The Landings Proprietors Unit Plan No. 2 of 2007 (also known as The Landings Body Corporate or The Landings BC) v The Development Control Authority

• Jurisdiction: St Lucia
• Judge: Farara JA
• Judgment Date: 07 November 2022
• Judgment citation (vLex): [2022] ECSC J1107-1
• Docket Number: SLUHCVAP2019/0019
• Court: Court of Appeal (Saint Lucia)

Between:

The Landings Proprietors Unit Plan No. 2 of 2007 (also known as The Landings Body Corporate or The Landings BC)

Appellant

and

The Development Control Authority

Respondent

and

Two Seas Holdings Limited

Interested Party

Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.]

SLUHCVAP2019/0019

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Judicial review — DCA's decision to approve development on land adjacent to Landings' property — Duty to consult — Failure by DCA to consult The Landings as an adjacent landowner before approving development on Parcel 272 — Whether the DCA owed The Landings a duty to consult — Legitimate expectation — Whether The Landings had a legitimate expectation that they would be consulted prior to the DCA's decision — Principle of fairness — Whether the DCA had a duty to consult The Landings arising out of the principle of fairness — Section 47 of the Physical Planning and Development Act — Register of planning applications — Right to access application documents — Whether the failure by the DCA to allow The Landings access to and copies of the application documents kept under section 47 rendered the decision unfair

In 2007, Two Seas Holdings Limited (“Two Seas”) made an application to the Development Control Authority (the “DCA”), for approval of a tourism development comprising a hotel and other facilities on land registered as Parcel 1257B 272 (“Parcel 272”) at Pigeon Point, Gros Islet. Parcel 272 is bounded on the east by The Landings Hotel Resort & Spa (the “Landings Hotel”) which is operated by the appellant (The “Landings”). Approval by the DCA was granted in 2008 for land use only on Parcel 272. The following year, Ms. Alison King-Joseph (“Ms. King”), engaged by Two Seas, submitted an environmental impact statement (“EIS”) to the DCA. The EIS identified The Landings Hotel as being within the sphere of influence of the proposed development. By 2011, Cabinet approval for the development was received for the said development. However, Two Seas did not proceed with their plans.

After several years, the development was restarted in 2017 with a revised design and concept plan on a larger scale and with buildings up to 9 storeys in height. In October 2017, two meetings were held between Ms. King and representatives of The Landings to discuss the development. No officer of the DCA participated in these meetings. On 30 ^th October 2017, an environmental and social impact assessment (“ESIA”) and ESIA Addendum Update report (the “ESIA Addendum Update”) were submitted to the DCA by Ms. King on behalf of Two Seas. Notably, the ESIA Addendum Update failed to include the views of The Landings' representatives on the proposed development scheme and its potential adverse impacts on The Landings' property. Furthermore, the ESIA Addendum Update recorded that certain adverse impacts of the development on The Landings' property, such as loss of views, had increased owing to the revised design.

In November 2017, Two Seas submitted an application for approval to proceed with this new development on Parcel 272. In January 2018, The Landings' lawyers wrote to the DCA stating that their client was concerned about the neighbouring development, and they requested a copy of the development plans under consideration by the DCA. The DCA responded pointing them to the register of planning applications established under section 47 of the Physical Planning and Development Act (the “PPDA”). In March 2018, The Landings' lawyers inspected the said register kept at the DCA, which provided few details regarding the proposed development on Parcel 272. The Landings' lawyers' request to see the application documents was denied. By letter dated 17 ^th April 2018, The Landings' lawyers expressed their concern to the DCA that they had not been consulted in relation to the development on Parcel 272, and that the DCA failed to consider material considerations stipulated in their Manual for Developers (the “Manual”) as applicable to this type of development, prior to arriving at their decision. Despite the concerns expressed by The Landings and their lawyers, by letter dated 18 ^th April 2018, the DCA communicated its approval of the development on Parcel 272 to Two Seas.

