National Trust v Central Planning Auth

• Jurisdiction: Cayman Islands
• Judge: (Murphy, J.)
• Judgment Date: 29 April 1999
• Court: Grand Court (Cayman Islands)
• Date: 29 April 1999

Grand Court

(Murphy, J.)

NATIONAL TRUST FOR THE CAYMAN ISLANDS and CONOLLY

and

CENTRAL PLANNING AUTHORITY

P. Lamontagne, Q.C. for the National Trust;

S.G. Hellman for Conolly;

Mrs. K. Reid, Crown Counsel, for the Central Planning Authority;

R.D. Alberga, Q.C. and A.J. Taylor for Humphrey”s Ltd.

Cases cited:

(1) Arsenal Football Club Ltd. v. Smith (Valuation Officer), [1979] A.C. 1; [1977] 2 All E.R. 267, followed.

(2) Att.-Gen. (Gambia) v. N”Jie, [1961] A.C. 617; [1961] 2 All E.R. 504, followed.

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

(4) Baron, In re, Ex p. Debtor v. Official Receiver, [1943] Ch. 177; [1943] 2 All E.R. 662.

(5) Barras v. Aberdeen Steam Trawling & Fishing Co. Ltd., [1933] A.C. 402; (1933), 102 L.J.P.C. 33.

(6) Burn, In re, Ex p. Dawson, [1932] 1 Ch. 247; (1931), 146 L.T. 386.

(7) Buxton v. Minister of Housing & Local Govt., [1961] 1 Q.B. 278; [1960] 3 All E.R. 408, not followed.

(8) Cook v. Southend Borough Council, [1990] 2 Q.B. 1; [1990] 1 All E.R. 243, followed.

(9) Ealing Corp. v. JonesELR, [1959] 1 Q.B. 384; sub nom. Ealing Borough Council v. Jones, [1959] 1 All E.R. 286, not followed.

(10) Farrell v. Alexander, [1977] A.C. 59; [1976] 2 All E.R. 721.

(11) Garrett v. St. Marylebone Licensing JJ.ELR(1884), 12 Q.B.D. 620; 53 L.J.M.C. 81.

(12) Inland Rev. Commrs. v. National Fedn. of Self-Employed & Small Businesses Ltd., [1982] A.C. 617; [1981] 2 All E.R. 93.

(13) Jennings v. Kelly, [1940] A.C. 206; [1939] 4 All E.R. 464.

(14) Maurice v. London County Council, [1964] 2 Q.B. 362; [1964] 1 All E.R. 779.

(15) National & Grindlays Bank Ltd. v. Dharamshi Vallabhji, [1967] 1 A.C. 207; [1966] 2 All E.R. 626.

(16) Official Receiver, Ex p., In re Reed, Bowen & Co.ELR(1887), 19 Q.B.D. 174; 56 L.J.Q.B. 447, considered.

(17) R. v. Chard, [1984] A.C. 279; [1983] 3 All E.R. 637.

(18) R. v. Devon County Council, ex p. Baker, [1995] 1 All E.R. 73; (1992), 6 Admin. L.R. 113.

(19) R. v. Immigration Bd., ex p. Kirk Freeport Plaza Ltd., 1996 CILR 281; on appeal, 1997 CILR 502, not followed.

(20) R. v. Pollution Inspectorate, ex p. Greenpeace Ltd. (No.2), [1994] 4 All E.R. 329, considered.

(21) Rivière”s Trade-Mark, In reELR (1884), 26 Ch. D. 48; sub nom. In re Rivière & Co., 53 L.J. Ch. 578.

(22) Sevenoaks Urban District Council v. Twynam, [1929] 2 K.B. 440, dicta of Lord Hewart, C.J. applied.

(23) Sharp v. WakefieldELR, [1891] A.C. 173; sub nom. Sharpe v. Wakefield, [1886–90] All E.R. Rep. 651; (1891), 60 L.J.M.C. 73.

(24) Sidebotham, Ex p., In re SidebothamELR(1880), 14 Ch. D. 458; 49 L.J. Bcy. 41, not followed.

(25) Turner v. Environment Secy.UNK(1973), 28 P. & C. R. 123; 72 L.G.R. 380, followed.

Legislation construed:

Development and Planning (Appeals) Rules 1985, r.3: The relevant terms of this rule are set out at page 159, lines 23–31.

r.7(1): The relevant terms of this sub-rule are set out at page 159, lines 33–39.

Development and Planning Law (1998 Revision) (Law 28 of 1971, revised 1998), s.10(5): The relevant terms of this sub-section are set out at page 153, lines 26–36.

s.12(4): The relevant terms of this sub-section are set out at page 154, lines 4–9.

s.39(1)(i): The relevant terms of this paragraph are set out at page 158, lines 38–45.

s.45: The relevant terms of this section are set out at page 151, lines 4–30.

Development and Planning Regulations (1998 Revision), reg. 8(3): The relevant terms of this sub-regulation are set out at page 153, lines 38–45.

Immigration Law (1997 Revision) (Law 13 of 1992, revised 1997), s.11: The relevant terms of this section are set out at page 172, lines 12–20.

