Grand View Strata Corporation v Planning Appeals Tribunal and Bronte Development Ltd
| Jurisdiction | Cayman Islands |
| Judge | (Panton, Ag. J.) |
| Judgment Date | 08 April 2016 |
| Court | Grand Court (Cayman Islands) |
| Date | 08 April 2016 |
(Panton, Ag. J.)
N. Timms, Q.C. for the appellant;
S. Bothwell, Senior Crown Counsel and M. Brandt for the first respondent;
J. Asif, Q.C. and P. McFarlane for the second respondent.
(1) Cortina Villas v. Planning Appeal Tribunal, 2000 CILR 360, referred to.
(2) D (Minors) (Adoption Reports: Confidentiality), In re, [1996] A.C. 593; [1995] 3 W.L.R. 483; [1995] 4 All E.R. 385; [1995] 2 FLR 687; [1996] 1 F.C.R. 205, distinguished.
(3) Hadmor Prods. Ltd. v. Hamilton, [1983] 1 A.C. 191; [1982] 2 W.L.R. 322; [1982] 1 All E.R. 1042; [1982] I.C.R. 114; [1982] I.R.L.R. 102, dicta of Lord Diplock considered.
(4) New Forest D.C. v. Environment Secy.(1996), 71 P. & C.R. 189; [1996] J.P.L. 935, referred to.
(5) R. (Primary Health Inv. Properties Ltd.) v. Health Secy., [2009] P.T.S.R. 1563; [2009] A.C.D. 57; [2009] EWHC 519 (Admin), referred to.
(6) Simpson v. Edinburgh Corp., 1960 S.C. 313; 1961 S.L.T. 17, dicta of Lord Guest followed.
(7) South Oxfordshire D.C. v. Environment Secy., [1981] 1 W.L.R. 1092; [1981] 1 All E.R. 954; (1981), 42 P. & C.R. 211, followed.
(8) Spackman v. Environment Secy., [1977] 1 All E.R. 257; (1977), 33 P. & C.R. 430, followed.
(9) Vicente v. Communities & Local Govt. Secy., [2015] J.P.L. 562; [2015] P.T.S.R. D9; [2014] EWCA Civ 1555, followed.
Development and Planning Law (2011 Revision), s.48(1):
‘Any person who is aggrieved by a decision of the Authority in respect of an application for planning permission, may . . . appeal against that decision to the Appeals Tribunal . . . and such appeal shall be heard by the Tribunal . . . and determined based on the record of the hearing to which it relates in accordance with any rules made hereunder.’
Development and Planning Regulations (2013 Revision), r.8(10)(e): The relevant terms of this paragraph are set out at para. 69.
Development and Planning Law—planning permission—setbacks—Development and Planning Regulations (2013 Revision), reg. 8(10)(e) provides for buildings between 3 and 7 storeys to be set back from high water mark by 145 ft. but no provision for taller buildings—Central Planning Authority not to deal with buildings over 7 storeys until regulation amended—error of law to grant planning permission for 10-storey building with 145 ft. setback
Development and Planning Law—Central Planning Authority—reasons for decisions—Authority not required to give reasons for all decisions—if intense objections, error of law not to give reasons for grant of planning permission for building generally regarded as ugly and out of character with surroundings—also error of law not to give reasons for granting permission for 10-storey building with 145 ft. setback from high water mark as Development and Planning Regulations (2013 Revision), reg. 8(10)(e) provides for buildings between 3 and 7 storeys to be set back from high water mark by 145 ft. but no provision for taller buildings
The appellant appealed against a grant of planning permission.
The second respondent applied for permission to construct two apartment blocks, including a 10-storey building, in George Town. The Department of Planning notified persons who might be affected and several government departments and agencies. Objections were made by property owners, and the various agencies submitted a number of comments and recommendations. The Central Planning Authority (‘CPA’) invited objectors to attend a hearing into whether planning permission should be granted.
Regulation 8(10)(e) of the Development and Planning Regulations (2013 Revision) provided that ‘all structures and buildings up to three storeys . . . shall be setback a minimum of [130 ft.] from the high water mark, with an additional [15 ft.] setback for the third through the seventh storey.’ There was no provision for a 10-storey building. The CPA granted the application for planning permission, subject to conditions including the submission of a revised plan showing a setback of 145 ft. from the
high water mark which it considered complied with the required minimum setback.
