Court name
Court of Appeal of Turks and Caicos Islands
Case number
CL-AP 24 of 2016

The Proprietors, Strata Plan No.108 and Another v. The Governor TCI and Others (CL-AP 24 of 2016) [2016] TCACA 3 (08 February 2016);

Law report citations
Media neutral citation
[2016] TCACA 3
Coram
Mottley, P
Forte, JA
Stollmeyer, JA

IN THE COURT OF APPEAL OF TURKS AND CAICOS

CIVIL APPEAL

THE PROPRIETORS, STRATA PLAN #108            First Appellant

and

THE PROPRIETORS, STRATA PLAN #62               Second Appellant

v

THE GOVERNOR OF THE TURKS AND CAICOS ISLANDS First Respondent

and

THE MINISTER FOR INFRASTRUCTURE, HOUSING AND PLANNING      Second Respondent

and

DIRECTOR OF PLANNING          Third Respondent

and

DESARROLLOS HOTEL CO

TURKS AND CAICOS LTD            Fourth Respondent

Mr. Justice Mottley, President

Mr. Justice Forte, Justice of Appeal

Mr. Justice Stollmeyer, Justice of Appeal

Mr. Conrad Griffiths, Q.C. and Mr. David Cadman for the Appellant

Ms. Helen Mountfield, Q.C., Ms. Clemar Hippolyte and Ms. Motheba Rakouane Linton on behalf of the First, Second and Third Respondents

Mr. Ariel Misick, Q.C. for the Fourth Respondent

September 2016, February 2017

Handed down March 2017

Mottley, P

Parties

1.             The first appellant who is The Proprietors, Strata Plan # 108, is the registered Strata Corporation, a statutory body corporate, for the strata development known as ‘The Venetian’ (‘The Venetian’). The second appellant is The Proprietors, Strata Plan # 62 and the registered Strata Corporation, a statutory body corporate, for a strata development known as ‘The Tuscany’ (‘The Tuscany’). The Governor of the Turks and Caicos Islands is the first respondent. The Minister for the Infrastructure, Housing and Planning is the second respondent while The Director of Planning is the third respondent. The fourth respondent is an interested party.

2.             On 8 April 2016, the appellants filed an Application for leave to apply for the Judicial Review pursuant to Order 53 rule 3 of Rules of the Supreme Court seeking inter alia the following Orders:

(i)            An order of certiorari quashing the Notice of Amendments to the Turks and Caicos Islands Development Manual dated 26 February 2016;

(ii)           A declaration that the Amended Development Manual which is the subject of this application is unlawful;

(iii)          An order of mandamus requiring the second respondent to promulgate a development plan within a reasonable time frame;

(iv)          An order as to payment of the applicants’ costs.

3.             The grounds upon which the application was based were:

(i)            The respondents’ decision to change planning policy in the Turks and Caicos Islands (‘TCI’) by increasing the permitted height of condominium and hotel buildings on Grace Bay, Providenciales from a maximum of 7 storeys to 12 storeys was unlawful. It is alleged that the change will transform the environment of Grace Bay and is likely to significantly decrease the value of the appellants’ properties and the value of rents and income from tourist and residential accommodation provided by the appellants.

(ii)           On 12 November 2015, allowing the applicants’ first application for judicial review, the Supreme Court held that the absence of a development plan for Providenciales, as mandated by section 3 of the Physical Planning Ordinance CAP 9.02 (‘the PPO’), rendered the Notice of Amendments to the Development Manual 2015 (‘the 2015 Notice’) ultra vires.

(iii)          Following the 2015 Ruling, the Government of the Turks and Caicos Islands (‘TCIG’) acted swiftly to amend the PPO. No public consultation took place over the proposed changes to the PPO. TCIG introduced section 39A, which permitted regulations on building height and density to be made in the absence of an approved development plan.

(iv)          On 26 February 2016, the Governor issued the Development Manual (Amendment) Notice 2016 (‘the 2016 Notice’) under section 39A. This Notice amended the Development Manual to permit 12-storey buildings to be built on specific coastal parcels of land along the length of Grace Bay.

(v)           If there is no development plan in place, section 39A requires the respondents to consult properly before introducing changes to the height and density of buildings. The consultation process that preceded the 2016 Notice was perfunctory and inadequate. No details of the proposals under consideration were made public in advance; no relevant reports were commissioned or disclosed and the consultation period lasted only from 4 January 2016 to 16 January 2016. No prior notice of this period was given and no notice was given directly to the appellants. Part of this limited period was lost before the appellants were made aware of the proposed consultation. In practical terms the consultation lasted no more than a week. On the basis of the manner of consultation and the speed of decision-making, TCIG had in any event already determined to proceed with the height and density changes and the consultation exercise was not conducted in a manner and at a time when the decision maker intended to take into account the outcome of the consultation. In failing properly to consult, the respondents acted unlawfully and in breach of their statutory duty. The failure to publish an updated development plan in accordance with the PPO and the prior public commitments made by TCIG in 2015 to expedite the preparation of an updated development plan and following the 2015 Ruling is a breach of statutory duty under the PPO and a violation of the Rule of Law as an attempt to thwart the 2015 Ruling of the court. In addition, the 2016 Notice was unlawful in that it was made in breach of section 18 of the Constitution in that the respondents had failed to have due regard to the duties and requirements imposed under section 18. The respondents had no or no sufficient material in order to permit or justify the making of the 2016 Notice. Specifically, it was stated that the respondents had not undertaken any strategic environmental assessment or any other environmental assessment of the impact of the proposed changes to height and density. In the circumstances, TCIG had no material and no environmental evidence upon which to make an informed decision to make the 2016 Notice. Such evidence as was available to the respondents was contrary to the proposed changes made under the 2016 Notice.

(vi)          The respondents were aware that it was necessary to prepare a development plan under the PPO as they stated their intention to prepare a new development plan. The making of the 2016 Notice under the provisions of section 39A which is set to expire in December 2017 was in breach of section 18 of the Constitution, the PPO or the rule of law. The preparation and implementation of the development plan along with its recommendations will be undermined by any changes introduced by the 2016 Notice at a time when it was known a development plan would be prepared in the foreseeable future.

Background

4.             The appellants are strata corporations for two condominium-hotels, The Tuscany and The Venetian, on Grace Bay. The appellants stated that they invested in the TCI because of the Islands' natural beauty, and its reputation for protecting the environment and its respect for upmarket yet eco-friendly tourism. The Islands have been and continue to be promoted under the motto "Beautiful by Nature”.

5.             In September 2014, following their meeting, the Cabinet advised the Governor to amend the Development Manual in order that the maximum height of buildings on Providenciales be increased to a maximum of twelve storeys. No public consultation took place prior to the Cabinet's decision. In accordance with this Cabinet decision, the Director of Planning on 2 February 2015 issued the 2015 Notice purporting to amend the Development Manual. No consultation took place prior to the publication of the 2015 Notice.

6.             The appellants applied for judicial review of the 2015 Notice on the grounds that it was ultra vires and had not been subject to any proper consultation. On 12 November 2015 the court quashed the 2015 Notice (‘the 2015 Ruling’). The court held that the duty of the Minister of Infrastructure and Planning in respect of physical planning matters is set out in section 3 of the Physical Planning Ordinance (“the PPO”). Under this section, the Minister is required to secure consistency and continuity in the framing and execution of a comprehensive policy with respect to the use and development of all land in the Turk & Caicos to which this Ordinance applies in accordance with a development plan for the TCI.

7.             Following the 2015 Ruling, the House of Assembly on 17 December 2015 amended the Physical Planning (Amendment) Ordinance 2015. The amendment empowers the Governor to make regulations regulating the height and density of buildings in the absence of a development plan. The Amendment came into force on 22 December 2015. Section 39A provides:

"Where no development plan approved"

39A. Notwithstanding the requirement of this Part, where no development plan has been approved, the Governor may make regulations under section 79 as to planning standards, including setting building height, density and set backs.''

8.             The appellants indicated that the publication and circulation of section 39A in the TCI Gazette was delayed due to the Christmas and New Year period; the relevant Gazette was not circulated publicly until Monday 4 January 2016.

9.             Early in January 2016, a notice was placed on the Facebook page of the TCIG Press Office. The notice stated that stakeholders could attend a series of meetings which will be held to discuss amendment of the existing building height restrictions and density requirement’. This announcement also appeared in local newspapers which were published on Saturday, 9 January 2016. The respondents invited certain stakeholders to consultation meetings held between 11 and 16 January 2016. The deadline for submission of written representations was fixed for Tuesday 19 January? 2016.

10.          In the circumstances, the appellants suggested that the public at large and more particularly the appellants did not see this radical change in the law until early January 2016 when the TCIG announced that a one-week period of consultation would take place during the second week of January 2016 i.e. from Monday 11 January to Friday 15 January 2016.

11.          On Tuesday 12 January 2016, the appellants wrote to the second and third respondents and the Attorney General requesting details of the proposed changes along with all supporting reports and materials. The third respondent responded on Wednesday 13 January 2016, but referred only to increasing height from 7 to 12 storeys and 96 feet to 150 feet. He gave no details of density increases nor were any documents provided. A further letter was sent by the appellants on Friday 15 January 2016. Later that day, the third respondent explained in writing that the proposals were to:

(i)            change building height from 7 storeys up to 96 feet to 12 storeys up to 150 feet. However, for permission to build a 12 storey a minimum of 5 acres of land is required; and

(ii)           increase density from 24 bedrooms per acre to 40 bedrooms per acre for condos and from 25 bedrooms per acre to 50 bedrooms per acre for hotels.

