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Ulric ‘Buggy’ Haynes Coaching School Et Al v. Minister of Planning and Sustainable Development

On 8 July 2013, the claimants became aware of the plans by the Government to establish a sporting development on the Orange Grove Savannah, a public open space utilized daily by a wide cross section of the public (coaching schools, youth and retirees, among others). Several meetings were held with public officials but no full disclosure as to the scope of the project was received nor were the claimants adequately consulted considering that the decision to develop the land was already made. Furthermore, the development plan of the area had not been updated for the last thirty years, depriving them of the right to be consulted. As users and persons adversely affected by the decision, the claimants were entitled to be notified in sufficient detail in sufficient detail of any and all matters which were relevant to or received by the defendant relevant to the decision; were entitled to be afforded sufficient time to consider and prepare any response to those matters and were entitled to be afforded the opportunity to submit the responses to the defendant and to have same duly considered prior to a final determination of the application. The claimants also submitted that the need for consultation was more acute in this case because of the defendant‘s failure to update the development plan.

Destacados

[28] Section 5(2) (a) and (b) of the JRA empowers the court to grant relief to a person whose interests are adversely affected by a decision or to a person or group of persons if the court is satisfied that the application is justifiable in the public interest in the circumstances of the case. In this case, the defendant makes no challenge to the locus of the claimants. The issue of whether the claimants have been adversely affected has been raised by the defendant in the context of the application of the principles of natural justice and fairness in examining the provisions of the TCPA on the issue of consultation with those adversely affected by the decision. This shall be dealt with in the context of consultation later on in this judgment. Suffice it to say, that having regard to the history of the land, in particular the user history set out above, which has not been effectively disputed, the court is of the opinion that the claimants fall squarely within the category of persons identified in both sections 5(2)(a) and 5(2)(b) of the JRA and therefore all possess the required locus to pursue this claim.
[34] So that section 7 provides for the Minster to consult with whom he thinks fit. It further provides for publication of the plan and a process for objection or representation. Should there be objection the law provides for a public inquiry. The Minister is duty bound to consider the objection or representation and the report emanating out of the inquiry before submitting the plan to parliament. In so doing adequate opportunity for objection or representation by those who are likely to be affected are canvassed prior to the approval of parliament being sought. The Minister may also consider whether he wishes to amend the plan that he originally proposed and published post objection or representation and may therefore seek consultation with a local authority but he is not obligated to consult any other person or authority or to provide further opportunities for objection and representation.
[47] The court agrees with the submission of the claimants that it could only have been the intention of parliament that the Minister comply with the requirements set out in the Act to update the plan at least once every five years. It is a process that ensures that the Parliament is kept abreast of the incremental growth in development of the lands of Trinidad and Tobago. This is an important feature of the legislation as it may be reasonably inferred that timely updates to the National Plan would in the usual course of events assist those who make the laws by way of understanding the developmental growth of the Nation and that which may be required for future development. The process also at the same time allows for transparency in the planning and development of land but more so it is a process which facilitates objections and representations from the public either through the local authority or otherwise thereby providing national participation in development. The opportunity given to the public by virtue of the legislation may not be the gravamen of sections 6 and 7 of the TCPA but is an important democratic participative tool given to the public. In this way the system provides for the widest form of democratic participation in the national development process. The failure to adhere to the lawfully enacted process will result in the deprivation of the opportunity to object or make representation or call for an inquiry by the public. The failure also circumvents Parliamentary oversight which lies at the core of sections 6 and 7. It must therefore mean that the intention of the legislation was that there be periodic amendments to the national plan in a transparent manner which lends itself to both public and Parliamentary oversight in the interest of participative national development.
[49] However, in the court‘s view, it is not to say that the legislature intended that there be no compliance at all. It must be that in keeping with the spirit and intent of the TCPA as far as wide public democratic participation and the inevitable growth in development were concerned, that the Minister was required to apply to the Parliament for approval of such amendments pursuant to the TCPA within a reasonable time after the deadline for so doing had expired at the latest. It is matter of practicality and common sense that the Republic of Trinidad and Tobago has witnessed tremendous development of its lands since the passage of the Act in 1960 and particularly so since 1984 (year of compliance with requirement to file a National Plan). So that it could not have been that there was no need to amend the national plan over all these years.
