On 31 May 2023, the Hanseatic Consultants Ltd. (‘Hanseatic’) was granted a building permit and on 6 April 2023 detailed planning permission for its proposed development of floating docks in the Leeward Channel in connection with and adjacent to its property.
On 23 November 2023, following representations by Leeward Waterfront Ltd. (‘LWL’), the holder of a minerals licence and navigation agreement dated 10 October 2007 granted to it by the then Governor of the Turks and Caicos Islands, the Physical Planning Board (‘PPB’) granted a modification to the granted permission.
On 21 December 2023 Hanseatic filed an appeal against the modification with the Physical Planning Appeal Tribunal (‘PPAT’). On 15 August 2024 the PPAT wrote to Hanseatic advising that at a meeting on 7 August 2024 the PPAT had decided to allow the appeal and stated “The decision of the Physical Planning Board has been overturned.” According to the affidavit of Mr John Philip Shearer, director of Hanseatic, filed on 15 October 2024 in this action, in reliance on that letter Hanseatic commenced work on the construction of the floating docks on or about 17 September 2024.
On 26 September 2024 LWL filed:
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- A summons seeking:
- an interlocutory injunction preventing any further work being carried out under the granted planning consent pending the determination of an intended judicial review of the PPAT decision.
- an order that the Applicant file its application for leave to move for judicial review within 7 days of the grant of the grant of the injunction.
- A certificate of urgency;
- An affidavit of Mr Philip Knaggs, Vice President of Investments with a remit to oversee the operations of LWL, in support of the application, together with a 166-page exhibit.
Held: In considering whether Hanseatic should be restrained from carrying out construction works for which they have been given permission I am directed by both parties to the well-known principles set out in American Cyanamid. Mr Denahan submits that there is no inconvenience to LWL if the injunction is refused.
I am of the view that if Hanseatic are prevented from completing the proposed development, then its commercial activity is being inhibited. It wants to complete the work before the busy holiday season commences. There is also a public interest in that until it is set aside, a decision of a public body should be respected.
What is now apparent is that at the time of issuing the summons LWL did not have grounds to support an application for judicial review. In my view, the balance of convenience lies in refusing the application.
In doing so I draw on Mr Denehan’s observations that if the appeal decision is overturned, then subject to any fresh application for development permission, Hanseatic will have to undo what they have done. If LWL would feel that they have suffered as a result, as custodians of the seabed and the channels, they have their causes of action and Hanseatic will suffer the consequences of any action the planning authorities take.