under S 201, Local authorities have been given power to make by-laws and have then made by-laws. For example, NCC has made the following by-laws:

i) Local government adoptive by-laws building order of 1968 – The Building Code which gives the local authority power to establish standards including that you must have requirement that one must have provision for garbage collecting services e.g. a chute for a storeyed building.

ii) The City of Nairobi General Nuisance By-laws legal Notice No.275 of 1961. This prohibits the depositing of debris on the streets and it makes it an offence for any person to place or deposit any leaves, paper, sawdust or other rubbish so as to create litter or to throw down or leave any orange peel, banana skin or other substance likely to cause a person to fall down.

iii) The City of Nairobi Conservancy By-Laws Legal Notice No.659 of 1961. This empowers the local authority to provide to occupiers of premises what are called receptacles(dustbins) and requires that all refuse from that premise be placed in that receptacle for collection by the councils refuse collection service. The by-laws impose a charge for the hire of the receptacle and for the service of emptying the receptacle

iv) The City of Nairobi Hawkers By-Laws Legal Notice No.748 of 1963.

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v) The City of Nairobi Restaurants, Eating Houses and Snackbar By-laws Legal Notice No 674 of 1961

vi) The City of Nairobi Slaughterhouses By-Laws Legal Notice No. 325 of 1966vii) The City of Nairobi Hairdressers and Barbers By-Laws Legal Notice No 146

of 1970viii) The City of Nairobi Foodshops and Stores Legal Notice No. 384 of 1956

All these by-laws empower the council to issue a licence for the activity that is mentioned. In considering whether to give the licence, the council has to take into account whether the premises to which the licence applies have made provision for sanitation. Do they have a restroom, toilet etc., and the licence may be cancelled if the premises are in such a condition as to be dangerous to health or liable to favour the spread of disease.

The Scrap Metal Act Cap 503The Act prohibits dealing in scrap metal without a dealer’s licence and issuing authority for the dealers licence is the police. This is because the bulk of scrap metal is from used cars. The statute requires that the dealer get a licence.

It prohibits a dealer from dealing in or storing any scrap metal elsewhere than at the premises specified in the licence.

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environmental law notes

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