National Trust v Planning Appeals Trib

• Jurisdiction: Cayman Islands
• Judge: (Sanderson, J.)
• Judgment Date: 13 December 2000
• Court: Grand Court (Cayman Islands)
• Date: 13 December 2000

Grand Court

(Sanderson, J.)

NATIONAL TRUST FOR THE CAYMAN ISLANDS and CONOLLY

and

PLANNING APPEALS TRIBUNAL and HUMPHREYS (CAYMAN) LIMITED

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

K.J. Farrow for Mr. Conolly;

S. Hall-Jones, Senior Crown Counsel, for the Planning Appeals Tribunal;

D.M.W. Barnes, Q.C. and P.S.L. Simon for Humphreys (Cayman) Ltd.

Cases cited:

(1) Att.-Gen. v. Great E. Ry. Co.ELR(1880), 5 App. Cas. 473; 49 L.J. Ch. 545, followed.

(2) Att.-Gen. v. Smethwick Corp., [1932] 1 Ch. 562; (1932), 101 L.J. Ch. 137, followed.

(3) Bermuda Tel. Co. Ltd. v. Minister of TelecommunicationsUNK(1991), 43 W.I.R. 90, considered.

(4) Cortina Villas v. Planning Appeals Tribunal, 2000 CILR 360.

(5) Ebanks v. Central Planning Auth., 1980–83 CILR 207, dicta of Hercules, Ag. C.J. applied.

(6) Ellis v. Dubowski, [1921] 3 K.B. 621; (1921), 91 L.J.K.B. 89, followed.

(7) George v. Environment Secy.UNK(1979), 77 L.G.R. 689; 38 P. & C.R. 609; 250 E.G. 339.

(8) Grant v. John A. Cumber Primary School (Principal), 1999 CILR 307.1999 CILR 307.

(9) Hookings v. Director of Civil Aviation, [1957] N.Z.L.R. 929, considered.

(10) Jacques Scott & Co. Ltd. v. Immigration Bd., 1998 CILR N–5.

(11) Jeffs v. New Zealand Dairy Prod. & Mktg. Bd., [1967] 1 A.C. 559; [1966] 3 All E.R. 863, considered.

(12) Lloyd v. McMahon, [1987] A.C. 625; [1987] 1 All E.R. 1118.

(13) Mills v. London County Council, [1925] 1 K.B. 213; (1924), 94 L.J.K.B. 216, distinguished.

(14) R. v. Dacorum Gaming Licensing Cttee., ex p. E.M.I. Cinemas & Leisure Ltd., [1971] 3 All E.R. 666; (1971), 115 Sol. Jo. 810, followed.

(15) R. v. Home Secy., ex p. DoodyELR, [1994] 1 A.C. 531, sub nom. Doody v. Home Secy., [1993] 3 All E.R. 92, dicta of Lord Mustill applied.

(16) R. v. Home Secy., ex p. PiersonELR, [1998] A.C. 539; sub nom. Pierson v. Home Secy., [1997] 3 All E.R. 577.

(17) R. v. Inner London Betting Licensing Cttee., ex p. Pearcy, [1972] 1 W.L.R. 421; [1972] 1 All E.R. 932.

(18) Russell v. Duke of Norfolk, [1949] 1 All E.R. 109; (1949), 65 T.L.R. 225; 93 Sol. Jo. 132, dicta of Tucker, L.J. applied.

(19) Smith v. Commr. of Police, 1980–83 CILR 126.

Legislation construed:

Development and Planning Law (1995 Revision) (Law 28 of 1971, revised 1995), s.10(1): The relevant terms of this sub-section are set out at page 542, lines 28–32.

Development and Planning (Amendment) (Developments Advisory Board) Law, 1997 (Law 25 of 1997), s.4: The relevant terms of this sub-section are set out at page 542, lines 35–43.

Development and Planning Law (1999 Revision) (Law 28 of 1971, revised 1999), s.15(1): The relevant terms of this sub-section are set out at page 536, line 19.

s.18(1): The relevant terms of this sub-section are set out at page 536, line 17.

(5): The relevant terms of this sub-section are set out at page 536, line 19.

s.51(1): The relevant terms of this sub-section are set out at page 534, lines 29–39.

(2): The relevant terms of this sub-section are set out at page 534, lines 40–41.

s.51(4): The relevant terms of this sub-section are set out at page 534, lines 43–45.

(5): The relevant terms of this sub-section are set out at page 535, lines 1–4.

Development and Planning Regulations (1995 Revision), reg. 3:

‘Applications … are to be made to the Authority in the manner prescribed …’

reg. 6(1): The relevant terms of this sub-regulation are set out at page 549, line 9.

