Kingston and St. Andrew Corporation v Ian Folkes, Collette Allegro Folkes & Andrew Willis

• Jurisdiction: Jamaica
• Judge: Mangatal J:
• Judgment Date: 18 December 2009
• Judgment citation (vLex): [2009] 12 JJC 1801
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. HCV 06057 OF 2008
• Date: 18 December 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 06057 OF 2008

BETWEEN

THE KINGSTON AND ST. ANDREW CORPORATION

CLAIMANT

AND

IAN FOLKES

1 ^ST DEFENDANT

AND

COLLETTE ALLEGRO FOLKES

2 ^ND DEFENDANT

AND

ANDREW WILLIS

3 ^RD DEFENDANT

IN CHAMBERS

CIVIL PROCEDURE - Fixed date claim form - Whether inappropriate - Whether substantial dispute as to fact

PLANNING LAW-TOWN COUNTRY PLANNING ACT, SECTION23B-INJUNCTTVE RELIEF-BUILDING ACT-CONSIDERATIONS FOR GRANT OF RELIEF UNDER S.23B - WHETHER ALTERNATIVE REMEDIES UNDER ACT, OR ANY OTHER ACT MUST BE EXHAUSTED PROCEDURAL LAW - WHETHER FIXED DATE CLAIM FORM INAPPROPRIATE-WHETHER SUBSTANTIAL DISPUTE AS TO FACT WHERE APPEAL TO MINISTER PROCEEDING WITH ONE PLANNING DECISION-WHETHER COURT SHOULD PROCEED WITH MERITS OF CASE FILED PRIOR TO DETERMINATION OF APPEAL

Mangatal J

1 The Claimant, the Kingston and Saint Andrew Corporation " the K.S.A.C.", is a corporation established under the Kingston and Saint Andrew Corporation Act. The Claimant is the local planning authority for the purposes of the Town and Country Planning Act, 1958 "the Planning Act."

2 By virtue of the Planning Act, it is necessary for persons seeking to develop land to apply to the K.S.A.C. for permission to develop the land in the manner desired.

3 Under the Kingston and Saint Andrew Building Act 1883, "the Building Act" the K.S.A.C. is established as the Building Authority. Every person who proposes to erect any building must submit accurate plans to the K.S.A.C. showing the land or site, and must obtain the written approval of the K.S.A.C.

4 The 1 ^st and 2 ^nd Defendants are the registered owners of premises located at 2 and 4 University Grove, Elleston Flats, Saint Andrew, being the lands comprised in Certificates of Title registered at Volume 1102 Folio 268 and Volume 1102 Folio 267 of the Register Book of Titles "the land". The land is located at the corner of Golding Avenue and University Grove in Elleston Flats.

5 On the 29 ^th of December 2008, the K.S.A.C. filed a Fixed Date Claim Form, which was subsequently amended to add the 3 ^rd Defendant, claiming an injunction pursuant to section 23B of the Town and Country Planning Act against the Defendants jointly and /or severally. The basis of the claim is that the Defendants have engaged in developments on the subject premises which are being carried out without obtaining permission from the K.S.A.C. as the Local Planning Authority and as the Building Authority.

6 The K.S.A.C.'s claim is for declarations and for injunctive relief under 23B of the Planning Act. The claim is for perpetual injunctions, both prohibitory and mandatory and the principal relief sought is as follows :

• 1. That it be declared that that the Defendants, their agents and /or servants have developed.....the land without obtaining planning permission from the Claimant.

• 2. That it be declared that the development of the land being carried out by the Defendants their agents and/or servants is unlawful.

• 3. That an injunction be granted immediately restraining the Defendants their agents and/or servants from carrying out any further development whether building engineering mining and/or other operations in on over or under the land.

• 4. That an injunction be granted immediately restraining the Defendants their agents and /or servants from carrying out works for the improvement, addition, modification and/or other alteration of any building on the land which works affect the exterior of the building and/or materially affect the external appearance of the building on the land.

• 5. That an injunction be granted immediately restraining the Defendants, their agents and/or servants from using and/or occupying the land, and/or from carrying out any activity on the land associated with the use and occupation of the land, and/ or from permitting the carrying out of any activity on the land associated with the use and occupation of the land until and unless approval is sought and obtained from the Claimant and the building is certifiably safe for use and occupation.

• 6. That an injunction be granted in relation to the land immediately, mandating the Defendants their agents and /or servants to:

  • a. pull down and/or demolish the unauthorized buildings or other operation in on over or under the land to the Claimant's satisfaction within seven(7) days from the date of such injunction.....

