Mondesir Estates Ltd v The Development Control Authority
| Jurisdiction | St Lucia |
| Judge | Pariagsingh, J |
| Judgment Date | 25 March 2024 |
| Neutral Citation | LC 2024 HC 3 |
| Docket Number | CLAIM NUMBER: SLUHCV2022/0262 |
| Court | High Court (Saint Lucia) |
the Honourable Mr. Justice Alvin Pariagsingh
CLAIM NUMBER: SLUHCV2022/0262
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CIVIL DIVISION
Mr. Peter Foster KC, leading Ms. Reneé St Rose and Ms. Marie-Ange Symmonds instructed by Ms. Tianah Foster of the firm Fosters for the Applicant/ Claimant.
Mr. Anand Ramlogan SC, leading Mr. Jared Jagroo and Ms. Marcellina Jouavel instructed by Ms. Rochelle John-Charles of the Attorney General's Chambers for the Respondents/ Defendants
Claimant's application filed on December 11, 2023 seeking an unless order and in default, a committal order
Before the Court is the Claimant's application seeking an order that unless the First Defendant withdraws a stop notice and an enforcement notice served on the Claimant on December 05, 2023, the Executive Secretary of the First Defendant be committed to the Bordelais Correctional Facility for failure to comply with the order of the Court dated July 24, 2023.
The Claimant also seeks damages arising out of the issuance of the stop and enforcement notices and costs.
Having considered the evidence before the Court and heard the parties, this Court is of the view and holds that the Claimant's application must be refused. The Court finds that the part of the relief sought seeking an ‘unless’ order is abusive and the part of the relief sought seeking committal is procedurally flawed and even if it were not, premature and unmaintainable. Accordingly, the application is dismissed.
Consistent with the consensual position expressed at the hearing, the Claimant shall pay the Defendants costs for one lead counsel, one junior counsel and one instructing attorney to be assessed by this Court in default of agreement within 14 days of this judgment on the application of either party.
On July 24, 2023, Innocent J delivered judgment on the Claimant's claim filed on June 09, 2022. At pages 84 to 85 paragraph [280], the following orders were made:
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1. The court declares that the DCA's reliance on the LAC Study as the primary basis for the denial of development approval to the claimant was contrary to the Physical Planning and Development Act, unlawful, and in breach of the claimant's constitutional right not to be deprived of its use and enjoyment of property otherwise than by the observance of the due process of law.
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2. The court declares that the DCA's reliance on the LAC Study as the primary basis for the denial of development approval to the claimant denied the claimant the right to the protection of the law guaranteed to it under the Constitution.
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3. The court declares that the DCA's reliance on the LAC Study as the primary basis for the denial of development approval to the claimant was unlawful to the extent that the LAC Study was devoid of any statutory, legal, or regulatory basis and is therefore the reliance thereon as a basis for the DCA's decision was arbitrary, illegal, unreasonable, and fundamentally unfair.
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4. The decision of the DCA in refusing the claimant's application for development approval is quashed and the application is remitted to the DCA for reconsideration in light of the observations and directions given by the court in this judgment.
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5. That upon the review of the claimant's application, the DCA should consider the question of the payment of compensation to the claimant as one of the options available should the DCA find that upon review of the claimant's application in conformity with the Act development approval ought not to be granted.
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6. Costs are awarded to the claimant to be assessed if not otherwise agreed between the parties within 21 days of the date of this judgment.
The six (6) orders of the trial judge were appealed by the Defendants in SLUHCVAP2023/0020 filed on August 30, 2023. An application for a stay of the orders made by the trial judge pending the hearing and determination of the appeal was filed on September 11, 2023. This application was refused by Ward JA on November 28, 2023.
The relevance of mentioning the pending appeal of the substantive matter is that during the course of the arguments before this Court, it was argued by the Defendants that the position now taken by the Claimant (set out fully below) was not taken by the Claimant in the stay application before Ward JA. The Defendants rely on this posture by the Claimant and the affidavit filed in the Court of Appeal by the Claimant which was also referred to at the hearing of this application to support its contention that the Claimant's position in this enforcement application was never signaled or taken before the Court of Appeal.
