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Director of Physical Planning v Anne Hendricks Bass

In an appeal against the judgement of the Eastern Caribbean Supreme Court, High Court of Justice (Civil), Anne Hendricks Bass v. Director of Physical Planning (NEVHCV 2016/0059), that had ruled that the public had complete access to information on developments recorded in the Department of Physical Planning register, the Director of Physical Planning considered that the Ordinance should be interpreted literally being the plain meaning of the provision that the public should have access to the registers and not to the documents filed in an application in support of an application. The respondent maintained that the only reasonable interpretation of the provision was that the public has access to the register, the application for development and the supporting documents and that the public had the further right to take copies of these documents. In Court of Appeal was posed to decide on what was the information that should be in the registers and what was the extent of the public’s access to information.

Highlights

[13] The combined effect of the preamble and section 3 makes it abundantly clear that the development of land in Nevis is not entirely a private matter even when it is taking place on land that is privately owned. The public has an interest in how land is developed on the island and the draftsman has made provision in the Ordinance for a fair, open and accessible system of approving projects for the development of land and has gone as far as to direct in subsection 2 of section 3 that the Ordinance must receive ‘...such purposive and liberal construction and interpretation as best ensures the attainment of its objects.’ This is very powerful language and this Court would be remiss if it did not honour the draftsman’s intention of not just looking at the words used in the Ordinance and interpreting them literally, but reading and interpreting them in the context of land development in Nevis as is clearly set out in the preamble and section 3.There is nothing in the remainder of the Ordinance that contradicts the clear intention in the preamble and section 3.
[16] In relation to the content of the registers, we accept Mr. Wilkin’s submission that the register must be in a form that allows the public to have access to sufficient information to allow them to be able to make a proper assessment of the development that is contemplated. How else would the public be able to determine what impact, if any, the development will have on neighbouring properties, the environment, and on „...the preservation of the natural and cultural heritage‟ of the island of Nevis? To achieve this objective, the information in the register cannot be limited to what the Director sees fit to note in the register. A brief perusal of the register for the Development shows how unhelpful the notations in the register can be. The only real information that can be gleaned from this document is that the proposed development is for 17 condominium style buildings, six of the buildings are under construction and there is an outstanding application for fencing. There is no mention of the ongoing dispute which is before the High Court regarding environmental issues and no real details of the scope of the development.
[17] We do not think that this was the intention of the legislation. The use of the word “information” in subsection 5 and the requirement for an index are clear indications, in the context of the general intention of the Ordinance, that the register means the information actually recorded on the register itself and the supporting documents which must be listed in the index and which form a part of the register. The learned judge was therefore correct when she found and declared at paragraph 68(d) of the judgment that the register contemplated by section 47(1) should contain the various matters set out in paragraph 68(d) of her judgment which is set out in paragraph 4 above.
[18] We agree with and adopt the judge’s categorization of the information that should be included in and form part of the register kept by the Director. As an aside, there was mention in this matter of correspondence on the Director’s file. For completeness, we do not think that such correspondence forms a part of the register kept by the Director.
[19] The other issue regarding the interpretation of section 47 is the extent of the public’s access to the information on the register and their right to take copies of all the documents that comprise the register. It was suggested by Mrs. Nisbett-Brown that even if the public has the right or has been given the right to inspect the documents on the Director’s file, this right does not extend to taking copies of those documents. We can find no justification for making this distinction. From a proper reading of section 47(5), once it is established, as the lower court and this Court have found, that the register includes the documents mentioned in paragraphs 4 and 17above, the right to take copies of those documents, upon paying the prescribed fee, follows.

[20] In all circumstances, we find that the respondent and other members of the public have a right to inspect and take copies of the register of the Development kept by the Director under section 47 of the Ordinance which register includes the supporting documents. The attempt to restrict that right to information entered in the register by the Director is in breach of the Ordinance and accordingly unlawful. The learned judge was therefore correct to grant the respondent’s application in the terms set out above and there is no reason to interfere with those findings.

Decision

The Court dismissed the appeal and upheld the learned trial judge’s ruling. The public has the right to inspect and take copies of the register of the development kept by the Director of Physical Planning which register includes the supporting documents. 

Sentence Date

15/06/2017

Issuing body

Eastern Caribbean Supreme Court, Court of Appeal