Kingston & St. Andrew Corporation v Auburn Court Ltd et Al
| Jurisdiction | Jamaica |
| Judge | Kerr, J.A.,White, J.A.,Wright, J.A. |
| Judgment Date | 25 March 1988 |
| Neutral Citation | JM 1988 CA 48 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | Civil Appeal No. 67 of 1987 |
| Date | 25 March 1988 |
Court of Appeal
Kerr, J.A.; White, J.A.; Wright, J.A.
Civil Appeal No. 67 of 1987
Mr. C.M. Daley and Leon Green for the appellant.
Mr. Gordon Robinson for respondent.
Statute - Kingston and St Andrew Building Act, Part II, section 5 — Provisions for alteration and additions to existing structures — Section 10 — Provision for submission of plans and essentials to be met before approval to be granted.
Administrative law - Grant of building permission by corporation — Respondents building in contravention of approved plan — Summons by corporation — Interim injunction — Locus standing of corporation — Whether corporation entitled to bring action — Judgment for respondents — Appeal by corporation — Whether trial judge erred in finding that corporation had no locus standi and that Attorney — General was a necessary party to proceedings — Finding that means of redress was by summary proceedings in Magistrate's court or by relator action by Attorney — General — Appeal dismissed.
Statute - Town and Country Planning Act — Construction to conform with approved planning permission.
This is an appeal from the judgment and order of Patterson, J. striking out the plaintiff's/appellant's action with costs to the respondents. On February 11th, we reserved judgment and the interim injunction was extended then and subsequently to March 11th 1988 with the promise of an early judgment.
By section 5 of the Kingston and Saint Andrew Corporation Act, the appellant (K.S.A.C.) was declared a municipal corporation of the inhabitants of the parishes of Kingston and Saint Andrew. The Corporation is by virtue of the Kingston and Saint Andrew Building Act, the building authority for this corporate area (save if and when the Minister in the exercise of powers conferred by the Act decrees otherwise) and by section 2. of the Town and Country Planning Act, the local planning authority for the same area. On December 1983, the first respondent sought and was granted permission by the K.S.A.C. to construct an office building on Lot 165 and 166 Trinidad Terrace, New Kingston in the parish of Kingston. The plans, as approved then, limited the building to three floors above the ground flour. A subsequent application to amend the plan and seeking approval for the addition of other stories was refused. Notwithstanding, the appellant avers that the Respondents erected a building in contravention of the approved plan and despite notices from the K.S.A.C. to halt, construction continued. On the basis of this alleged flagrant breach and flouting of the Building and Town Planning Acts, the K.S.A.C, by Writ of Summons brought an action against the respondents for erecting and extending the building otherwise than in conformity with the plans and specifications approved by the Building end Town Planning Committee and seeking an injunction to restrain the Respondents, their Servants or Agents from continuing construction or entering into occupation of the said building.
On March 21st, 1905, an ex parte interim injunction was granted as prayed was extended end amended at the instance of the respondents and now in its operative parts reads:
“…and upon the plaintiff undertaking through its attorneys-at-law to abide by any order which the Court may make in respect of any damages suffered by the defendants by reason of this order, IT IS HEREBY ORDERED that– an Interim Injunction be granted restraining the defendants –
1. by themselves their servants or agents or otherwise from erecting or extending or procuring the erection or extension of any building or structure at or on lands known as Lot 165 and or Lot 166 Trinidad Terrace otherwise then in accordance with the plans and specifications approved by the Building & Town Planning Committee of the Kingston & St. Andrew Corporation save and except that the defendants are permitted whether by themselves their servants or agents to enter Into and upon the basement parking area and the first three storeys of the said building for which planning approval exists in order to continue construction on the said area and to complete same.
2. by themselves their servants or agents or otherwise from entering inter occupation of the said building or from causing or permitting the said building to be occupied whether by their tenants licensees or otherwise howsoever unless and until the said building be made to conform with the plans and specifications aforesaid.”
The pleadings having been closed both sides made preliminary moves, the K.S.A.C. attacking the genuineness or reality of the defence; the respondents, the locus standi of the K.S.A.C.
