IN THE HIGH COURT OF JUSTICE IN THE MATTER OF THE JUDICIAL REVIEW ACT NO. 60 OF 2000 AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE IN THE MATTER OF THE JUDICIAL REVIEW ACT NO. 60 OF 2000 AND IN THE MATTER OF THE TOWN AND COUNTRY PLANNING ACT CHAPTER 35:01 AND IN THE MATTER OF AN APPLICATION BY LISA NANHOO-CHAITRAM TO APPLY FOR JUDICIAL REVIEW OF THE DECISION OF THE HONOURABLE MINISTER OF PLANNING AND SUSTAINABLE DEVELOPMENT TO GRANT PERMISSION TO NARINE NANANSINGH TO RETAIN AN EXISTING BUILDING ON LOTS 3 AND 5 CARIB STREET, SAN FERNANDO, WHICH SAID DECISION IS CONTAINED IN THE LETTER OF THE HONOURABLE MINISTER DATED THE 5 TH DAY OF JUNE 2013 AND/OR THE REFUSAL AND/OR CONTINUING REFUSAL OF THE MINISTER TO REVOKE THE SAID DECISION BETWEEN LISA NANHOO-CHAITRAM AND Claimant THE HONOURABLE MINISTER OF PLANNING AND SUSTAINABLE DEVELOPMENT Defendant BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES Appearances: Mr. H. R. Seunath S.C. for the Claimant. Mr. S. Jairam S.C. and Mr. K. Ramkissoon instructed by Ms. S. Maharaj for the Defendant. Page 1 of 22

2 JUDGMENT 1. This case concerns the grant of planning permission by the Minister of Planning and Sustainable Development ( the Minister ) in the exercise of his powers to control the use and development of land pursuant to the Town and Country Planning Act Chap.35:01 ( the Act ). The Town and Country Planning Division of the Ministry of Planning and Sustainable Development ( the Ministry ) is that unit of the Ministry dedicated to the implementation and execution of the Minister s administrative powers in this regard. 2. The Claimant, Lisa Nanhoo-Chaitram, is the owner of a parcel of land situate at No 1 Carib Street San Fernando. This land is adjacent to and shares a common boundary with land owned by Narine Nanansingh ( Nanansingh ) known and assessed as Nos. 3 and 5 Carib Street, San Fernando ( the land ). The Claimant s land runs along the western boundary of the land. There is on the land a multi-storey concrete building constructed by Nanansingh at a time when he had no planning permission to do so. 3. The Claimant says that this building is partly on her adjoining property. In particular she complains that Nanansingh has appropriated some 80 square feet of her land and, in addition, cantilevers on the building extend some further two feet into her land. 4. On 12 th February 2014 the Claimant obtained leave to apply for judicial review of the decision of the Minister contained in a letter dated the 5 th June 2013 Page 2 of 22

3 whereby he granted permission to Nanansingh to develop the land. By the grant of permission, subject to certain conditions, Nanansingh was permitted to retain the existing building on the land and continue the use of the site for residential, retail, commercial and office use with basement parking facilities. These conditions have no relevance to the proceedings before me. The facts 5. The facts are contained in the affidavits of the Claimant and of Naushad Ali ( Ali ), the Development Control Supervisor of Town and Country Planning Division ( the Division ) and Stara Ramlogan ( Ramlogan ), the acting Assistant Director of the Ministry of Planning and Sustainable Development, on behalf of the Defendant. No affidavits in reply were filed by the Claimant nor was there crossexamination on any of the affidavits. 6. I accept the submissions of the Minister that, since the onus of proof is on the Claimant, where it is impossible from the evidence itself to come to a conclusion as to whose evidence is the more credible, the effect of the failure of the Claimant to cross-examine on any conflict of fact arising on the affidavits results in the Minister getting the benefit of the doubt 1. In the instant case it seems to me that the only area of conflict on the facts is with respect to the receipt by the Minister of certain correspondence from the Claimant. In the absence of any challenge to the evidence tendered on behalf of the Minister in this regard, either by way of affidavits in reply 1 Fordham: Judicial Review Handbook 5 th Edition at page 428 paragraph ; R v Oxfordshire Local Valuation Panel, ex p Oxford City Council (1981) 79 LGR 432 at 440. Page 3 of 22