Nothing was stated that the proposed changes were being limited to Grace Bay.

12.          On Wednesday 13 January 2016 the appellants were invited to a meeting. The appellants’ attorneys agreed to a meeting on Monday 18 January 2016. Concerns were raised about the lack of information concerning the proposals and the short notice for the consultation. The appellants specifically requested a report produced by KPMG. This report was not provided.

13.          At a meeting which took place on Monday 18 January 2016, the appellants again complained of the lack of any information or reports and that the time allotted for consultation was absurdly short.

14.          Attorneys-at-law for the appellants made brief written representations on Tuesday, 19 January 2016 to the respondents restating their concerns about the adequacy of the consultation process in so far as no written consultation proposal from TCIG were published at the announcement of a consultation period. They also complained that no environmental or economic reports were provided. Finally, they complained that the TCIG neither gave any explanation of the underlying reasons for the proposed changes nor did they give any reason for not considering any alternatives to the proposed changes. The appellants contended that any changes to height of the building or density per acre would be unlawful in the absence of an updated national development plan. Nonetheless, representations were submitted by the appellants without prejudice to its objections to the consultation process.

15.          After the consultation, a Report on Public Consultation (‘the Report’) was published. The Report was not dated. The Report contained a summary of the representations which had been received.

16.          In response to concerns raised during the consultation, the Report contained a ‘Planning Analysis’. In respect to the need for a development plan, the Report stated that the Department of Planning expected to ‘restart the process for a National Development Plan’ in the next financial year. However, an ‘Area Development Plan could begin for Grace Bay during the remainder of this financial year.’

17.          On 26 February 2016, the Government published in the Gazette a Development Manual (Amendment) Notice (Legal Notice 11 of 2016) (‘the 2016 Notice’), made under the provisions of sections 39A and 79 of the PPO and Schedule 1 of the Building Regulations. The Notice amended section 3.5.3 of the Development Manual to permit 12-storey buildings to be built in specific coastal parcels, including at Grace Bay.

18.          It is noted that the proposed change was taking place in the absence of a national development plan and pursuant to legislation which had just been introduced with a 24-month sunset clause. The appellants stated that this was a radical departure from the status quo and therefore the greater the need for adequate consultation.

19.          In summary, the appellants contend that the 2016 Amendment changed planning policy by (i) significantly increasing the allowable heights of apartments, condominiums and hotel buildings from a maximum of seven floors (a maximum of 90 ft.) to a maximum of twelve floors (a maximum of 150 ft.) and (ii) increasing room density from 24 bedrooms per acre to 40 bedrooms per acre for condos and from 25 bedrooms per acre to 50 bedrooms per acre for hotels. The appellants argue that the 2016 Amendment permits a change from 7 storey developments on Grace Bay, Providenciales and this will lead to a significant and irreversible change in the built environment. In the local context they suggested that this was the most important change in Planning law and policy in living memory.

Grounds of Appeal

20.          The Appeal is based on two grounds, viz.

(i) the Chief Justice erred in law and fact in concluding there had been adequate consultation with respect to the 2016 changes to the Development Manual to permit increases in height from 7 to 12 storeys and also density increases; and

(ii) the Chief Justice erred in law and fact in concluding that the environmental protections of section 18 of the Constitution had been met.

Judgment Below

21.          The Chief Justice held that Mr. Griffiths was right when he said that the public had no information about how these 12 storey developments might affect the environment or on what evidence TCIG relied to say that a policy which permitted building heights of 12 storeys would be economically favourable. However, the Chief Justice held that, on the evidence, she was satisfied that the public had sufficient information about what was proposed in order to make an intelligent response; this was demonstrated by the challenges of Kathleen Wood in the context of the 2015 consultations, to both propositions.

22.          The Chief Justice indicated that the appellants challenged the adequacy of the consultation on the ground that consultees, had only a week in which to respond. She held that what was adequate, however, depended on the circumstances, and in this context of this case, the circumstances include the fact that changing building heights have been the subject of public debate since 2012 when the proposal for a 28 storey building was the subject of public consultation. The public was on notice from the 2015 consultation process of the proposal to allow building heights of 12 storeys. The decision of this Court in the first judicial review brought by these appellants was published in the press and was the subject of comment. In light of the above there can be no question that the public is and was aware of the proposed change in building heights and the reasons therefore advanced by TCIG.

23.          The Chief Justice reached the conclusion that the period allowed for consultation was sufficient for the public to respond to the proposal. She pointed out that the appellants were, despite their protests, able to make both oral and written submissions in the time allotted. They restated their complaints about the shortcomings of the consultation process, including the lack of any documents relating to the proposals, and their belief that a development plan should be prepared before any changes were made to the build environment of Provo.

24.          The Chief Justice correctly in my opinion stated that what is fair is to be determined by the context of the consultation. The proposal is to add 12 storey developments to the mix of developments on Grace Bay, restricting such developments to coastal parcels of land of 5 acres or more, as part of TCIG's policy for encouraging and facilitating the growth in tourism by increasing the number of rooms in order to expand economic growth, increase air lift increase job opportunities, improve infrastructure and increase population to sustainable levels.

25.          The Chief Justice concluded that the proposal and the reasons for such proposal had been sufficiently explained by TCIG. She found that it was not a requirement that the proposals of the TCIG should be put in writing, in circumstances where what was being proposed was not the approval of a particular development but merely an over-arching policy of permitting 12 storey developments on coastal parcels of 5 acres or more in Grace Bay and Northwest Point. The TCIG had stated that no proposal for 12 storey development will be approved unless it met appropriate planning standards or satisfy an environmental impact assessment.

26.          The Chief Justice observed that failing to tell consultees that TCIG could also achieve its objective of increasing the number of rooms on Provo by promoting the development of more 7 storey developments or by increasing building heights to something less than 12 storeys could hardly be unfair as those alternatives were self- evident.

27.          I agree with the Chief Justice in her conclusion that whether the decision to adopt the proposal was the right one and whether 12 storey developments will in fact enhance the Turks and Caicos Islands tourism product and grow the economy are questions on the merit of the decision. I also accept that these are issues of policy which fall outside the ambit of judicial review. The case is concerned only with the process by which the decision was reached and not with whether the prospective gains justify a change in policy as such a question is for the policy makers, and not the Court. This Court cannot concern itself with the issue whether the Government’s policy to increase the height of the building or the density of bedrooms per acre is the correct policy. I accept that the issue of whether this is the correct policy is not for the Court but is one for the Executive, and, as was pointed out by the Privy Council in Belize Alliance of Conservation of Non-Governmental Organization. The Department of the Environment and Belize Electric Company [2004] UkPC6:

“The question of whether it was sufficient to justify proceeding with the scheme (to erect a dam) was a political decision, not reviewable in a Court of Law.”

This statement echoed that made by the House of Lords in R v Secretary of State for Trade & Industry exports Lonhro PLC [1989] 1 WLR 525 where Lord Keith of Kinkel at p536 observed:

“... The Court must be careful not to invade the political field and substitute their own judgment for that of the Minister. The Court judges the lawfulness not the wisdom of the decision"

28.          The Chief Justice re-iterated that the question for resolution by the court was whether the requirement for consultation set out in section 39A had been fulfilled. The respondents had reminded the Chief Justice that the question to be determined was not whether the consultation exercise might have been improved upon or met some notional ideal but whether there has been that degree of consultation which fairness demands. In this regard, the Chief Justice correctly relied on the observation of Elias LJ, Judge Divisional Court in R (Vale of Glamorgan Council) v Lord Chancellor and Secretary of State for Justice [2011] EWHC (Admin) 1532 at 37(3) that:

"...The conclusion that a consultation exercise was unlawful on the ground of unfairness will be based on the finding by the court not merely that something went wrong but that something 'went clearly and radically' wrong."

Physical Planning Ordinance

29.          Planning law in the TCI is governed by the PPO. Section 3 provides:

“Duties of the Minister

(1) It shall be the duty of the Minister to secure consistency and continuity in the framing and execution of a comprehensive policy with respect to the use and development of all land in these Islands to which this Ordinance applies in accordance with a development plan for these Islands prepared in accordance with the provisions of Part IV or otherwise in operation by reason thereof.’’[Emphasis added]

30.          The mandatory duty imposed on the Minister is to secure consistency and continuity in informing and executing a comprehensive policy for the use and development of all land in accordance with a development plan. It does not, in my view, impose a duty on the Minister to create a development plan. However, it may be argued that, the best way of ensuring the consistency and continuity required is by way of preparation of a development plan. Section 39A of the PPO recognizes that circumstances may exist in which no development plan is in existence.

31.          Section 26 of the PPO reinforces the duty on the Minister and at the same time extends it to all public officials involved in planning decisions when exercising the power under the Ordinance. They are required to perform this power in a manner that will enhance the development of land in the Islands. This must be done in a manner which is consistent with a coherent policy for the development of land. Section 26(1) provides:

“General duty

26. (1) It shall be the duty of the Governor, the Minister, the Board, the Director and all planning officers charged by or under this Ordinance with the exercise of any power or the performance of any duty to exercise that power or to perform that duty in such manner as will promote development of land which—

(a)           is consistent with a coherent policy for the development of land in the Islands (including any development plan having effect in accordance with the provisions of this Ordinance);

(b)           promotes orderly development of the Islands in such manner as is beneficial to the people of the Islands; and

(c)           takes into account environmental, social and economic considerations.”

