Ebanks (C.C.), Mendoza and Gomez v Governor of The Cayman Islands, National Roads Authority and Attorney General

• Jurisdiction: Cayman Islands
• Judge: (Goldring, P., Moses and Beatson, JJ.A.)
• Judgment Date: 31 March 2023
• Court: Court of Appeal (Cayman Islands)

EBANKS (C.C.), MENDOZA and GOMEZ

and

GOVERNOR OF THE CAYMAN ISLANDS, NATIONAL ROADS AUTHORITY and ATTORNEY GENERAL

(Goldring, P., Moses and Beatson, JJ.A.)

Court of Appeal (Cayman Islands)

Constitutional Law — Bill of Rights — peaceful enjoyment of property — Roads Act (2005 Revision), which provides for compulsory acquisition of land, not incompatible with Bill of Rights, s.15(1) — no provision in Act for right of access to Grand Court, but right to bring constitutional petition or to seek judicial review

Held, judgment as follows:

(1) The determination of constitutional petitions, like decisions relating to applications for judicial review, depended on full and open disclosure and evidence as to all relevant facts. It was incomprehensible how those representing the appellants in this case could have thought it right to make no reference to the sequence of events, in evidence, or for the respondents, who apparently thought it too late to do so, not to disclose the documents relating to the process undertaken following publication of the proposal. The result was that the judge was left in ignorance of the true position and time was seriously wasted. Nothing relevant should be kept back from the Grand Court; to be less than full and frank impeded its task in upholding the Constitution and the rule of law. There was a strong argument for saying that the appellants should not have been allowed to raise any argument on appeal relating to facts which were not properly disclosed to the judge at first instance, but the court allowed the appellants to advance a case relating to the inadequacies of the process of consultation that was followed and as to the lack of transparency in that process. Any order made as to costs would be likely to reflect the conduct of this case (paras. 13–15).

(2) There was no requirement that access to the Grand Court should be secured by a single provision found within the Roads Act itself. The statutory question was whether there was a law which satisfied the requirements specified in s.15(1)(c), which was to be determined by analysis of the access to the Grand Court for which the BoR made provision. The essential question therefore was whether the right to bring a constitutional petition under s.26 (or judicial review) secured such right of access to the Grand Court to determine a property owner’s right or interest and the legality of the taking of possession as would satisfy s.15. The decision in the instant case as to whether to create a public road and towiden the existing lane did not turn on any finding or evaluation of disputed fact; it was purely to be guided by questions of expediency. The objections related to the question as to whether it was in the public interest to take private land for that purpose. Private property interests had to be balanced against the public interest. Striking the balance required a policy judgment and did not turn on disputed fact. In those circumstances, no question of safeguards arose. The judge correctly placed the impugned decision in its correct category of one which turned on expediency in the public interest. The judge was correct in concluding that the requirements of s.15 of the Bill of Rights were satisfied because either by constitutional petition or by judicial review the appellants were secured access to the Grand Court to determine the legality of the taking of possession of their properties. Where the decision was one which turned on policy considerations, a hearing of the constitutional petition or by way of judicial review satisfied the requirements of s.7. Therefore there was no requirement for a statutory scheme of the type canvassed by the appellants under ground 1, nor did the procedure adopted in this case breach the requirement of a fair and public hearing as contended under ground 2. None of the safeguards necessary where the decision making process took on the character of a quasi-judicial proceeding were required because the decision made in this case did not require any determination of disputed fact. If there was evidence that the process of inviting, marshalling and considering objections demonstrated unfairness, the owners of the parcels of land could rely on s.19 and s.24 of the BoR. Where a decision which affected property rights under the Roads Act required the determination of fact then that determination must be fair and objectively justified. However this was not such a case (paras. 30–54).

(3) The procedure adopted following a decision to propose a new road—namely that landowners were contacted in writing with the proposal attached and asked to provide comments whether of objection or support; where there were significant concerns or objections a meeting was typically held to see if those concerns could be resolved; and a Cabinet paper was drafted which included the landowners’ views and made a recommend-ation—was not set out in a public document easily accessible to any property owner who might be affected by a proposal to build a new road or to others who might wish to comment. Under s.15(1) of the BoR interference with peaceful enjoyment of property and the taking of property must be in accordance with the law. A failure to formulate and promulgate a procedure for enabling landowners or others to comment on and object to a proposal was not in accordance with the law. There must be a transparent statement of the procedure to be adopted in cases which fell within s.15 of the BoR and the Roads Act. The principles of transparency and good administration were not followed in this case. The policy adopted by the Ministry as to how to deal with objections should have been published so that objectors would know in advance how any objection would be considered and dealt with. The procedure for consultation should have been notified so that all who objected to the proposals should know how they should make objection, when and how those objections would bereceived and considered prior to a final decision being made. The evidence was clear that the procedure was followed in this case and the appellants had a proper opportunity to make their objections. There was no evidence that they were not fairly and properly considered (paras. 59–64).

