Proprietors, Strata Plan No 103 v Developments Advisory Bd

• Jurisdiction: Cayman Islands
• Judge: (Henderson, Ag. J.)
• Judgment Date: 25 October 2000
• Court: Grand Court (Cayman Islands)
• Date: 25 October 2000

Grand Court

(Henderson, Ag. J.)

PROPRIETORS, STRATA PLAN No. 103

and

DEVELOPMENTS ADVISORY BOARD and DIOS MAR LIMITED

P. Lamontagne, Q.C. and W.L. DaCosta for the proprietors;

S. Hall-Jones, Senior Crown Counsel, for the Board;

N.W. Hill, Q.C. for Dios Mar Ltd. and Mrs. Myers-Khouri.

Cases cited:

(1) Cortina Villas v. Planning Appeals Tribunal, 2000 CILR 360, dicta of Sanderson J. applied.

(2) Kirk Freeport Plaza Ltd. v. Immigration Bd., 1997 CILR 502, followed.

(3) R. v. Criminal Injuries Compensation Bd., ex p. Lain, [1967] 2 Q.B. 864; [1967] 2 All E.R. 770; (1967), 111 Sol. Jo. 331.

(4) R. v. Criminal Injuries Compensation Bd., ex p. Tong, WLR[1976] 1 W.L.R. 1237; [1977] 1 All E.R. 171.[1976] 1 W.L.R. 1237; [1977] 1 All E.R. 171.

(5) Rees v. Crane, [1994] 2 A.C. 173; [1994] 1 All E.R. 833.

(6) Transkei Public Servants Assn. v. South Africa (Govt.), [1996] 1 L.R.C. 118; 1995 (9) BCLR 1235.

Legislation construed:

Development and Planning Law (1999 Revision) (Law 28 of 1971, revised 1999), s.6(1): The relevant terms of this sub-section are set out at page 494, lines 17–18.

s.6(2): The relevant terms of this sub-section are set out at page 494, lines 9–16.

s.8: The relevant terms of this section are set out at page 494, line 44 – page 495, line 2; page 495, lines 13–15; line 21; page 497, lines 7–8; page 498, lines 9–11; page 499, lines 24–25.

s.10: The relevant terms of this section are set out at page 495, lines 15–16; page 497, lines 28–30.

s.11(1): The relevant terms of this sub-section are set out at page 495, lines 24–25.

s.51(1): ‘Any person aggrieved by a decision of the Authority may … appeal by way of rehearing to the Tribunal against such decision on the ground that-

(a) it is erroneous in law;

(b) it is unreasonable;

(c) it is contrary to the principles of natural justice; or

(d) it is at variance with a development plan having effect in relation thereto.’

Administrative Law-judicial review-amenability to review-Develop-ments Advisory Board”s recommendation to Central Planning Authority on planning application amenable to review

Administrative Law-judicial review-alternative remedies-appeal to Planning Appeals Tribunal not suitable alternative to review of Develop-ments Advisory Board”s recommendation, since appeal must relate to decision of Central Planning Authority

Development and Planning Law-Developments Advisory Board-matters for consideration-need not consult with Government agencies on each application or hear residents” objections if local in nature and already forwarded in writing by Central Planning Authority-no minimum time-scale for recommendation to Authority

Development and Planning Law-Developments Advisory Board-form of recommendation-Board”s recommendation to Central Planning Authority invalid unless presented as written report

The applicants applied for judicial review of a recommendation by the Developments Advisory Board.

The second respondent developer applied for planning permission to build a hotel on West Bay Road. The applicants, as the owners of nearby property, objected to the application and were heard by the Central Planning Authority, which then granted planning permission. On appeal to the Planning Appeals Tribunal, the Authority”s decision was set aside on the ground that the application had not first been referred to the Developments Advisory Board for its recommendation on whether planning permission should be granted, as was required by s.6 of the Development and Planning Law (1999 Revision). The Grand Court upheld the Tribunal”s ruling in proceedings reported at 2000 CILR 379.