32.          Section 32 deals with the scope of the development plan. That section states:

“32. (1) A development plan may be prepared—

(a)           for the Islands as a whole, and shall be called a National Physical Development Plan; or

(b)           for the whole or any specified part of any Island, and shall be called by the name of the Island or part thereof to which it relates; or

(c)           in relation to any particular subject matter and shall be called by the appellation of the matter for which it is made, and shall be in such detail and be intended to cover such periods of time as appear to the Director to be appropriate for the purpose for which it is made.

(2) A development plan shall include—

(a)           a summay of the principal features of the plan;

(b)           a report on the existing conditions of the area or the subject matter to which the plan would relate;

(c)           an explanation of the proposals and their justification;

(d)           such maps, plans, diagrams and other material as the Director considers necessary to illustrate and explain the plan.

(3) A development plan may include—

(a)           a statement of the general principles and policies which it is considered should govern the regulation and control of development in the area concerned;

(b)           the specification and allocation of sites for different types of development, including any development for public purposes or for use by the general public;

(c)           the designation of any area as being an area which, for environmental, ecological, aircraft, safety or other similar reasons should not be developed;

(d)           proposals for the preservation of buildings for architectural, cultural or historical reasons;

(e)           such other matter as the Director considers desirable to explain or support any part of the proposed plan on demographical ecological, economic or social grounds.”

33.          Section 33 makes provisions for the preparation of the development plan. Section 33 states as follows:

“Preparation of development plan

“33. (1) The Director shall be responsible for the preparation of any development plan.

(2) The Director shall keep the Minister and the Board informed of the progress with the preparation and the likely general content of a plan which is in the course of preparation and shall have regard to any comments or representations made by the Minister or the Board on the proposed plan.”

34.          Section 34 provides for the duty of the Minister on completion of the draft development plan. Section 34(1) provides:

34. (1) When the Director has prepared a draft development plan he shall send a copy to the Minister and shall deposit a copy at the office of the Department of Planning and at such other place or places as the Minister considers to be most effective for bringing it to the notice of persons residing, working or owning property in the area to which the draft development plan relates, or who are likely to be affected by the proposals in the draft development plan.

35.          Section 39 of the PPO deals with the legal status of a development plan. It states:

"39 (1) Where a plan has been approved by the Governor—

(a)           It shall be the duty of all public officers to have due regard to, and so far as it practicable, be guided by, the plan in formulating and preparing any project of public investment and development in the Islands;

(b)           The Minister and the Board shall, in considering any application for development permission, have regard to, and, as far as it appears to be consistent with the objectives set out in section 14(1)"

36.          The PPO was amended on December 22nd, 2015 by the Physical Planning (Amendment) Ordinance 2015 which introduced section 39A:

"Notwithstanding the requirement of this Part, where no development plan has been approved, the Governor may make regulations under section 79 as to planning standards, including setting building height, density and setbacks:

Provided that the Governor, before making regulations as to building height and density, may require the Director to undertake such consultation as may be necessary to give such publicity to the matter as will enable persons likely to be affected or interested to make representations or comments."

37.          In my view section 39 does not place a duty on the Minister to have a development plan prepared. The section speaks to the duty of all public officers to have regard to and be guided by the development plan if a development plan has been formulated and approved by the Governor. Section 39A recognized that circumstances may exist where these is no valid development plan in force.

38.          Section 79 of the PPO empowers the Governor to make regulations relating, inter alia to:

(a) as to new buildings—

(i)            the preparation and foundations of the site;

(ii)           the method of construction, structural strength and stability;

(iii)         the materials, including materials of short life and their preservation from decay and infestation;

(iv)          the space about buildings;

(v)           the insulation, lighting and ventilation of rooms;

(vi)          the dimensions of rooms and spaces;

(vii)         planning standards; ...”

39.          The Building Regulations came into force on 15 October 1990 (Legal Notice 45/1990). Schedule 1 gives effect to the reference in s. 79(1)(a)(vii) to "planning standards". It states:

"Planning Standards

A person wishing to erect a building or structure, or carry out building operations as defined in the Physical Planning Ordinance, shall comply with any planning standards as may from time to time be contained in and published by the Department of Planning as a Development Manual. Such matters as may be provided for therein include:

………

2. Residential development standards

1. Set backs

2. Site coverage

3. Lot sizes'"

40.          Section 39A empowers the Governor, in the absence of a development plan to make regulations under Section 79 relating to planning standards including setting building heights, density and setback. However, before doing so, the Governor may require the Director of Planning to undertake public consultation. The purpose of such consultation is to give the public an opportunity to comment on the proposals which are likely to be contained in these regulations.

41.          Under the Regulations and the provision of section 18 of the Constitution, the Governor is certainly obligated to request the Director to undertake a consultation. The consultations which the Director was required to undertake would relate to the proposed changes the Government was considering as it related to a change in its policy to increase the heights of apartments, condominiums and hotel buildings from a maximum of seven floors, a measurement of 90 feet, to a maximum of twelve floors, a measurement of 150 feet. In addition, the changes included a change of policy in relation to the density of hotel and condominiums rooms per acre by increasing the density from 24 bedrooms per acre to 40 bedrooms per acre for condominiums, and from 25 bedrooms per acre to 50 bedrooms per acre for hotels.

42.          The Development Manual is made under Schedule 1 to the Turks and Caicos Islands Building Regulations. It is a technical document that specifies the rules governing building construction. The Manual is not a comprehensive planning policy, nor could it lawfully constitute one, as it is made under the Building Regulations. In section 3.5 of the Manual titled, "Residential Development", it includes rules relating to the three issues specified in Schedule 1, paragraph 2, namely setbacks (3.5.2), site coverage (3.5.4) and lot sizes (3.5.5). It also includes rules on building heights for apartments, condominiums and hotels (3.5.3).

43.          The 2016 Notice issued by the third respondent amended the rules on building height in the Development Manual by increasing height and density. Section 3.5.3. of the Development Manual was amended by deleting paragraphs (c) and substituting the following:

"(c) Apartments, condominiums and hotels, the allowable maximum height of the building is twelve (12) storeys up to a maximum of 150ft...

Twelve (12) storey building shall only be allowed-

(i) On coastal parcel tourism related development gone at Grace Bay, the Bight and Turtle Cove. From Emerald Point to Turtle Cove, bounded by parcel 60901/28 to the east and parcel 60713/250 on the west; and

(ii) On coastal parcels, which are located on the northern coastline of North West Point (60101/6.7.8.17.33.38.39; 60000/75,77,79; 60000/138-155; 60000/617 and 60000/618)."

Consultation - Law

44.          The necessary criteria for consultation with the public, is to be found in R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168 where Hodgson J stated:

"Mr. Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of [sic] intelligent consideration and response. Third, . . . that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."

45.          This criterion was recently endorsed in the Supreme Court in R (on the application of Moseley) v Haringey London Borough Council [2014] UKSC 56 [2014] 1 WLR 3947, where Lord Wilson said at paragraphs 23 to 25) (with emphasis added in bold):

"The Law

[23] A public authority’s duty to consult those interested before taking a decision can arise in a variety of ways. Most commonly, as here, the duty is generated by statute. Not infrequently, however, it is generated by the duty cast by the common law upon a public authority to act fairly. The search for the demands of fairness in this context is often illumined by the doctrine of legitimate expectation; such was the source, for example, of its duty to consult the residents of a care home for the elderly before deciding whether to close it in R v Devon County Council, ex parte Baker [1995] 1 All ER 73, 91 LGR 479, 11 BMLR 141. But irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted.

[24] Fairness is a protean concept, not susceptible of much generalized enlargement. But its requirements in this context must be linked to the purposes of consultation. In R (Osborn) v Parole Board [2013] UKSC 61, [2014] 1 All ER 369, [2013] 3 WLR 1020, this court addressed the common law duty of procedural fairness in that somewhat different context, identified by Lord Reed in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair. First, the requirement “is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested” (para 67). Second, it avoids “the sense of injustice which the person who is the subject of the decision will otherwise feel” (para 68). Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not “Yes or no, should we close this particular care home, this particular school etc?” It was “Required, as we are, to make a taxation-related scheme for application to all the inhabitants of our Borough, should we make one in the terms which we here propose?’

[25] In R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168 Hodgson J quashed Brent’s decision to close two schools on the ground that the manner of its prior consultation, particularly with the parents, has been unlawful. He said at p 189:

“Mr. Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, . . . that adequate time must be given for consideration and response, and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalizing any statutory proposals. ”

Clearly Hodgson J accepted Mr. Sedley’s submission. It is hard to see how any of his four suggested requirements could be rejected or indeed improved. The Court of Appeal expressly endorsed them, first in the Baker case, cited above (see pp 91 and 87), and then R v Mirth and Last Devon Health Authority, ex parte Coughian [2001] QB 213 at para 108, [2000] 3 All ER 850, 97 LGR 703. In the Coughlan case, which concerned the closure of a home for the disabled, the Court of Appeal, in a judgment delivered by Lord Woolf MR, elaborated at para 112:

‘It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.”

The time has come for this court to endorse the Sedley criteria.

They are, as the Court of Appeal said in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472, 126 BMLR 134, at para 9, “ a prescription for fairness”.

46.          Lord Reed speaking of the statutory duty of consultation observed at para 36 in his judgment in Moseley.

"[36]...Such duties vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is to be carried out. The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public; the identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or holding public meetings; and so on and so forth."

