Cortina Villas v Planning Appeals Trib

• Jurisdiction: Cayman Islands
• Judge: (Sanderson, J.)
• Judgment Date: 13 September 2000
• Court: Grand Court (Cayman Islands)
• Date: 13 September 2000

Grand Court

(Sanderson, J.)

CORTINA INTERNATIONAL LIMITED (trading as CORTINA VILLAS)

and

PLANNING APPEALS TRIBUNAL and CENTRAL PLANNING AUTHORITY

Ms. S.A. Brooks, for the appellant;

S.W. Bulgin, Solicitor General, for the respondents;

N.J. Klein for the intervenors.

Cases cited:

(1) Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680, followed.

(2) Att.-Gen. (Hong Kong) v. Ng Yuen Shiu, [1983] 2 A.C. 629; [1983] 2 All E.R. 346, applied.

(3) Cayman Flying Assn. v. Central Planning Auth., Grand Ct., April 12th, 2000, unreported.

(4) Ebanks v. Central Planning Auth., 1980–83 CILR 207, considered.

(5) Jacques Scott & Co. Ltd. v. Moxam, 1998 CILR 323, followed.

(6) Julius v. Oxford (Lord Bishop)ELR(1880), 5 App. Cas. 214; [1874–80] All E.R. 43.

(7) Karamanian v. RichmondUNK, [1982] 5 W.W.R. 406; (1982), 38 B.C.L.R. 106; sub nom. Re Karamanian, 138 D.L.R. (3d) 760.

(8) Penticton (City of) v. British Columbia Energy Commn. (1979), 10 B.C.L.R. 73; sub nom. Re City of Penticton, 96 D.L.R. (3d) 345.96 D.L.R. (3d) 345.

(9) Poundstretcher Ltd. v. Environment Secy., [1988] 3 PLR 69; [1989] J.P.L. 90n, applied.

(10) R. v. Home Secy., ex p. Hargreaves, [1997] 1 W.L.R. 906; [1997] 1 All E.R. 397.

(11) R. v. Jockey Club, ex p. R.A.M. Racecourses Ltd., [1993] 2 All E.R. 225; [1990] C.O.D. 346, followed.

(12) Ridge v. Baldwin, [1964] A.C. 40; [1963] 2 All E.R. 66.

(13) Russell v. Duke of Norfolk, [1949] 1 All E.R. 109; (1949), 65 T.L.R. 225; 93 Sol. Jo. 132, dicta of Tucker, L.J. applied.

(14) Stringer v. Minister of Housing & Local Govt., [1970] 1 W.L.R. 1281; [1971] 1 All E.R. 65, applied.

Legislation construed:

Development and Planning Law (1995 Revision) (Law 28 of 1971, revised 1995), s.12(1): The relevant terms of this sub-section are set out at page 376, lines 11–14.

s.12(3): The relevant terms of this sub-section are set out at page 376, lines 37–38.

s.43(1): The relevant terms of this sub-section are set out at page 367, lines 23–33.

(2): The relevant terms of this sub-section are set out at page 367, lines 34–35.

(4): The relevant terms of this sub-section are set out at page 367, lines 38–40.

Development and Planning Regulations (1995 Revision), reg. 8(1): The relevant terms of this sub-regulation are set out at page 377, lines 11–12.

reg. 8(7): The relevant terms of this sub-regulation are set out at page 365, line 41 – page 366, line 14.

Development and Planning Regulations (1998 Revision), reg. 8(1): The relevant terms of this sub-regulation are set out at page 377, lines 15–19.

reg. 8(2): The relevant terms of this sub-regulation are set out at page 377, lines 20–32.

(9): The relevant terms of this sub-regulation are set out at page 377, lines 34–37.

Grand Court Rules, O.55, r.1(1): The relevant terms of this paragraph are set out at page 369, lines 7–10.

r.1(3): The relevant terms of this paragraph are set out at page 369, lines 12–15.

r.3(1): The relevant terms of this paragraph are set out at page 369, lines 16–17.

r.7: The relevant terms of this rule are set out at page 369, line 19 – page 370, line 8.

Development and Planning Law-appeals-grounds of appeal-relative weight given to factors relevant to grant of planning permission is matter for Central Planning Authority alone-Planning Appeals Tribunal may interfere if manifestly excessive or inadequate weight given-Grand Court”s appellate powers co-extensive with Tribunal”s

Development and Planning Law-planning permission-discretion-may lawfully refuse permission even if no objection by Planning Department and requirements of Development and Planning Regulations met-no legitimate expectation of grant of permission without specific undertaking

Development and Planning Law-Central Planning Authority-disclosure of information to applicant-Authority should disclose in advance evidence prejudicial to applicant”s case and allow adjournment for consideration if late disclosure-no prejudice if applicant already aware of evidence, e.g. through third party objector

The appellant applied for planning permission from the Central Planning Authority.

