Coastal regulations: steadily watered down

By Deepti Mohan, Vidhii Partners
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India has a coastline of around 7,517 kilometres. The coastal areas support 30% of the population and therefore their regulation and preservation plays a pivotal role in achieving sustainable development.

Legal framework

The first notification for regulating development on the coast was issued in February 1991 by the Ministry of Environment and Forests (MoEF), under section 3(2)(v) of the Environment (Protection) Act, 1986. It aimed to restrict the setting up and expansion of industries, operations and processes in coastal areas. However, over time the notification appears to have lost sight of its primary objective. A series of almost 25 amendments made between 1991 and 2009 has not only diluted the notification’s mandatory protective provisions, but has also sought to regulate activities that are arguably beyond its scope.

Deepti Mohan Partner Vidhii Partners
Deepti Mohan
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The 1991 notification defines a coastal regulation zone (CRZ) and classifies the same into four categories (CRZ-I to CRZ-IV) depending on the ecological sensitivity of the area and the level of construction that exists. Most importantly, it specifies prohibited and permissible industrial activities within a CRZ and expressly restricts setting up new industries or expanding existing industries, except those directly related to the waterfront or needing foreshore facilities and where such requirement cannot be met by some indirect connection or source.

This mandatory provision of the notification has been subject to judicial scrutiny and has been recognized by the Supreme Court in S Jagannath v Union of India and by Bombay High Court in Mrs Ameeta Shah v State of Maharashtra. Both cases considered whether a particular industry or type of construction was permissible in a CRZ.

Dilution of intent

However, the various amendments to the notification have resulted in permitting activities that do not require water front or foreshore facilities. For instance in 2001, projects of the Department of Atomic Energy as well as facilities for receipt and storage of petroleum products were permitted in CRZs. Then in 2002, the coast including the no development zone demarcated in CRZ-III areas was opened up to non-polluting industries and other service industries of the special economic zone including desalination plants, beach resorts and related recreational facilities. In 2009, by a further amendment development of the Navi Mumbai green field airport was allowed in the ecologically sensitive CRZ-I area.

The notification has also over time sought to regulate activities which are beyond the scope of section 3(2)(v) of the act and its rules. In 2002 in a marked digression from its original objective of regulating industries, housing schemes were included as permissible activities under the notification.

The application of the notification being restricted to only industries and industrial operations was upheld by Bombay High Court in Goa Foundation and Anr v The Konkan Railway Corporation and Ors when holding that even though bunding was a prohibited activity under the notification, it would not be applicable to railway lines since laying railway lines is not an industry. However, in 2006 in Union of India v Member Secretary, Chennai Metropolitan Development Authority, Madras High Court held that the provisions contained in the act and the notification were wide enough to include any activity, industrial or otherwise, including the construction of residential buildings.

The question whether such buildings would fall outside the scope of the notification has recently been raised before Bombay High Court in the Adarsh Housing Society matter.

New notification

In January, the MoEF issued the Coastal Regulation Zone Notification 2011 to replace the 1991 notification. The 2011 notification is principally structured on the earlier notification with certain additions, such as time-bound clearances and enforcement provisions.

The 2011 notification noticeably widens the definition of CRZs, but continues with the same exceptions to the restriction on construction as in the previous notification barring special economic zones which do not find mention. This is despite the fact that even under the 2011 notification clearance is to be given only for an activity directly requiring waterfront and foreshore facilities.

The notification also continues to regulate housing schemes in coastal areas. Additionally, construction of dwelling houses of traditional coastal communities in the no development zone of CRZ-III areas has now been permitted. Also redevelopment of slums and dilapidated buildings in Greater Mumbai with increased floor space index, as is applicable under the local laws, is also allowed. This will no doubt create further pressure on the coast.

Coastal regulation has been more a law of exceptions than rules and the new notification, though a marked improvement on the earlier law, carries with it the same drawbacks. Like its predecessor it fails to achieve the initial purpose for which the coastal regulations were issued in the first place.

Deepti Mohan is a partner at Vidhii Partners and can be reached at deepti.mohan@vidhiipartners.com.

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