47.          In Wellington International Airport v Air New Zealand [1993] 1 NZLR 671 the Court of Appeal of New Zealand stated:

"The word "consultation" did not require that there be agreement as to the charges nor did it necessarily involve negotiations towards an agreement, although this might occur particularly as the tendency in consultation was at least to seek consensus. It clearly required more than mere prior notification. If a party having the power to make a decision after consultation held meetings with the parties it was required to consult, provided those parties with relevant information and with such further information as they requested, entered the meetings with an open mind, took due notice of what was said and waited until they had had their say before making a decision: then the decision was properly described as having been made after consultation."

The Court observed:

“We do not think that “consultation” can be equated with “negotiation”. The word “negotiation” implies a process which has as its object arriving at agreement."

48.          This consultation was intended to inform the public, stakeholders and those who reside in the area of the likely proposed changes in policy. The nature and requirements of such consultation must relate to the issue about which the consultation is being conducted. In Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111, 1112 the Privy Council stated that “the nature and object of consultation must be related to the circumstances which call for it.” For such consultation to be meaningful, all the material on which the TCIG was relying to justify its change of policy ought to be made public, so that the public may make a meaningful contribution.

49.          There was no obligation on the part of the TCIG to disclose any material that it had reflected in R (Robin Murray & Co) v Lord Chancellor [2011] EWHC 1528 (Admin) Beatson J at para 47 observed that:

"to require a public body engaged on a consultation exercise...to circulate information about the way its consideration of the matters before it was developing and afford an opportunity for further responses has the potential to lead to a never-ending dialogue."

Later in his judgment he stated:

"It was clear from the decisions in Bushell v Secretary of State for the Environment [1981] AC 75, at 102 and Edwards v Environmental Agency 2006 EWCA Civ 877 at 103... that there is in general no obligation on a minister to communicate advice received from officials or internal material or information to consultees."

50.          In The Vale of Glamorgan Council v Lord Chancellor [2011] EWHC 1532 the Divisional Court held, in line with previous authority, that there is no general principle that a public body "entering into consultation must consult on all possible alternative ways in which a specific objective might arguably be capable of being achieved." Elias LJ said at para 24:

"24. We do not accept this submission, essentially for the reasons advanced by Mr Grodzinski QC, counsel for the Lord Chancellor. First, there is no general principle that a Minister entering into consultation must consult on all the possible alternative ways in which a specific objective might arguably be capable of being achieved. It would make the process of consultation inordinately complex and time consuming if that were so. Maurice Kay J recognised this in the Medway case itself, at para 26:

"Other things being equal, it was permissible for him (that is, the Secretary of State) to narrow the range of options within which he would consult and eventually decide.

Consultation is not negotiation. It is a process within which a decision maker at a formative stage in the decision making process invites representations on one or more possible courses of action. In the words of Lord Woolf MR in Ex parte Coughlan [2001] QB 23 at para 112, the decision maker's obligation "is to let those who have potential interest in the subject matter know in clear terms what the proposal is and why exactly it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."

This passage was approved by the Court of Appeal in R (Forest Heath DC) v Electoral Commission [2010] PTSR 1227 at para 54."

51.          The statement was reaffirmed by the Court of Appeal in R (United Company Rusal Plc,) v The London Metal Exchange [2014] EWCA Civ 1271 which decided that there is no common law obligation on a public body to consult on options it has discarded, holding that, para 51:

"51. The adequacy of consultation must depend on the sufficiency of information in the context in which the consultation took place. Therefore the court cannot ignore information which was well known to the consultees even if it was set out or referred to in the consultation document. Any other conclusion would lead to cumbrous and potentially self-defeating consultation exercises where the real issue is obscured by common knowledge."

Submission

52.          The appellants submitted that the Chief Justice erred in her analysis of the history of consultation as the Appeal Record shows:

(i)            The Appellants were not a part to any so called 'consultation' process in 2014. It was for this very reason that November 2015 Ruling struck down the 2015 amendment to the Development Manual.

(ii)           The general public had never been involved in this process.

(iii)         The exercise in August 2015 was not a 'consultation' exercise at all. The law had already been (improperly) changed in February 2015, albeit this was later struck down by November 2015 Ruling. In August 2015 TCIG was not proposing to change the law or reverse changes in the law.

(iv)          Repeated written requests to explain the purpose of a single public meeting in August 2015 were ignored by TCIG and the Attorney General Chambers.

(v)           TCIG made it clear at the public meeting in August 2015 that TCIG’s mind was made up and TCIG had no intention of reversing the February 2015 changes

(vi)          Whatever the purpose of the August 2015 public meeting in no way could it be fairly described as ‘consultation’. Thus prior to 2016 there had in fact and in law been no consultation at all to which the Applicants or more importantly the entire general public were ever a party. The Learned Chief Justice erred to the extent she found there had been consultation prior to 2016.

(vii)         The general public at large does not possess special knowledge or resources. A properly informed decision requires that the whole of the general public be informed with adequate information and a fair opportunity and time to respond.

53. The appellant argued that even if the 2015 Ruling and litigation meant the applicants knew TCIG wanted 12 storey developments that did not amount to a sufficient basis to say there had been prior consultation or that consultation was ‘reopened’ implying there had been effectual consultation. This, they said, was an error by the Chief Justice.

54.          Ms. Mountfield, Q.C., counsel for the first to third respondents in response to the appellant’s submission, submitted that the 2016 consultation cannot be viewed in isolation as the 2015 consultation is relevant as it informs the question of what the public could already have been expected to know at the time of the 2016 consultation exercise was being undertaken. In order to establish that the Court is entitled to conclude that the consultees knew what was being proposed and why, Ms. Mountfield relied on the August 2015 public meeting, at which TCIG used PowerPoint slides "explaining why the meeting was being held, the government's thinking on why an increase in density was [economically] desirable and socially sustainable, and how adverse impacts could be mitigated".

55.          The appellants argued that no written proposal or report in January 2016 explaining or giving sufficient reasons for the proposals had been given in order to permit intelligent consideration and response. All requests for copies of written reports from KPMG were ignored or declined. Mr. Griffith stated that the Chief Justice erred in her factual assessment in concluding that members of the public had sufficient information about what was proposed in order to make an intelligent response by referring to the ‘challenges’ of Kathleen Wood. Ms. Wood was, until August of 2014, TCIG’s Director of the Department of Environment and Maritime Affairs (‘DEMA’). Counsel suggested that Ms. Wood who is an environmental scientist and given her background with TCIG was uniquely qualified to make an informed response. He complained that other members of the public such as the appellants did not have access to the same scientific and economic data as Ms. Wood. He said that Ms. Wood’s response of 2015 was not considered in the 2016 consultation.

56.          The Chief Just did not accept, as the appellants contended, that TCIG's failure to disclose the commissioned KPMG report or any other report it had received undermined the consultation process. In so doing I am of the view that the Chief Justice was correct. I accept the proposition that at common law, it is not a necessary part of the consultation process that those who are being consulted should be aware of the advice already given to the decision-maker so that they can comment on it.

57.          In further submissions, counsel stated that the Chief Justice fell into error in that she elided (i) her view as to the speed with which the proposal would have been disseminated and (ii) the time allowed to make a meaningful response.

58.          Counsel complained that the TCIG failed to explain why the consultation period was so short. He suggested that the timeline of one week appeared to have been set by the Premier without reference to advice or by case law. In addition, no explanation has ever been given as to why additional time could not have been given, as in his view, there was clearly no urgency and no need to set such a peremptory time limit.

59.          He argued that the Chief Justice rejected the comparative exercise of reviewing what was adequate time in other consultation exercises. He said that the Chief Justice failed to pay any or any sufficient regard to the various time periods allowed in planning issues under the PPO:

i)              If a draft national Development Plan is published in the Gazette the public are given a statutory eight-week period in which to respond (section 34 (3)). In effect he stated that the consultation here ought to be the same given the significance of the proposed changes in height and density. The Chief Justice therefore failed to pay any adequate regard to the legislative guidance and requirement on what is considered adequate time for consultation in the local context.

(ii)           If a significant application for development permission is made for a specific parcel it must be Gazetted and any affected party is allowed 28 days thereafter in which to respond (PPO Development Permission Regulation 7).

(iii)          If an applicant wishes to challenge a change in the law by way of judicial review a period of three months is allowed in which to bring the challenge. In England and Wales Planning matters are reduced to six weeks but that is still significantly more than a one-week period. Here these judicial review proceedings were filed within six weeks of the 2016 Amendment.

(iv)          Even in considering whether to bring an appeal to this Court 28 days is allowed.

60.          Counsel submitted that a period of one week’s consultation was unreasonable and arbitrary as no meaningful response could be prepared on economic and environmental issues underlying the proposed changes. The finding by the Chief Justice that time allotted was fair was not a matter where the Chief Justice was uniquely qualified to judge. It was not a matter of judicial discretion and, even if it was, it is so plainly wrong as to be unsustainable. The Court of Appeal can and clearly should exercise its powers to correct this error in judgment.

61.          He further submitted that there was procedural unfairness in the way in which the 2016 consultation was conducted in that (i) no written proposals were given (ii) information had been deliberately withheld and (iii) the lack of time allowed, meant that the consultation was not fair. He suggested that there is a real sense of injustice that built environment of the Grace Bay and the TCI will be irreversibly changed without those affected having had a fair opportunity to make representations.

62.          I accept counsel's submission that adequate time for consideration and response has to be viewed in the context of what is being proposed. I do not however accept that the proposal which was said to radically alter height and density requirements would irreversibly change the character of Grace Bay. He said that the operative factors included environmental impact issues and economic impact issues both for and against the proposal. However, I do not accept counsel's submission that a mere 7 days’ response was insufficient and was unprecedented and a clear error of law and fact.

