Monday 17 June, 2019

Landings Resort can proceed with judicial review against DCA

The way, it seems, is now clear for The Landings Resort on the Pigeon Island Causeway to file an application for judicial review proceedings against the Development Control Authority (DCA).

High Court Judge Kimberly Cenac-Phulgence, this month ruled that the Court found no reason to exceptionally exercise its discretion to set aside leave granted to The Landings to file the claim for judicial review. Further, that the Court is of the view that The Landings, on consideration of all the evidence, has an arguable case worthy of consideration being whether it was consulted or adequately consulted in respect of the decision of the DCA, and The Landings has no alternative remedy for the relief sought.

The judicial review was sought as a result of the DCA granting approval to, Two Seas Holdings Limited to develop a hotel consisting of a nine-story and five-story building, among other buildings, and amenities including an open-air theatre and bowling alley on Block 1257B Parcel No. 272, adjacent to and bounded by The Landings’ condominium hotel.

The Landings argued that the relief sought was a declaration that the decision of the DCA was illegal, arbitrary, irregular, irrational, unfair, unreasonable and made in breach of the rules of natural justice and an improper exercise of its discretion.

The Landings moved for an order to quash the said decision, substantial damages arising out of the damage that is and will be caused by the development to The Landings, and costs.

According to court papers the main grounds upon which the application for leave was sought were that The Landings operates a condominium hotel on adjoining property; the proposed development will affect The Landings’ use and enjoyment of its property; the DCA, in its consideration of the development plans of Two Seas and its decision-making process, failed, refused or neglected to inform The Landings of the full nature and impact of the development, to directly or otherwise engage, refer to, seek from or invite The Landings to comment on the development plans, and thereby wrongly excluded The Landings from the decision making process despite requests for information, to take into account material considerations such as the impact of the proposed development on The Landings, which it was obligated by law to do, and to consider the material guidelines which has in the past informed its decision-making process.

Two Seas, by an application filed on 22nd October 2018, had asked of the Court that it be added in the proceedings as an interested party, which was done, and further asked that the ex parte order made on 3rd July 2018 granting The Landings leave to file the claim for judicial review be set aside.

The company argued that if The Landings’ claim for judicial review was successful, it would result in the invalidation of the approval granted to it by the DCA and prevent it from carrying out its proposed development and use of its land.

Two Seas, in arguing for the review to be set aside said that should the claim for a judicial review be successful then this would have disastrous consequences, in that it would not only lose the significant financial investment made by it in connection with the development project, but also substantial revenues to be made from it. The claim would result in Two Seas being deprived of its opportunity to use and enjoy its land in the manner and for the purpose for which it was purchased, namely hotel development.

Regarding Two Seas application for the Court to set aside, The Landings request for judicial review against the DCA’s decision Justice Canac-Phulgence noted that Two Seas, having been added as an interested party, cannot file evidence in answer to a claim which does not seek to impugn any decision made by Two Seas.

“There is no need for any evidence to be filed by Two Seas in answer to a claim which is against the DCA. It is the defendant, the DCA who has to answer to this claim for judicial review. The adding of Two Seas as an interested party was to afford it the opportunity to be heard by making submissions, both written and oral at the hearing of the substantive matter, if it so desires,” noted Justice Cenac-Philgence in court papers.

Justice Cenace-Phulgence concluded by giving the following orders and directions:

“(1) The application to set aside the Order dated 3rd July 2018 granting leave to file a claim for judicial review is refused.

 (2) Costs on the application to set aside in the sum of $750.00 to be paid by the interested party to the claimant (The Landings).

(3) The issue of standing of the claimant (The Landings) may be further considered on the hearing of the substantive claim in this matter, should it arise.

(4) The claimant and defendant (DCA) are at liberty to file and serve affidavit evidence from two additional witnesses on or before 11th January 2019.

(5) All affidavits shall stand as evidence in chief.

(6) All witnesses/affiants are to attend on the scheduled date of the trial.

(7) Should the claimant or defendant wish to cross-examine any of the witnesses, the relevant application shall be filed and served on or before 25th January 2019.

(8) The claimant and defendant are to file and exchange written submissions with authorities on or before 1 st February 2019.

(9) Two Seas, as the interested party is permitted in accordance with Part 56 of the CPR to file and serve written submissions with authorities on or before 1st February 2019 and to make oral submissions at the hearing of the claim.

(10) Any further applications in the matter are to be filed on or before 1st February 2019.

(11) The hearing of the claim is adjourned to 13th February 2019.

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