National Trust for The Cayman Islands Law, 1987 (Law 22 of 1987), s.4(1): The relevant terms of this sub-section are set out at page 152, lines 25–33.

s.4(2): The relevant terms of this sub-section are set out at page 152, lines 36–45.

Development and Planning Law-appeals-right of appeal-objector to grant of planning permission has right of appeal as ‘person aggrieved’ under Development and Planning Law (1998 Revision), s.45(1)-unnecessary to show pecuniary or other interests adversely affected by decision

The appellants objected to the grant of planning permission by the Central Planning Authority to a developer.

A developer obtained planning permission to build a hotel, residential apartments and a golf course off the West Bay Road. The appellants, as objectors to the scheme who had been heard at consultation meetings and made written submissions to the Central Planning Authority prior to the grant, were notified of the decision and informed of their right of appeal as objectors. The first appellant, charged with the preservation of areas of natural beauty under the National Trust Law, and the second appellant, a private citizen, appealed under s.45(1) of the Development and Planning Law (1998 Revision) to the Planning Appeals Tribunal. The Tribunal, however, ruled that they had no locus standi to appeal, as they were not ‘persons aggrieved’ by the decision of the Central Planning Authority, within the meaning of s.45(1), since (a) neither their legal rights nor their pecuniary interests had been adversely affected by the decision; (b) local case law suggested that the right to appeal against a decision of an administrative body was confined to persons who were entitled by statute to notice

of the decision, which the appellants were not; and (c) the Central Planning Authority itself was the custodian of the legal rights of the public.

On appeal, the appellants submitted that they had locus standi to appeal since (a) there was no limitation on the scope of objections which could be raised before the Central Planning Authority under s.10(5) of the Law, and s.45(1) should not be construed as limiting the class of objectors on whom a right of appeal was conferred in the event of an adverse decision; (b) the separate provisions for consultation with landowners and the public at large did not imply any such limitation; indeed, s.39(1)(i) referred specifically to the right of appeal of objectors and the Development and Planning (Appeals) Rules, rr. 3 and 7(1) provided for all objectors to be heard on an appeal by a third party; (c) the English authorities had abandoned the narrow approach adopted by the Central Planning Authority and now commonly regarded all persons given a statutory right to object to proposals by administrative bodies and to participate in the consultation process as having locus standi as persons aggrieved if the decision subsequently went against them; and (d) the only local authority suggesting otherwise had been decided without reference to the later English authorities.

The respondent submitted in reply that the appellants had no locus standi since (a) in the absence of express words, s.45(1) was not to be construed as conferring a general right of appeal on any objector; (b) the owners of land adjoining the proposed development were given a separate statutory right to object to the grant of planning permission from that afforded to the general public, indicating that the former were entitled, by their special interest in the matter, to a right of appeal which was denied the latter; and (c) both the English and local authorities stated that in the context of a statutory appeal, a person aggrieved must be someone wrongfully deprived of a benefit or whose title to property was affected by the decision appealed against.

Held, allowing the appeal:

The Planning Appeals Tribunal had wrongly denied the appellants their right of appeal under the Development and Planning Law (1995 Revision), s.45(1) as persons aggrieved by the grant of planning permission. Properly construed, s.45(1) conferred a right of appeal on all objectors, including members of the public who had been consulted under s.10(5) following the application for planning permission. Although the references in the legislation to this right of appeal and to objectors” rights to be notified of and heard at a third party”s appeal did not of themselves confer a substantive right, they were persuasive as to the legislative intention behind s.45(1). Without specific words of limitation in that section, the separate procedures for notifying potential objectors under ss. 10(5) and 12(4) did not restrict the right of appeal to persons materially affected by a decision by virtue of land ownership. This interpretation was supported by English case law, in which the term ‘person aggrieved’ had been broadly construed without regard to whether the objector”s

pecuniary or other interests had been adversely affected (page 157, lines 18–27; page 158, line 1 – page 159, line 4; page 159, line 16 – page 160, line 2; page 169, lines 21–37; page 170, lines 20–38; page 171, lines 20–39; page 173, line 44– page 174,line 28; page 174, line 42 – page 175, line 16; page 176, lines 35–40).

MURPHY, J.: These are two appeals (which I will treat together) by
the National Trust for the Cayman Islands (‘the National Trust’) and an
40	individual, Burns Conolly (‘Conolly’), pursuant to the provisions of
s.45(4) of the Development and Planning Law (1998 Revision) (‘the
DPL’) from a decision of the Appeals Tribunal (‘the Tribunal’) denying
them both locus standi to appeal from a decision of the Central Planning
Authority (‘the C.P.A.’) granting certain development permission to
45	Humphrey”s Ltd. (‘the developer’).

The narrow issue before me is whether the appellants were ‘person[s]
aggrieved’ within the meaning of s.45(1) of the DPL. The full text of s.45
is as follows:
‘(1) Any person aggrieved by a decision of the Authority may,
5	within ten days after receipt of notification of such decision (or
within such longer period as the Tribunal may in any particular case
allow for good cause), appeal by way of rehearing to the Tribunal
against such

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