63.          For the reasons set out later in this judgment, I am of the view that, in the circumstances of the case, the Chief Justice was correct in holding that the time limited for consultation was adequate.

64.          Complaint was made that the Chief Justice failed to address the submissions of the Appellants that (i) this exercise was being conducted in the absence of a national development plan and (ii) TCIG had had no environmental evidence to weigh in the decision making process, and that such evidence could only come from a strategic environmental impact assessment prior to the decision being weighed. For the reason set out later, I do not accept this complaint.

65.          Mr. Griffith argued that the second respondent is under a dual duty to:

(i)            secure the development and operation of a comprehensive and consistent planning policy for the Islands; and

(ii)           discharge that duty in accordance with a development plan.

He said that section 26 of the PPO reinforced this duty and extended it to all public officials involved in planning decisions. He urged upon the Court that the respondents are obliged to promote the development of land consistently with a 'coherent policy for the development of land'. That policy he suggested must have regard to the stipulations of any development plan. He stated that section 26 does not qualify the mandatory duty to adopt a development plan set out in section 3. Nor has the general duty been abrogated even by section 39A. Section 39A, he suggested, relates to Part V of the PPO, not Part IV of the PPO under which the general duty at section 26 arises. In my view, the use of the word 'any' in section 26(1) (a) merely refers to the fact that if there was a development plan in existence it was necessary to refer to the plan in the performance of the duty to be consistent and coherent when considering the development of land in TCI.

66.          The appellants submit that the second respondent is in a continuing breach of the statutory duty imposed under section 3 to promulgate a development plan. The second respondent was aware of the breach at least after the 2015 Ruling.

67.          In their written submissions, the appellants submitted that the second respondent is under a statutory duty imposed by sections 3 and 26 of the 'PPO to promulgate a 'coherent' and 'comprehensive' planning policy for the TCI, including publishing a development plan. A development plan is subject to a statutory consultation process, which provides the means by which the views of the public on development can be taken into account. He argued that the duty of establishing a development plan is one of the ways in which compliance with section 18 of the Constitution may be achieved.

68.          Counsel contended that TCIG was clearly erred in that they failed to consider the option of preserving the former limit of seven storeys and density. In support of this suggestion he relied on the evidence of the Premier who said at para 18 of his affidavit:

"18. The options are either to freeze’ development while a medium term plan is developed, or for TCIG to adopt an interim plan to govern development pending introduction of a Development Plan.''

In my view, it was a matter of policy for the Government to decide whether to freeze development while a medium term plan was being developed or to adopt an interim plan which would govern any development pertaining the introduction of a new Development Plan. It is not a matter for the Court to decide if the TCIG adopted the correct approach. The role of the Court is to ensure that once the TCIG opted for a particular policy, it followed the correct procedure in carrying that policy into effect.

69.          Although a Development Plan for Providenciales had been previously published for the period 1987-1997, it was accepted that subsequently no development plan had been formally 'approved' within the meaning of the PPO. The 1987-1997 Providenciales Development Plan formed the basis of the original Development Manual and was part of a United Nations project which lead to the PPO.

70.          It was submitted that section 79 empowered the first respondent to make regulations concerning various technical matters relating to the construction of buildings. Prior to the introduction of section 39A, section 79 did not empower TCIG to introduce any changes to the height and density of developments including condominiums and hotel buildings. He stated while section 79 contains a list of the matters about which the Governor is empowered to make regulation, the height of buildings is not expressly set out in that list. However, section 39A refers to the new power to the first respondent make regulations as to building height, density and setbacks.

71.          Counsel suggested that the effect of section 3 and 26 is to make a development plan a mandatory requirement of planning law. In support of this statement, he referred the Court to the use of development plans in England. He reminded the Court that development plans have been compulsory in England since the introduction of Town and Country Planning Act 1947. Section 5 of that Act provided that all local planning authorities were obliged to prepare a development plan 'indicating the manner in which they propose that land in that area should be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development should be carried out.'' Section 10 required public consultation on the plans before they were submitted to the Minister for his approval. As the means by which development strategy is set and planning applications are to be assessed, development plans are an essential element of planning law (see R (on the application of RWE Npower Renewable Ltd) v Milton Keynes Borough Council [2013] EWHC 751 (Admin), paras 8-9:

"(i) the development plan and "local development documents"

8. As is well known, applications for planning permission in England fall to be determined in accordance with the 'development plan' unless material consideration indicate otherwise: see section 70 of the Town and Country Planning Act 1990; section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act").

9. The "development plan" has been a central feature of the system of development control since the Town and Country Planning Act 1947. The 2004 Act introduced a new regime for the adoption of development plans. But it also provided, for the first time, a framework for the adoption of other, local planning documents. Before the 2004 Act, local planning guidance to assist in the determination of planning applications. The 2004 Act provided for the first time a procedure for the adoption by local planning authorities of such other planning guidance. This regime governs what are referred to, collectively, as "local development documents". (These are sometimes referred to as "LDDs".)

72.          In my opinion this statement shows the importance of having a development plan. Such a plan will set out what is government's police in the development of land with TCI. In the development, the Minister is charged to promote and secure consistency and continuity. This is best achieved if there is a national development plan. But it is necessary to recognize that a valid development may not be in existence. Circumstances may change and a national development plan may not be in existence. In these circumstances, the Minister is still required to achieve continuity and consistency. To this end, I accept the observation of Mr. Griffith concerning the PPO. He said that the PPO makes it clear that consistency is a primary objective of the legislation. He suggested that policy promotes consistency and to this end he relied on the statement contained in the judgment of Lord Clyde in R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment [2003] 2 AC 295, para 143:

"143. One criticism which is levelled at the system is that the minister has the functions both of making planning policy and of applying the policies which he had made. But that combination of functions does not necessarily give rise to unfairness. The formulation of policies is a perfectly proper course for the provision of guidance in the exercise of an administrative discretion. Indeed policies are an essential element in securing the coherent and consistent performance of administrative functions. There are advantages both to the pulic and the administrators in having such policies. Of course there are limits to be observed in the way policies are applied. Blanket decisions which leave no room for particular circumstances may be unreasonable. What is crucial is that the policy must not fetter the exercise of the discretion. The particular circumstances always require to be considered. Provided that the policy is not regarded as binding and the authority still retains a free exercise of discretion the polity may serve the useful purpose of giving a reasonable guidance both to applicants and decision-makers. Nor is this a point which can be made solely in relation to the Secretary of State. In a variety of administrative functions, in addition to planning, local authorities may devise and implement policies of their own."

73.          Part V of the PPO sets out the provisions regarding the promulgation of the development plan contemplated in section 3 and 26. The second respondent is responsible under section 31(1) for the preparation of a development plan if so required by the first respondent. He must include proposals for consultation (section 31(1) (d). The scope of the development plan is determined by section 32.

74.          Mr. Griffith submitted that the provisions of section 31(1) and 32 demonstrate that development plans are intended to set out basic principles governing development. He said that section 32(3) is expressed in terms of discretion and this reflects the fact that section 32(1) (c) permits a number of development plans that may cover particular topics. As a consequence, it may not be appropriate to address all of the matters in section 32(3) in every development plan. The discretion in section 32(2) must be read with the duty in section 3(1) to ensure a comprehensive policy.

75.          Section 34 of the PPO sets out the procedure for consultation on a development plan which provides that the third respondent must publicise a draft of the plan and inform the public of their right to make representations. The public have eight weeks to make representations, after which time the planning authorities make their comments before it is sent to the first respondent for approval or consideration and hopefully approval.

76.          Counsel for the appellants submitted that the process for consultation on the development plan is the only means by which the public is able to make their views known to the government on the strategic development of the Islands. In the absence of a development plan, the public had no formal mechanism for input into the rules governing the Islands' development.

77.          The appellants submitted that the 2016 Amendment did not have the legal effect of negating the requirement for a development plan. They argued that, since section 18 of the Constitution requires the Government and Legislature to adopt reasonable legislative measures to protect the built heritage, the wildlife and the land and sea biodiversity of the Islands, a development plan would ensure compliance with that section. Proper public consultation, it was suggested, is prerequisite to this happening. In these circumstances, section 18 impacts both consultation and the Government's inherent duty to have due regard to the need to protect the environment whilst promoting justifiable social and economic development.

78.          The appellants challenged the cogency of the reasons advanced by the TCIG that changing building height and density restriction are necessary to expand economic growth, increase air lift, increase job opportunities, improve infrastructure and increase population to sustainable levels. Ms. Kathleen Woods took issue with those reasons and asserted that not only is there no correlation between increasing height and density and economic growth as experience has shown that increases in height and density lead to a decline in value per unit.

79.          Counsel stated that it was only after the appellants were provided with a copy of the 2015 Report and a copy of the information contained in Ms. Wood’s email they were, for the first time, able to advance economic and environmental arguments. Due to the lack of information from TCIG information which he suggested was deliberately withheld and due to the peremptory time limit of one week imposed by TCIG, the appellants simply had no reasonable opportunity to advance economic and environmental issues.

80.          He suggested that to infer the economic and environmental issues were not as complex as issues raised in reported case law was a fundamental error. He said that the economic reasoning and representations to be made on environmental matters are as complex as any consultation issue which could arise where the proposed change in law would impact an entire protected marine environment including the Princess Alexandra National Park which runs the length of Grace Bay and a beach publicly acclaimed as the World’s best beach on Trip Advisor in 2015 and 2016 and which is the engine of the TCI economy.