The Board was required under the Law to consider issues of national importance such as the likely impact of the development on the infrastructure of the Islands and on educational, social and medical aspects of life here. The Chairman of the Authority was also Chairman of the Board and the heads of various other relevant Government agencies

were members of it. A report containing its recommendation was to be prepared within 21 days.

The Tribunal remitted the developer”s application to the Authority, which referred it to the Board for consideration the next day. The Board received, inter alia, a copy of the objectors” written representations to the Authority. It recommended orally to the Authority that the application be approved, and a week later the Central Planning Authority again granted planning permission, since the Board had raised no specific concerns. The applicants were not informed that these meetings were to take place.

The applicants made the present application seeking judicial review of the Board”s recommendation. They submitted that (a) the Board”s recommendations were amenable to judicial review even though they were only one factor considered by the Central Planning Authority, since the Board”s composition, powers and functions showed that its opinion carried considerable weight with the Authority; (b) there was no suitable alterna-tive remedy to judicial review, since an appeal to the Tribunal could only address failures in the Authority”s handling of the application, and there was no appeal process to challenge the Board”s recommendations; and (c) the Board had acted in breach of its duty of fairness by failing (i) to notify them of its hearing and give them an opportunity to be heard, (ii) to consider fully the matters listed in s.8(1) and (3) of the Law, e.g. whether the development should be carried out on an alternative site, (iii) to consult with appropriate Government departments and agencies as it was required to do under s.10, and (iv) to prepare a written report of its recommendation to be sent to the Authority, as required by s.8(4) and (5).

Held, setting aside the Board”s recommendation and remitting the application to the Authority:

(1) In deciding whether the opinion of the Board as a purely advisory body was amenable to review, the court had considered whether its recommendations were given pursuant to an express statutory mandate, the importance of that mandate, whether some further condition must be satisfied before the opinion could affect legal rights, the number of further procedural steps before the final decision, and how far the opinion was likely to influence that decision. Given the purpose, composition and influence of the Developments Advisory Board, its recommendations could not be immune from judicial review, even though it had no direct or immediate effect on the applicants” rights. The Board was clearly intended to fulfil a different function to that of the Authority and to give opinions which would carry weight, as indicated by the broad individual mandates of its members, the requirement that it consider economic and social issues of national importance and in relation to only the largest developments, and the fact that it and the Authority were chaired by the same person (page 494, line 26 – page 495, line 12; page 495, lines 26–45).

(2) Furthermore, in the absence of any effective and convenient alternative remedy which should first be exhausted, judicial review was

available to the applicants. No appeal could lie from the recommendations of the Board itself, and defects in its proceedings could not be challenged by appeal from the Central Planning Authority to the Tribunal under s.51(1) of the Development and Planning Law, since the scope of such an appeal was confined to errors by the Authority itself (page 496, lines 11–41).

(3) In view of the Board”s mandate to consider matters of national importance, the purely local nature of the objections and the point in the process at which objections were best heard, the Board owed no duty to afford the applicants a hearing before making its recommendation. The applicants” objections fell within the ambit of the Authority, which had already heard them and forwarded them in written form to the Board. Procedural fairness had therefore been observed without the need for additional oral submissions. The applicants were not entitled to be heard by every body or official whose reports and opinions were considered by the Authority in the decision-making process (some of which had no bearing on the applicants” concerns), since this would result in great delay and complexity without discernible benefit. This approach was supported by the fact that s.8(2) provided for the developer only to be heard by the Board, and by the maximum time limit for the recommendation (page 498, line 33 – page 499, line 45).

(4) The court could not conclude, merely because of the short time within which the Board had made its recommendation, that it had not considered the matters required of it under s.8 of the Law. The Board considered applications in the context of existing plans and policies and its members were experienced enough to make a recommendation without extended debate if appropriate. There was no reason to believe that it had failed to consider an alternative site for the development but, in any event, on the evidence, none had been proposed or suggested itself. The Board”s duty under s.10 to consult and co-operate with relevant Government agencies was an ongoing one, but the Law did not require that specific consultation should take place with each application considered, and the Board may well have done so before receiving this one (page 496, line 44 – page 497, line 45).

(5) However, since the...