The appellant wished to build an apartment complex comprising 65 units in the Governor”s Harbour area. The Central Planning Authority received objections from local residents and reports by various public officers, which were passed to the appellant. The appellant then prepared a revised application seeking permission to build just 60 apartments.

At the hearing the Planning Department”s review of the application was based on the original proposal, and stated that the development would comply with reg. 8(7) of the Development and Planning Regulations (1995 Revision). The appellant”s representative outlined the new proposal and its attributes, providing a revised site-plan, and responded to objectors” concerns. By letters headed ‘Proposal 65-Unit Apartment Complex…’ the Central Planning Authority informed the appellant and the objectors that the application had been refused on the grounds that (a) the number of apartments was excessive and would have a negative impact on the neighbourhood; (b) too much extra traffic would be generated; (c) the scale of the development far exceeded existing developments; (d) the proposal was incompatible with the Planning Department”s own draft Apartment Study of the Governor”s Harbour area; and (e) the mass and scale of the development was unacceptable.

The appellant”s appeal to the Planning Appeals Tribunal under s.43(1) of the Development and Planning Law (1995 Revision) was dismissed.

On further appeal, the appellant submitted that (a) the decision of the Authority was unreasonable and based on improper consideration of the evidence, since (i) it was unclear which proposal the Authority had considered, (ii) objections to the original proposal should have been disregarded, and (iii) no Government agency had advised against the proposal and the views of the Planning Department should have prevailed over those of unqualified objectors; (b) it had been denied a fair hearing, since (i) it had had no advance notice of the Planning Department”s study, which in any case had not yet been adopted by the Authority, (ii) the Planning Department”s report and the fact that apartments had been permitted in the area in the past gave rise to a legitimate expectation of approval, and (iii) the Authority had given it no time to deal with objections before making its final decision; and (c) subsequent amendments to the Development and Planning Regulations indicated that at the relevant time and in these circumstances the Authority had had no discretion to refuse permission.

The respondent submitted in reply that (a) the Authority was bound to have regard to all matters relating to the use and development of land, including the general locale, as planning considerations; (b) notwithstanding that the proposed development would comply with the Regulations, the Authority had a discretion to refuse planning approval; (c) neither the Tribunal itself nor the court could simply substitute its own view of the merits of competing considerations for that of the Authority; (d) the appellant had been aware of the Planning Department”s study

before the hearing; (e) no legitimate expectation had arisen, since no undertaking had been given as to the Authority”s procedure or the probable outcome of the hearing; and (f) the purpose of the hearing had clearly been to reach a final decision.

Held, dismissing the appeal:

(1) The decision of the Central Planning Authority was not unreasonable. On the evidence, the Authority had considered the amended application. Since it had to consider the effect of the proposed development on the surrounding area and matters relating to the use and development of land generally, it was entitled to consider whether the objections to the original proposal remained valid in respect of the amended application. The relative weight to be given to these considerations was primarily a matter for the Authority and it was not for the Tribunal to substitute its own view of the merits. The Tribunal could interfere with the decision if manifestly excessive or inadequate weight had been given to a relevant consideration, and the court (although empowered to conduct a rehearing of the case on appeal under O.55 of the Grand Court Rules) had also to confine the rehearing to the matters prescribed by s.43 of the Development and Planning Law (1995 Revision) (page 368, line 36 – page 369, line 2; page 370, lines 9–17; page 372, line 26–page 373, line 20).

(2) Furthermore, for the purposes of s.43(1)(a), permission could lawfully be refused even though the requirements of the Development and Planning Regulations had been met. The subsequent amendment of reg. 8, imposing an obligation to consider particular matters, highlighted the wider nature of the discretion exercised by the Authority at the relevant time, rather than the reverse as alleged by the appellants (page 377, line 2–page 378, line 15).

(3) Nor had the appellant been denied a fair hearing of its application within the meaning of s.43(1)(c). The crucial issue was whether it had had a fair opportunity of stating its case. Arguably, the Authority had a duty to inform it in advance of evidence or information relevant to the decision which might be prejudicial to its case, and if that information were divulged only at the hearing itself, to allow an adjournment. However, the appellant had been alerted to the existence of the Planning Department”s study by letters from objectors sent to it before the hearing, and had been given the opportunity to respond to those who relied on the study at the hearing (page 373, line 35 – page 374, line 39).

(4) Furthermore, since the Authority had given no undertaking to the appellants with regard to the procedure which would be followed at the hearing or the outcome of it...