81.          In respect of Ms. Wood's criticism of the methods employed, the Chief Justice considered that this was outside of her sphere of expertise. The Chief Justice indicated that even if the sentiment of the public been overwhelmingly against 12 storey developments on Provo, as Ms. Wood suggested in her evidence, failing to go with the majority would not render the decision to change building heights unlawful. She observed that consultation is not a referendum; it was a process for ensuring that people are listened to and that opposing points of view and relevant information are taken into account.

Ground 1- Inadequate Consultations

82.          In deciding whether there was adequate consultation, I apply the Sedley criteria and pose the following questions:

(i)            Did the consultation occur when the proposal to increase the building heights from 7 to 12 stories and density of room was still at a formative stage?

(ii)           Did the TCIG give sufficient reasons in respect to the proposal to increase building height so as to permit intelligent consideration and response?

(iii)          Was adequate time allowed for consideration of the proposal?

(iv)          Was the product of the consultation taken into account in finalizing the proposal?

83.          In dealing with the issue of whether inadequate time was allowed for consultation, I consider that it would be wrong not to have regard to what had taken place prior to the amendment of PPO and enactment of section 39A. Even though the Chief Justice had held that that consultation was inadequate, in my view that consultation nevertheless had to be looked at, along with the consultation of 2016, to ascertain whether the consultation as a whole was adequate.

84.          Mr. Rufus Ewing, the Premier, stated that the TCI economy, since 2008 suffered as a result of the global recession. However, the economy started to recover and, as a result, there was an increased number of visitors. As the economy started to recover, TCIG through TCI Invest, received a number of development proposals to construct buildings of 12 storeys to 28 storeys which would be higher than the existing limit of 7 storeys. The Premier stated that the majority of the accommodation which currently existed was in low-rise condominiums, such accommodation was a combination of tourist and long term rentals.

85.          The Premier indicated that the Cabinet took a policy decision that it was economically desirable to move from the current model to a mixed use model of condominium and traditional European Plan of high end hotels. It was expected that this would result in an increase number of hotel rooms to cater to the expected increase of visitors. This change in policy was expected to create greater consistency in the inventory of rooms available as hotel rooms. It was the expectation of the TCIG that the proposed change might lead to luxury brand hotels investing in the Island and that this would inevitably lead to global recognition of the Turks & Caicos Islands.

86.          The Premier pointed out that maximizing the benefits of tourism was a key priority for the Government, especially in order to fund essential public services. He stated that the Cabinet was aware of the need to protect and enhance the natural environment. He recognized that it was therefore necessary to walk a delicate line between economic development, and economic and environmental sustainability. The Premier indicated that the option available to the Government was either to freeze any physical development while a medium term physical development plan was developed, or to adopt an interim position to govern physical development, pending introduction of a Developmental Plan. He expressed the view that to delay the development in the Tourism Industry until completion of the Developmental Plan, would threaten the competitiveness of the TC tourism in a way which would cause irremediable harm to TCI having regard to the rapid change in the global market.

87.          The Premier indicated that it was important to appreciate, that while an application for planning permission made in accordance with the criteria set out in the Development Manual, it does not mean that the application will be granted. The procedure for planning permission under the PPO required careful consideration of an Environmental Impact Assessment (EIA) study. The EIA impact study is put out to the public for a period of consultation to allow for comments before permission is given. An application for erection of a building of 12 storeys would be subject to such EIA.

88.          The first and third respondents indicated that the consultation process to change building heights commenced in 2014 when the proposal had been discussed with a group of persons who were described as stakeholders. This group included among others, representatives from the Hotel and Tourism Association and DEMA.

89.          David Lightbourne, the Director of Planning in the Ministry for Infrastructure, Housing and Planning in the Ministry for Infrastructure, Housing and Planning stated that on 23 July? 2014 the Government held a stakeholders' consultation meeting to explore the viability? of amending the Development Manual to increase the building heights for Apartment Condominiums and hotels from a maximum height or storeys of 90 feet to a maximum of 12 stories or 150 feet. The stakeholders group included the representatives of the Hotel and Tourism Association and DEMA and the owners of the premier properties in Turk and Caicos. The responses to the consultation were considered by the Cabinet. On 24 September 2014, the Cabinet took the decision to approve an amendment to the Development Manual. This amendment would have increased the height of permitted developments in suitable locations to 12 stories.

90.          This is confirmed by an examination of the Post Cabinet Meeting Statement. The Post Cabinet Meeting Statement for Wednesday 4 June 2014 contained a statement that the Cabinet:

"Agreed to open a consultation on increasing the height units in Providenciales to 14 storeys (150 foot). The consultation will be coordinated by the Ministry of Home Affairs and will be open to all interested stakeholders."

91.          On Wednesday 24 September 2014, The Statement contained the following provisions that the Cabinet:

"Advised H.E. the Governor to amend the Development Manual to increase the maximum height of buildings on the Island of Providenciales to a maximum 12 storeys on a minimum 5 acre parcel, effective immediately."

92.          Mr. Lightbourne also stated that a further consultation was conducted, the purpose of which was "to engage and obtain the widest spread of the stakeholder feedback and conversation on the project in relation to current height and density law.'' Participants were encouraged to provide their input using the public consultation e-mail. The public consultation was also advertised in the print media, online advertisement, television and efforts by the Department of Planning and the Ministry of Finance.

93.          At the August 2015 meeting, a further consultation exercise was carried out. That meeting was widely advertised and well attended. The proposal for increasing building heights was advertised through a mix of print media, online advertisement and television as well as through outreach programme by the Department of Planning and the Ministry of Finance. Mr. Lightbourne indicated that "a lot of responses were received by the Government both at the meeting and in writing''. At the meeting slides were produced explaining why the meeting was being held and what the government's thinking was. These slides set out the Government's "thinking on why an increase in density was economically desirable and socially sustainable and how adverse impacts could be mitigated’’. The presentation included developments which had taken place in competing jurisdictions with building heights between 8 and 28 storeys. It was pointed out that all projects would be subject to EIA which would be carefully assessed by the technocrats employed by the TCIG including the Planning Board, DEMA and Disaster Management. Consideration would also be given to fire mitigation, sustainable architectural design, zoning density and set back.

94.          In the Statement following the meeting of Cabinet held on Wednesday 7 October 2015 it was stated that the Cabinet:

"Approved the recommendation of the Department of Planning to establish designated zones on Providenciales for the construction of new developments up to 12 storeys on specified tourism-related costal parcels on Grace Bay, The Bight and Turkey Cove starting from Emerald Point to Third Turtle, and instructed the Department of Planning to prepare zoning proposals for North West Point East on Providenciales to be considered at the next meeting of Cabinet."

95.          On 2 December 2015 Cabinet met and approved the draft of the Physical Planning (Amendment) Bill for submission to the House of Assembly. There was no public consultation over this proposed amendment to the PPO and this is not surprising as the TCIG considered that this was a matter of policy. The Bill was published in the Gazette dated Friday 11 December 2015. The House of Assembly considered the Bill on Wednesday 16 December 2015. The Third Respondent stated that the Bill was published before discussion in the House of Assembly; the purpose of such publication was to afford members of the public an opportunity to comment on the Bill before it was debated by the House of Assembly and passed into law. The appellants complained that in any event the sitting of the House of Assembly three working days after the publication prevented any opportunity for consultation.

96.          The House of Assembly met on 16 December 2015 and passed the Ordinance in one sitting. The Physical Planning (Amendment) Ordinance was assented to on 17 December 2015 and came into force on 22 December 2015. The Physical Planning (Amendment) Ordinance The commencement notice was published in the edition of the Gazette dated Friday 18 December 2015.

97.          Mr. Rufus Ewing, the Premier, stated the consultation which took place in January 2016 was an open-minded and conscientious exercise. He indicated that Cabinet had asked questions arising from the report on the consultation before deciding how the Cabinet should proceed. The Cabinet, he asserted, was persuaded as a result of the consultation. I accept the observation of the Chief Justice that:

"Members of the Cabinet, whatever their views, must be trusted to approach their decision-making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should. In the absence of any evidence to show that there was indeed a closed mind, the prior observation of the Minister of Finance or the opponent favours the 12 story buildings found with the Premier are not sufficient to persuade me that the Cabinet approach the consultation process with a closed mind."

98.          In the Statement published on 8 February 2016, it is stated that the Cabinet:

"Received the report on the recently concluded public consultation on building heights and density and requested a presentation from Planning Department on its recommendation and finding at its next meeting."

This statement is indicative of the fact that the Cabinet has not made up its mind prior to the consultation. The Post-Cabinet Meeting Statement for the Meeting of Cabinet held on 18 February 2016 contained a statement that Cabinet had" Advised his Excellency the Governor to approve" the change in policy.

99.          In January 2016, the consultation process was reopened by the TCIG Press Office reopened by publishing open invitations to a series of stakeholder meetings to discuss amendments of existing building height restrictions and density requirements. The invitations were published on TCIG website and on its Facebook page and became the subject of media reports. Direct invitations were issued to key stakeholders and a series of town hall meetings held where the proposal was explained. It was further explained that it was proposed to change the building heights by regulations until a development plan could be promulgated.

