National Roads Authority v Bodden, Thompson and Wright

• Jurisdiction: Cayman Islands
• Judge: (Henderson, J.)
• Judgment Date: 03 June 2014
• Court: Grand Court (Cayman Islands)
• Date: 03 June 2014

Grand Court, Civil Division

(Henderson, J.)

NATIONAL ROADS AUTHORITY

and

A. BODDEN, THOMPSON and WRIGHT (as personal representatives of the estate of H. BODDEN)

G. Roots and Ms. D. Lewis for the appellant;

M. Barnes, Q.C. and Ms. K. McClymont for the respondent.

Cases cited:

(1) Damper v. Bassett, [1901] 2 Ch. 350, referred to.

(2) McAdams Homes Ltd. v. Robinson, [2005] 1 P. & C.R. 30; [2004] 3 EGLR 93; [2004] EWCA Civ 214, referred to.

(3) South Bucks. D.C. v. Porter (No. 2), [2004] 1 W.L.R. 1953; [2004] 4 All E.R. 775; [2005] 1 P. & C.R. 6; [2004] 4 P.L.R. 50; [2004] UKHL 33, applied.

(4) Sovmots Invs. Ltd. v. Environment Secy., [1979] A.C. 144; [1977] 2 W.L.R. 951; [1977] 2 All E.R. 358; (1978), 35 P. & C.R. 350, referred to.

(5) Wheeldon v. BurrowsELR(1879), 12 Ch. D. 31; [1874–90] All E.R. Rep. 669, referred to.

Legislation construed:

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, s.19: The relevant terms of this section are set out in para. 24.

Prescription Law (1997 Revision), s.2: The relevant terms of this section are set out at para. 16

Roads Law (2005 Revision), Second Schedule, s.6(3)(a). The relevant terms of this paragraph are set out at para. 4.

s.8(1)(b): The relevant terms of this paragraph are set out at para. 1.

Development and Planning Law-compulsory acquisition-fair compensation-under 2009 Constitution, s.19, tribunals required to give reasons for decision in sufficient detail that no substantial doubt about whether made error in law-unnecessary to give reasons for every material consideration if refers to main issues in dispute-mere summary of evidence and conclusions insufficient reasons-mere summary of evidence and conclusions insufficient reasons

Development and Planning Law-development-change of use-radical change in land”s character with substantial increase in burden on servient tenement sufficient to invalidate easement-includes development of land primarily used for agricultural purposes into sub-division, even if land already zoned as low-density residential

Development and Planning Law-planning permission-access road-existence of right of way not necessarily sufficient to enable new development-right of way must be sufficient to create relatively straight, 30 ft. access road sufficient distance from existing houses-right of way acquired by prescription due to use of single vehicle reasonable basis for easement 15 ft. wide-unlikely to meet criteria if no evidence to show limits of easement

The respondents made a claim to the Roads Assessment Committee (‘the RAC’) for compensation for land which was compulsorily purchased.

The respondents owned a parcel of undeveloped land (‘Property A’) as tenants in common. This land did not have any direct road access, but was connected to a second parcel of land (‘the house lot’), which was owned by the deceased. Accordingly, the respondents” family habitually accessed Property A from the road via the house lot, having done so for at least 45 years. The appellant compulsorily acquired part of Property A for the purpose of building a highway and the respondents applied for compensation under the Roads Law (2005 Revision), s.12(2). The Roads Law, Second Schedule, s.6 stated that the value of the land compulsorily purchased would be determined at the market value which, if sold on the open market, it might be expected to realize. The land was zoned as low-density residential land and the respondents therefore alleged that they would have been able to sell it to be developed as a sub-division.

The appellant claimed that as the property had previously had no road access, the respondents would not have been able to obtain planning permission to convert Property A into a sub-division. The new road had therefore sufficiently increased the land”s value to compensate the respondents. The respondents, however, claimed that Property A benefited from a right of way over the house lot. As this right of way could be developed into an access road, Property A met the criteria necessary for planning permission to be granted to develop it into a sub-division. They would therefore have been able to sell the land at development prices and should be compensated accordingly. The respondents referred the dispute to the RAC, which found that the property had benefited from a right of way and ordered compensation to be made. The written decision, however, was limited to a summary of the dispute and the evidence, and a conclusion that a prescriptive easement had existed.

The appellant appealed to the Grand Court, alleging that the RAC had been wrong to make this finding. For a parcel of land to be granted planning permission for development as a sub-division, it must have at least one 30 ft. wide road which followed a relatively straight path and was a sufficient distance from existing houses. As Property A and the house lot had been subject to common ownership, however, no easement could have arisen and the respondents would have been unable to obtain planning permission. Moreover, the RAC”s decision was invalid because it had not given sufficient reasons. The 2009 Constitution, Schedule 2, s.19 required that all administrative decisions be made fairly and that written reasons for the decision be provided. The RAC”s decision, however, simply gave a conclusion and so must be invalid.

The respondents submitted in reply that the RAC”s decision had been correctly made. There had been no common ownership of the properties, as the first respondent had only had an interest in Property A. The right of way was therefore capable of subsisting as an easement. Although the easement had not been formalized, this was because the land had been

‘family land’ and there had been no need to do so. Further, the respondents had been using it for well over 20 years. They had therefore acquired a prescriptive easement under the Prescription Law (1997 Revision), s.2. Moreover, although they had not actually applied for planning permission, the Roads Law, Second Schedule, s.6(3)(a) required the RAC to assume planning permission for a particular use would be granted if the land were suitable for that use and it was reasonable to assume that planning permission would be granted if applied for. The RAC had therefore been right to value the land as though the planning permission would have been granted.

Held, allowing the appeal:

(1) The RAC had not given sufficient reasons for its decision. The requirements of the 2009 Constitution, Schedule 2, s.19-as well as the right to appeal the RAC”s decision on a question of law under the Roads Law, Second Schedule, s.8(1)(b)-required the RAC to meet certain standards when giving its decision. It therefore had to give the reasons for its decision in sufficient detail that any person reading them would have no substantial doubt as to whether it had made an error in law. It was not necessary, however, for the RAC to give reasons for every material consideration, provided that it referred to the main issues in dispute. As its written reasons had been limited to a summary of its evidence and conclusions, its reasons could not be regarded as sufficient and its decision would be set aside and remitted for a fresh hearing (paras. 24–27).

(2) It was unclear whether, on the evidence before the court, the RAC should have found that there was a prescriptive easement which...