Auburn Court Ltd v Kingston and Saint Andrew Corporation

• Jurisdiction: Jamaica
• Judge: DOWNER. J.A.(Dissenting) , HARRISON, J.A.: , PANTON, J.A.: , DOWNER, J.A:
• Judgment Date: 31 July 2001
• Neutral Citation: JM 2001 CA 38
• Judgment citation (vLex): [2001] 7 JJC 3111
• Court: Court of Appeal (Jamaica)
• Date: 31 July 2001

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE PANTON, J.A

SUIT NOS. Ml01 and 102 of 1996

BETWEEN:

AUBURN COURT LTD.

APPELLANT

AND:

THE KINGSTON & ST ANDREW CORPORATION THE BUILDING SURVEYOR

1 ^ST RESPONDENT

AND:

THE TOWN & COUNTRY PLANNING AUTHORITY - THE GOVERNMENT TOWN PLANNER

2 ^ND RESPONDENT

Rudolph Francis and Richard Rowe for the Appellant

Lennox Campbell, Q.C. Deputy Solicitor-General and Susan Reid-Jones Crown Counsel instructed by the Director of State Proceedings for the respondents

JUDICIAL REVIEW - Building permission - Certiorari and Prohibition - Orders sought by appellant to quash notice of respondents - Town and Country Planning Act, s, 23A - Kingston & St. Andrew Building Act, s. 10

DOWNER. J.A.(Dissenting)

1 PART I

2 Are the two enforcement notices and the irregularity notice valid?

3 This important consolidated appeal seeks to set aside the order of the Full Court (Wolfe C.J., Ellis and Clarice JJ) which on 16 ^th May 1997, dismissed two motions M 101 and M 102 of 1996. Auburn Court Ltd. (the "appellant) had sought orders of certiorari and prohibition against the Kingston & St. Andrew Corporation and its Building Surveyor, and the Town and Country Planning Authority, and its Town Planner. The reasons were delivered on February 16, 1998.

4 Before the orders were sought in the Supreme Court, a notice of appeal was lodged against the enforcement notice of August 22, 1996 with the Appeal Tribunal established by section 23A of the Town and Country Planning Act (the "Act")but this appeal was discontinued. Also discontinued was an appeal to the Chief Technical Director, the tribunal of appeal, against the decision of the K.S.A.C. not to approve the building plans, submitted by the appellant. This latter appeal was made permissible by sec. 10(2) the Kingston and St. Andrew Building Act (the "Building Act")which reads:

"(2) Every person who shall erect, or begin to erect or re-erect, or extend, or cause or procure the erection, re-erection or extension of any such building or any part thereof, without previously obtaining the written approval of the Building Authority; or, in case of dispute, of the tribunal of appeal , or otherwise than in conformity with such approval; and every builder or other person who shall, in the erection, re-erection or extension of any such building or part thereof deviate from the plan approved by the Building Authority; or, in the case of detailed or working drawings, by the Surveyor or the tribunal of appeal, shall be guilty of an offence against this Act, and liable to a penalty not exceeding fifty thousand dollars, besides being ordered by the Court to take down the said building or part thereof, or to alter the same in such way as the Surveyor shall direct, so as to make it in conformity with the approval of the Building Authority or the tribunal of appeal." [Emphasis supplied]

5 This failure to appeal to the Chief Technical Director was regrettable in some ways, as there were conflicts in the evidence of the parties which would have been better resolved by the Tribunal having heard oral evidence, with the attendant cross-examination. Instead, there was resort to judicial review with affidavit evidence, without recourse to any cross-examination. However, if the crucial issues can be solved by the true construction of statutes and the relevant notices, then the unresolved conflicts in the evidence will be of little moment to the outcome.

6 This appeal before us has had a chequered career. It was first heard by (Forte P., Bingham and Walker JJA) in 1999, over six days and dismissed with costs for want of prosecution. It was subsequently relisted and heard over seven days last year. It was the first of a series of exceptionally long and complex cases heard during that year. Priorities had to be established, as some of these cases were interlocutory appeals, which required immediate attention. So cases which were first in time were not necessarily first in time in the delivery of judgments.

