Sonia Smith v Donovan Mckenzie

• Jurisdiction: Jamaica
• Judge: O. Smith, J (Ag.)
• Judgment Date: 02 December 2022
• Docket Number: CLAIM NO. SU2022CV00727
• Court: Supreme Court (Jamaica)

[2022] JMSC CIV 223

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU2022CV00727

Between

Sonia Smith

1 ^st Applicant

and

Donovan Mckenzie

2 ^nd Applicant

and

Jennifer Williams Livingstone

3 ^rd Applicant

and

The Kingston and Saint Andrew Municipal Corporation

1 ^st Respondent

and

The Natural Resources Conservation Authority

2 ^nd Respondent

IN CHAMBERS

Daniella Silvera-Gentles instructed by Livingstone, Alexander, Levy for the Applicant/Interested Party

Gavin Goffe- instructed by Myers, Fletcher and Gordon for the Respondent/Applicants

Rose Bennett Cooper and Sidia Smith instructed by Bennett, Cooper and Smith for the 1 ^st and 2 ^nd Respondents

Stewart Panton for the 3rd Respondent

JUDICIAL REVIEW — leave to apply for judicial Review, Claim Form filed after 14 days of receipt of order, computation of time from receipt of order, Renewal of application for leave to apply for judicial review, Rule 56.2 (1) and (2), 56.4 (12), 56.5, and 56.11 (1) discussed; Meaning of directly affected, Interested party.

O. Smith, J (Ag.)

1 This is a Notice of Application for Court Orders, (NOA) filed on behalf of VASS Properties and Logistics Limited on September 9, 2022 to be joined as an interested party and/or intervener in the claim. (VASS) They also seek orders that the orders made by Anderson, J on July 29, 2022 have lapsed.

2 The Applicant, VASS, is a limited liability company with registered office at 8 First Street, Newport West, Kingston 13 in the parish of St. Andrew. The Respondents to this application are Sonia Smith, Donovan McKenzie and Jennifer Williams Livingstone, residents of Chancery Close or Chancery Hall Drive, in the parish of St. Andrew. They are the Applicants in the substantive matter. The 1 ^st Respondent is the Kingston and St. Andrew Municipal Corporation, (KSAMC), the local planning authority and the 2 ^nd Respondent is The Natural Resources Conservation Authority, (NRCA). They have also been served with the application but they made no submissions.

3 The NOA seeks the following orders: (I have paraphrased them for expediency).

• 1. To have VASS joined as an interested party and/ or Intervener in the claim;

• 2. That the leave to apply for judicial review of KSAMC's permit has lapsed;

• 3. That the leave to apply for judicial review of NRCA's permit has lapsed;

• 4. That the order staying the NRCA's permit and the order that within 14 days of the order all construction work being done on the multi-family development has lapsed;

• 5. That the Fixed Date Claim Form filed on August 15, 2022 is a nullity and should be struck out;

• 6. Costs to be agreed or taxed.

BACKGROUND

4 On March 3, 2022 the Respondents/Applicants, Sonia Smith, Donovan McKenzie and Jennifer Williams filed an Application for Leave to Apply for Judicial Review. They sought, in short, an order of certiorari to quash the building and planning permission granted to the Applicant herein by the 1 ^st Respondent and an order of certiorari to quash the environmental permit granted to the Applicant herein by the 2 ^nd Respondent to build a multi-family development at 34A and 34B Chancery Close, Kingston 19, in the parish of St. Andrew. (the buildings)

5 On July 29, 2022, the Honourable Mr. Justice Kirk Anderson, who heard the Application, made the several orders. I will set them out in detail as they are necessary in understanding the current application:

• 1. The Applicants are granted Leave to apply for judicial review of the 1 ^st Respondents decision to grant building and planning permits to VASS Properties and Logistics Limited (VASS) in respect of a multifamily development now being developed at 34A and 34B Chancery Close, in the parish of Saint Andrew, on the grounds as specified in their application for leave to apply for judicial review, which was filed on March 3, 2022.

• 2. The Applicants are granted leave to apply for judicial review of the environmental permit granted to Vass by the 2 ^nd respondent on the ground of actual or apparent bias and as specified in grounds 5,6,7 and 8 of their application for leave to apply for judicial review, which was filed on March 3 2022.

• 3. The environmental planning and building permits granted to VASS are stayed with immediate effect within 14 days of today's date all construction work being done on the multifamily development at numbers 34A and 34B Chancery Close, Saint Andrew is to cease.

• 4. Conditional upon a claim for judicial review being filed in the requisite time period. A first hearing the Fixed Date Claim Form is scheduled to be held before a Judge in Chambers, on February 2, 2023 at 11:30 AM for one hour.

