The Landings Proprietors v The Development Control Authority et Al

• Jurisdiction: St Lucia
• Judge: Webster JA
• Judgment Date: 06 October 2023
• Judgment citation (vLex): [2023] ECSC J1006-1
• 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)

Respondent

and

The Development Control Authority

Applicant

and

Two Seas Holdings Limited

Interested Party/Applicant

Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mde. Vicki-Ann Ellis Justice of Appeal

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

SLUHCVAP2019/0019

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Applications for conditional leave to appeal to His Majesty in Council — Applications made before amendments to Constitution of Saint Lucia coming into effect on 9th March 2023 — Parties not consenting to matters being transferred to the Caribbean Court of Justice — Standing to apply for leave to appeal to Privy Council — Whether Two Seas as an interested party had standing to apply for conditional leave — Appeal as of right — Section 108(1)(a) of the Constitution — Whether Two Seas' proposed appeal involved directly or indirectly a question respecting its property or a right of the prescribed value or more — Section 108(2)(a) of the Constitution — Whether the questions involved in Two Seas' and the DCA's intended appeals are of great general or public importance or otherwise

The Development Control Authority (“the DCA”) and Two Seas Holding Limited (“Two Seas”) both applied for conditional leave to appeal to His Majesty in Council against the decision of the Court of Appeal delivered on 7 ^th November 2022 allowing the appeal of the Landings Proprietors Unit Plan No. 2 of 2007 (the “Landings”). The Court of Appeal set aside the decision of the trial judge made on 4 ^th July 2022 which upheld the decision of the DCA permitting Two Seas to carry out a commercial development on its property at Pigeon Point, Gros Islet, Saint Lucia. Both applications were filed on 28 ^th November 2022 under the provisions of section 108 of the Constitution of Saint Lucia.

The DCA's application was made under section 108(2)(a) stating that the intended appeal raised matters of great general or public importance or otherwise, which ought to be submitted to His Majesty in Council. They argued that the Court's finding of a duty to consult persons who own land that is adjacent to and/or adversely affected by a development raised difficult questions of law which posed dire consequences for the public and the Court's decision would open the floodgates to challenges to decisions by the DCA approving development plans by persons adversely affected by approved developments.

As a preliminary issue, the Landings challenged Two Seas' standing to bring an application for leave to appeal to the Privy Council. Two Seas argued that as a party directly affected by this Court's decision, they could seek leave to appeal since there was no restriction in section 108 of the Constitution barring them from seeking leave. The Landings countered that they had no standing to seek leave as they were not joined as a party in the lower court and could not file evidence. Their role was limited to filing submissions.

Two Seas' substantive application for leave to appeal was made under both sections 108(2)(a) and 108(1)(a). Like the DCA, they argued that the intended appeal raised matters of great general or public importance or otherwise. As to the application under section 108(1)(a), they submitted that the appeal was as of right since it involved directly or indirectly a claim to or question respecting property or a right of the prescribed value or more.

Held: dismissing the applications by the DCA and Two Seas for conditional leave to appeal to His Majesty in Council and awarding costs on both applications to the Landings, that:

• 1. In the absence of restrictions in the enabling legislation, the Court of Appeal and the Privy Council have a wide discretion in granting leave to appeal to the Privy Council. Appeals to the Privy Council are governed by the Constitution and the Judicial Committee (Appellate Jurisdiction) Rules Order 2009. The Civil Procedure Rules do not play a role in regulating the practice and procedure for appeals to the Privy Council. Under section 108 of the Constitution, there is no restriction stating that a party must have been a party in the lower court to apply for leave to appeal to the Privy Council. Therefore, a person who has a real interest in the outcome of a decision should be allowed to apply for leave to appeal to the Privy Council. Two Seas was joined as an interested party in the lower court and although not a full party to the proceedings, it was evident that they were directly affected by the Court of Appeal's decision and as such had standing to seek leave to appeal to the Privy Council.

  E. Anthony Ross v Bank of Commerce (Saint Kitts Nevis) Trust and Savings Association Limited [2010] UKPC 28 applied; Attorney General of the Gambia v Pierre Sarr N'Jie [1961] A.C. 617 distinguished; Attorney General of the Cayman Islands v James Cleaver and Co (as liquidators of Liberty Capital Limited and Sun Holding Limited) and another [2006] UKPC 28 distinguished.

