THE SALIENT PROVISIONS OF THE LAW

REGULATING LAND USE IN ZAMBIA

BY LARRY HORE NJUNGU
1.0 INTRODUCTION:
This essay carries legal advice I would render to two brothers (Mr Luswepo and Mr Ntetela),
who are finding it difficult to modify or alter some of the properties which they have just
acquired because of objection and criticism from owners of adjacent properties (the community)
and the local authority. In giving this advice, the author relies, mostly, on the Town and country
Planning Act1 as it is the major legislation that regulates modification of properties or alteration
of land use within a particular area in Zambia. Other statutes like the Public Health Act are
referred to, though not forming the majority basis of the advice. The essay assumes the two
brothers have not formalized their intentions by way of applying for permission to the Local
Planning Authorities even though there are already facing objections and criticism. In view of
this assumption, the essay will advise the brothers, from the scratch, about the legal channels to
be observed before effecting changes to property or land use. It will also advice what remedies
are available if the Local Authorities do not agree with plans to develop land.

2.0 BACKGROUND/RATIONALE FOR LEGISLATION

At common law, any person who owned property had a right to use it as he or she wished as long
as she was not committing a nuisance to others or was not trespassing. In essence, the use of land
was only limited by the rule established in Ryland and Fletcher,2 which rule is also found in the
the Zambian case of National Hotels Development Corporation T/A Fairview Hotel v
Ebrahim Motala 3.
The laissez-faire approach of land or property use obtained earlier on at common law bred a lot
of problems, among them a disorderly, messy and mumble jumbled development of areas. Need
for an integrated and rational pattern for developing land arose as a matter of urgency. This could
1 Chapter 283 of the Laws of Zambia
2 (1868) LR 3 HL 330
3 (2002) ZR 39 [S.C]

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only be addressed through, among other measures, the coming up of a legislation to control land
use.
The term land use refers to the utilization of the surface of the earth and all its natural resources
or the legal enjoyment thereof.4 The term land use has many different interpretations, but in the
present context, it may be defined as the social, economic and cultural activities practiced upon
the land. It virtually means the way in which land is used.5
The need to provide for a rational and integrated pattern in the process of land use and
development necessitated the enactment of the Town and Country Planning legislation in 1909 in
England6. The Town and Country Planning legislation of England was, like a number of other
statutes, imported into the Northern Rhodesia Protectorate by the colonial administration. The
Town and Country planning Act7 places controls on the development and subdivision of land by
requiring planning permission before undertaking any development or subdivision on land. A
landowner in Zambia is therefore no longer at liberty, as was the case at common law, to use or
develop his land as he wishes. Megarry and Wade have observed, in relation to social control of
land in England, that it is against the interests of the public at large for land owners in England to
have unfettered power to develop their land as they wish.8

3.0 EVOLVEMENT OF THE TOWN AND COUNTRY PLANNING ACT

CHAPTER 283
In order to appreciate this major Act in Zambia regulating development of property, modification
inclusive, it is important to retrospect on it. The Town and Country Planning Act was introduced
in Northern Rhodesia as part of the law of the Territory to regulate orderly physical planning and
development. The first planning law in Northern Rhodesia was the 1929 Town Planning
Ordinance.9 The general object of the Ordinance was to secure proper sanitary conditions,

4 M. Webster, Collegiate Dictionary, Springfield, Massachusetts, USA, 1993. p.1301

5 Peter Dale and John McLaughlin Land Administration p.73
6 Mudenda, F.S. [2006]. Land Law in Zambia: Cases and Materials. Lusaka: UNZA PRESS. p.
37

7 Chapter 283 of the Laws of Zambia.

8 Megarry and Wade, the law of real property, 4th ed, London, Sweet and
Maxwell, 2000, p. 1336.
9 Chapter 123 of the 1958 Edition of the Laws of Zambia
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amenity and convenience in connection with laying out and use of land. 10 The Ordinance, which
only applied in Crown land, gave powers to prepare planning schemes for proclaimed or private
townships with very restricted powers of control and to control subdivisions under twenty acres.
The Ordinance provided for the appointment of a Town Planning Board with the power to
prepare a plan for any town referred to it by the Governor and impose building standards.
The current Town and Country Planning Act was revised in 1962, and is modelled on the 1947
English Town and Country Planning Act.

