Commissiong v Stuart and Vision Developments Inc.
| Jurisdiction | Barbados |
| Judge | Richards, J. |
| Judgment Date | 20 December 2017 |
| Neutral Citation | BB 2017 HC 30 |
| Docket Number | CV No.426 of 2017 |
| Court | High Court (Barbados) |
| Date | 20 December 2017 |
High Court
Richards, J.
CV No.426 of 2017
Mr. D.A. Comissiong and Mr. R. Clarke, Attorneys-at-Law for the claimant
Mr. H. Gollop Q.C., Mr. S. Gollop, and Mr. N. Marshall, Attorneys-at-Law for the defendant.
Mr. B. Gale Q.C., Mrs. L. Harvey-Reid, and Mrs. M. Maynard, Attorneys-at-Law for the proposed second defendant.
Civil practice and procedure - Application by defendant that the claim be struck out because the claimant had no locus standi in the matter and he was not a proper party to initiate the proceedings — Whether claimant had no locus standi to initiate the proceedings against the defendant under either the Town and Country planning Act, Cap 240 or the Administrative Justice Act, Cap 109B — Whether claimant was an aggrieved person under section 72 of Cap 240 — Whether claimant was a person whose interests were adversely affected by an administrative act or omission under section 6(a) of Cap 109 B.
Before the Court is an application by the defendant seeking to raise a point in limine. The defendant contends that the claimant has no locus standi to initiate proceedings against the defendant under either the Town and Country Planning Act (Cap.240), or the Administrative Justice Act (Cap. 109B).
It has been said that in many respects, standing “is a metaphor to describe the interests required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies”. ( Allan v. Transurban City Link Ltd (2001) 208 CLR 167 at para. [15]). And another Judge proffered that “Standing focuses on the parties seeking to get their complaint before the court, not on the issues they wish to have the court consider…. Denial of standing does not deny merit in a plaintiff s legal claims but denies the plaintiff the right to have these claims adjudicated”. ( Onus And Anor. v. Alcoa of Australia Ltd 149 CLR 27 at 43–44 per Murphy J).
By a Fixed Date Claim Form filed on 22 March 2017, the claimant alleged that the defendant unlawfully granted planning permission to the Proposed Second defendant (Vision). Vision is not a party to these proceedings, but has filed an application to be so joined as the Second defendant. For the purposes of the present application, the Court permitted Vision to make written and oral submissions.
On 30 March 2015, Vision forwarded its application for permission to develop land, numbered 0445/03/2015B, to the Town and Country Planning Department. The claimant issued correspondence to the Chief Town Planner, (CTP), and to the defendant in his capacity as Prime Minister, expressing his concerns about the proposed development. The correspondence was dated 04 August 2016 and 24 August 2016 respectively.
On 15 February 2017, the defendant granted permission to Vision to build a 15 storey hotel on beach front land situated at Bay Street, St. Michael. That permission was subject to 58 conditions.
The claimant challenged the legality of the permission on several grounds. These grounds are, inter alia, that:
- the defendant was not advised by a properly constituted Advisory Committee as required by Cap. 240 (Ground 1); 2. the CTP did not carry out the survey which is a precursor to an amended physical development plan as required by Cap,240. Therefore, the planning application was considered against the background of an outdated plan (Ground 2); 3. there was no updated coastal management plan provided by the Coastal Zone Management Unit. Therefore, the permission granted had no regard to an appropriate coastal zone management plan (Ground 3); 4. the proposed development impacts on cultural heritage conservation areas, and constitutes an application to amend the physical development plan. As such, a public inquiry was required by Cap.240, but this did not occur (Grounds 4 and 5); 5. the proposed development is in close proximity to listed buildings, and, in keeping with current policy, should be discouraged rather than approved (Ground 6); 6. the proposed development includes the construction of a large hotel on the south coast of the island, a jetty and a sewage treatment plant. As a result, an environmental impact assessment was an imperative that was not undertaken by Vision or required by the defendant (Ground 7); 7. the defendant was under a common law duty to act fairly by consulting nearby residents and users of the beach in the area of the proposed development (Ground 8); 8. the defendant failed to give proper or sufficient regard to the material considerations that flowed from the 2011 designation of Historic Bridgetown and its Garrison as a World Heritage Site (Ground 9); 9. the permission for the erection of a 15 storey hotel is in breach of planning policies and regulations that limit construction of beach front tourist accommodation to a height of 5 storeys or 55 feet (Ground 10); and 10. the permission breached the principles of natural justice in that over the years other persons were refused permission to build beach front or non beach front tourist accommodation above the stipulated height of 5 or 7 feet respectively(Ground 11).
