Michael Young v Kingston and St Andrew

• Jurisdiction: Jamaica
• Judge: G. Fraser, J
• Judgment Date: 17 December 2020
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2018 HCV 02439
• Date: 17 December 2020

[2020] JMSC Civ 251

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2018 HCV 02439

Between

Michael Young

1 ^st Claimant

Jacqueline Young

2 ^nd Claimant

Anjule McLean

3 ^rd Claimant

Delroy McLean

4 ^th Claimant

Joy Patel

5 ^th Claimant

Naran Patel

6 ^th Claimant

Marlyn Grindley

7 ^th Claimant

Errol Thomas

8 ^th Claimant

Sanya Goffe

9 ^th Claimant

Gavin Goffe

10 ^th Claimant

and

Kingston and St Andrew

1 ^st Defendant

Municipal Corporation

and

National Environmental and Planning Agency

2 ^nd Defendant

and

Natural Resources Conservation Auhtority

3 ^rd Defendant

and

WAMH Development Limited

Affected Party

Mr Gavin Goffe and Mr Adrian Cotterell instructed by Myers, Fletcher and Gordon, Attorneys-at-Law for the Claimants.

Ms Sashawah Newby and Mr Patrick Peterkin instructed by Bennett & Beecher-Bravo and Company, Attorneys-at-Law for the 1 ^st Defendant.

Mrs Susan Reid-Jones and Mr Andre Moulton instructed by the Director of State Proceedings for the 2 ^nd and 3 ^rd Defendants.

Mrs Daniella Gentles-Silvera and Ms Sidia Smith instructed by Livingston, Alexander and Levy, Attorneys-at-Law for the Affected Party.

Judicial Review — Whether the Claimants have locus standi to seek the relief sought in the claim — Whether the relevant Authorities acted ultra vires their statutory powers

Statutory Intepretation — Legitimate Expectation — Lack of consultation by Authority before decision made — Town and Country Planning Act — Natural Resources Conservation Authority Act — 1966 Town and Country Planning (Kingston) Development Order — 2017 Town and Country Planning (Kingston and Saint Andrew and Pedro Cays) Provisional Development Order

IN OPEN COURT

CORAM: G. Fraser, J

The Parties

1 The claimants are residents and/or registered proprietors of properties situated at Birdsucker Drive and Lloyds Close, and are neighbouring the premises on which the disputed four-storey multi-family complex has been constructed by WAMH Development Limited. The claimants contend that the development is in breach of the Town and Country Planning Act (‘TCPA’) and the 2017 Town and Country Planning (Kingston and Saint Andrew and Pedro Cays) Provisional Development Order.

2 The 1 ^st defendant is the Kingston & St. Andrew Municipal Corporation (‘KSAMC’) which is the local planning authority for Kingston and St. Andrew and which has responsibility to enforce planning laws and regulations within its jurisdiction.

3 The 2 ^nd defendant is the National Environment and Planning Agency (‘NEPA’); an executive agency actuated under the Executive Agencies Act. NEPA has the responsibility to carry out the technical and administrative mandate of three statutory bodies, namely the Natural Resources and Conservation Authority, the Town and Country Planning Authority and the Land Development and Utilisation Commission (‘LDUC’). Accordingly, NEPA's mandate is to promote sustainable development by ensuring protection of the environment and orderly development in Jamaica. The Agency is to ensure that, “Jamaica's natural resources are being used in a sustainable way and that there is broad understanding of environment, planning and development issues, with extensive participation amongst citizens and a high level of compliance to relevant legislation” 1. In accordance with their legislative authority, NEPA operates under the following statutes:

• I. The Executive Agencies Act;

• II. The Natural Resources Conservation Authority Act;

• III. The Town and Country Planning Act;

• IV. The Land Development and Utilization Act; V. The Beach Control Act;

• VI. The Watersheds Protection Act;

• VII. The Wild life Protection Act; and

• VIII. Endangered Species (Protection, Conservation and Regulation of Trade) Act .

4 The 3 ^rd defendant is the Natural Resources and Conservation Authority (‘NRCA’); which was established to, amongst other things, take steps which are necessary for the effective management of Jamaica's physical environment so as to ensure the conservation, protection and proper use of its natural resources. Their mission is, “ [t]he monitoring and protection of our environment is important, not just for us but for future generations”. 2

5 The Party Directly Affected is WAMH Development Limited (“WAMH”) which is the registered proprietor of the premises on which the apartment complex is being built and the developer of the said apartment complex.