4 or by cross-examination, I accept the evidence of Ramlogan with respect to the letter from the Claimant dated the 12 th June 2013 addressed to the Minister. 7. With this minor rider therefore the facts are not in dispute. That said, as is usually the case in matters of this nature, the only evidence as to the process adopted in arriving at the decision to grant permission comes from the evidence adduced on behalf of the Minister. It is for this very reason that the Courts impose a high duty of candour on a defendant. A defendant in these circumstances is expected to provide not only a full and accurate explanation of the facts relevant to the issue for determination but to disclose all the relevant facts and the reasoning behind the decision challenged 2. The practical effect of this requirement is that in the appropriate case a Court is entitled to come to the conclusion that if it is not stated or disclosed by a defendant it either did not occur or does not exist. 8. Insofar as the facts are concerned of particular relevance to my determination is the procedure followed by the Division with respect to the grant of planning permission; the correspondence between the Claimant and representatives of the Division and the documents emanating out of the Division. With respect to the latter two categories of documents from the evidence of Ramlogan I conclude that the correspondence and documents referred to by her are all contained in the records of the Division. Insofar as some of these documents refer to a lot 3A Carib Street it is not in dispute that there is no lot 3A Carib Street in the rate books of the San Fernando City Corporation. Also as can be seen by the documents the land is referred to as lots 3 and 5 and Nos. 3 and 5 Carib Street interchangeably. 2 Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment[2004] UKPC 6 Page 4 of 22

5 9. According to the procedure followed by the Division on an application for the grant of planning permission, upon the receipt of a completed application, each application is assigned a reference number and the location of the property is logged. Inspections are then undertaken by site inspectors to determine whether the information provided in support of the application is correct. Thereafter a report recommending whether or not planning permission should be granted is prepared by the Inspector. This report is then sent to the Division s Town Planner to decide whether planning permission should be granted. 10. Prior to the 26 th March 2012 Ali was one such inspector. With respect to planning permission his duties included carrying out investigations and site inspections; preparing reports, based on these investigations and inspections, recommending whether or not planning permission should be granted and forwarding these reports to the Town Planner for the relevant decision. 11. By a grant of permission dated the 8 th August 2008, pursuant to application No T7J: 1162/2008 ( the first application ), permission was granted by the Minister to Nanansingh to make structural alteration/addition to an existing building on lot 3 Carib Street for use as a single family dwelling. Despite the terms of the permission granted, in or around the year 2010, Nanansingh constructed a new building on the land. There is no evidence before me that after its completion in 2010 the building on the land was ever altered or any portion demolished. At the same time there arose the boundary dispute between the Claimant and Nanansingh. Page 5 of 22

6 12. By letter dated the 6 th September 2010 the Claimant complained to the Director of Town & Country Planning about the illegal structure at No 3 Carib Street. Ramlogan admits receipt of this letter. The complaint however centered on problems created by the lack of drainage on the site. 13. Meanwhile pursuant to a complaint brought by Michael Roberts in March 2010 ( the Roberts complaint ) with respect to the unauthorized development of the land the Division commenced an investigation in March Ali was detailed to carry out these investigations. The investigation revealed that Nanansingh: (i) had not complied with the approved building plans in that the height of the building was in excess of the permitted range and (ii) had not followed the requisite side setback requirement along the western boundary line. 14. By an application dated 14 th December 2010 Nanansingh made another application to the Minister ( the second application ). This time the application was to regularize the existing development and retain the existing building on the land. On 7 th February 2011 the application was refused. On 30 th March 2011 Nanansingh filed an appeal against this refusal. 15. Thereafter a letter dated 13 th May 2011, under the hand of the Permanent Secretary of the Ministry, was issued to Nanansingh. This letter advised that Nanansingh did not have planning permission; was in breach of section 8(1) of the Town and Country Planning Act and required him to submit an application for planning permission pursuant to section 14(1) of the Act within 30 days of 13 th May Page 6 of 22