• 5. The costs of this said application shall be costs upon any future claim to be filed by the Applicants.

• 6. The Applicants shall file and serve this order and shall serve on VASS and also on the Respondents on the Town & Country Planning Authority and on the Minister of Local Government, care of the Ministry of Local Government.

6 On August 15, 2022, the Respondents/Applicants filed the Fixed Date Claim Form (FDCF) along with the Affidavit in Support which had been ordered to be served with fourteen days of receipt of the order by Anderson, J on July 29, 2022. It this filing, I believe, that galvanized VASS into action and led to the them filing the NOA on September 8, 2022.

7 On September 8, 2022 the Respondents/Applicants also filed a Notice of Intention to Renew and Amend Application for Leave to Apply for Judicial Review. They sought orders that:

• 1. Permission is granted to the Applicants to apply for an order of certiorari to quash the 1 ^st Respondent's building and planning permission granted to VASS Properties to erect a multi-family development at 34A and 34B Chancery Close, Kingston 19, in the Parish of Saint Andrew.

• 2. Permission is granted to the Applicants to apply for an order of certiorari to quash the 2 ^nd Respondent's environmental permit granted to VASS Properties & Logistics Limited to erect a multi-family development at 34A and 34B Chancery Close, Kingston 19, in the parish of St. Andrew.

• 3. The grant of permission shall operate as a stay of the permits issued by the Respondents.

8 However, when the current application came on for hearing before me, counsel representing the Respondents/Applicants indicated that he was abandoning the NOA in its entirety and instead made oral submissions on the computation of time. I have tried to reproduce them below I hope I have been able to do justice to them.

Affidavit of Stephon Henry on behalf of the Applicant

9 An affidavit in support of the NOA, sworn to by Stephon Henry, Quality Assurance Manager and Director of VASS was also filed on September 8, 2022. He deponed that VASS was granted building, planning and environmental permits to construct a multi-family development at 34A and 34B Chancery Close in the parish of St. Andrew, (the Buildings). That on July 6, 2022, Justice Kirk Anderson ordered the applicants to serve VASS with the Application for Leave to Apply for Judicial Review. On July 29, 2022, Justice K. Anderson made the orders detailed in paragraph 5 supra.

10 Being the developer of the land at 34A and 34B Chancery Close and to whom the permits were granted, he is a party directly affected by the orders, which was the reason, he believes, VASS was ordered to be served. VASS has been severely affected by the orders which have halted construction. Consequently, VASS has been unable to service its loans, some of which have been recalled by the lender and it has not been able to secure new loans. This could result in VASS losing the property in question. Additionally, VASS has not been able to pay its suppliers who extended credit to the tune of over $25,000,000.00 with thirty-day repayment terms. Interest is accruing daily on the loan and over fifty workers have been displaced. The stay has had a serious psychological effects on the Directors of VASS “who have been adversely affected by the cessation of construction and the ensuing financial losses.”

Submissions on behalf of VASS

11 In support of its application to be made an interested party, VASS relied on Rule 56.2 of the CPR, specifically Rule 56.2 (1) and (2) to ground its argument that not only does VASS have sufficient interest in the subject matter but it has also been adversely affected by the orders made and as such they ought to be added as an interested party.

12 VASS is the developer of the buildings to which the planning, building and environmental permissions were granted, which are the subject of the application for leave granted by Mr. Justice Anderson. Further, VASS is adversely affected by the grant of stay of the permissions and the order for the cessation of construction of the buildings. Counsel submitted that inherent in the order that VASS should be served with the Application for Leave was recognition of their status as a directly interested party, as per Rule 56.11 (1) and subsequently, the service Fixed Date Claim Form on them was a further recognition of VASS as a directly affected party. In support of this contention they relied on the judgement of Sykes J (as he then was) in R v Industrial Disputes Tribunal, ex parte J. Wray and Nephew Limited, Claim No. 2009 HCV 04798, ( R v IDT).

13 As the recipient of the relevant permissions against which leave to apply for judicial review was granted, VASS is affected without the intervention of ‘an intermediate agency’.

14 In relation to their contention that the claim filed has lapsed, counsel looked at Rule 56.4 (12) and the authorities of Orrett Bruce Golding v Portia Simpson Miller SCCA No. 3 of 2008 ( Golding v Simpson) and The Minister of Finance and Public Service and Others v Viralee Latibeaudiere [2014] JMCA Civ 22 Minister of Finance v Latibeaudiere)

15 They also commended to the court t he case of the Royal Caribbean Cruises Ltd and Another v Access to Information Appeal Tribunal and...