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St Hill v. Chief Town Planner and Attorney General

A company submitted an application for planning permission to develop 210 acres of land at Six Men’s State, which required permission for a change of use from agriculture, subdivision of the land into lots and the comprehensive development of the land. The Chief Town Planner refused to the permit change to the use and development of the land. The claimant contended that the process suffered from several unlawful administrative acts or omissions, including the failure to consult the Town and Country Planning Advisory Committee which was required to convene a hearing at which the applicant could be heard prior to the recommendation to the Minister of Town Planning for a decision. The Minister also acted contrary to the principles of natural justice and procedural fairness by failing or refusing to provide a report to the applicant of all the proceedings of the said committee and the circumstances under which the Minister came to an independent decision to refuse planning permission. Furthermore, he had failed to take relevant considerations into account.

Highlights

[62] It is clear, that if the Minister can appoint a person to conduct a hearing into the application, that a reasonable exercise of that power would be to appoint a person competent enough to hear the application and report accordingly. Good administration requires transparency, even where resources are limited. I find therefore that the process followed by the CTP's Office prior to submitting this application to the Minister was invalid.
[68] Where the CTP has issued the notice in time then the application should now be before the Minister for his decision according to section 18 of the Act. Section 18 (3) provides that if either the applicant or the CTP desire to be heard the Minister may appoint a person or persons to hear the application.
[71] Where an application has been submitted to the CTP for the granting of planning permission, section 8 of the Town and Country Planning Development Order 1972 provides that the CTP shall consult with a number of parties before granting planning permission. Having found that the process employed by the CTP was not in accordance with the Act, it is necessary to view the duty to consult accordingly. Generally, section 8 (4) of the Order provides that this consultation must be done in not less than 14 days and not more than 21 days. It would stand to reason that the CTP should submit the application to all parties whom he wishes to consult with within the period specified allowing therefore for their simultaneous consideration and thereafter reply from all of the parties within 21 days. Generally therefore, he should then make his determination on the application thereafter. This determination changes however with respect to section 18 and 19 applications in which he ceases to be the decision maker. His determination at this point would relate to submissions or recommendations which he would be entitled to make at a hearing before a person or persons appointed to hear the matter. The duty to consult does not cease because the CTP ceases to be the decision maker. In the absence of any guidelines set by the Minister being presented to the Court, the deadlines prescribed by the Act provide firm guidance as to the length of time for the CTP to consult even in applications where the Minister is the decision maker. Such consultations would inform the CTP's recommendations whether to approve or refuse the application in the same way that they would if he was the decision maker.
[80] It is at this point and not before that the CTP should then make his recommendations, including the results of any consultation for the consideration of the person hearing the matter. Similarly, the applicant would have been able to present his application and reply to recommendations of the CTP. There is no evidence that the report of Mr. Graham was circulated thereafter but in April of the following year, 2011, the Minister advised that his decision was to refuse the application. In accordance with section 19 (9), the Minister then gave reasons for his decision which were identical to the recommendations submitted by the CTP prior to the hearing. Had the CTP submitted his recommendation at the hearing instead of prior, then at the very least it would be arguable that there was some transparency in the decision making process but in the absence of the report from the hearing and of any of the discussions therein, it is reasonable to assume that the process could be viewed as being unfair.

[101] In summary, the Court's interpretation of the Act is as follows: [...] b) That all applications for planning permission must be recorded in a public register within 2 months of their submission and in accordance with the Act that the Register is a public one. [...] d) That the CTP has no fewer than 14 days and no more than 21 days to consult with other statutory agencies, bodies or persons on applications for planning permission. [...] j) That the duty of fairness requires full disclosure of all documents to both sides prior to the decision of the Minister. [...]

Decision

The Court concluded that the process which occasioned the refusal of planning permission was procedurally incorrect. The Chief Town Planner had acted ultra vires and the procedure followed was contrary to the Act. The applicant had the right to be heard on the application by a person or persons appointed for that purpose by the Minister and should have access to a written statement of the reasons for the decision. 

Country

Sentence Date

25/11/2016

Issuing body

High Court of Barbados