4.0 SALIENT FEATURES OF THE LAW GOVERNING LAND USE AND

CONTROL IN ZAMBIA
As a way of rendering advice to the two brothers, I now proceed to identify and analyze some of
the salient features of the land use and control in Zambia. We have already discovered that the
Town and Country Planning Act is the major statute that provides guideline as to how land must
be utilized with regards to the case at hand. Before we proceed further, it is important to note that
Land administration in general, has got two limbs. One limb is made of laws that govern land
alienation or simply put land allocation or distribution while the other limb consist of laws that
govern utilisation or use on land. In this context, the Town and Country Planning Act is one
major law that addresses the second limb of land administration- that is land utilization or
management in Zambia.11
Even then, it is worthy appreciating that in the process of land alienation, especially statutory
land, the relevance of the Town and Country Planning Act still applies. This is because the State
cannot make grants of state land unless land has been planned.
The primary objective of the Town and Country Planning Act is to regulate the manner in which
land is planned and zoned under State land and to ensure that land is administered according to
set standards with respect to the specific use or uses to which a parcel of land may be put, the
size, type, and placement of improvements on that parcel.
10 Ibid, section 23
11 P. Dale and J. McLaughlin, Land Administration, Oxford: Oxford University
Press, 1999, p.10
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This statute makes provision for the appointment of Planning Authorities, the establishment of a
Town and Country Planning Tribunal, and for the preparation, approval and revocation of
development plans. It also provides for the control of development and subdivision of land, the
assessment and payment of compensation in respect of planning decisions, the preparation,
approval, and revocation or modification of regional plans.12
The Town and Country Planning Act principally apply to state land. Town and Country Planning
Act exempts customary areas, as defined under the Lands Act13, from being regulated by the
Town and Country Planning Act. However, it states that the President may, by
statutory order apply all or any of the provisions of the Act to any customary
area. In respect of this, some identified customary areas are already
amenable to the control of the Town and Country Act following Presidential
statutory Orders already issued and captured as subsidiary legislation of the
Act. Section 3 (1) of the Act further states that the Republic is not bound by the provisions of
the Act.
It is important to note that the powers to oversee state land use or development in Zambia is
designated to Local authorities which in essence are local councils. This power and conditions
upon which a local authority may be granted is prescribed in Section 24 (1) and (2) of the Act.
Section 5 (1) of the Act, by reference the first schedule of the Act, categorically identifies local
authorities in Zambia which have been appointed by the Minister for the purpose of planning
land use in their respective areas. These local authorities are known as planning authorities by
virtue of this power conferred on them by the Minister. Section 5 (2) goes on to say the planning
authorities are mainly appointed for the purpose of preparing area development plans as ordered
by the Minister in accordance with section 15 of the same Act.

12 According to the preamble to the Town and Country Planning Act, Chapter 283 of the
Laws of Zambia,

13 Section 3 (1) and (2) of the Town and Country Planning Act Chapter 184 of
the Laws of Zambia
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Of apt relevance to the two brothers, are provisions contained in Part V, section 22 of the Act
which states that permission (from planning authority) shall be required whenever there is any
contemplation of development or sub division of land. The intention of wanting to modify or
alter some of the property the two brothers bought amount development, therefore subject to
permission of the planning authority. In particular Sub section 4 defines that development
means;' The carrying out of any building, rebuilding or other works or operations on or under
land or the making of any material change in the use of land or buildings ........"
It is important to note that if the alterations intended by the two brothers do not amount to
material change in the use of land or building, then they need not apply for permission.
In Papenfus v the Lusaka City Council

