The Landings Proprietors Unit Plan No. 2/2007 v The Development Control Authority
| Jurisdiction | St Lucia |
| Judge | Cenac-Phulgence J |
| Judgment Date | 04 July 2019 |
| Judgment citation (vLex) | [2019] ECSC J0704-2 |
| Docket Number | SLUHCV2018/0274 |
| Court | High Court (Saint Lucia) |
| Date | 04 July 2019 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(Civil)
Her Ladyship, the Honourable Justice Kimberly Cenac-Phulgence
(A JUDGE IN OPEN COURT)
SLUHCV2018/0274
and
Mr. Peter Foster QC with Ms. Rene St. Rose and Mr. Peter Marshall for the Claimant
Mr. Dexter Theodore QC with Mr. Adrian Etienne and Ms. Sueanna Frederick for the Defendant
Mr. Garth Patterson QC with Mr. Mark Maragh of Counsel for the Interested Party
Mr. Kurt Thomas holding a watching brief on behalf of the Attorney General
Following the grant of leave to file a claim for judicial review by order dated 3 rd July 2018, The Landings Proprietors Unit Plan No. 2 of 2007 (“The Landings”) brought this claim for judicial review of a decision of the Development Control Authority (“the DCA”) made on 16 th April 2018. This decision granted full approval to developer Two Seas Holdings Limited (“Two Seas”) to develop a hotel (“the development”) on Parcel 1257B 272, which is adjacent to and bounded by The Landings' condominium hotel (“the decision”). 1
The essence of The Landings' claim is that the decision of the DCA is illegal, arbitrary, irregular, irrational, unfair, unreasonable, made in breach of the rules of natural justice, and an improper exercise of its discretion. In this regard, The Landings has several complaints. The Landings complains that the DCA failed to take into account material considerations, in particular, the potential negative impact of the development on The Landings' property. 2 The Landings complains that in addition, the DCA failed to take into account the Manual for Developers dated February 1988 (“the Manual”), which it contends is the DCA's established policy guide for considering applications to develop land in Saint Lucia, and which requires the DCA to consider the socio-economic implications of a proposed development on surrounding properties, pursuant to sections 4.8.1 and 4.8.3. 3
The Landings further contends that the DCA refused or failed to inform it of the full nature and impact of the development, including providing copies of any plans, drawings, and/or reports 4. It is also the Landings' contention that the DCA refused or failed to consult or otherwise engage it with regard to: the height of the proposed buildings which would obstruct light to and hinder scenic views from its property; the density of the proposed hotel occupancy; noise, dirt and dust nuisance during construction; traffic nuisance during and post construction; the financial impact of lost revenues to its hotel operations and individual unit owners; and the scale, blend, design and diversity of the development, which it says is not in keeping with the surrounding hotel properties at Rodney Bay, Gros Islet. 5 This, The Landings says,
The Landings also says that the decision of the DCA is illegal and irrational as the DCA approved plans for the development on property belonging to it. Accordingly, The Landings says that the DCA has approved an illegal trespass on The Landings' property by Two Seas. 7
The Landings contends that the DCA was required to have taken into account all the above considerations by virtue of and pursuant to section 23(1) of the Physical Planning and Development Act 8 (“the Act”), which requires that where an application is made for permission to develop land, the DCA shall have regard to the physical plan of the area within which the land is situated, if any, and to any other material considerations. The Landings contends that the obligation on the DCA to consider the potential negative impacts of the development on them, the guidelines contained in the Manual for Developers, and to engage them in the decision-making process are all ‘material considerations’ contemplated by section 23(1). 9
Accordingly, The Landings seeks the following relief:
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i. A declaration that the decision of the DCA made on 16 th April 2018 is illegal, arbitrary, irregular, irrational, unfair, unreasonable, made in breach of the rules of natural justice and an improper exercise of its discretion.
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ii. An order quashing the decision of the DCA.
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iii. An order for substantial damages arising out of the damage that is and will be caused by the development to it.
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iv. Costs.