  • ......

7 When this matter came before me on the 22 ^nd April 2009, with the consent of the parties, and bearing in mind the urgent nature of the case, I fixed the substantive hearing of the Claim for the 1 ^st May 2009. I also required the parties to use their best efforts to meet by a certain date to discuss the matter and to see whether there were any amicable and cost-effective ways of resolving this case. On the 1 ^st of May I ordered that an interim injunction which had been first granted on the 15 ^th January 2009 in the K.S.A.C's favour, be continued until the determination of the claim. I did so without requiring any undertaking as to damages from the K.S.A.C. on the authority of Kirkless Metropolitan Borough Council v. Wickes Building Supplies Ltd. [1992] 3 All E.R. 717. As is quite common in relation to Planning Matters, the relevant facts have been dynamic and there have been a number of new factual developments and circumstances since the matter started. I will endeavour to summarize these matters as succinctly as possible.

8 On the 1 ^st of May when the matter arose for substantive hearing, I took the view that one of the points being made on behalf of the Defendants was really in the nature of a preliminary point, and ought to be dealt with first. It was Mr. Philpotts-Brown's contention that these proceedings were incorrectly brought by way of Fixed Date Claim Form as they involve substantial disputes as to fact. Reference was made to Rule 8.1(4)(d) of the Civil Procedure Rules 2002, which states:

8.1 (4) Form 2 (fixed date claim form) must be used-

...(d) where the claimant seeks the court's decision on a question which is unlikely to involve a substantial dispute as to fact.....

Mr. Philpotts-Brown submitted that the Affidavits filed by the different parties reveal and raise several issues of fact which he submitted are substantial..

My ruling was that this case is one which was not likely to involve a substantial dispute as to fact. The application is made pursuant to section 23 B. of the Planning Act and the main question is whether the Court considers it appropriate to grant an injunction for the purpose of restraining breach. Whilst there may be disputes as to fact involved in this case, in my judgment they do not constitute or affect the main question. That issue does not itself involve a substantial dispute as to fact. I therefore refused the application to strike out the Fixed Date Claim and ordered that the substantive hearing proceed. I found certain dicta in the English Court of Appeal case of London Borough of Croydon v. Gladden and Another (1994) 68 P. & C.R. 300 useful. In considering an application for an injunction under section 187 B of the U.K. Town and Country Planning Act 1990, which is in terms similar to our section 23 B where the local council had commenced the action by Writ of Summons, Lord Hobhouse at page 307 stated:

First of all, in view of the terms of section 187B, it is desirable that the procedure adopted by plaintiff councils should be one which enables the substantive application to be heard by the court at as early a date as possible.

They may wish to consider whether proceeding by way of action commenced by writ is the suitable procedure. It is liable to give rise to the situation which we have in the present case, and the procedural complications which then ensue.

I share Lord Hobhouse's views as to the desirability of matters such as the instant case being heard at the earliest date possible. This is in the interest not just of the K.S.A.C. and the public, but also the Defendants as well.

9 In the First Affidavit of Andrene McLaren, the K.S.A.C.'s Director of Planning, filed December 29 2008, Miss McLaren states that the residents of the Golding Avenue and University Grove community have expressed their concern about developments and building operations being carried on by the Defendants on the land. The K.S.A.C. received notification of these concerns in an (undated) letter on the 5 ^th March 2008. This letter stated that the "three-storey building.....consists of approximately thirty-two rooms(32)".

10 According to Miss McLaren, the K.S.A.C conducted a site inspection and observed that the land contains a three-storey multifamily building with a residential appearance. The building was at an advanced stage of construction. The community is characterized by mainly single storey, single family residential homes, and there are approximately four(4) two (2) storey, single family homes within the vicinity of the land. There is no other three-storey or multi-family building in the community. The rear and side boundaries of the building are erected approximately three(3) and four(4) feet from Golding Avenue and University Grove respectively.

11 Searches carried out at the office of the K.S.A.C. have revealed that no application has been made for planning permission or building approval, and that no permission has been granted by the Claimant for the development carried out by the Defendants.

12 On the 10 ^th of March 2008, K.S.A.C. caused a Cease Work Notice to be served under the Building Act in relation to the unauthorized construction taking place on the land. The Notice instructed that work on the building must cease as it is in contravention of the Building Act. It also notified of liability to prosecution.

13 On the 25 ^th of March 2008, the K.S.A.C. conducted a further site inspection where it was observed that...