7 2011. The letter also reminded Nanansingh of the provisions of the Act with regard to enforcement proceedings. 16. Section 8(1) of the Act requires that permission be obtained for any development of land carried out after the commencement of the Act. By section 14(1) of the Act however the Minister may grant permission for the retention of any building on the land constructed before the date of the application or for the continuation of any use of the land instituted without permission before the date of the application. From December 2010 Nanansingh s applications for planning permission were for the exercise by the Minister of his discretion pursuant to section 14(1) of the Act. 17. In accordance with the procedure adopted by the Division Nanansingh s appeal was considered by the Advisory Town Planning Panel ( the Panel ) established under section 4 of the Act. By the section, with a view to the proper carrying out of the provisions and objects of the Act, the Panel is empowered to advise the Minister on any matter within their knowledge or on which the Minister may seek their advice With respect to Nanansingh s appeal the Panel met on 27 th October The Panel s report of this meeting reveals that for consideration was a proposal for the structural alteration and addition to an existing building on the land for commercial use. According to the report the subject development was a four-storey addition comprising a basement parking floor and three floors of commercial floor 3 Town and Country Planning Act Chap 35:01 s. 4(3) Page 7 of 22

8 space with two above Carib Street on a parcel of land said to comprise 617 square meters. 19. At issue was the fact that the proposed development did not conform to site development standards. These standards were identified as: 1. a maximum building coverage of 50%; 2. a maximum F.A.R. of 1: a maximum building line setback of 1.2 m from the face of the building to the western property boundary; and 4. a minimum building line set back of 2.0 m from the face of the building to the southern property boundary. 20. The report reveals that Nanansingh appeared at the hearing and, among other things, informed the Panel that: (i) the walls of the building were between two to four feet away from the property boundaries; (ii) it would be difficult to alter the setbacks at this point in time; (iii) other buildings in the area had similar setbacks and (iv) there was a legal matter involving the property but that this had somewhat been resolved. 21. According to the report Nanansingh admitted that the south and west setback requirements had not been observed as well as the building coverage and floor area ratio. The case for retention presented by Nanansingh, according to the report, rested on the premise that the existing policy development standards were dated and, if reviewed, the development would meet planning requirements. Page 8 of 22

9 22. The Panel recommended to the Minister that planning permission be granted, on re-application, for the retention of the existing addition for commercial use based on the submission of: (a) as built plans reflecting the existing development; (b) a survey plan prepared and certified by a licensed surveyor showing the dimensioned site and accurate location of the building thereon with setbacks from the property boundaries; (c) Structural design drawings certified by a registered engineer and a report confirming that the structure has been constructed in accordance with these plans and is safe. (d) Drawings with fire safety approval; 23. There was one proviso however. The proviso being that if it was shown on the survey plan that any portion of the building including cantilevers and/or eave lines protrudes beyond the certified western boundary of the property planning permission should be denied until any offending portion is removed. 24. According to the report in coming to their recommendation the Panel took into consideration: (i) the location of the site and in particular its proximity, within 100m, to the Central Business District where C4 development pertains as well as Coffee and Cipero Streets where C2 standards prevail; Page 9 of 22