The appellant appealed to the Planning Appeal Tribunal (‘the PAT’), which dismissed the appeal and held that the CPA had not erred in granting planning permission. The PAT considered that its jurisdiction was limited to considering the CPA”s decision on the grounds set out in s.48(1) of the Development and Planning Law (2011 Revision); it had no power to conduct a de novo hearing. In respect of setbacks, the PAT considered that the Regulations indicated an intention on the part of the legislature to require buildings over three storeys high to have a setback of 145 ft. from the high water mark.
On further appeal, the appellant submitted inter alia that (a) the PAT had erred in law in its interpretation of s.48 of the Law as regards the question of a rehearing; (b) the PAT had failed to consider and determine that the CPA had erred in law in not applying the policies set out in the Development Plan 1997, and it had failed to exercise its own judgment as to whether granting permission would be contrary to the Plan; (c) the PAT had failed to consider and determine that the CPA had erred in law in failing to take into account the adverse comments of the Department of Environment; (d) the PAT had failed to consider and determine that the CPA had erred in its understanding of the regulations concerning setbacks; and (e) there had been procedural unfairness on the part of the CPA: it had not provided the objectors with the comments from the government departments and agencies prior to the hearing of the application, and it appeared that the CPA had been unduly influenced by a previous planning application which it had approved (the objectors had no details about the previous application and were therefore unable to comment on it).
The PAT submitted inter alia that (a) the existence of a planning permission or lapsed permission was a material consideration for a planning authority; and (b) the Plan was to be regarded as guidelines to be applied by the CPA with flexibility, understanding and common sense. The second respondent submitted inter alia that the 20-year-old Plan should not be slavishly followed.
Held, allowing the appeal:
(1) The CPA had erred in law in its approach to the issue of setbacks and the decision to grant permission was, on the face of it, at variance with the Plan. Regulation 8(10)(e) provided for a minimum setback of 145 ft. for a building of up to seven storeys. No provision was made for buildings of over seven storeys. The CPA was therefore restricted to dealing with buildings no more than seven storeys high until there was an amendment to provide for buildings over seven storeys. There could not be an ‘anything goes’ attitude in relation to buildings over seven storeys. The provision for setbacks was very important in dealing with a building”s proximity to roads and the coastline, particularly on a small island. The age of the Plan was irrelevant as long as it remained in force (paras. 65–68; paras. 77–81).
(2) The CPA should have given its reasons in respect of how it had dealt with the question of setbacks (it was incorrect for the PAT to have stated that adequate reasons had been given). It should also have given its reasons for granting permission for a building that was apparently generally regarded as ugly and out of character with those around it. The CPA was not required to give reasons for all its decisions but, given the intensity of the objections in the present case and the obviously informed comments, the CPA should have given its reasons in respect of these matters. Its failure to do so constituted an error of law. In the circumstances, the appellant”s appeal would be allowed, the decision of the PAT would be reversed and the application for planning permission would be refused (paras. 79–81).
(3) There had been no procedural unfairness. The objectors had been notified of the hearing and given ample opportunity to state their objections. They had taken advantage of the opportunity to provide written objections and reasons. Several of them had attended the meeting and the minutes indicated that their reasons had been stated with much clarity. The objectors had had no need for information from government agencies. The CPA had not been obliged to provide the objectors with more reasons than they stated in their letters of objection. Nor had the CPA been obliged to share with anyone other than the applicant the information that it had received from the agencies (in any event, the objectors could have accessed the agencies” comments on the CPA”s website). There was also no evidence that the CPA had considered the previous planning application for the site which it had approved. Even if it had done so, however, that would not have been an error of law (paras. 38–47).
(4) In relation to the appellant”s submission that the PAT had failed to consider and determine that the CPA had erred in law by not applying policies set out in the Development Plan, and that the PAT had failed to exercise its own judgment as to whether permission would be contrary to the Plan, any non-adherence to the Plan would have to be significant and on a matter of great importance to justify overturning planning permission. The foremost consideration was whether there had been general compliance with the Law and the Regulations. The CPA was required to consider the Plan but was not obliged to follow it, especially as the Regulations took priority over the Plan where there was conflict between them (paras. 55–56).
(5) It could not be said that the PAT had failed to consider and determine that the CPA had erred in law in failing to take into account the adverse comments of any department. The CPA had considered the views of all the departments...
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