14

it was held that it is not necessary to apply for

planning permission to change the use of land unless the proposed use amounts to a
development, which is defined as the carrying out of any building or making of material
changes in the use of land or existing buildings. More so that if the works contemplated on the
buildings the two brothers have bought will only affect the interior and do not materially affect
the external appearance of the buildings, no permission is required. 15 In Northmead
Supermarket Limited, and others v Lusaka City Council 16 it was again ruled that if the
proposed change in the use of the premises and the existing use fall under the same use group
that does not constitute material change and hence no planning permission is required,
Assuming the changes intended by the two brothers are material changes, then the process of
applying and getting approval (permission) from the local authority or local planning authority as
provided for by the Act is worth knowing.
According to Section 25 or the Act, the planning authority to whom permission is being sought
to develop or sub divide land has powers to grant permission either unconditionally or subject to
such conditions as may be deemed fit or may refuse permission all together. It is important to
14 (1967Z.R 3 [t.c.p.t]]
15 Town and Country Planning Act, Section 22 (4) (a) and (b)
16 [t.c.p.t]

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note that Local authorities do pay attention to local area development plans when considering the
applications for development or sub division of land.
In this view, it is prudent for the two brothers to first apply for permission from respective local
planning authorities in which their newly acquired property is located before undertaking any
material alterations or modifications.
If the planning authorities refuse to grant permission to modify the said property or is granted
conditionally to which the two brothers are not satisfied, they may within twenty eight days from
receipt of such notification appeal to the Town and Country Planning Tribunal 17. In some
instances, the limitation duration in which to make the appeal may be longer than twenty days as
long as it is agreed by the tribunal in writing.
In the same manner, any person who, other than the applicants, is aggrieved with the decision of
the local authority (be it the grant or objection of permission) has got a right to appeal to the
Tribunal within twenty-eight days after the making of such a decision or any longer period as
may be agreed in writing by the Tribunal. 18
Applying this to the case at hand, the owners of adjacent property (community) who were raising
criticism or objections to the two brothers intention to modify acquired property could have
been doing so prematurely because the two brothers had not yet been granted permission. These
owners of adjacent property (community) still had recourse to law if it so happened that the local
authorities had granted permission to the two brothers to modify the structures and the decision
was not to their satisfaction. They could have still appealed to the Town and Country Planning
Tribunal as provided for by section 29 (2) of the Town and Country Planning Act.
Before the amendment to section 27 of the Town and Country Planning Act (now section 29)
only applicants for the development or subdivision of land had the right to appeal against an
unfavourable decision by the Minister or Planning Authority but objectors to the application did
17 Town and Country Planning Act, Section 29 (1)
18 Section 29 (2)
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not. This can be seen from the case of Motor Traders Association Of Central Africa And
Others v Municipal Council Of Mufulira 19where Court upheld the respondents preliminary
objection that Tribunal had no jurisdiction to entertain the appeal because none of the appellants
had the right of appeal.
However, it is important to note that a person who wishes to be heard before the Town and
Country Planning Tribunal on an appeal must show that the decision appealed against affects
land in which he has an interest which is certain as was illustrated in Ball v Western Planning
Authority20
Even in an instance in which permission was granted to the two brothers, they must be cognisant
of the fact that the local authorities retain the powers to revoke or modify such permission as
circumstances may dictate.21 In the event that permission has been revoked or modified and such
a re-decision has rendered the applicant to incur costs as a result of having started works based
on earlier permission, compensation shall be granted.22
However, following notice of the revocation or modification of the permission, the aggrieved
must claim compensation within a period of six months. 23 Part VI of the Town and Country
Planning Act is also of relevance to the case at hand to the extent were compensation is
concerned. Assuming the two brothers were given permission and such permission was revoked
or modified, then Part VI, sections 35, 36, 37, 38 and 39 will apply.