(3): The relevant terms of this sub-regulation are set out at page 549, lines 10–13.

(5): The relevant terms of this sub-regulation are set out at page 549, line 14.

Grand Court Rules, O.55, r.7(1): The relevant terms of this paragraph are set out at page 535, lines 6–9.

r.7(5): The relevant terms of this paragraph are set out at page 535, lines 11–16.

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 543, lines 2–3.

Development and Planning Law-planning permission-split decision-under Development and Planning Law (1999 Revision), s.18 may grant permission in stages, subject to future fulfilment of conditions

Development and Planning Law-Central Planning Authority-delega-tion of discretion-Authority must itself assess all implications of planning application-may not grant permission subject to approval by other government body or agency-may delegate administrative responsibility for ensuring compliance with specific conditions

Development and Planning Law-Central Planning Authority-dis-closure of information to objectors-objectors to be informed of new material presented by applicant and interested parties before resumed hearing-entitled to know nature and content of application at all stages and to be heard by Authority in response

The appellants appealed to the Planning Appeals Tribunal against the grant of planning permission to the second respondent.

The second respondent applied in November 1997 to the Central Planning Authority for permission to build a hotel and condominium com-plex, including a golf course with canals, tennis courts and swimming pools at Seven Mile Beach. The Authority heard objections to the proposed development from the appellants on environmental matters. It also considered the 1977 Development Plan and heard comments from the Department of Environment and other government bodies. It deferred the proposal, ordering that the developer submit revised plans to address certain environmental issues.

Before the Authority reconvened, both the first appellant and the Department of Environment wrote to it recommending that an environmental impact assessment of the whole project be conducted. The appellants were not informed of when the Authority would be recon-sidering the application and the reconvened meeting in December was closed to the public. None of the letters of objection by the appellants or the Department of Environment were referred to at the meeting.

The Authority granted permission to build the main complex on land close to existing developments, subject to a number of conditions, but deferred permission for the remainder of the project, including the golf

course, to allow for further investigations to be made into its environmental impact.

The appellants were not sent copies of the subsequent inter-departmental and architects” correspondence concerning the environmental issues, or the outline document sent to all the relevant government depart-ments and officers, containing the developer”s proposals to be elaborated upon in its own environmental assessment report. The Department of Environment approved the outline document as adequately addressing its main concerns, but told the Planning Department that it believed an environmental impact assessment for the entire project should have been carried out.

The Authority met again in private. It did not consider the appellants” previous objections or the Department of Environment”s recommendation of a full environmental impact assessment. It resolved that it was satisfied with the developer”s environmental report, again deferring part of the application pending receipt of revised plans, and at its next meeting in March 1998 granted permission for the remainder of the project, subject to a number of conditions. These included the submission of a final com-prehensive environmental assessment report on behalf of the developer which was to satisfy the Department of Environment and the Planning Department.

The appellants” appeals to the Planning Appeals Tribunal were dis-missed, initially on grounds of locus standi to appeal (see 1999 CILR 147) and later on their merits. They further appealed to the Grand Court in the present proceedings, submitting that (a) the application and its supporting documents had failed to comply with the requirements of the Development and Planning Regulations (1995 Revision); (b) the applica-tion was not governed by the 1977 Development Plan considered by the Authority but by the 1997 Development Plan, which prohibited the proposed development; (c) since the land on which part of the develop-ment was to be built comprised wetlands, the Authority had contravened s.5 of the Ramsar Convention by granting permission without requiring that an environmental impact assessment first be made; (d) the Develop-ment and Planning Law (1999 Revision), s.18 did not permit the Authority to split the application into two decisions taken at different times; (e) the Authority could not delegate to the Department of Environment or Planning Department the responsibility of satisfying itself that the environ-mental assessment report met its concerns; and (f) the later decision breached the principles of natural justice, since they had been given no opportunity to present their case or to comment on the environmental assessment report, and different members of the Authority had made the decision to those who had earlier heard their objections.

Held, allowing the appeal:

(1) The developer”s failure to comply with certain mandatory require-ments of the Development and Planning Regulations (1995 Revision) relating to the form of the application did not render the Authority”s

decision void. Although the Authority would have been entitled to reject the application, the court had a discretion not to strike out the decision, having regard to the importance of the non-compliant material, the nature of the non-compliance, and whether the appellants had been prejudiced by it. Since the deficiencies in the application did not relate to the appellants” primary concerns and no prejudice to them had resulted, the Authority”s decision would not be set aside on this basis (page 549 lines 16–24; page 551, lines 4–17).

(2) The Authority had correctly observed the 1977 Development Plan (which permitted the proposed development), since the Development and Planning (Amendment) (Developments Advisory Board) Law, 1997, s.4...