100.        Counsel for the appellants wrote to the Third Respondent on 12 January requesting information and reports. The request related to (i) the proposals (ii) the factors and materials in support of and against the changes and (iii) all assessments and reports. In response, Mr. Awaad, the Acting Director of Planning wrote to Mr. Griffith on 13 January 2016 inviting the appellants to attend a meeting which was set for Monday 18 January 2016. No reports or studies or any written materials were provided to the appellants prior to the meeting of 18 January 2016. A request was made for a copy of the KPMG Report, this was not provided as the third respondent said he had not seen the Report. The TCIG had provided in its 2015/2016 budget for spending up to US$500,000.00 on a national development plan but work had yet to begin.

101.        At a public meeting was held on Thursday 14 January, 2016, a representative of the Planning Department stated that the purpose of the meeting was to hear the views of those attending. No written reports or proposals were provided to those attending to explain the issues. In response to a question whether TCIG had considered any environmental impact studies prior to the changes in legislation, the Deputy Director of Planning, Mr. Ogail Awaad, confirmed that no environmental study existed in relation to the proposed changes in the legislation. Mr. Awaad however pointed out that a site specific environmental study would be required in response to any application for development permission. The meeting heard of a number of persons expressed their views for or against 12 storey development. On 19 January 2016, written representations on behalf of the appellants were submitted, but were done without the appellants waiving objections to the consultation process. On Friday 26 February 2016 the Physical Planning Ordinance Building Regulations Development Manual (Amendment) Notice 2016 ('the 2016 Notice) was Gazetted.

102.        In the new consultation, invitations were extended to stakeholders and to the public to express views on the proposal. Early in January 2016, an invitation was issued to the public to a series of stakeholders meeting to discuss amendments to the existing restriction of the heights of buildings and density requirements. The public invitation to give responses to the consultation was published on the website of the TCIG and also on its Facebook; these are the methods usually adopted by TCIG for making public announcements and conveying information to the public.

103.        The invitation explained the nature of the consultation. It was indicated that the consultation was to "discuss and to get the stakeholders and the public's concerns and views on the proposal to increase building heights from a maximum seven (7) storey up to ninety (90) feet to a maximum twelve 12) storey up to one hundred and fifty (150) feet and to increase the density from twenty five (25) bedrooms per acre to forty (40) bedrooms per acre for condominiums and from twenty five (25) per acre to fifty (50) bedrooms per acres for hotels."

104.        Mr. Lightbourne stated that in the new consultation, he was gathering fresh evidence which was to be considered along with the evidence that had been already obtained in the prior consultation.

105.        On 11 January 2016 meetings were held with the Turks & Caicos Hotels and Tourism Association and Chamber of Commerce and the Real Estate Developers. These discussions included, inter alia, the capacity of the beach to accommodate more visitors, shadowing as a result of height of the building; sewage treatment capacities. Views were expressed on the need for a Master Physical Development Plan and the impact on water quality. On the following day, the consultation was with the Architects, Surveyors and Engineers, the Quasi Government Organisation, Turks and Caicos Tourist Board, National Trust and Invest TCI. Issues were raised with regard to the carrying capacity of Grace Bay and Providenciales.

106.        The Report which was prepared after the consultation stated that based on the written representations submitted by the residents, developers, real estate agents and other stakeholders, a significant number of persons supported the increase in building height and density. It was recognized that a National Development Plan would be beneficial to the planning of the development of TCI. Such a plan would take into account the economic, environmental and social sectors. In the interim, it was expected that work on a new National Development Plan would commence in the financial year 2017-2018. It was recommended that an Area Development Plan for Grace Bay? Area could begin during the financial year 2016-2017. It was noted that any development falling under the provision of Regulation 7 of Schedule 2 of the PPO must be advertised by posting a proper sign on the proposed site for development. In addition, notice relating to the proposed development must be published in at least two newspapers and the Gazette. Notice of the proposed development are to be served on the owners of land situated within a 200 feet radius.

107.        It was recommended that in the absence of a National Development Plan, the proposal for increasing the height of buildings to 12 storeys should be considered and limited to costal lands and tourist related development zone at Grace Bay, the Bight and Turtle Cove. In addition, 12 storey buildings could be allowed in coastal lands situated at the north coast area of North West Point. The area of land for the erection of building of the height of 12 storeys must be not less than 5 acres. In the case of land which is less than 5 acres, the height of the buildings cannot exceed 7 floors-90 feet in height.

108.        It was stated that an EIA "is a process" which is intended to examine the environmental consequences at any development before it takes place. It is intended to prevent degradation of the environment. Project screening will narrow the application of EIA to projects that may have a significant impact on the environment. Scoping is used to identify the crucial and significant issue required for the project. The EIA will deal with the project development including clarification of the purpose and rationale of the project and an understanding of its various characteristics including the stage of development, location and process. The EIA will identify and bring together the main impacts, adverse and beneficial, which are to be identified and taken into account. It seeks to predict the impact of the magnitude and dimensions of any likely changes in the environment especially the main impacts. It deals with the evaluation and assessment of issues which are likely to impact the project focusing on those which adversely impact the project. An EIA provides for the introduction of measures which are designed “to avoid, reduce, remedy or compensate for any significant" impact on the project. In formulating and ensuring the quality and effectiveness of the EIA, it is considered that there should be public consultation. The views expressed by the public must be taken into consideration in the decision-making process.

109.        It is recognized that Environmental Impact Statement (EIS) is a vital step in the process of formulating the EIA. If the EIS is not done properly, it may cause the EIA to be negated. The decision making on any development project would involve a consideration for the EIS including the responses during the consultation process. In order to prevent any negative impact on the environment, it was accepted that any proposed development would be subjected to site specific EIA.. Such assessment will address the environmental, social and economic impact of the proposed development and would provide for mitigation against any negative impact. In the case of costal development, EIA would also cover the impact on the marine environment. The EIA will also cover any issue of overcrowding on the beach and the impact on the coral reef. Another issue of concern raised at the consultation was beach pollution and erosion. In regards to erosion, it was noted that all beach front development is required to provide raised boardwalks to protect the sand dunes which is a natural protection for the beach. In so far as pollution was concerned, it was considered that well developed parks, beach access and frequent cleaning of the beach along with the provision of garbage bins on the beach will assist in reducing pollution.

110.        The structural designs and visual impact of 12 storey building were also considered. Proper architectural design and landscaping would reduce the visual impact of any 12 storey building. In regard to the structural concerns, this would be addressed by the EIA which would deal with the geotechnical issues. The TCI Building Code was also expected to provide guidance.

111.        It was accepted that the TCIG policy is to increase the visitor arrivals, diversify the type of tourist and the economic activity. Vacant land for tourist related activity is extremely limited in Grace Bay and in such circumstances, it was accepted that it was necessary to change the policy relating to the height and density of the buildings. The impact of shadowing on the beach was raised in the consultation process and considered before making the decision to change the policy. Other factors raised during the consultation and dealt with include privacy issues, insufficient infrastructure and impact on traffic. The issues of the devaluation of properties was also raised during consultation. It was considered that the increase in the building height will lead to brand name hotels coming to TCI and this was expected to give TCI greater exposure in the international market.

112.        In my view, the Sedley criteria was satisfied and the consultation cannot be said to be unfair. The Chief Justice came to the correct conclusion that it was not possible on the facts before the court to conclude that anything went wrong with the process of consultation. In any event it cannot be said "that something went clearly and radically wrong." Consequently, the appellants failed on Ground 1.

Ground 2

113.        This second ground alleges that the Chief Justice erred in concluding that the environmental protection required by section 18 of the Constitution has been met:

Section 18 of the Constitution provides as follows:

"Protection of the environment

18.—(1) The Legislature and the Government shall, in all their decisions, have due regard to the need to foster and protect an environment that is not harmful to the health or well-being of present and future generations, while promoting justifiable economic and social development.

(2) To this end the Legislature and the Government should adopt reasonable legislative and other measures to protect the built heritage, the wildlife and the land and sea biodiversity of the Islands that—

(a) limit pollution and ecological degradation;

(b) promote conservation and biodiversity; and

(c) secure ecologically sustainable development and use of natural resources."

114.        This section is contained in that Part of the Constitution which deals with the Fundamental Rights and Freedoms of the individual citizen. Section 18 does not deal with the Fundamental Rights but rather the responsibility of the Legislative and Government when making decisions affecting the environment.

115.        Section 21 of the Constitution deals with the enforcement of fundamental right in that Part and provides:

"Enforcement of fundamental rights

21.—(1) If any person alleges that any of the foregoing provisions of this Part has been, is being or is likely to be contravened in relation to him or her, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress."

116.        The duty placed on the Legislature and the Government is to have a conscious appreciation to the need to foster and protect the environment. It is to ensure that no decision is taken which could cause harm to the health and well being of the residents of TCI and the future generation. This is to be done when the Government and the Legislature are promoting economic and social policies for the development of the Islands. It is clearly a balancing exercise.

117.        In R (Hurley and Moore) v Secretary of State for Business Innovation and Skills [2012] EWHC201 [Admin] Elias LJ observed at para 78:

"78. The concept of "due regard" requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker.

118.        In their written Skeleton Arguments, the appellants alleged that the TCIG had clearly erred because they failed to take into consideration the option of preserving the former limit of building heights to seven storey and density. In support of the submissions, the appellants relied on the evidence of the Premier who stated:

"18. The options are either to "freeze" development while a medium term plan is developed or for TCIG to adopt an interim plan to govern development pending introduction of a Development Plan."

The Premier was clearly dealing with an issue of policy which as stated previously is outside the ambit of the jurisdiction of this Court.