THE PUBLIC HEALTH ACT (BUILDING REGULATIONS)

The other law impinging on the plans by the two brothers to alter their newly acquired property
is the Public Health Act24. The objective of the Public Health Act is to provide for the prevention
and suppression of diseases and generally to regulate all matters connected with public health in
19
20
21
22
23
24

(1967) ZR 3. [T.C.P.T].
(1966) Z.R. 1 [T.C.P.T]
Section 30(1)
Section 30(3)
Section 39 (2)
Chapter 295 of the Laws of Zambia.

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Zambia.25 Regulation 5(1) of the Public Health (Building Regulations) requires prior permission
before erecting any building. Any person proposing to erect a building within local authority
areas must submit an application for a building permit to the relevant local authority, furnishing
them with drawings and other documents. According to the Act, a building permit must be
obtained before erecting any structure or building. The building regulations cover such matters as
the construction, materials, height, sanitation, ventilation and size of rooms. A land owner,
therefore, has to comply with the building regulations by obtaining a building permit before
erecting any building or structure on his land. In this vein, I would also advise the two brothers
to obtain a building permit as espoused by the Public Health Act Chapters 295 of the Laws of
Zambia.

THE LOCAL GOVERNMENT ACT

The Local Government Act26 is also of relevance when it comes to undertaking building works in
a given locality. Section 61 of the Local Government Act provides that a local authority may
discharge all or any of the functions set out in the second schedule to the Act. The second
schedule provides the functions of a Council. Paragraph 29 to the schedule provides as one of
the functions of a council: To prohibit and control the development and use of land and buildings
and the erection of buildings, in the interests of public health, public safety, and the proper and
orderly development of the area of the council.
Paragraph 30 further gives the Council the function of controlling the demolition and removal of
building and to require the altering demolition and removal of buildings which- (a) do not
conform to plans and specifications in respect thereof approved by the council; and or (b) are a
danger to public health or public safety.

CONCLUSION:
Having walked the two brothers through the laws relating to development of land (i.e. alteration
or modification), I would advise that it is imperative for them to first seek respective permissions
as prescribed by the Town and Country Planning Act, The Public Health act and The Local
25 See Preamble to Chapter 295 of the Laws of Zambia.
26 Chapter 281 of the Laws of Zambia.
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Government Act. Thereafter, if they are not satisfied with the decisions of the local authorities,
they can invoke Part V of the Town and Country Planning Act, and in particular section 29 (1).
In the event that permission was granted but challenges arise, like the revocation or modification
of permission, still Part V of the Act and in particular section 30 (3) can be resorted to.

BIBLIOGRAPGHY
Books:
1. P. Dale and J. McLaughlin, [1999] Land Administration, Oxford: Oxford University
Press, ,
2. Mudenda, F.S. [2006]. Land Law in Zambia: Cases and Materials. Lusaka: UNZA
PRESS.
3. Megarry and Wade, [2000]. The law of real property, 4th ed, London, Sweet and
Maxwell,

CASES:
Baker v. Australia and New Zealand Bank Ltd [1958] NZLR 907,
Ball v Western Planning Authority (1966) Z.R. 1 [T.C.P.T]
Motor Traders Association Of Central
Mufulira (1967) ZR 3. [T.C.P.T].

Africa And Others v Municipal Council Of

Papenfus v the Lusaka City Council (1967 Z.R 3 [t.c.p.t]

Northmead Supermarket Limited, and others v Lusaka City Council [t.c.p.t]

STATUTES:
Town and Country Planning Act, Chapter 283 of the Laws of Zambia
The Public Health Act, Chapter 295 of the Laws of Zambia
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The Local Government Act, Chapter 281 of the Laws of Zambia

OTHERS:
M. Webster, Collegiate Dictionary, Springfield, Massachusetts, USA,

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