Temple of Light Church v The Minister of Environment
| Jurisdiction | Jamaica |
| Judge | FORTE, P: , LANGRIN, J.A.: , SMITH, J.A. (Aq,): |
| Judgment Date | 31 July 2002 |
| Judgment citation (vLex) | [2002] 7 JJC 3101 |
| Court | Court of Appeal (Jamaica) |
| Date | 31 July 2002 |
REAL PROPERTY - Change of use - Town and Country Planning Authority approval for change of use from residence to centre for religious group meeting - Group subsequently incorporated - Whether registered company could be beneficiary of permission granted for change of name
I have read in draft the judgments of Langrin, J.A. and Smith, J.A. (Ag.) and agree that the appeal should be dismissed. However, as I disagree on one fundamental issue, I am compelled to record a few words of my own.
The 1978 approval for change of use granted by the Town and Country Planning Authority was granted to R.L. Villiers for Metaphysical Study Group and specifically mandated that it applied only to the applicant and/or owner and is not transferable. The change of use related to a change from use as a residence to a center for Religious group meeting. The approval was granted to the Metaphysical Study Group, who at that time was the owner of the property.
Since that time, however, the group was incorporated to become Metaphysical Study Group of Jamaica Ltd and the title to the land was thereafter vested, in the Company. Three years later in June 1983 the group changed its name to become Temple of Light Chuch of Religious Science of Kingston Jamaica Ltd. Consequently, the issue arose as to whether the registered company could be the beneficiary of the permission granted in 1978 for the change of use. In my judgment, the appellant is a different entity than the persons to whom the permission was granted. The Town and Country Planning Authority had the authority to place the condition on its permission (see Section 15(4) of the Town and Country Planning Act) and as a result that permission was not transferable to the new company - the appellant. In any event that permission related solely to a change of use, and not to any other development, which is now sought.
As my brothers have dealt in detail with the other issues in the case, I will confine myself to making a comment on the application to the circumstances of this case, of the provision of the two relevant Acts - the Town and Country Planning Act, and the Kingston and St, Andrew Building Act.
The Town and Country Planning Act created per section 3(1) a Town and Country Planning Authority (the "Authority"). By virtue of section 5(1) the Authority has the responsibility for "preparing so many or such provisional development orders as it may consider necessary in relation to any land, in any urban or rural area, whether there are or are not buildings thereon, with the general object of controlling the development of the land comprised in the area to which the respective order applies, and with a view to securing proper sanitary conditions and conveniences and the co-ordination of roads and public services, protecting and extending the amenities and conserving and developing the resources of such area."
"Development" is defined by section 5(2) as the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land. The sub-section thereafter creates exceptions which are not here relevant.
The Town and Country Planning Act, therefore is the machinery by which development is controlled in particular areas, obviously with the intention of achieving organized development programmes. The erection or alteration or for that matter the change of use of a building is merely a part of the overall consideration for determining the structured development of a particular area. Consequently, any such permission must be granted in that context.
To deal specifically with individual applications in respect of privately owned premises, the legislature provided per the Town and Country Planning (Kingston) Development Order 1966, the process by which such applications should be considered. Paragraph 6(1) of the Development Order provides that an application for planning permission must be made on a form supplied by the Local Planning Authority or the Authority. Such an application must be accompanied by:
(i) a plan sufficient to identify the land to which it relates, and
(ii) such other plans and drawings as are necessary to describe the development which is the subject of the application.
Important in the context of this case is paragraph 6(2) of the Development Order which provides that an applicant may make an OUTLINE APPLICATION under sub-paragraph (1) for permission for erection of any building subject to the making of a subsequent application to the Local Planning Agency with relation to any matters relating to the siting, design, or external appearance of the building or the means of access thereto. In that event particulars and plans in regard to "these matters" shall not be required and permission may be granted subject as aforesaid (with or without conditions) or refused.
A relevant proviso is that such permission must be expressed to be granted as an outline application and the approval of the Planning Authority shall be required with respect to the matters reserved in the planning permission before any development is commenced.
These provisions clearly indicate that the Development Order is concerned not with the mere structural integrity of the building, but with the granting of planning permission, in the context of relevant matters in respect of the development of any particular area. Mr. Lascelles Dixon, deponed that in October of 1992 he submitted on behalf of the appellant, an application which was accompanied by preliminary design drawings consisting of a copy of the title of the property, site lay-out drawing, floor plan of the proposed facility showing its relationship to the existing building and general layout of the building, building sections and elevations which gave a full description of the proposed building. He exhibited a copy of the "preliminary drawings". In response to this application, he received a letter from the Town Clerk of the Kingston and St. Andrew Corporation, which informed him that the application had been approved as an Outline approval. The exact content of this letter will be addressed later in this judgment.
It appears that in 1998 the appellant made two applications in respect of its proposed development, which are relevant to the present issues. The first was made in April of that year on prescribed form headed -
"Town and Country Planning (Amendment) Act 1987 Kingston Development Order."
This application clearly made under the Development Order requested permission to construct a Multi-Purpose Building. In his affidavit Mr. Lascelles Dixon, architect for the appellant avers that this application was submitted with "the detailed building plans." However, except in respect to an "outline application", paragraph 6(1) of the Development Order requires as stated earlier, that the application should be accompanied by:
(i) a plan sufficient to identify the land to which it relates, and
(ii) such other plans and drawings as are necessary to describe the development which is the subject of the application.
The detailed building plans must therefore not have been in an effort to satisfy (i) and (ii) above. I will return to this later.
The other application was made on a form from the Kingston & St. Andrew Corporation, headed "BUILDING APPLICATION FORM". This form appears to represent an application for permission to erect a building in terms of its structural integrity as it speaks to e.g. total area of existing structure in ground, and of land, of habitable rooms, approximate cost of construction, building heights, drainage, surface water etc. This was an application obviously made under section 10 of the Kingston & St. Andrew Building Act.
At the time these applications were made, the Kingston and St. Andrew Corporation was (as of 1992) the local planning authority, and appears to have exercised this jurisdiction through its Building and Town Planning Committee.
The first application that was made in 1998 under the Kingston Development Order, was as stated earlier seeking permission by virtue of paragraph 6(1) of that Order. It was not an application which was outline only, as provided for by paragraph 6(2). The appellant contends that an outline application had already been made and approved in 1993 and consequently, it was only necessary to submit detailed plans in keeping with the condition set out in that approval. This is evidenced by a letter to the offices of the appellant's representative and architect Mr. Lascelles Dixon. This letter was addressed by Errol A. Bennett the Town Clerk of the Kingston and St. Andrew Corporation and reads as follows:
"9 th March, 1993
Re: Building Application (Outline) Under the Town and Country Planning Act and the Kingston and St. Andrew Building Act. 4–6 Fairway Avenue - Seymour Lands, Kingston 10.
I am directed to inform you that the Council's Building and Town Planning Committee of the Kingston and St. Andrew Corporation at its meeting held on the 20 th January 1993 approved of your Outline Building Application to erect a Religious Group Centre at the above address on the following condition -
(1) That detailed building...
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