UDA gazette notifications challenged as illegal

Well known activists Chandra Jayaratne and Dr. Alagu Visvalingam have filed a writ application before the Court of Appeal challenging orders issued under the hand of the former Minister of Megapolis & Western Development, Patali Champika Ranawaka, published on 09-01-2019.

In terms of Section 8G of the Urban Development Authority Act, a development plan or an amendment thereto can only come into operation on the date of the publication of the same in the Gazette and such orders cannot be brought into force with retrospective effect

They said that the orders were published in the Government Gazettes bearing No. 2105/23 and 2105/21 on the basis that these Gazette notifications were ex facie and patently ultra vires, unlawful, illegal, arbitrary, capricious, unreasonable, irrational, unfair, disproportionate and contrary to the express provisions and the purpose and scheme of the Urban Development Authority Act No. 41 of 1978, as amended, and the regulations made thereunder.

“The number of floors for a given development is decided on the width of the road given under the guidelines in Form C in Planning & Building Regulation for City of Colombo Development Area therein the corresponding access road can have a minimum road width of 12 metres (40 feet), or two or more alternative and separate access roads, each of which can have a minimum width of six metres, subject to such discretion vested in the Authority to grant necessary approval.”

In effect, what the gazettes are seeking to achieve is to permit a developer to increase the number of floors that can be built on a plot which can be accessed by two or more alternative and separate access roads by combining the width of such alternative access roads.

In terms of the UDA law, the minimum road width has been one of the main criteria in determining the number of floors that can be built on a part of the land.this is to ensure that a given area is not overpopulated than what is suitable for the locality to ensure the development will not result in serious health and safety hazards.the Petitioners have gone on to explain that with the increase of the number of condominiums that are erected in Colombo and the close suburbs, the population density of these localities have increased.the Petitioners allege that the huge people load of a high building, particularly at peak times, will overload the city’s infrastructureits public transport, roads and utilities and that higher densities come with a price such as greater traffic congestion, higher levels of air pollution and greater public health risks.

The Petitioners have also explained that the width of the access road way has a critical impact on the fire risk of the proposed buildings. Fire safety measures of proposed buildings have a direct connection to the safety of the occupants in order to save lives in case of a fire. For this reason it is of paramount impotence that the regulations make allowance for the speedy and ready access to the building in case of a fire, allowing external access to the building for fire fighting and accessibility of fire fighting appliances.

The irregularities of these gazettes are further compounded by the fact that the Minister had not only facilitated development that is contrary to the applicable law but has sought to cover up the many irregularities of approvals granted by the UDA since 2017.

The Petitioners have pointed out in their Petition that though these Gazettes have been published on 09-01-2019, the Minister has backdated the orders to 14th July 2017, which is illegal and contrary to the provisions of the Urban Development Authority Act.

In terms of Section 8G of the Urban Development Authority Act, a development plan or an amendment thereto can only come into operation on the date of the publication of the same in the Gazette and such orders cannot be brought into force with retrospective effect.

The Petitioners have stated in the Petition that with the increase in the high rise buildings being erected in urban areas, it has become even more increasingly important to carry out duly planned development, especially in the light of rising environmental and health issues created due to overpopulation, poor sanitation, and pollution. Therefore the need for urban planning has become crucial in today’s world in order to ensure that the impact on the environment from such development would be kept at a minimal level.

The Petition was supported on 17th July 2020 before the President of the Court of Appeal, Justice A.H.M.D. Nawaz and Justice Sobhitha Rajakaruna. Presidents Counsel Sanjeeva Jayawardena with Attorney-at-law Dilumi de Alwis instructed by Attorney-at-law Sajay Fonseka appeared for the Petitioners. Having heard the submissions made on behalf of the Petitioners, the Court of Appeal was pleased to issue notice on the Respondents returnable on 7th August 2020.