Castagne v The Chief Town Planner et Al

• Jurisdiction: Barbados
• Judge: Husbands, J.
• Judgment Date: 25 May 1982
• Neutral Citation: BB 1982 HC 36
• Docket Number: No. 1015 of 1979
• Date: 25 May 1982
• Court: High Court (Barbados)

High Court

Husbands, J.

No. 1015 of 1979

Castagne

and

The Chief Town Planner et al

Mr. A.P. Shepherd for the applicant.

Mr. C.O. Tulloch and Miss K. Goodridge for the respondents.

Administrative law - Town and Country Planning — Demolition Order — Validity

Husbands, J.

1 This is an appeal against an enforcement notice served on the applicant by the Chief Town Planner. The right to appeal against any such notice is given by s. 35 of the Town and Country Planning Act, Cap. 240, which specifies the grounds on which any such appeal may be brought. In this appeal the grounds stated are:

• (i) That no planning permission was required in respect of that development or the defendants are now estopped from enforcing the requirements of the Town and Country Planning Act.

• (2) That the requirements of the enforcement notice exceed what is necessary for restoring the land to its condition before the development in question took place.

2 Counsel for the applicant has abandoned the first half of ground 1 and has argued the appeal under 3 main heads. First of all he challenges the validity of the enforcement notice. Secondly he contends that the Chief Town Planner is estopped from enforcing the said notice. Thirdly he argues ground 2 of his appeal.

1. Validity of Enforcement Notice

3 Counsel draws attention to the wording in the body of the enforcement notice which reads as follows

The Chief Town Planner in exercise of the powers conferred on him by subsection (1) of section 33 of the Town and Country Planning Act, 1965 and all other powers enabling him in that behalf, hereby gives notice that the development hereunder specified appears to him to have been carried out without the grant of permission or approval in accordance with the terms of the Town and Country Development Planning Order, 1972 namely:–

“The erection on land belonging to Mr. Patrick S, Castagne situated at Pine Hill Road, which land is bounded to the east by lands owned by one J. Henry to the north and west by lands owned by The Imperial Bank of Commerce and to the south by Pine Hill Road in the parish of St. Michael in this island of a guard wall within the prescribed 17ft road reserve;

and that the said development was carried out in or about May, 1975 and being after the 14th April, 1972, the date of the coming into force of the Town and Country Development Planning Order, 1965, and the Chief Town Planner hereby requires that the following steps be taken within 30 days from the date on which this Notice takes effect for restoring the land to its condition before the development took place, to wit:– The demolition and removal from the land of the said guard wall. This notice shall take effect on the expiration of 30 days after the date of service thereof.”

4 Counsel argues that the references to the Town and Country Development Planning order, 1972 and the Town and Country Development Planning order, 1965 are confusing in that it is not clear which of the two orders is being relied upon. Counsel submits that where it is sought to deprive a citizen of a right, the law which is infringed must be stated with particularity.

5 There is in fact no Town and Country Development Planning Order, 1965. There is a Town and Country Development Planning (Scotland District) Interim Control Order, 1965 to which counsel for the applicant drew the court's attention. This Order as its citation indicates applies to land in an area other than that in which the applicant's property is situate. Also, that Order states that it was made on 1 ^st April, 1965 and shows that it was published in the supplement to the Official Gazette No. 32 dated 22nd April, 1965. It is clear that this could not be the Order referred to in the Enforcement Notice as coming into force on l4th June, 1972. It is manifest that the reference in the Enforcement Notice should have been to the Order earlier mentioned, that is to say, the Town and Country Development Planning Order, 1972, and not 1965 and to that extent there was an error of citation. I do not think however that this error is so fundamental as to warrant the notice being struck down. The error was not such as to mislead the applicant or to create injustice. Section 35(4) of the Town and Country Planning Act, Cap. 240 provides–

“4. On an appeal under this section the Judge may correct any informality, defect or error in the enforcement notice if he is satisfied that the informality defect or error is not a material one.”

6 In dealing with a similar provision in S. 33(5) of the Town and Country Planning Act 1947, of the United kingdom where the power of correction is given to a minister Lord Denning M.R, in Miller-Mead v. Minister of Housing [1963] 1 All E.R. 459 at 467 said –

“I think that it gives to the Minister a power to amend which is similar to the power of a Court to amend an indictment. He can correct errors so long as, having regard to the merits of the case, the correction can be made without injustice. No informality, defect or error is a material one unless it is such as to produce injustice. Applied to misrecitals, it means this — if the misrecital goes to the substance of the-matter, then the notice may be quashed, but if the misrecital does not go to the substance of the matter and can be amended without injustice, it should be amended rather than that the notice should be quashed or declared a nullity. In this way the legislature has disposed of the proposition that there must be “a strict and rigid adherence to formalities”.

7 In that same case Upjohn L. J. put it this way — “the test must be: does-the notice tell him fairly what he has done wrong and what he must do to remedy it.”

8 In my judgment this enforcement notice satisfies that test. The mis-description of the Order may be cured by amendment which has been applied for by Counsel for the respondents and is allowed.

II: Estoppel

9 Although not specified as a ground of appeal by s. 35(1) of the Town and Country Planning Act Cap. 240, counsel for the applicant argues that the doctrine of estoppel may properly be raised in this matter. His argument is that the applicant carried out the renovations complained of with the express permission of a Minister of Government, and in so doing the applicant altered his position to his prejudice. The crown should not now therefore, through the agency of its Chief Town Planner, be permitted to demand that he demolish and remove that which the Minister permitted him to build.

10 It is convenient at this point to state briefly the circumstances leading up to the Enforcement Notice. The applicant is the owner of a property in Pine Hill Road, St. Michael which is bounded by a guard wall on the side next to a public highway. In 1973 the applicant states that a pedestrian was injured in the area and he decided to renovate the wall. The contractor he hired to do the work advised that planning permission was not required. Consequently without altering its foundations the contractor reduced the height and width of the wall. The renovations permitted some increased measure of safety to pedestrians by providing for them an “emergency step” and provided better entry and exit to and from the property. The work was completed in February 1974. Some two years later a part of the wall was knocked down by a passing vehicle. When the wall was being repaired a workman from the Ministry of Communications and Works informed the applicant that planning permission was required for the repairs being done. The applicant spoke to the then Minister of Communications and Works, Mr. F.G. Smith, who after inspecting the wall told the applicant that he could complete the repairs. Acting on this information the applicant carried out the repairs and eras subsequently served with the Enforcement Notice. One month later he made application to the Chief Town Planner to retain the work done but this was refused. The applicant requested that this refusal be referred for review by the Minister responsible for Town Planning. The reference was not successful.

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