Guy Saner v The Chief Town Planner The Minister Responsible for Town and Country Planning
| Jurisdiction | Barbados |
| Judge | OLSON DeC. ALLEYNE |
| Judgment Date | 19 January 2018 |
| Neutral Citation | BB 2018 HC 29 |
| Court | High Court (Barbados) |
| Docket Number | No. 1835 of 2017 |
| Date | 19 January 2018 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Dr. the Honourable Justice Olson DeC. Alleyne, Judge of the High Court
No. 1835 of 2017
Ms. Faye Finisterre in association with Professor Eddy Ventose, Ms. Christine Toppin-Allahar and Ms. Lyanne Lowe for the Claimant.
Ms. Jennifer P. Small in association with Ms. Roselyn Marshall-Mapp for the Respondents.
Mr. Shane Brathwaite in association with Ms. Jennifer Devonish for Ms. Natalie Olivia Sandiford, an interested party.
Judicial Review Granting of planning permission by Chief Town Planner — Interim injunctive relief — American Cyanamid test — Whether claim was vexatious or frivolous — Balance of convenience — Whether court had jurisdiction to grant injunction — Ouster Clause — Parliamentary intention — Whether there was a serious issue to be tried.
The claimant (“Mr. Saner”) is the owner of beachfront property located on the west coast of Barbados. Ms. Natalie Olivia Sandiford (“Ms. Natalie Sandiford”) and Mr. Euclid Sandiford (together called “the interested parties”) own land adjoining Mr. Saner's. Ms. Natalie Sandiford is currently engaged in construction work (“the development”) on her property (“the site”).
Purportedly, the development is being carried out pursuant to planning permission granted to Ms. Natalie Sandiford by the second respondent, the Minister Responsible for Town and Country Planning (“the Minister”) on 1 June 2017 pursuant to section 18 of the Town and Country Planning Act Cap 240 (“ the TCPA”)(“the Permission”).
Mr. Saner filed an application for judicial review pursuant to the provisions of the Administrative Justice Act Cap 109B (“ the AJA”) on 1 December 2017; and an amended application on 6 December 2017. By the amended application, he seeks among other orders, a declaration that the decision of the Minister granting the planning permission was unlawful, and an order quashing that decision. The other orders sought relate only to the first respondent (“the Chief Town Planner”) and are immaterial at this stage.
Mr. Saner also made an application for discovery of various planning documents relating to the development; and one for urgent interim injunctive relief by which he seeks the following orders until final judgment:
2.1.1. a stay of the Second Respondent's decision to authorize Natalie Olivia Sandiford, a Third Party, from proceeding with the development at the Garden, Mount Standfast, St. James to wit: the renovation and extension of Plombagine Cottage;
2.1.2. an order prohibiting Natalie Olivia Sandiford, a Third Party from carrying out or continuing any development at the Plombagine Cottage site pursuant to the decision.
2.1.3. an order prohibiting any person on whom this Order is served from carrying out or continuing any development at the Plombagine Cottage site.
I heard the application for interim relief on 21 December 2017. Counsel for Mr. Saner, Professor Eddy Ventose and Ms. Christine Toppin-Allahar who act in association with Ms. Faye Finisterre and Ms. Lyanne Lowe indicated then that the discovery application could be deferred.
The application for interim relief came on before me on 8 December 2017 but had to be rescheduled to accommodate the service of documents by Mr. Saner on the respondents; the filing of affidavits by the respondents; and the filing of written submissions by Mr. Saner and the respondents. I made orders accordingly and scheduled the hearing for 18 December 2017. I later changed that date to 19 December 2017.
Meanwhile, I adjourned the matter to 12 December 2017 to hear the parties' submissions as to how this Court ought to proceed, given that interim injunctive relief would affect the interested parties. On that date, I ordered Mr. Saner to serve the latter with a notice of the application and copies of all documents filed in respect of the matter. I also extended the time for the filing of written submissions by the parties.
On 19 December 2017, Mr. Shane Brathwaite who acts in association with Ms. Jennifer Devonish, appeared on behalf of Ms. Natalie Sandiford. I made an order permitting Ms. Natalie Sandiford to file an affidavit and written submissions, and rescheduling the hearing of the application to 21 December 2017.
