Section 87 of the Environment Act 2000 is one of the most useful provisions in the Act for landowners, and one of the least used.
Section 87(1) — the liability
The holder of a permit is liable to pay compensation to the owners and occupiers of, and any person with customary rights in, any private land, in relation to their several interests, in respect of entry on the land, or occupation of the land by the holder.
- “Any person with customary rights in” the land is expressly included — not only the registered or recognised owner. Someone with a customary right of use, access, garden or fishing has a claim in their own name.
- “In relation to their several interests” means each interest is compensated separately. A single payment to one leader does not discharge the liability to others.
- The trigger is entry on, or occupation of, the land — not damage. Damage is dealt with separately in subsection (2).
Section 87(2) — the four heads of compensation
(a) the deprivation of the use and enjoyment of the surface of the land or any part of it, or of rights to water customarily associated with the land — except where there has been a reservation in favour of the State of the right to that use and enjoyment;
(b) damage to the surface of the land or any part of it, or improvements on it, or to any flora or fauna, caused by operations under a permit;
(c) rights of way and easements; and
(d) any damage consequential on the holder’s use or occupation of the land, or use or control of water or a water source on or in the land.
Deprivation of rights to water customarily associated with the land is a compensable head in its own right. That is the money counterpart of section 79(2), which preserves customary rights to the use of water.
And paragraph (b) expressly reaches flora and fauna — trees, gardens, sago stands, fish and game — not just physical damage to the ground.
Section 87(3) — damage to neighbouring land
Where private land, or improvements on it, adjoining or in the vicinity of land occupied under a permit, is damaged or depreciated in value:
(a) by any operations carried on by or on behalf of the permit holder; or
(b) by reason of a right of way acquired by the permit holder,
the owners, occupiers and persons with customary rights in that land are entitled, in respect of their several interests, to compensation for loss or damage sustained.
The words “or depreciated in value” matter: proof of physical damage is not required if value has fallen. And “in the vicinity of” extends beyond the immediately adjoining block — which is what makes the subsection useful downstream of a discharge point.
Sections 87(4) to (7) — agreement, then determination
| Step | What happens | Time |
|---|---|---|
| 87(4) | The permit holder may agree the amount, form and time for payment with any person entitled | — |
| 87(5) | Any agreement must be by instrument signed by the parties or their agents, and lodged with the Director | — |
| 87(6) | Where no agreement is reached within 90 days of the permit holder giving written notice seeking to open negotiations, either party may apply to the Director to determine the matters | 90 days |
| 87(7) | The Director shall determine each matter referred, and may seek the Council’s advice | 90 days from the referring notice |
| 87(13) | Either party aggrieved by the determination may appeal to the National Court | — |
Section 87(5)(b) requires it. An agreement kept in a company file and never lodged is harder to enforce, and it does not put the Director on notice for the purposes of section 72(2)(f) — the ground on which a permit may be suspended or cancelled for unpaid compensation.
Sections 87(8) to (10) — staged awards, security, and further loss
- Section 87(8) — where the Director considers it impracticable or inexpedient to assess compensation in full satisfaction, he may order compensation for a specified period, or for part of the claim, and fix how and when the outstanding claim is to be determined. That suits long-running impacts, where the full extent is not yet known.
- Section 87(9) — the Director may at any time require the person from whom compensation is sought to give such security as he thinks fit for payment, before commencing or continuing operations. This is a powerful early remedy: the operator can be stopped from proceeding until security is in place.
- Section 87(10) — where further loss or damage not already compensated is later proved, the Director may determine it and order further compensation. A determination is not necessarily the end.
Sections 87(11) and (14) — enforcing payment
Section 87(11) — once the Director has determined compensation or further compensation, payment of the amount is a condition applying to the permit for the purposes of section 72. Non-payment therefore becomes a ground to suspend or cancel the permit — and section 72(2)(f) allows a person entitled to compensation to apply to the Director on that ground.
Section 87(14) — failing to pay within the time determined is an offence: a corporation up to K100,000.00; another person up to K50,000.00 or two years’ imprisonment, or both. Default penalty K5,000.00.
Section 86 — 14 days’ notice before powers are exercised
Subject to section 120, where a person owns or is entitled to occupy land, another person shall not exercise any of the powers conferred by this Part or by a permit in relation to that land unless he has given not less than 14 days’ written notice — including, where the land is occupied under a licence, to the holder of that licence.
For customary land, it is sufficient compliance to give written notice to the landowners and the Local-level Government body in the area (s 86(2)).
Section 85 — acquisition, and who ultimately pays
Section 85(1) declares certain things to be public purposes for section 53(1) of the Constitution (protection from unjust deprivation of property) and the Land Act 1996: official investigations under section 88; construction of waterworks; works for hydro-electric power; conveyance of water or electricity; accommodation of a permit holder’s staff; and release of contaminants from connected operations.
Under section 85(2), where a claimant proves that damage has been sustained by severance of the acquired land from adjoining land, the Court may order that the adjoining land or part of it also be acquired. And under sections 85(3) and (4), where land acquired for such a purpose is made available to a permit holder, the compensation paid by the State is a debt due from the holder to the State, and payment on written demand is a condition of the permit.
Making a claim
- Identify every interest — owners, occupiers and each person with customary rights. Each is compensated separately.
- Record the position before operations begin — photographs, gardens, trees, water sources, fishing and hunting use, dated.
- Check the 14-day notice was given under section 86.
- Claim under each head — deprivation of use, customary water rights, damage to land, improvements, flora and fauna, rights of way, and consequential damage.
- Include neighbouring and downstream land under section 87(3), including depreciation in value.
- Negotiate, and put any agreement in a signed instrument — then lodge it with the Director.
- If 90 days pass without agreement, apply to the Director to determine amount, form and timing.
- Ask for security under section 87(9) if payment looks doubtful.
- If further damage appears later, apply under section 87(10).
- If payment is not made, apply under section 72(2)(f) and point to the offence in section 87(14). Get advice from the Public Solicitor or a firm from the law firms directory.
Sources
- Environment Act 2000 — ss 72, 79, 85–88, 120; Part VII Division 3
- Constitution — s 53
- Land Act 1996
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.