10 (ii) that Carib Street is a major traffic arterial to exit San Fernando; and (iii) that in its report the Division recommended upgrading Carib Street between Howard Lane and Coffee Street to C2 development standards. 25. Accordingly the Panel indicated its agreement with the recommendation of the Division with respect to the upgrading of Carib Street, recommended that this revised policy be applied to all future applications and concluded that the revised standards, if applied, would resolve the existing infringements with respect to boundary setbacks, building coverage and floor space. 26. According to Ramlogan, on the 9 th August 2012, the Minister accepted the recommendations of the Panel to the upgrading of development standards along Carib Street between Howard Lane and Coffee Street. This, she states, was an across the board recommendation and not peculiar to Nanansingh. 27. Ramlogan further states: the land use policy relating to San Fernando is outdated. Whenever an appeal is lodged with the Minister in respect of development in the City of San Fernando, the Minister may review the policy based on existing land use. The Minister in this case took into account the need for the expansion of the commercial area and granted a measure of relief to the aggrieved party as he was entitled to do. Page 10 of 22

11 28. In the intervening time the Claimant instituted High Court Action CV against Nanansingh. By a letter dated 10 th May 2011, addressed to the Town Planner, Attorneys for the Claimant advised of the existence of the High Court proceedings; reminded of her complaints with respect to the existing structure and requested the attendance of Ali at a case management conference in the High Court proceedings. By a letter dated the 19 th May 2011 from the Acting Director of the Division the request was denied. The reasons for the denial are not relevant to my deliberations. 29. By an order made on the 5 th December 2011 by consent in the High Court proceedings ( the consent order ) Nanansingh was ordered to demolish and remove the southern portion of his wall and so much of his building that is within four feet of the Claimant s eastern boundary line as determined by a survey plan by Mr. L. A. Roopchan dated the 17 th August 2010 on or before 1 st March The consent order also indicated that a copy of the survey plan was attached to the order. The plan was however not put into evidence in these proceedings. 30. Thereafter by a letter dated 20 th July 2012 the Division requested that within two weeks Nanansingh produce certain documents including a copy of his deed and survey plan and assessment number and a scaled site plan. This letter purports to have been issued pursuant to the investigation in the Robert s complaint. 31. In the meanwhile, sometime in 2012, Nanansingh filed an action, CV , seeking to set aside the consent order. It is in this later action that Page 11 of 22

12 Nanansingh revealed that by a notice dated 5 th June 2013 permission was granted by the Minister for him to retain the existing building on the land. 32. At some point in time, the actual date and circumstance is unclear, Nanansingh also disclosed to the Claimant a letter dated the 21 st August This letter, bearing the letterhead Advisory Town Planning Panel, advised Nanansingh that pursuant to his request the Minister had undertaken a review and was satisfied that he should be allowed a measure of relief from the earlier decision. The letter advised of the Minister s decision to approve the retention of the existing building for commercial use subject to certain conditions. These conditions, including the proviso, mirrored those contained in the Panel s advice to the Minister. Nanansingh was given one year to comply. 33. By a letter dated 21 st November 2012 written by Attorneys for the Claimant and addressed to the Permanent Secretary, Ministry of Planning and the Economy, the Claimant s Attorneys advised of their knowledge of the contents of the letter to Nanansingh dated the 21 st August 2012 and in particular that part of the letter which advised that should it be shown that any portion of the building including the cantilevers and/or eave line protrudes beyond the certified boundary line of the property, planning permission should be denied until the offending portion is removed. 34. The letter advised of the Attorneys desire to have brought to the attention of the Minister the fact that: Page 12 of 22

13 (i) there was a subsisting order of the High Court in CV against Nanansingh requiring him to demolish certain portions of the said building. A copy of the consent order was annexed. Despite the fact that the order refers to an annexed survey plan I have no evidence that this annexure was enclosed in the letter; (ii) in the High Court action surveys submitted by both the Claimant and Nanansingh confirmed that part of Nanansingh s building was built on the Claimant s land and that the cantilevers of the building protruded over the boundary line; and (iii) the setback of 1.2 metres from the boundary line as stipulated by the Division was not complied with. 35. The Minister has not denied receipt of this letter. Indeed Ramlogan admits that the letter forms a part of the Division s records. The Minister s position as articulated by Ramlogan is merely that Ramlogan first became aware of the order when she saw the letter of 21 st November She says: This order was made subsequent to the deliberations of the Honourable Minister. 36. In the meantime, in accordance with the recommendations of the Panel, on the 7 th November 2012 Nanansingh submitted a new application ( the third application ) to the Division once again seeking permission for the retention of the building for residential and commercial use. This application was in respect of a parcel of land the total site area being square metres with a total floor area of 10,969 square feet. As gleaned from the evidence of Ramlogan a survey plan dated Page 13 of 22

