Dios Mar Ltd v Planning Appeals Trib
| Jurisdiction | Cayman Islands |
| Judge | (Henderson, Ag. J.) |
| Judgment Date | 01 January 2000 |
| Court | Grand Court (Cayman Islands) |
| Date | 01 January 2000 |
(Henderson, Ag. J.)
N.W. Hill, Q.C. for Dios Mar Ltd.;
Ms. J.D. DaCosta Banks, Crown Counsel, for the Planning Appeals Tribunal;
P. Lamontagne, Q.C. and W.L. DaCosta for the proprietors.
(1) National Trust for the Cayman Islands v. Central Planning Auth., 1999 CILR 147.
(2) R. v. Sheer Metalcraft Ltd., [1954] 1 Q.B. 586; [1954] 1 All E.R. 542, considered.
Development and Planning (Appeals) Rules (1999 Revision), r.3:
‘An appeal to the Tribunal … shall be made by notice in writing, hereinafter referred to as a “Notice of Appeal”…’
r.5(1)(a): The relevant terms of this paragraph are set out at page 388, lines 12–13.
r.5(2): ‘A copy of the grounds of appeal shall be served by the appellant on all parties to whom the Notice of Appeal has been addressed.’
r.6(2): ‘The Record of Appeal … shall comprise … the Notice of Appeal, the brief prepared under rule 4, the grounds of appeal, the form or order sought and any other document that the Chairman of the Tribunal may direct…’
r.7(4): The relevant terms of this sub-rule are set out at page 389, lines 20–21.
Development and Planning Law (1999 Revision) (Law 28 of 1971, revised 1999), s.6(1): The relevant terms of this sub-section are set out at page 385, lines 23–27.
s.6(2)(a): The relevant terms of this paragraph are set out at page 385, lines 29–30.
s.51(4): The relevant terms of this sub-section are set out at page 390, line 24.
Third Schedule, s.1(1): The relevant terms of this sub-section are set out at page 386, lines 21–26.
s.1(9): The relevant terms of this sub-section are set out at page 386, lines 3–4.
Grand Court Rules, O.55, r.3(2): ‘Every notice of the motion by which … an appeal is brought shall state the grounds of the appeal…’
r.6(1): The relevant terms of this paragraph are set out at page 388, lines 20–21.
(2): The relevant terms of this paragraph are set out at page 388, lines 22–23.
Interpretation Law (1995 Revision) (Laws of the Cayman Islands, 1963, cap. 70, revised 1995), s.15(1): The relevant terms of this sub-section are set out at page 387, lines 7–8.
s.29(1): The relevant terms of this sub-section are set out at page 387, line 9.
s.37: The relevant terms of this section are set out at page 387, lines 12–27.
s.52: ‘…[W]here provision is made in a law for a public officer to be appointed to an office under that Law which involves the exercise of functions, powers or duties pursuant to any Law or regulations and where no such appointment of such person has been made under that Law prior to the date when an appointment was made to such public office, the person appointed to such public office shall, for the purposes of any such Law or regulations, be deemed to have been appointed under that Law on the date when he was appointed to such public office.’
Official Gazette Law (1997 Revision) (Law 26 of 1974, revised 1997), s.7: The relevant terms of this section are set out at page 387, lines 2–4.
s.8: ‘A printed copy of a Gazette or of a Gazette supplement … shall be received as prima facie evidence of its contents and of its authenticity both with judicature and thereout [sic].’
Development and Planning Law-planning permission-referral to Developments Advisory Board-under Development and Planning Law (1999 Revision), s.6(1), Board”s recommendation is prerequisite of Central Planning Authority”s jurisdiction to grant permission
Administrative Law-public authorities-appointments-under Interpre-ta-tion Law (1995 Revision), s.37, administrative appointment valid when notice of appointment signed, not when published in Gazette
Development and Planning Law-appeals-grounds of appeal-nullity of Central Planning Authority”s decision need not be pleaded as ground of appeal-parties obliged to bring jurisdictional defect to Planning Appeals Tribunal”s attention
The owners of land appealed against a grant of planning permission to the first appellant.