The respondents' preliminary point which found favour with Patterson, J. and with which this appeal is conceived reads:
“The plaintiff has no locus standi to apply for the remedies sought as:–
(a) The plaintiff has no private legal right which it is purporting to protect by the remedies sought; and
(b) the breach alleged on the defendants' part is a breach of a Public Right and the only person able to enforce such a right is the Attorney General and not the plaintiff.”
The judgment in favour of the respondents, on appeal was challenged on the following grounds –
“The learned trial judge erred in law in his finding that the Kingston, St. Andrew Corporation had no locus standi in the suit brought against the defendants, suing as they did without the Attorney General being a party to the proceedings.
The learned trial judge erred in low In finding that the Attorney General I was a necessary party to the proceedings.
The learned trial judge erred in law in holding “that the Kingston & St. Andrew Building Act is supplemental to the Town & Country Planning Acts and together, they protect the: public at large against the infringement of public rights.”
The learned trial judge in a written judgment reviewed the arguments presented by either side, considered and referred to a number of authorities and the relevant statutory provisions in the K.S.A.C. Act, the K.S.A.C. Building Act, the Town and Country Planning Act and concluded thus:–
“It is plain that the Kingston & St. Andrew Building Act is supplemental to the Town & Country Planning Act, and together, they protect the public at large against the infringement of public rights. They do “not confer any private rights on either the Town & Country Planning Authority or the Building Authority. The remedy for a breach of the nature complained of by the plaintiffs in this action is plainly set out in S 10(2) of the Kingston & St. Andrew Building Act, but in my view, that is not the only remedy available where there has been a branch. The Court has jurisdiction in an appropriate, case to grant an injunction at the relation of the Attorney General for the enforcement of a public right or where a public right has been infringed, although that right was conferred by a statute that prescribed remedies for its infringement. (Attorney-General (on the relation of Hornchurch Urban District Council) v. Bastow [1957] All E.R. 497 followed”
Then went on: “The question arises then, who is it that is entitled in the instant case to invoke the Court's equitable jurisdiction? Can the Kingston & St, Andrew Corporation sue in its own name, or must it bring a relator action?”
and in pursuit of an answer to this question accepted the statement, of the law as set out in Halsbury Laws of England 4th Edition — Volume 37 #230 and 231 and continued – “There are exceptions to the rule to relator actions, as set out at para. 231 of the said volume mentioned above, which reads as follows:
“The Attorney General is not at necessary party nor is his leave required to bring an action at his relation to enforce the performance of a public duty or to restrain the interference with a public right in the following circumstances:
(1) where the interference with the public right is at the same time an interference with some private right or is a breach of some statutory provision for the protection of the plaintiff;
(2) where the special damage suffered by the plaintiff is over and above that suffered by the general public, even though there is no interference with any special private right;
(3) where a local authority considers the bringing of the action to be expedient for the promotion or protection of the interests of the inhabitants of its area.”
“The plaintiff have submitted that the third exception mentioned above is of general application in any event, they fall within that exception in that the relief sought by the plaintiff is for the protection of the inhabitants of its area, namely, the parishes of Kingston & St. Andrew. I do not agree. This exception came about by special legislation in England, viz, S 222 of the Local Government Act, 1972, and before that, only the first two exceptions were known to the law. There is no legislation in Jamaica comparable to s.222 of the Local Government Act, 1972, and the third exception (supra) is not applicable to Jamaica. the pleadings in this action do not it within the first or second exceptions, in my view, and accordingly, I hold that the Attorney General is a necessary party to this action is seeking to restrain infringements of public rights. The Attorney General may sue ex officio or ex relatione. In that event, the plaintiffs have no locus standi suing as they did, and the action must be struck out.”
In support of the grounds of appeal Mr. Daley submitted that while the Attorney-General as parens patriae in general is the only competent authority to bring an action to protect public rights, be is not a necessary party or even the proper party in certain exceptional cases, example, where the action is brought to protect or redress an injury to a right of property. He submitted that in the instant case, the Building Act...
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