Background

6 By way of a Fixed Date Claim Form, filed on 20 ^th July 2018, the claimants seek to challenge the decisions made by the KSAMC, NEPA and NRCA in granting planning/building approval and an environmental permit respectively to WAMH. WAMH constructed a four-storey, multi-family development comprising of 12 one-bedroom units at 17 Birdsucker Drive, Kingston 8, St. Andrew (“the premises”).

7 The premises were previously owned by M&M Jamaica Limited (‘M&M’). Whilst M&M was the registered proprietor of the premises they had sought and obtained

on 27 ^th June 2016, approval to construct a multi-family residential development consisting of twelve (12) studio apartments on a single two-storey building. An environmental permit was also obtained by M&M in relation to that construction proposal. Subsequently, the premises was sold and transferred to WAMH on 16 ^th January 2018 and a second application was made to the KSAMC and their approval sought for the construction of twelve (12) one bedroom units on a single three-storey building on the premises

8 This second application was made by WAMH and treated by the KSAMC as an amendment to the 2016 application made by M&M. At the time of the 2016 application, the maximum permissible density was 30 habitable rooms per acre as prescribed in the 1966 Town and Country Planning (Kingston) Development Order (‘ the 1966 Development Order’). The density was increased to 50 habitable rooms per acre under the 2017 Town and Country Planning (Kingston and Saint Andrew and Pedro Cays) Provisional Development Order (‘ the 2017 Provisional Development Order’). There is a dispute amongst the parties as to whether this latter Order was in effect at the material time and consequently whether it was a relevant consideration for the defendants when they issued their permits to WAMH.

9 The second planning/building approval, was granted to WAMH in December 2017, prior to the commencement of the construction process. The grant of the environmental permit was however, not issued until May 2018, after the building process was well underway. Moreover, it was not until May 2018, following a site warning notice and a cessation order issued by NEPA, that WAMH applied for and obtained an environmental permit and licences.

The Claim

10 The claimants being dissatisfied with the decisions of the KSAMC and NEPA to grant the relevant permits to WAMH, filed an ex-parte application for leave to apply for judicial review on 27 ^th June 2018. On the 9 ^th July 2018, the application for leave to apply for judicial review was heard and the applicants were granted leave to apply for judicial review.

Relief Being Sought

11 Subsequent to the granting of the court's orders, on the 20 ^th July, 2018 the claimants filed a Fixed Date Claim Form and Particulars of Claim seeking the following reliefs:

• “I. An order of certiorari to quash the 1 ^st Defendant's approval to construct a three-storey multifamily development consisting of twelve one-bedroom units at 17 Birdsucker Drive, Kingston 8 in the parish of Saint Andrew.

• II. An order of certiorari to quash the 2 ^nd Defendant's grant of an environmental permit to WAMH Development Limited in connection with a proposed three storey multifamily development consisting of twelve one-bedroom units at 17 Birdsucker Drive, Kingston 8 in the parish of Saint Andrew.

• III. An order of mandamus to compel the Defendants to take steps to halt all construction at 17 Birdsucker Drive, Kingston 8 in the parish of Saint Andrew that is in breach of any laws, regulations or orders over which they have jurisdiction.

• IV. Costs to be costs in the claim.”

12 In August 2018, the claimants applied for an interlocutory injunction “to halt the construction of a development at 17 Birdsucker Drive, Kingston 8, in the parish of Saint Andrew being undertaken by the 4 ^th Respondent [WAMH] pursuant to an illegally granted building permit and environmental permit by the 1 ^st and 2 ^nd and/or 3 ^rd Respondent respectively”. The claimants' application for injunctive relief was unsuccessful. However, KSAMC halted construction at the premises, but they did not revoke the building permission that is the subject matter of this claim. Similarly, the NRCA did not revoke the environmental permit and licences issued under their authority. Consequently, the construction process continued.

Tne Case for the Claimants

13 In support of its case the claimants relied on the several affidavits filed by and on their behalf and various attachments exhibited thereto. Due to the number of affidavits that were presented in this case, this court, as a matter of convenience and economy has elected to reproduce some portions of the evidence from the affidavits in the analaysis of this judgment rather than under this heading. This however, is not an indication that the court has neglected to consider any portion of the claimants' evidence.

The Grounds

14 The claimants have contended that the building permission granted by KSAMC and the environmental permit granted by the NRCA are susceptible to judicial review for the following reasons:

• “1. The building approval granted by the 1 ^st Defendant was done in breach of the Natural Resources Conservation Authority Act and the Town and Country Planning Authority Act which require an environmental permit to be issued prior to consideration by the 1 ^st Defendant.

• 2. The building approval granted by the 1 ^st Defendant and the Enviornmental Permit issued by the...