The first appellant applied for planning permission to build a hotel on the West Bay Road. At the hearing before the Central Planning Authority, the proprietors of adjacent land objected to the proposed development and the second appellant, who represented a group of residents, spoke in favour of it. The Authority granted planning permission but neglected first to seek the recommendation of the Developments Advisory Board as required by s.6(1) of the Development and Planning Law (‘the Law’).
The proprietors appealed to the Planning Appeals Tribunal on the merits of the application. The second appellant attended the appeal but, following an adjournment, was ordered to leave by the Chairman of the Tribunal, on the ground that he had no standing in the proceedings.
The Authority”s omission to obtain the Board”s recommendation was then discovered, and counsel for the proprietors argued that the Authority had lacked jurisdiction to proceed without that recommendation. The lay representative of the first appellant was not forewarned of this objection and did not request a further adjournment to retain counsel to address the issue. She argued that a recommendation from the Board was not required, since its members had been appointed only after the application for planning permission had been made and therefore the Board had not been in existence at that time. The proprietors disagreed.
The Tribunal remitted the matter to the Authority, which obtained the Board”s approval and once more granted planning permission.
In separate proceedings, the proprietors sought judicial review of the Board”s consideration of the application and appealed to the Tribunal against the Authority”s second decision. In the present proceedings, the first appellant appealed against the Tribunal”s decision to remit the application to the Authority.
It submitted that (a) the Board”s recommendation was unnecessary since (i) by s.15(1) of the Interpretation Law (1995 Revision), the Board had not been properly constituted when the Authority decided to grant planning permission, as the notice of appointment of the Board was not published in the Gazette until afterwards, (ii) the Board”s approval could not be sought before the appointment of its members, and (iii) the referral of each application to the Board was not a mandatory requirement under s.6(1) of the Law; (b) the Tribunal had breached its duty of procedural fairness by (i) entertaining a new ground of appeal from the proprietors without first giving leave to amend their grounds as required by r.5 of the Development and Planning (Appeals) Rules, (ii) receiving fresh evidence from them without giving leave to adduce it, contrary to r.7(4), and (iii) failing to offer an adjournment for the first appellant to retain counsel.
The second appellant appealed out of time, under s.51(4) of the Law, as a ‘person aggrieved’ by the Tribunal”s decision to exclude him from the hearing, seeking a declaration that the Tribunal had no right to do so. His grounds were filed three months after the notice of appeal. He made no application for an extension of time in which to appeal.
The respondents submitted in reply that (a) the Board had been properly appointed before the Authority”s decision, since (i) the notification of assent to the Development and Planning (Amendment) (Developments Advisory Board) Law, 1997 creating the Board had already been published, and (ii) under s.37 of the Interpretation Law, the appointment of its members by the Governor was valid when signed, not when published; (b) since the recommendation of the Board was a mandatory requirement, the Tribunal had properly remitted the application to the Authority; (c) no breach of procedural fairness had occurred, since (i) the absence of jurisdiction was not a new ground of appeal, (ii) no new evidence had been adduced, and (iii) the Tribunal had no obligation to adjourn the proceedings for counsel to be retained by the first appellant; and (d) the second appellant had no locus standi as a ‘person aggrieved’ by the Tribunal”s decision, had stated no grounds of appeal, and should not be granted an extension of time in which to appeal.
Held, dismissing the appeals:
(1) The Tribunal had properly remitted the application to the Central Planning Authority, since the Authority had had no jurisdiction to grant planning permission without first obtaining a recommendation from the Developments Advisory Board. Under s.6(1) of the Law, this procedure was a prerequisite in the case of all proposed developments of a certain
size. By s.37 of the Interpretation Law (1995 Revision), the Board had been properly constituted several months before the Authority”s decision, when the notice of appointment had been signed by the Governor, and was quorate under the provisions of the Third Schedule to the Law, and, in the absence of any indication to the contrary, the publication of the notice in the Gazette was therefore unnecessary to constitute the Board (page 385, lines 32–44; page 387, lines 1–41).
(2) There had been no breach of procedural fairness by the Tribunal, since the Authority”s lack of jurisdiction was not a ‘ground of appeal’ which the proprietors were required to raise in accordance with the Development and Planning (Appeals) Rules. Their counsel had been professionally obliged to alert the Tribunal to the fundamental defect in the Authority”s decision, which rendered it a nullity from which no appeal could be entertained. Moreover, by arguing before the Tribunal that the appointment of the Board...
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