Re Arch

• Jurisdiction: Cayman Islands
• Judge: Summerfield, C.J.
• Judgment Date: 12 December 1984
• Court: Grand Court (Cayman Islands)
• Date: 12 December 1984

Arch, in Re

Summerfield, C.J.

Grand Court

Planning Law - Redevelopment — Redevelopment in “new development area” — “New development area” for purposes of Development and Planning Regulations, 1977, reg. 7(1) one where development taking place for first time — redevelopment of developed property outside ambit of reg. 7(1) and car parking requirements therefore not mandatory but discretionary

Appearances:

R. Alberga, Q. C. for the appellant;

R. W. Ground, Senior Crown Counsel, for the respondent.

Summerfield, C.J.

1 This is an appeal from the Appeals Tribunal, constituted under s.38 of the Development and Planning Law (Revised), affirming the decision of the Central Planning Authority to refuse permission to develop a project involving the redevelopment of commercial property fronting on to South Church Street and Harbour Drive in George Town. Both the Authority and Tribunal were of the opinion that the proposed redevelopment was generally meritorious and beneficial to George Town. The application and appeal failed on the ground that the proposal made inadequate provision for car parking.

2 The letter from the Authority communicating its decision (dated August 25 ^th, 1983) states:

“While the proposal was considered generally satisfactory, I regret to advise you that the application was refused because of inadequate car parking provision. Seven car parking spaces would be required, although this need not be on-site car parking. A revised submission, to include the required number of car parking spaces would be considered at the first available meeting of the Authority after submission.”

3 The letter conveying the Tribunal's decision states:

“The Appeals Tribunal which met on March 22 ^nd, 1984 to hear your appeal from the Central Planning Authority considered very carefully all the arguments involved and came to the conclusion that the decision of the Central Planning Authority be confirmed in that you should be required to provide a parking area for seven cars before approval be given for your proposed development.

In view of the circumstances involved in this case and the desirability of the development, the Government has been approached with a view to assisting in the provision of the parking spaces.

If an acceptable arrangement for parking of cars can be made you would be enabled to reapply to the Central Planning Authority for your proposed development.”

4 The Authority and the Tribunal in reaching their conclusions relied on reg. 7(1) of the Development and Planning Regulations 1977 which provides:

“PROVISION FOR PARKING — In new development areas parking space must be provided on individual lots or in nearby locations for public, commercial, industrial and domestic buildings as set out below.

The minimum parking space for a vehicle is 8 ft x 16 ft., exclusive of access thereto and spaces must be provided upon the following scale –

• ………

• (d) commercial development-one space per 500 sq ft.;

• ………

In no case may the building plus the car parking area exceed 75 p.c. of the lot except in commercial centres where the building plus car parking area may occupy up to 90 p.c. of the lot, the remainder being suitably landscaped.”

5 Both bodies had also considered reg. 11(1) which reads:

“Commercial development including banks, businesses, restaurants, shops, offices, supermarkets and gas stations are permissible in commercial zones and subject to any other provision of the Law or these regulations in other areas if in such other areas it is related to the needs of the community and not detrimental to the surrounding area; provided –

• (a) the maximum density and minimum lot size and setbacks are at the discretion of the Authority; and

• (b) site coverage may not exceed 3/4 of the lot save that up to 90 p.c. may be permitted in town areas.”

6 Legal advice had been obtained to the effect that reg. 11(1) had to be read having regard to reg. 7(1) and that the latter was mandatory. Both bodies accepted that advice and acted on it.

7 The proposed development included a proposal for a mini scenic park fronting on South Sound Road and Harbour Drive. In the course of the proceedings before the Authority and the Tribunal the appellant, Mr. Arch, had urged that the application should be granted with the scenic park without any necessity for providing car parking facilities as the Authority had a discretion to allow buildings in commercial areas without provision for parking (as precedents in other areas demonstrated) or, alternatively, that consideration should be given to the application without the scenic park, the space provided therefor being. used for car parking.

8 One ground of appeal complains that the Authority and Tribunal failed to consider the second alternative. I can deal with that alternative first.

9 If reg. 7(1) applied then, having regard to the area of the redevelopment project, the...