Following the refusal of the stay by the Court of Appeal, in addition to the instant application being filed, the Claimant also filed an application in the Court of Appeal to strike out the appeal. In response, the Defendants, the Appellants in the Court of Appeal filed an application seeking an extension of time to file the record of appeal and submissions. Both outstanding applications were heard by the Court of Appeal on March 11, 2024, and judgment was reserved.
As set out fully below, it is this Court's view that the pending applications do not impact on the application pending before this Court. Additionally, the posture of the Claimant in the Court of Appeal, although admittedly not contained in the evidence filed in the Court of Appeal by the Claimant, is not relevant to the resolution of this application.
The Claimant contends that the order of the High Court remitted its application No. 773/21 for reconsideration by the First Defendant. It is further contended that a representative of the DCA was present on the date of the delivery of the judgment. Additionally, it is contended that Rule 45.6 CPR mandates that when a judgment or order requires a person to do an act within a specified or a specified date, it may be enforced by an under Part 53 CPR for (i) committal; or (ii) sequestration of assets.
The Claimant contends that section 24 (1) of the Physical Planning and Development Act Cap 5.12 (“the Act”) provides that a decision shall be given by the Head of the Planning and Development Division within ninety 90 days of receipt of the application. The Claimant contends that sub-section 24(2) (a) of the Act contains a deeming provision that in the case of a single-family dwelling house, permission shall be deemed to have been granted unconditionally if there is no decision given within the ninety (90) day period.
Following on from the deeming provision, the Claimant contends that the period specified for the decision to be made on an application for permission, that is ninety (90) days, applies to the reconsideration ordered by the trial judge on July 24, 2023, as the order did not specify a date by which the reconsideration ought to take place.
By letter dated July 25, 2023, the Claimant wrote to the First Defendant requesting a meeting to discuss the judgment of the trial judge and its effect on the pending application. There was no response to this letter and after the 90-day period passed, by another letter dated November 30, 2023, the Claimant again wrote to the First Defendant. In its second letter, the Claimant gave notice that it intended to commence works on or about December 01, 2023, on the basis that permission was deemed to have been granted unconditionally pursuant to Section 24 (2)(a) of the Act.
There was a meeting between the Claimant and the First Defendant which is referenced in a third letter dated December 03, 2023. In this letter, the Claimant restated its position that an unconditional approval was granted pursuant to Section 24 (2)(a) of the Act and that works commenced on December 01, 2023, would continue.
On December 05, 2023, the Claimant was served with the two notices complained of. The first requiring the Claimant to cease activity before the expiry of the period allowed for compliance with the requirements of the enforcement notice (“the stop notice”) and the second, an enforcement notice informing the Claimant that it was in breach of the Act as property was being developed without the grant of permission (‘the enforcement notice”). The Claimant was also called upon to either restore the land to its original condition or submit an application to the First Defendant within twenty-eight (28) days.
The Claimant contends that the issuance of the stop and enforcement notices is an abuse of power, abuse of process, and in breach of the order dated July 24, 2023.
Mr. Ian Harrison, in his affidavit supporting the application, deposes that he is the duly appointed attorney of the Claimant. His evidence is that he was present in court when the order of the trial judge was pronounced, and so too were the representatives of both of the Defendants. These representatives are not identified in his affidavit or anywhere in this application or on the record. In the trial judge's order drawn after the judgment, there is no mention of any representative being present.
Mr. Harrison's evidence is that application No. 773/21, dated January 26, 2021, which was the subject of the judgment delivered on July 24, 2023, was remitted for reconsideration of the First Defendant. In addition to the facts mentioned in the grounds of the application set out above, his evidence is that there was no response to the first letter written on the day of the judgment to the First Defendant.
His evidence is further that on November 30, 2023, he met with a...
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