14 the 18 th April 2013 ( the first survey plan ) was supplied in support of this application. This survey plan showed an encroachment by the building on the land onto the Claimant s property. On the 1 st May 2013 this third application was refused. The Minister provides no reason for this refusal. 37. On the 21 st May 2013 an amended application was filed by Nanansingh. The copy of the amended application put into evidence by the Minister reveals that (i) a complete application form was either not submitted by Nanansingh or not placed before the Court by the Minister and (ii) based on the documents provided by the Minister the only material changes to the third application seems to be the fact that the application now referred to lots 3 and 5 Carib Street instead of lot 5 and the total floor area of the building was said to be 10,869 square feet instead of 10,969 square feet. 38. On that date Nanansingh also submitted a copy of a survey plan dated 15 th May 2013 ( the second survey plan ) prepared by the same surveyor who had prepared the first survey plan. The second survey plan however showed no encroachment of the building onto the Claimant s land. 39. The permission, the subject matter of this application for judicial review, was granted with respect to this third application as amended. According to Ramlogan: Having complied with all the stipulations and conditions, and the TCPD being satisfied, by a notice of Grant of Permission dated the 5 th June 2013 permission was granted to Nanansingh to carry out development of land situate at Lots 3 and 5 Carib Street, San Fernando and shown to comprise square meters by the retention of a existing building and/or the continuation of use of a site for residential, Page 14 of 22

15 retail, commercial and office use with a basement parking facilities in accordance with the Minister s decision referenced MPE/ATPP: 30/4/7(11)Sub. 08 dated and in accordance with the proposals set out in his application. According to Ramlogan the Ministry complied with the Minister s decision which was made after he reviewed the report of the Panel submitted to him. 40. The Claimant states that by a letter dated the 13 th June 2013 from her Attorneys and addressed to the Minister, the Minister was advised of the letter of 21 st November 2012 and the consent order and requested to revoke the grant of permission. There has been no specific denial of the receipt of the letter of the 13 th June 2013, however Ali makes no reference to this letter and Ramlogan asserts that she was unaware of it. In the absence of any cross-examination therefore I can only conclude that the letter of the 13 th June 2013 does not form a part of the Division s records. My determination 41. Of note here is the failure of either of the Minister s witnesses to depose to the fact of any site investigations made with respect to the third application either in its original form or as amended. Given the Minister s duty of candour to the Court the only inference that I can draw from this is that, contrary to the established procedure as deposed to by both Ramlogan and Ali, no inspections were undertaken by the Division s site inspectors to determine whether the information provided in support of the application is correct. Consequently the Minister did not have the benefit of a report from a site inspector detailing the actual position on the land or the Page 15 of 22

16 Division s Town Planner recommending whether or not planning permission should be granted as is the usual position. 42. In my opinion this inference is supported by the words used by Ramlogan to indicate the circumstances under which the Notice of the Grant of Permission was issued and in particular her use of the words: having complied with all the stipulations and conditions, and the TCPD being satisfied,. The only conclusion to be drawn from the use of those words is that the Division was satisfied that the stipulations and conditions referenced in the recommendations of the Panel had been complied with. 43. On the facts presented a question arises as to whether the Minister can lawfully change land use policy on the grounds of it being outdated without the presentation of a new development plan for the area in accordance with the Act 4. However this was not an issue raised by the Claimant in these proceedings and consequently no arguments were presented to me in this regard. In the circumstances, while I have some concern as to the ability of the Minister to unilaterally change land use policy without regard to Parliament and the procedures established by the Act, in the absence of comprehensive arguments on the point, I prefer to base my decision on the question of the irrationality of the decision of the Minister as raised by the Claimant. 44. The Claimant submits that the Minister ought to have taken into consideration the existence of the consent order and his failure to do so renders his 4 Town and Country Planning Act Chap 35:01 Part II esp. s. 5 & 6 and the second schedule Page 16 of 22