Amongst the remedies sought is a twelve part declaration in these terms:
“(A) A declaration that the decision made by the [defendant], in response to the application made by [Vision] to the [CTP] on the 30th day of March 2015 bearing Reference Number 0445/03/2015B — to grant permission to [Vision] to erect a hotel at Bay Street in the parish of Saint Michael in the Island of Barbados constitutes:–
1. a decision that conflicts with the policy of several Acts of Parliament inclusive of [Cap.240] and the Coastal Zone Management Act CAP 394;
2. a decision that was made in breach of [Cap.240];
3. a decision, the making of which is not in compliance with relevant requirements specified under [Cap.240];
4. an unreasonable or improper exercise of discretion on the part of the [defendant];
5. a decision that is contrary to law;
6. a decision that is based on and invalidated by a failure to satisfy or observe conditions or procedures required by law;
7. a decision that is based on and invalidated by breach of or omission to perform a duty on the part of the [defendant] and/or the [CTO] and/or the Director of the Coastal Zone Management Unit;
8. an act or decision that is in excess of the jurisdiction of the [defendant] and that is ultra vires [Cap.240];
9. a decision that is not based on or supported by the evidence or the objective information that such a decision requires;
10. a decision that is marred and invalidated by a failure of the [defendant] to apply or adhere to the principles of Natural Justice;
11. a decision that is marred and invalidated by the defendant's breach of the Common Law duty that obligates a public authority such as the defendant to act fairly towards all relevant parties and to consult the residents of the nearby housing districts and the regular or habitual users of the relevant beach; and
12. a decision that conflicts with the policy of the Cabinet and Government of Barbados as outlined in the Physical Development Plan, the Management Plan for Historic Bridgetown and its Garrison, and in the National Sustainable Development Policy”.
The other remedies prayed for are:
“(B) An immediate interim order suspending the said grant of permission until the final determination of the proceedings herein.
(C) An order of certiorari quashing the said decision or grant of Permission.
(D) Such further and other relief that this Honourable Court considers to be appropriate and just in the circumstances.
(E) Costs in favour of the claimant to be agreed or assessed”.
By a Notice filed on 11 July 2017, the claimant wholly discontinued his interlocutory application for an interim order against the defendant.
At Ground 12 of the Fixed Date Claim Form, the claimant refers to sections 69 and 72 of Cap. 240, and sections 3 to 7 of Cap.109B, as the legal basis for the claim.
The claimant is an attorney-at-law by profession, and is a well known social activist in Barbados. He regularly contributes to the debate on national and regional issues through the local print media. Of relevance to this matter is his affidavit filed on 22 March 2017 in support of his claim, and further affidavits filed by him on 24 March 2017 and 21 April 2017.
In the abovementioned affidavits, the claimant averred that he is a citizen and resident of Barbados, “with a substantial interest in maintaining and fostering the social, cultural and economic welfare of my country, Barbados”. (Para.7 of Affidavit filed on 24 March). He is also the part owner of property at Crumpton Street in Bridgetown. This property houses both his law office (the Clement Payne Chambers) and the Clement Payne Cultural Centre. The property is said to be within the parameters of Historic Bridgetown and its Garrison. Additionally, the claimant is the President of the Clement Payne Movement.
As a confirmed Methodist, the claimant believes that this gives him “an interest in the protection and preservation of the Bethel Methodist Church, an historic Listed Building that is immediately opposite to the site of the proposed 15 storey hotel”. (Para.7 of Affidavit filed on 24 March). There is a burial ground at that church which contains two grave plots owned by the claimant's family. His father, a former Methodist minister of religion, and his maternal grandmother are buried there. He therefore considers these grave sites to be a sacred space for him and for his family.
The claimant is also a user of the beach in the vicinity of the proposed development.
The defendant filed a Notice of Application on 10 July 2017. The defendant's request is that the claim be struck out because the claimant has...
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