Ashton Evelyn Pitt v The Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: Straw,Shelly-Williams JJ,Bertram-Linton J,Straw J
• Judgment Date: 17 December 2018
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2017 HCV 01798
• Date: 17 December 2018

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CONSTITUTIONAL DIVISION

BEFORE:

The Hon. Ms Justice Jennifer Straw

The Hon. Mrs Justice Lorna Shelly-Williams

The Hon. Mrs Justice Sonia Bertram-Linton

CLAIM NO. 2017 HCV 01798

IN THE MATTER OF an Application for Judicial Review

IN THE MATTER OF sections 13(3)(g), 13(3)(h), 13(3)(j)(ii), 13(3)(l) and 13(3)(q) of the Constitution of Jamaica

Between

Ashton Evelyn Pitt

Claimant

and

The Attorney General of Jamaica

1 ^st Defendant

and

The Westmoreland Municipal Corporation

2 ^nd Defendant

and

The National Environmental And Planning Agency

3 ^rd Defendant

and

The Natural Resources Conservation Authority

4 ^th Defendant

and

The Town And Country Planning Authority

5 ^th Defendant

and

Hubert Williams

6 ^th Defendant

and

Andrew Williams

7 ^th Defendant

IN OPEN COURT

Mr Ian G. Wilkinson QC and Mr Lenroy Stewart instructed by Wilkinson Law for the Claimant

Ms Althea Jarrett and Mr Andre Moulton instructed by the Director of State Proceedings for the 1 ^st, 3 ^rd, 4 ^th and 5 ^th Defendants

Ms Mojorn Wallock and Ms Deborah Lee-Shung watching proceedings on behalf of the 3 ^rd, 4 ^th and 5 ^th Defendants

Mr Canute Brown instructed by Brown, Godfrey & Morgan for the 2 ^nd Defendant

Mrs Jeneive Sabdul-Williams for the 6 ^th and 7 ^th Defendants

Straw and Shelly-Williams JJ (majority decision)

Background

1 The claimant, Mr Ashton Pitt, seeks to challenge the decisions made by the 4 ^th and 5 ^th defendants on the 15 ^th of March 2016. The 4 ^th defendant, the Natural Resources Conservation Authority (‘NRCA’) approved Environmental Permits 2015– 10017-EP00217 and 2016– 10017-EP00012 in favour of the 7 ^th defendant, Mr Andrew Williams, which would allow him to construct and operate a petroleum storage and dispensing facility as well as a block manufacturing facility. The 5 ^th defendant, the Town and Country Planning Authority (‘TCPA’), approved Planning Permit 2015– 10010-BA00159 which was in reference to general industry {use class 7}.

2 It should be noted that all three of these permits were granted with stipulated conditions and were issued on the 6 ^th of March 2017, almost a year after the decisions were taken.

The Parties

3 The claimant, Mr Pitt, is a resident in the community of Farm Pen, Llandilo which is located in the parish of Westmoreland. He is the registered proprietor of three parcels of land which adjoin the 6 ^th defendant's property where the proposed development will take place.

4 The 1 ^st defendant, the Attorney-General, is the legal advisor to the Government of Jamaica and is joined pursuant to the Crown Proceedings Act and also having regard to the fact that the instant matter raises constitutional issues.

5 The 2 ^nd defendant, the Westmoreland Municipal Corporation (‘WMC’) is a statutory body of elected Councillors and is the local authority having responsibility for the parish of Westmoreland with, among other things, the authority to consider and grant development applications.

6 The 3 ^rd defendant, the National Environmental Planning Agency (‘NEPA’), an Executive Agency of the Government established under the Executive Agencies Act to provide technical and administrative support to three statutory bodies including the 4 ^th and 5 ^th defendants, the Natural Resources Conservation Authority and the Town and Country Planning Authority, respectively. NEPA is not an incorporated body.

7 The 4 ^th defendant, the Natural Resources Conservation Authority (‘NRCA’), is the statutory body, established under the Natural Resources Conservation Authority Act. The NRCA is empowered to inter alia grant environmental permits and licences for enterprise, construction or development in prescribed areas.

8 The 5 ^th defendant, the Town and Country Planning Authority (‘TCPA’) is the statutory body established under the Town and Country Planning Act. The TCPA is empowered to inter alia take decisions, grant approvals and make recommendations for orderly development and planning permission.

9 The 6 ^th defendant, Mr Hubert Williams, is the owner of land by virtue of a Deed of Indenture dated the 3 ^rd of July 1970, in respect of the property for which the permits were granted and issued. The 7 ^th defendant, Mr Andrew Williams, is the son of Mr Hubert Williams and is the person who made the applications for the environmental and planning permits to pursue and implement the development.