[55] In making its determination the court also considered whether there existed an alternate procedure which could have cured the deprivation of the opportunity for objection and representation which was lost by way of the failure to update the national plan. The evidence in that regard is set out hereafter within the discussion on Natural Justice and Fairness. Suffice it to say that the court has found as set out hereunder that no such alternative opportunity was afforded to the claimants.
[69] It is to be noted that before a court imposes a duty to consult in respect of planning permission where no such duty is prescribed by statute, it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation. In the court‘s view the present case falls squarely within the ambit of that principle. It is clear that the statutory framework does not provide for objections and representations in respect of applications for planning permission and so is insufficient to achieve justice in this case. It is equally clear that to require additional steps would not frustrate the purpose of the TCPA but will in fact fulfill its purpose, the claimants having been deprived of the opportunity to object or make representations in respect of an amendment to the National Plan in relation to the proposed savannah development.
[73] [...]―What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that: - 1. Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. 2. The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. 3. The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. 4. An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. 5. Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. 6. Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.
[82] Having therefore found that the statute does not provide adequately for a procedure to object and make representations and that there was a duty to act fairly on the part of the Minister the court should therefore enquire as to the ambit of that duty in this case in these particular circumstances, and whether on the evidence that duty was in fact fulfilled. The court wishes in so doing to be pellucid in stating that the finding of the court is not that there exists a general duty to consult when the Minister is considering whether to grant permission to develop land but that in this case, in these circumstances, having regard to all the factors identified, including but not limited to the fact that it appears on the evidence that the Ministry was aware of the public objections and the fact that the claimants were deprived of the opportunity granted to them by statute in relation to objections and representations permitted when updating the national plan and the extent of the effect that the sporting complex would have on the daily activities of these claimants, there was a duty on the Minister to act fairly when considering the application for planning permission. In so saying it is the finding of the court that that duty encompassed the grant of an opportunity to the claimants to engage in genuine consultation on at least on one occasion. It was not the duty of the Minister to consult with each and every user of the savannah but merely to provide a general opportunity to those users who wishes to avail themselves of that opportunity.
[83] Consultation is not only about objection but is also about representations which may consist of questions, suggestions and proposals all with a view to assisting in arriving at the best possible plan which would benefit the various interests in the community and at the same time give effect to the government‘s intention. It is about a participative balanced approach.
[99] That being the evidence, it is manifestly clear that there was no consultation with those to be affected. The essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice. This in the court‘s view must start with the giving of adequate notice of the intention to consult and the date and time of the consultation. That notice must be given in a form which provides for the widest reception by those who may be potentially affected, whether by way of advertisement in the newspaper and flyers distributed to residents. The form and manner of distribution of the notice is only relevant in so far as it treats with the requirement to reach out to as many of those persons to be affected in an effort to secure sufficient participation in the process. This in the court‘s view is the first step in engaging in a genuine consultative process. There is no evidence before this court from the defendant as to the steps taken to entreat the community in a genuine process of consultation in that regard. To the contrary the evidence shows a reactionary approach to the concerns of the stakeholders on the part of the defendant in a piecemeal manner which itself does not in substance reflect genuine consultation.

[100] Secondly, to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice. Sufficient time must be given by the consulting to the consulted party to enable it to do that, and sufficient time must be available for such advice to be considered by the consulting party. The contents of the letter of the 11th September 2013, supra, adequately demonstrate the malaise in approach taken towards consultation. The said letter simply offers to provide information on the project and an opportunity to ask questions and to be provided with responses. This in no way fulfills the essence of genuine consultation. Consultation is not about providing information and answering questions. It is about hearing the views of those to be affected and actively considering their views. If at the end of the day, the views of those to be affected have made no difference to the decision maker then it does not lie within the mouth of the affected persons to complain that they were not consulted so long as their views were properly considered.

Decisión

The Court declared that the defendant breached its duty to take steps to amend the development plan. Its decision to grant permission for the development was made in breach of the principles of natural justice and was null, void and of no effect. The defendant is also ordered to reconsider the application in a procedurally fair manner and specifically after genuine consultation with the claimants and other affected members of the public. 

Fecha de la sentencia

16/06/2015

Órgano resolutor

High Court of Trinidad and Tobago