7 Another problem with this case, was that leading counsel for the appellant in the Court below was Dr. Lloyd Barnett. In the aborted appeal Mr. Berthan Macaulay Q.C. led for the appellant. The constant factor was Mr. Rudolph Francis who was the instructing attorney-at-law below. It was he who presented the arguments in this appeal. He combined the arguments presented at the previous hearings with a cogent, yet hesitant and rambling submission on the validity of two enforcement notices, and the notice of irregularity. The dates of these notices are important. The first in time was the enforcement notice issued pursuant to section 23 of the Act. The date of issue was 29 ^th April, 1996. The second was the irregularity notice issued pursuant to section 38 of the Building Act. The date of issue was 30 ^th May 1996. The third, an enforcement notice, was issued pursuant to the Act on 22 ^nd August, 1996. The first and second notices were issued by the Kingston and St. Andrew Corporation, (The "Building Authority"), the first respondent. The third notice was issued by the Government Town Planner, the second respondent.

8 Was the enforcement notice OF 29 ^th April, 1996 issued by the Local Planning Authority valid?

9 Arnold White is the Deputy Building Surveyor of the Kingston and St. Andrew Corporation. His affidavit in so far as is relevant runs thus at page 72 of the record:

"3. That every person proposing to erect or to extend any building in Kingston and St. Andrew is required to give prior notice to the KSAC the Council of which constitutes the Building Authority pursuant to the Kingston and St. Andrew Building Act and also the Local Planning Authority pursuant to the Town and Country Planning Act."

10 Then as regards the enforcement notice issued by the Kingston and St. Andrew Corporation in its capacity as Local Planning Authority he said:

"26. That on the 29 ^th April, 1996 I issued an Enforcement Notice on behalf of the Chairman of the Local Planning Authority which notice prohibited Auburn Court Limited from continuing or carrying out any development or operation or using the land at 15 South Avenue and also required the Company to restore the land to its condition before the development took place. There is now produced and shown to me marked "AW 2" for identification a copy of that Notice."

11 Section 23 of the Act is important. It provides for the issuance of an enforcement notice, if it appears to the local planning authority that there has been development without the requisite permission. Here is section 23(1) of the Act which addresses the issue:

"If it appears to the local planning authority, the Government Town Planner or the Authority that any development of land has been carried out after the coming into operation of a development order relating to such land without grant of permission required in that behalf under Part III, or that any conditions subject to which such permission was granted in respect of any development have not been complied with, then subject to any directions given by the Minister, the local planning authority, the Government Town Planner or the Authority may within five years of such development being carried out , if they consider it expedient so to do having regard to the provisions of the development order and to any other material considerations, serve on the owner and occupier of the land and any person who carries out or takes steps to carry out any development of such land and any other person concerned in the preparation of the development plans or the management of the development or operations on such land, a notice under this section." (Emphasis supplied)

12 An important limitation on the power to issue an enforcement notice is that it must be issued within five years of the development for which no permission was granted, pursuant to Part III of the Act. Part III also deals with Contents and Effects of Development Orders. Section 10 in Part III is relevant to this case and in so far as material it reads:

"10.-(1) Every confirmed development order (hereafter in this Act called a "development order") shall -

(d) provide for the grant of permission for the development of land in the area to which the development order applies, and such permission may be granted -

• (i) in the case of any development specified in such order, or in the case of development of any class so specified, by the development order itself;

• (ii) in any other case by the local planning authority (or, in the cases hereinafter provided, by the Authority) on an application in that behalf made to the local planning authority, in accordance with the provisions of the development order."

13 Then section 23(2) in Part V of the Act is of vital importance. It states the obligatory provisions which must be included in the notice. The section reads:

"(2) Any notice served under this section (hereinafter called an "enforcement notice") shall specify the development which is alleged to have been carried out without the grant of permission as aforesaid or, as the case may be, the matters in respect of which it is alleged that any such conditions as aforesaid have not been complied with , and may require such steps as may be specified in the notice to be taken within such period as may be so specified for restoring the land to its condition before the development took place , or for securing compliance with the conditions, as the case may be, and in particular any such notice may, for the purpose aforesaid, require the demolition or alterations of any building or works, the discontinuance of any use of land, or the carrying out on land of any building or other operations and shall state that any person upon whom an enforcement notice is served is...