• 2. Section 108(2)(a) contains two independent bases for getting conditional leave to appeal and the applicant can succeed on either or both bases. In construing the phrase ‘great general or public importance’ the court looks for matters that involve a serious issue of law, a constitutional provision that has not been settled, an area of law in dispute, or a legal question the resolution of which poses dire consequences for the public. The phrase ‘or otherwise’ enlarges the discretion of the court to include matters which were not necessarily of great general or public importance, but which in the opinion of the court might require some definitive statement of the law from the Privy Council or now, the Caribbean Court of Justice as the highest judicial authority of the land.

  Emmerson International Corporation v Viktor Vekselberg et al BVIHCVAP2019/0020 (delivered 27th July 2023, unreported) followed; Pacific Wire & Cable Company Limited v Texan Management Limited et al BVIHCVAP2006/0019 (delivered 6th October 2008, unreported) followed; Martinus Francois v The Attorney General SLUHCVAP2003/0037 (delivered 7th June 2004, unreported) followed; Olasemo v Barnett Ltd (1995) 51 WIR 191 applied.

• 3. The essence of the Court of Appeal's decision is that, in the absence of a statutory duty to consult adjacent landowners, the duty to consult may arise at common law where there is a legitimate expectation to be consulted, or where failure to consult would amount to a breach of the rules of natural justice. This Court found that fairness and the rules of natural justice require that there should be some consultation where the failure to do so leads to conspicuous unfairness and an abuse of process. There was nothing groundbreaking about the decision of the Court of Appeal and the Court was pellucid in finding that the common law duty to consult was not absolute and it depended on the facts of each case. On the facts of this case, the DCA was under a duty to consult the Landings and its failure to so do was conspicuously unfair and an abuse of process. Consequently, contrary to the arguments made by both the DCA and Two Seas, the fact that this was the first time a successful challenge had been made to the DCA's decision to approve development plans, did not make it per se a matter of great general or public importance for the grant of leave under section 108(2)(a). Even in the face of the wide discretion granted under the ‘or otherwise’ limb of section 108(2)(a) neither party was able to satisfy this Court that there was reasonable doubt as to the accuracy of the Court of Appeal's decision or that the intended appeal might require some definitive statement of the law from the Privy Council. Both parties' applications therefore failed to meet the requirements of section 108(2)(a).

  Emmerson International Corporation v Viktor Vekselberg et al BVIHCVAP2019/0020 (delivered 27th July 2023, unreported) distinguished; Martinus Francois v The Attorney General SLUHCVAP2003/0037 (delivered 7th June 2004, unreported) followed.

• 4. Under section 108(1)(a) the intended appeal must determine the existence of a proprietary right or interest over property. The intended appeal by Two Seas, although it relates to property, does not involve or concern a proprietary interest in the property, and it does not determine ownership or occupation rights or the manner of disposing of the property. The proprietorship or other rights of Two Seas were not affected because it does not have a right to a favourable decision by the DCA. The matter in dispute in the intended appeal concerns the lawfulness of the DCA's decision to grant regulatory consent to carry out the development. This issue does not have a monetary value and does not concern, directly or indirectly, property or a right within the meaning of section 108(1)(a). For this reason, Two Seas' application for conditional leave to appeal to the Privy Council as of right was refused.

  Gladys Sarah Becker v The Corporation of the City of Marion and another [1976] UKPC 6 distinguished; The Cabinet of Antigua and Barbuda et al v HMB Holdings Limited ANUHCVAP2002/0016 (delivered 28th January 2003, unreported) distinguished.

Appearances:

Mr. Richard Harwood KC with him Ms. Renee St. Rose and Ms. Marie-Ange Symmonds for the Appellant

Mr. Dexter Theodore KC for the Respondent

Mr. Garth Patterson KC with him Mr. Mark Maragh for the Interested Party

1 Webster JA [AG.]: Before the Court are applications by the respondent, the Development Control Authority (“the DCA”), and by the interested party, Two Seas Holding Limited (“Two Seas”), for conditional leave to appeal to His Majesty in Council against the decision of the Court of Appeal delivered on 7 ^th November 2022 allowing the appeal of the Landings Proprietors Unit Plan No. 2 of 2007 (the...