Being dissatisfied with the DCA's decision, The Landings commenced judicial review proceedings. They sought an order quashing the decision and damages owing to the impact of the development on their property. They claimed that the approval by the DCA was illegal, arbitrary and in breach of natural justice since the DCA failed to consult them before making its decision, when its property would have been adversely affected by the development on Parcel 272.

In giving judgment on The Landings' judicial review claim, the learned judge found that the DCA had not consulted with The Landings, and that the October 2007 meetings which Ms. King had with representatives of The Landings, was not consultation by the DCA. However, in dismissing The Landings judicial review claim, the learned judge found that it had failed to establish that the DCA had a duty under the PPDA to consult with them, or that a duty to consult arose out of a legitimate expectation, whether arising by promise or an established practice. The judge also found that section 23(1) of the PPDA and the Manual, whilst requiring the DCA to have regard to material considerations, did not lead to a duty to consult with The Landings, and that The Landings had failed to show that the impacts on its property had not been considered by the DCA in coming to its decision on the Two Seas application.

Being dissatisfied with the judge's ruling, The Landings appealed. On appeal the central issue for determination was whether the DCA had a duty to consult The Landings before granting approval of the Two Seas' application. The Landings argued that the DCA had a duty to consult them which arose by legitimate expectation, fairness, and by the duty to have regard to material considerations, including those stipulated at paragraphs 4.8.1 and 4.8.3 of the Manual. They contended that this duty to consult having arisen, it ought to have been exercised properly, and the DCA's refusal to permit The Landings access to (and copies of) the underlying application documents breached this duty.

Held: allowing the appeal and making the orders at paragraph [218] of this judgement, that:

• 1. A duty to consult principally arises by statute. However, this duty may arise at common law when (i) there is no statutory duty to consult, and (ii) there is a legitimate expectation of being consulted owing to a promise of consultation or an established practice of consultation, or (iii) where a failure to consult would amount to a breach of the rules of natural justice in the sense of conspicuous unfairness. This last category is exceptional, and the unfairness must be tantamount to an abuse of power. Absent these factors, there will be no obligation on a public body to consult.

  R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice and others [2014] EWHC 1662 considered; Binder and others v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin) considered.

• 2. The PPDA imposed no statutory duty on the DCA to consult The Landings, however, this duty could arise at common law. On the facts, there was neither a promise by the DCA to consult The Landings nor an established practice of consultation. The October 2017 meetings between Ms. King and The Landings' representatives was not consultation by the DCA. Furthermore, despite The Landings' contentions, the terms of the planning application certificate (which provides for notice to adjacent landowners) did not lead to a legitimate expectation that they would be consulted by the DCA. Additionally, neither section 23(1) of the PPDA and/or paragraphs 4.8.1 and 4.8.3 of the Manual explicitly nor impliedly conferred a right for the adjacent landowner to be consulted. As a result, no duty to consult The Landings arose by legitimate expectation, and the learned judge did not err in finding that the DCA had no obligation to consult The Landings on this basis.

  R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice and others [2014] EWHC 1662 considered; R v North and East Devon Health Authority Ex p Coughlan [2001] QB 213 distinguished.

• 3. Where a statutory process is insufficient to ensure that the requirements of fairness are met, the common law will intervene and imply into the statute procedural safeguards to ensure that fairness is achieved. The principle of fairness may thus require that certain duties be imposed on public bodies when making their decisions. Such duties include a duty to consult, a duty to have regard to relevant considerations, and a duty to carry out sufficient inquiries. Any issue as to fairness is a fact sensitive one, and fairness will often require that a person adversely affected by a decision be given an opportunity to be heard and to be well-informed of the matters pertaining to the proposed development about which he or she wishes to make representations.

  R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice and others [2014] EWHC 1662 considered; Doody v Secretary of State for the Home Department; and other appeals [1993] 3 All ER 92 considered.

• 4. On the facts, the process adopted by the DCA which led to the approval of Two Seas' application was in breach of the rules of natural justice. The DCA failed in its duty of fairness, which duty required them to consult The Landings. The EIS identified The Landings as within the sphere of influence of the development at a fairly early stage. When the project was revised and greatly expanded, the assessment of the impact on The Landings...