Benjamin v Attorney General et Al
| Jurisdiction | Antigua and Barbuda |
| Judge | Thomas, J. |
| Judgment Date | 13 March 2007 |
| Neutral Citation | AG 2007 HC 54 |
| Docket Number | ANUHCV No. 0218 of 2006 |
| Court | High Court (Antigua) |
| Date | 13 March 2007 |
High Court
Thomas, J.
ANUHCV No. 0218 of 2006
Mr. Anthony Astaphan, SC with Mr. John Fuller for the claimant.
Mr. Kendrickson Kentish with Mr. George Lake and Ms. Alecia Aska for the first and fourth defendants.
Mr. Dane Hamilton for the second, third and fifth defendants.
Judicial Review - Granting of planning permission — Whether breach of the Physical Planning Act — Reasonableness — Failure of the Authority to exercise its discretion was contrary to the Act — Grant of permission found to be irrational.
Real Property - Crown lands — Used by public from time immemorial — Whether there were valid claims of personal and public rights over Crown lands.
On 3rd May 2006 Steadroy Benjamin, the claimant, filed a fixed date claim in which the Attorney General, the Development Control Authority, Denzil Solomon, acting Town and Country Planner, Wilmoth Daniel, Minister responsible for physical planning and Antigua and Barbuda Property Development Ltd were named as first, second, third, fourth and fifth defendants, respectively.
On 27th October 2006 an amended fixed date claim form was filed in which the defendants were as before but there were changes made to the claimant's statement of case. The legality or otherwise of this aspect of the case will be addressed in the course of this judgment.
The claimant seeks certain reliefs, namely, declarations, orders for certiorari and prohibition, administrative orders and injunctions against the defendants, jointly and or severally under the provisions of Part 56 of CPR 2000 with respect to:
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(i) The intended construction of a car park on Victoria Park in the City of St. John's.
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(ii) The application for planning or development permission to construct a car park in Victoria Park, St. John's, Antigua and Barbuda submitted by the Antigua and Barbuda Property Development Limited on the 26th March 2006.
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(iii) The intended construction and/or grant of planning permission for the construction of the intended car park violates the objects and purposes of the Physical Planning Act No. 6 of 2003 prescribed by section 3 thereof.
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(iv) The failure of the second, third and/or fourth defendants to act in accordance with the provisions of the Physical Planning Act No. 6 of 2003.
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(v) The purported grant of planning permission made on the 13th April 2006 by the second and/or third defendants in contravention of several provisions including among several others sections 23 and 25 of the Physical Planning Act No. 6 of 2003 and the Regulations made or preserved there under.
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(vi) The failure of the second and/or third defendants to hold public consultations under the provisions of section 25 of the Physical Planning Act No. 6 of 2003 and/or in accordance with the basic and fundamental principles of fairness.
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(vii) The purported grant of planning or development permission, is intrusive of the common rights of the people of Antigua and Barbuda and deprives them of their common rights of use and enjoyment of the said land since time immemorial and/or the legitimate expectation of continuous use and enjoyment of the said land and is unlawful.
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(viii) The grant of planning or development permission deprives the people of Antigua and Barbuda and in particular the people of the Constituency of St. John's City South, of their right to use and enjoyment since time immemorial.
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(ix) The purported grant of planning or development permission is seriously flawed and/or unreasonable.
The matters in issue in this application for judicial review and administrative orders under Part 56 of the Civil Procedure Rules, 2000 are:
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(i) Whether the grant of the application by Antigua and Barbuda Property Development Limited for development approval by the second and/or third defendants on the 13th April 2006 in respect of the construction of the intended car park on the sports field situate immediately to the east of Independence Avenue, known as Victoria Park (hereinafter called “the car park”) is in contravention of the Physical Planning Act No. 6 of 2003 and Regulations.
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(ii) Whether the failure of the second, third and/or fourth defendants to create, approve and Gazette a development plan for the State of Antigua and Barbuda in accordance with the Physical Planning Act No. 6 of 2003 and/or Regulations is unlawful and vitiates the grant of permission made on the 13th April 2006.