As a preliminary matter, two issues arose concerning further submissions filed by the claimant. By order of the court dated 7 th February 2019, the parties in the matter were ordered to file and serve submissions by 18 th March 2019. The DCA and Two Seas filed their respective submissions on 18 th March 2019. However, The Landings failed to file submissions by the date ordered and was subsequently given leave to file and serve same by 5 th April 2019. The Landings filed its submissions on 28 th March 2019 and thereafter filed further submissions, without leave of the court on 14 th May 2019. Apparently, the submissions filed on 28 th March 2019 and the further submissions filed on 14 th May 2019 were not served on the other parties until the day before the trial. Both counsel for the DCA, Mr. Dexter Theodore QC (“Mr. Theodore QC”) and Two Seas, Mr. Garth Patterson QC, (“Mr. Patterson QC”) took objection to the further submissions filed without leave. This was the first issue.
As the purpose of filing written submissions is to assist the Court to identify the issues for determination and distil the relevant facts and law, the Court did not see it fit to disallow the further submissions filed, in the absence of some injustice to the other parties. I find support for this position in the case of Roosevelt Skerrit v Thomas Fontaine. 10 In deciding that an order to file submissions by a set date did not prevent further submissions from being filed without leave after that date, the Court relied on the dicta of Sir Hugh Rawlins in Employers International and Others v Boston Life and Annuity Company Ltd 11:
“Written submissions, which are filed with an appeal, are intended to assist the court, by way of reference to the applicable principles, legal analysis and authorities to arrive at decisions that are sound, well-reasoned, correct in law, reliable and not delivered per incuriam.”
This however does not at all endorse the disregard for timelines set by the Court to enable matters to progress smoothly, a practice which is naturally frowned upon and is discouraged.
The second and more important issue was that The Landings' submissions and further submissions sought to expand the scope of the claim beyond that presented in its fixed date claim form and affidavit in support of Anne Copeland, filed on 13 th June 2018 and in respect of which leave to apply for judicial review was granted. Counsel for Two Seas, Mr. Patterson QC, helpfully drew the Court's attention to some of the paragraphs of the submissions and further submissions which introduced new matters. These are as follows:
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i. In the submissions entitled ‘Skeleton Argument of the Claimant Application for Administrative Orders’ filed 28 th March 2019: at paragraph 12 – “the EIA was prepared in advance of the application for development.”
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ii. In the submissions entitled ‘Further Submissions of the Claimant Application for Administrative Orders’ filed 14 th May 2019:
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a. At paragraph 2.2(c) – “the Defendant did not consider the need to establish a Terms of Reference for this new particular development;”
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b. At paragraph 2.2(d) – “The defendant in fact failed to establish Terms of Reference for this development and failed to recognize that the EIA must be in accordance with their guidelines and policy, and on the principles of fairness and to discharge their duty, be prepared in accordance with Terms of Reference that consider the effect on the public and therefore including the claimant as an immediate neighbour;”
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c. At paragraph 2.2(f) – “The defendant took into consideration an EIA without giving the claimant the opportunity to properly and adequately review and comment on it, despite repeated requests from the claimant for all relevant information including plans and reports in relation to the development and the requirements of the Act for public scrutiny of the EIA.”
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d. At paragraph 5 – relying on the case of Director of Physical Planning v Anne Hendricks Bass submitted that “the register must be in a form that allows the public to have access to sufficient information to allow them to be able to make proper assessment of the development that is contemplated.” Further, that “the attempt to restrict the right to information entered in the register is in breach of the Act and is unlawful.”
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e. At paragraph 21 – “section 22(4)(e) provides for there to be public participation in the EIA process and public scrutiny of the EIS after it has been submitted to the defendant”
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f. At paragraph 22 – section 2(3) of the Act provides for the EIS to include an assessment of the potential impacts of the proposed undertaking and the alternatives on the environment and identify and describe proposed measures to mitigate impacts of the proposed undertakings. It would be essential for the public to participate in the EIS process and to have an opportunity to scrutinize the EIS… The EIS is being prepared by an individual engaged by the developer, there must be participation in the process and a public scrutiny of the EIS to ensure the decision maker has comments from all parties, not just referral agencies. There was no referral agency asked to consider the effect on neighbouring properties, the Ministry of Tourism was asked solely to look at room...
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