Mr. Saner sets out five grounds of relief against the Minister on the amended fixed date claim form. He asserts that the Minister's decision is unauthorised or contrary to law; and that the Minster irregularly or improperly exercised his discretion in making the decision; took into consideration irrelevant considerations; arrived at his decision in the absence of evidence on which findings or assumptions of fact relied on by him could reasonably be based; and made his decision based on an error of fact.
Under the caption “FULL PARTICULARS OF FACTS AND MATTERS RELIED ON,” Mr. Saner summarised his case against the Minister in this way:
-
12. The [Minister's] decision was based on an error of fact, the fact was material and a different decision might have been made but for the error.
-
13. Further or alternatively the [Minister] unreasonably permitted the development.
The asserted facts on which the application is based in so far as it relates to the Minister's decision are particularised at paragraphs 9.1 to 9.7. They read:
-
9.1 The Applicant is the owner of a residential property … located at the Garden St. James. ….
-
9.2 To the North of the Applicant's property is a site with two buildings on it: existing timber house to the roadside and to the north-west section of the L-shaped lot is a mixed wall and concrete single-storey house known as Plombagine Cottage. The cottage is listed for rental by paying guests on www.airbnb.com as a 2 bedroom, one and a half bedroom vacation rental accommodating up to 5 persons.
-
9.3 In or about 2015 … Natalie Olivia Sandiford-submitted an application to the Chief Town Planner seeking planning permission numbered ref: 1250/08/2015C for a development of the Plombagine Cottage (“the application for development”).
-
9.4 On or before June 1, 2017, the First Respondent referred the application for development to the Respondent for decision pursuant to section 18 of the Act.
-
9.5 In or around June 1, 2017 the Second Respondent granted planning permission for the said development (“the decision).
-
9.6 The owners of the Plombagine Cottage commenced construction works ostensibly in accordance with the said decision. These works included the renovations and addition to the Plombagine Cottage and an “extension” of the said Cottage (“the development”) to include and ground and first floor extension to the South of the Cottage.
-
9.7 The Second Respondent failed to take account of relevant information because this information was not before him. The application for planning permission appears by the particulars entered in the register of applications to be one for an extension of the Cottage. In reality, this has transpired to be a total misrepresentation of facts to the Chief Town Planner as the construction has progressed to include a second storey (first floor) to the existing cottage as well as an entirely separate building almost of equivalent size to the Cottage to the South of the lot, also two storeys high - not an extension as represented to the Second Respondent.
The claimant has filed two affidavits on which he relies. Both were sworn by Mr. William Robert Bain who deposed that he is a Chartered Town Planner and Mr. Saner's consultant. Mr. George Browne who deposed to being the Acting Chief Town Planner filed an affidavit on behalf of the Chief Town Planner. Mr. Timothy Maynard, Permanent Secretary in the Minister's Office filed one on behalf of the Minister. Ms. Pamela Sandiford also filed an affidavit on behalf of Ms. Natalie Sandiford. It is convenient to detail one aspect of the evidence at this stage. I will come back to the remainder in due course.
Ms. Natalie Sandiford's Application to the Chief Town Planner (“the Planning Application”) and the Permission have been exhibited with the affidavit of Mr. George Browne and that of Ms. Pamela Sandiford. Mr. Saner has not challenged the authenticity of these documents and indeed, all parties made submissions on the basis of them.
On page 1 of the Planning Application, Ms. Natalie Sandiford is expressed to make an application “for permission to carry out the development described hereunder and on the attached plans and drawings.” The plans and drawings referred to are not before me. These are among the documents to which the discovery application relates.
The Planning Application bears reference number 1250/08/2015C. At item 3 on page 2, the applicant is required to describe the proposed development including the purpose for which the land and/or buildings are to be used, and to give details if they are to be used for more than one purpose. In response to that directive, there appear the words “RENOVATION & ADDITION TO RESIDENCE”. At item 6, the applicant states “the purpose for which the land/and or buildings are now used” as “RESIDENTIAL”.
The Permission takes the form of a letter addressed to Ms. Natalie Sandiford and signed by Mr. Maynard. It is headed with the same reference number as the Planning Application and the words “Renovation and extension of a residence at Mount Standfast, St. James”. Its opening paragraph reads:
In accordance with Section 18 of the Town and Country Planning Act, Cap. 240, the Minister hereby grants planning permission, subject to the Conditions, Reasons and Informative Clauses stated hereunder, for the proposals contained in the Application No. 1250/08/2015 - Renovation and extension of a...
To continue reading
Request your trial