(4) As no injustice or unfairness had arisen in this case, it would not be right to quash this particular decision. However, it was important that any future proposal under the Roads Act was in accordance with the law so as to comply with s.15 of the Bill of Rights. Senior Crown Counsel for the respondents was unable to give the court any assurance let alone an undertaking that the policy described by the former Senior Policy Officer at the Ministry of Planning, Agriculture, Housing and Infrastructure would forthwith be published. In the circumstances, declaratory relief was necessary. The court would make a declaration that the failure of the Ministry of Planning, Agriculture, Housing and Infrastructure to publish and publicise its process of consultation where a declaration of intent was gazetted pursuant to s.3 of the Roads Act did not comply with the requirement under s.15(1) of the Bill of Rights that any proposed interference with the peaceful enjoyment of property or the taking of property must be in accordance with law. The appeal would be allowed to this limited extent (paras. 65–68).

Cases cited:

(1) Albert v. Belgium, [1983] ECHR 1; [1983] E.H.R.R. 533, referred to.

(2) Al-Nashif v. Bulgaria, [2002] ECHR 502; 36 E.H.R.R. 37, referred to.

(3) Bryan v. United Kingdom, [1995] ECHR 50; [1996] 1 PLR 47; [1996] 2 EGLR 123; [1996] EG 137; 21 E.H.R.R. 342, considered.

(4) Chief Immigration Officer v. Ellington, 2020 (2) CILR 911, referred to.

(5) Dominguez v. Immigration Appeals Tribunal, 2022 (1) CILR 717, referred to.

(6) R. (Alconbury Devs. Ltd.) v. Environment Secy., [2001] UKHL 23; [2003] 2 A.C. 295; [2001] 2 W.L.R. 1389; [2001] 2 All E.R. 929; [2002] Env. L.R. 12, considered.

(7) R. (Huddleston) v. Lancashire CC, [1986] 2 All E.R. 941, referred to.

(8) R. (Justice for Health Ltd.) v. Health Secy., [2016] EWHC 2338 (Admin); [2016] Med LR 599, considered.

(9) R. (Khan) v. Home Secy., [2016] EWCA Civ 416, referred to.

(10) R. (Lumba) v. Home Secy., [2011] UKSC 12; [2012] 1 A.C. 245; [2011] 2 W.L.R. 671; [2011] 4 All E.R. 1; [2011] U.K.H.R.R. 437, considered.

(11) R. (Wright) v. Health Secy., [2009] UKHL 3; [2009] 1 A.C. 739; [2009] 2 W.L.R. 267; [2009] 2 All E.R. 129; [2009] HRLR 13, considered.

Legislation construed:

Roads Act (2005 Revision), s.6: The relevant terms of this section are set out at para. 5.

Cayman Islands Constitution Order 2009, Schedule 2, s.7(1): The relevant terms of this subsection are set out at para. 34.

s.15(1): The relevant terms of this subsection are set out at para. 6.

s.19: The relevant terms of this section are set out at para. 33.

s.24: The relevant terms of this section are set out at para. 33.

s.26: The relevant terms of this section are set out at para. 32.

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953)) (Cmd. 8969), art. 6(1): The relevant terms of this article are set out at para. 37.

The appellants claimed that their rights under the Constitution had been breached by the Government.

The Ministry of Commerce, Planning and Infrastructure wished to create a new public road over a number of parcels of privately owned land. The appellants were proprietors of three parcels and objected to the proposal. Other landowners were either neutral or in favour of the proposal.

The appellants brought proceedings in the Grand Court by way of constitutional petition pursuant to s.26(1) of the Cayman Islands Constitution Order 2009. They claimed that their rights and freedoms under s.15(1) (peaceful enjoyment of property) and s.7(1) (right to a fair trial) of Part 1 of the Constitution (the Bill of Rights, “the BoR”) had been breached. They claimed that there...