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(iii) Whether the second and/or third defendants failed to comply with, properly administer and/or apply the provisions of the said Act and Regulations in accordance with its objects and purposes and provisions before they granted planning or development permission.
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(iv) Whether the second and/or third defendants failed to properly administer the provisions of the said Act and Regulations in a fair, transparent and reasonable manner or at all having regard to the proper planning of development in the State of Antigua and Barbuda.
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(v) Whether the second and/or third defendants acted unlawfully when they failed to consider and/give effect to the fact that location for the construction of the intended car park has been used from time immemorial for sports, leisure and cultural activities and exercise by the people of the State of Antigua and Barbuda generally and now by the constituents of the claimant in particular.
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(vi) Whether the second and/or third defendants acted unlawfully when they failed to hold public consultations in accordance with or to give effect to section 25 of Physical Planning Act No. 6 of 2003 and/or Regulation 7 and/or the basic and fundamental principles of fairness.
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(vii) Whether the second and/or third defendants acted unlawfully when they failed to request and/or consider an environmental impact statement, that the car park and its sewage disposal facilities will have significant effects on the environment and/or feasibility study for the construction of the cark park as required by section 23 of the Physical Planning Act No. 6 of 2003.
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(viii) Whether the second and/or third defendants acted unlawfully when they granted permission for the construction of a six storey building when Regulation 19 and Part G of the Third Schedule prohibit the construction of a building on the proposed location of over three (3) storeys.
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(ix) Whether the failure by the second, third and/or fourth defendants to consider that the construction of the car park on the proposed location is likely to derogate from the amenities of the public is unlawful.
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(x) Whether the grant of planning or development permission is unlawful.
- A declaration that the failure of the second, third and/or fourth defendant to prepare and Gazette a development plan undermines the ability of the second and third defendants from properly exercising their powers and discretions under the Physical Planning Act No. 6 of 2003 and is unlawful. 4. A declaration that the application for planning or development permission submitted on the 26th March did not comply with the provision of the Physical Planning Act No. 6 of 2003 and or Regulations and ought not to have been grated by the second and third defendants. 5. A declaration that the second and/or third defendants acted without or in excess of authority when they purported to grant planning or development permission on the 13th April 2006. 6. An order quashing the second and/or third defendant's decision to grant of planning or development permission on the ground that the second and/or third defendants acted without or in excess of their authority and/or unlawfully when: (i) They, jointly and/or severally, failed to comply with the relevant provisions of the Physical Planning Act No. 6 of 2003 and/or Regulations. (ii) They, jointly and/or severally, failed to properly consider and/or administer the relevant provisions of the Physical Planning Act No. 6 of 2003 and/or Regulations. (iii) They, jointly and/or severally, failed to properly consider any or all of the matters prescribed by section 25 of the Physical Planning Act No. 6 of 2003 and/or Regulations. (iv) They, jointly and/or severally, failed to comply with Regulation 7. (vi) They, jointly and or severally, failed to act in a lawful, fair and transparent manner. (vi) They, jointly and/or severally, the defendants failed to act fairly and/or reasonably. 7. An order quashing the second and/or third defendant's decision to grant of planning or development permission on the ground that the second and/or third defendants' decision to grant of planning or development permission is unlawful and/or unreasonable in that the decision and grant of permission will deprive, and deprives the people of the State of Antigua and Barbuda of their right of use and enjoyment since time immemorial. 8. An order quashing the second and/or third defendants' decision to grant of planning or development permission on the ground that the second and/or third defendants decision to grant of planning or development permission is unlawful and/or unreasonable in that the decision and grant of permission will deprive, and deprives, the people of the State of Antigua and Barbuda of their right of use and enjoyment since time immemorial. 9. An order directing the second and/or third defendants to revoke the planning or development permission granted on the 13th April 2006. 10. An injunction restraining the fifth defendant, its servants, agents or whosoever from commencing or continuing with the construction of the proposed car park pending the determination of this claim.
The application for judicial review is based on the following grounds:
- The Application for planning or development permission failed to comply with the Physical Planning Act No. 6 of 2003 and/or Regulations. 2. The second, third and/or fourth defendants acted unlawfully in failing to prepare and...
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