The Farm Pen Community

10 The Farm Pen community where the properties concerned are located, is described by the claimant as a primarily residential and farming community. The claimant's contention is supported by restrictions contained in the relevant Certificates of Title/registered Deeds of Indenture and encumbrances which restrict the use of the lands to residential use and the use and enjoyment of land for the benefit of other lands. It is stated in the second schedule of Mr Hubert Williams' Deed, at paragraph 2, that:

“No school house, chapel, meeting house, or tenement house and no shop or other place for the carrying on of any trade or business of whatsoever nature or kind is to be erected on the said Lot or any part thereof'.

A similar statement is contained as an incumbrance on the claimant's titles.

11 It is however noted that development is guided by the Town and Country Planning (Westmoreland Parish) Development Order (Confirmed), 1978 1. Based on this Order, NEPA (through its unit, the Development Assistance Committee) took the view that the proposed site for the development was not zoned for any specific use and as such there were no zoning restrictions on the

type of development that could be allowed. Pursuant to the said Order 2, applications for developments in unzoned areas are to be given individual considerations.

The Development

12 Mr Andrew Williams' development is classified as general industry (use class 7) and will operate as a LPG refilling station and Block Factory (per 2015–10010—BA00159 Planning Permission).

13 The development is considered to be a light industry by the officers of NEPA. Light industry is defined in NEPA's Development and Investment Manual as follows:

“These are industries in which the process carried on is not detrimental to the amenity of an area by reason of noise, fumes, smell, traffic generation. Light industrial use involves the manufacture of food, beverages, printing and publishing, electronic equipment, optical equipment, watches, clocks and jewellery. Development for warehousing have similar development standards as for light industry under which land use category it falls.”

Chronology

14 For clarity and ease of comprehension, the series of events, over a four-year period, which gave rise to the case at bar are set out and annexed to this judgment.

Relief being sought

15 The claimant is seeking the following:

• I. A Declaration that the Second, Third, Fourth and Fifth Defendants, or either of them, acted irrationally and improperly in issuing the said permits to the Seventh Defendant to operate one LPG refilling station and a block factory at, or on, land located at part of Llandilo, Westmoreland;

• II. A Declaration that in issuing the relevant permits the Second, Third, Fourth and Fifth Defendants, or either of them, breached the Claimant's rights to which he is entitled pursuant to sections 13(3)(g); 13(3)(h); 13(3)(j)(ii); 13(3)(l) and 13(3)(q), respectively, of Chapter III of the Jamaican Constitution;

• III. A Declaration that the Second, Third, Fourth and Fifth Defendants, or either of them, acted ultra vires in issuing the said permits to the Seventh Defendant in breach of the relevant development order for Savanna-la-Mar in the parish of Westmoreland;

• IV. A Declaration that in issuing the said permits the Second, Third, Fourth and Fifth Defendants, or either of them, acted in breach of Policy UE5 of the Emerging Order in respect of Savanna-la-Mar in the parish of Westmoreland;

• V. A Declaration that in issuing the said permits the Second, Third, Fourth and Fifth Defendants, or either of them, acted in breach of Policy UE7 of the Emerging Order in respect of Savanna-la-Mar in the parish of Westmoreland;

• VI. A Declaration that in failing to provide an avenue by which a person other than the applicant for planning permission aggrieved by the decision of the second Defendant or the Fifth Defendant may appeal, the Town and Country Planning Act breached the unconstitutional [sic];

• VII. A Declaration that the Second, Third, Fourth and Fifth Defendants took into account irrelevant considerations, or failed to take into account relevant considerations in issuing the said permits to the Seventh Defendant;

• VIII. A Declaration that in the instant case, the Second, Third, Fourth and Fifth Defendants, erred in the application of the law in relation to the issuing of the relevant permits to the Seventh Defendant;

• IX. A Declaration that the failure of the Second Defendant, or either of the Third, Fourth and Fifth Defendants, to respond to the Claimant's letter of objection resulted in a breach of the Claimant's right to fair and humane treatment by a public authority;

• X. A Declaration that the Second, Third, Fourth and Fifth Defendants, erred in failing to give the Claimant an opportunity to be heard in respect of the issuing of the relevant permits after they were made aware of the Claimant's letter of objection;

• XI. A Declaration that the Second, Third, Fourth and Fifth Defendants, erred in failing to request an environmental impact assessment from the Seventh Defendant;

• XII. A Declaration that the Second, Third, Fourth and Fifth Defendants, in making their decision, failed to take into consideration the relevant covenants contained in the Certificate of Title for ALL THAT parcel of land Part of LLANDILO PEN in the parish of Westmoreland containing by survey One Acre Two Roads Twelve Perches and Seven —tenths of a perch and being all the land...