119.        The appellants contended that understanding the environmental impact of the proposed changes in policy is a fundamental aspect of the duty to have due regard to the environment. They argued that the duty could not be fulfilled as the Government did not have any information on the environmental impact of the proposed changes. They further argued that the consequences of the decision and the negative impact on the environment would have to be given due regard. In the absence of an environmental impact study, counsel suggested that there was nothing to be placed in the scale. However, it was made clear by the TCIG that the change of the policy did not mean that there would be automatic approval for an application to erect a 12 storey building. Any application would have to be subjected to a site EIA before approval is granted.

120.        In their Skeleton Argument, counsel for the first, second and third respondents indicated that these respondents support and rely on the submission of the fourth respondent that it is not proper for the appellants to plead or rely on breach of section 18 of the Constitution. This concession was made in support of the fourth respondent's Notice.

121.        The fourth respondent took the point below that the appellants could not invoke section 18 of the Constitution because it is a condition precedent to invoking that section that the appellants must allege that section 18 has been contravened in relation to them.

122.        For the reasons set out below, I consider that there is merit in this submission.

123.        Section 18(1) of the Turks & Caicos Islands Constitution is similar to section 18(1) of the Constitution of the Cayman Islands (CI). The Constitution of CI contains a "Bill of Rights, Freedom and Responsibilities"; sections 2 to 15 deals with the fundamental rights freedom and responsibilities which are contained in the Constitution which is based on the Westminster Model.

Section 18 of the Cayman Island Constitution states:

"(1) Government shall, in all its decisions, have due regard to the need to foster and protect an environment that is not harmful to the health or well being of present and future generations while promoting justifiable economic and social development.

(2) To this end government should adapt reasonable legislative and other measures to protect the heritage and wildlife and the land and sea biodiversity of the Cayman Islands that-

(a)           limit pollution and ecological degradation;

(b)           promote conservation and biodiversity; and

(c)           secure ecologically sustainable development and use of natural resources."

Section 18 of the Cayman Island Constitution and section 18 of the Turks and Caicos Constitution are similar in their objective- to have due regard to the need to foster and protect an environment that is not harmful to the health and well being of the present of future generations.

124.        Section 18(1) of the Turks and Caicos constitution speak to "The Legislature and Government" while section 18(1) of the Cayman Islands Constitution speaks to "the Government". In my view, this is a distinction without a difference. The word Government in the Cayman Islands Constitution must be given a broad liberal interpretation and must be considered to refer to the Government in the broadest sense and to include the Legislature.

125.        In the Cayman Islands case of Coe, Multon, Smith and Ebanks v Governor and Four Others, The Cayman Islands Law Report 2014 (2) CILR 465, the Court of Appeal made reference to what was said by Sir Jeffrey Jowell, the Draftsman of the Cayman Island Constitution. Sir Jeffrey speaking on section 18 in the "Formal

Negotiations on a Cayman Island Constitution held in 2008-2009 said on (see transcripts for 2 October 2008), that:

"Eighteen is an increasingly accepted right, a constitutional right. It is something, particularly 18(1), that we have already because it simply is the law about judicial review of the action of public officials...This is already in the law, but to make it a constitutional right just elevates its status and applies it to all public officials and allows people reading the Constitution to see that this country observes good administrative practice, and if there is not good administrative practice it can be enforced in the courts...This provision was first introduced in South Africa, it is now part of the European Union Charter..."

It is clear that there is a distinction between the fundamental right and freedom normally found in a constitution based on the Westminster Model and the responsibility placed on the Government under section 18.

126.        If a person is desirous of invoking the provisions of section 18 of the Constitution, he must being himself within the ambit of section 21 of the Constitution of the Turks and Caicos Island. Section 21(1) of the Constitution states:

"Enforcement of fundamental rights

21 (1). If any person alleges that any of the foregoing provision of this Part has been, is being or is likely to be contravened in relation to him or her, then, without prejudice to any other action with respect to the same matter which is likely available, that person may apply to the Supreme Court for redress."

127.        In the Amended Grounds for Judicial Review, in dealing with Summary Issues, it is stated at 5:

"5. In this application the Appellants challenge the 2016 Notice on the following grounds:

(i)            ...

(ii)           ...

(iii)         The 2016 Notice was unlawful in that:

(a)           it was made in breach of section 18 of the Constitution in that the Respondents failed to have due regard to the duties and requirements imposed under section 18. The Respondents had no or no sufficient material to permit or justify the making of the 2016 Notice. The Respondents had undertaken no strategic environmental assessment or any other environmental assessment of the impact of the proposed changes to height and density and so had no material and no environmental evidence upon which to make an informed decision to make the 2016 Notice. Such evidence as was available to the Respondents was contrary to the proposed changes made under the 2016 Notice; and

(b)           the Respondents knew of the requirement to prepare a development plan under the PPO and their stated intention is to now prepare a development plan. Accordingly, the making of the 2016 Notice under the provisions of section 39A (which expire in December 2017) is in breach of section 18 of the Constitution (and/ or the PPO and/ or the rule of law) in that the preparation and implementation of the development plan and its recommendations will be undermined by changes introduced by the 2016 Notice at a time when it was known a development plan would be prepared in the foreseeable future."

128.        Later under heading "D Grounds" at paras 72 A and 72 B it is stated:

"72A...The 2016 Notice are made in breach of the Constitution and are unlawful. No changes to the PPO or the Development Manual could properly be made without complying with the duties imposed by section 18 of the Constitution and without evidence that the changes foster and protect the environment. Here, there was no environmental strategic assessment, no other environmental review or report and no evidence at all to support the proposed changes to show they would foster and protect the environment and so there was no basis on which the Constitutional duties imposed under section 18 could have been met. In practice they were totally ignored by the Respondents.

72B. The Respondents knew they would be preparing a national development plan to comply with the obligation under the PPO and highlighted under the 2015 Ruling. To have enacted section 39A and the 2016 Notice at a time when a development plan was to be prepared is unlawful (as being contrary to section 18 and/ or the PPO and/ or the rule of law) as it will (i) defeat the purpose of the intended development plan and (ii) likely render the recommendations of the development plan incapable of implementation by reason of interim changes permitted by the 2016 Notice."

The appellants do not allege that section 18 has been, or is being or is likely to be contravene in relation to them.

129.        This issue was dealt with by the Court of Appeal of the Eastern Caribbean States in Attorney General of St. Christopher and Nevis v. Lawrence [1983] 31 WIR 176.

Sir Neville Peterkin, Chief Justice had this to say at p. 180

"The right of enforcement of protective provisions is contained in section 16 which reads in part:

'If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.'

The Constitution expressly confers upon the court the powers of judicial review. As regards fundamental rights, the court has been described as being in the role of a sentinel on the "qui vive". In determining the question of constitutionality of a statute, what the court is concerned with is the competence of the legislature to make it, and not its wisdom or motives. The court has to examine its provisions in the light of the relevant provisions of the Constitution. The presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles."

130.        In Baldwin Spencer v Attorney General of Antigua and Barbuda et al, Civil Appeal No. 20A of 1997, the issue before the Court of Appeal was whether the Appellant had any locus standi to bring an action under section 119(1) of the Constitution of Antigua and Barbuda. That section provided:

"119(1)- Subject to the provisions of section 25(2), 47(8)(b), 56(4), 65(5), 123(7)(b) and 124 of this Constitution, any person who alleges that any provision of this Constitution (other than a provision of Chapter II) has been or is being contravened may, if he has a relevant interest, apply to the High Court for a declaration and for relief under this section."

Sir Dennis Byron, Acting Chief Justice (as he then was), in his judgment stated:

"In my opinion however, there is a short point which is decisive and it derives from the finding that the appellant did not have any cause of action under the Constitution, in effect, there was no sustainable allegation that there was any contravention of the Constitution which affected his interests.

The learned trial Judge did refer to this principle during hisjudgment:

"In my view a litigant invoking the provisions of section 119 should show on the face of the pleadings the nature of the alleged violation or contravention that is being asserted. The allegations grounding this violation must be serious. The trial judge must then assess whether in light of the allegations made and the degree to which they affect the litigant, whether personally or as a mere member of the general public, locus standi should be accorded."

Had he applied this principle his finding that the pleadings did not contain allegations grounding any contravention of the Constitution would have been decisive. But seemingly, he got carried awar into considering whether the appellant's interest would have been affected if there were viable allegations.

The approach which our courts have adopted has recognised the principle that in these public law cases, the court first determines the nature of the alleged violation of the Constitution, and only a sustainable allegation of there is such a violation does it consider whether the applicant has a relevant interest."

131.        After reviewing a number of cases from the Court of the Eastern Caribbean, he noted:

"In my view the common premise on which all these decisions seem to have been based was that before any question of locus standi can arise, there must be a sustainable allegation that a provision of the constitution has been or is being contravened, and that the alleged contravention affects the interest of the applicant. On my reading of section /19(5) it says exactly the same thing. The limitation contained therein effectively makes locus standi a question of statutory interpretation. In my view it is essential that the two requirements of the alleged contravention of the constitution and a resultant affect on the interest of the applicant must both exist.

In this case the finding of the learned trial judge that there was no allegation of any infringement of any provision of the Constitution of which the Court could take cognisance is conclusive. The appellant therefore failed the test established by section 119(5) of the Constitution. I therefore conclude, that the learned trial fudge was wrong to find that the appellant had locus standi.”

132.        As stated previously, I am of the opinion that the appellants did not allege that section 18 has been or is being or is likely to contravene in relation to them. Consequently, the appellants also failed on Ground 2.

133.        For the reasons stated above, the appeal should be dismissed.

Mottley P

I agree

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Forte JA

I agree

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Stollmeyer JA