17 decision unlawful, unfair, unreasonable and amounts to an unlawful exercise of his powers under the Act. In my opinion on the facts as presented the position espoused by the Claimant is a little too simplistic. I accept that on the facts as presented the fact is the consent order was communicated to the Division after the decision of the Minister to accept the recommendations of the Panel but long before the Minister s decision of 5 th June The mere existence of the consent order, while relevant, is in my opinion however not determinative of the manner by which the Minister ought to have exercised his discretion. 45. It is not in dispute that the decision of the Minister on any application for planning permission is final 5. In judicial review proceedings the jurisdiction of the Court is supervisory and not appellate. In these circumstances the Court s examination is to the process used to arrive at the decision rather than correctness of the decision per se. If in such an examination a court comes to the view that the process was flawed then it may, in the appropriate case, exercise its discretion to strike down the decision flawed by the process adopted. 46. At issue here is the rationality of the Minister s decision. Did the Minister in exercising his undoubted discretion under the Act take all the relevant factors into account. Or was the decision so outrageous or in defiance of logic or accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it. 6 In other words was the decision and the process used to arrive at it Wednesbury compliant 7. 5 Town and County Planning Act Chap 35:01 s.11(3) 6 per Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374 at page Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1947] 1ALL ER 498 Page 17 of 22

18 47. In this regard I accept the submission of the Minister that at the heart of this claim is the question of what information was before the Minister at the time he made his decision. Where the Minister and I part company is the date of that decision. In this regard the relevant date is 5 th June 2013 and not 9 th August 2012 as suggested by Ramlogan in her affidavit and the submissions of the Minister. On 9 th August 2012 the Minister accepted the recommendations of the Panel. The decision that is being challenged is the decision of the Minister to grant permission pursuant to the application made by Nanansingh dated the 7 th November 2012 and amended by him on the 21 st May This is the decision evidenced by the notice of grant of permission dated 5 th June On the evidence before me I am satisfied that in coming to this decision the Minister had available to him the information that, according to Ramlogan, was contained in the Division s records. The Minister would therefore have had sight of the complaints made by Roberts and the Claimant; the various applications made by Nanansingh and the refusals by the Division in this regard. He would also have had the report of the Panel of its meeting held on 27 th October 2011 and Nanansingh s third application as amended. In particular the Minister would have had before him the submission by Nanansingh in that application of two survey plans dated 18 th April 2013 and 15 th May 2013 the first showing an encroachment by the building on the Claimant s land and the second showing none. 49. I am also satisfied that at the time of making the decision the Minister would also have had available the letter of 10 th May 2011 advising of the existence of High Court proceedings and requesting the attendance of Ali at a case management Page 18 of 22

19 conference and the letter of the 21 st November 2012 containing a copy of the consent order and advising that the surveys submitted by both Nanansingh and the Claimant confirmed that part of Nanansingh s building was built on the Claimant s land and that the cantilevers of the building protruded over the boundary line. The knowledge by the Minister of the contents of these two letters does not however affect my determination in this matter. 50. The starting point here is the report of the Panel and the recommendations accepted by the Minister. The Panel recommended that planning permission be granted on condition that Nanansingh submit a new application for such permission. The Panel also required that by the application Nanansingh provide certain documents including a survey plan prepared and certified by a licensed surveyor showing an accurate location of the building thereon with setbacks from the property boundaries. 51. Of key importance, to my mind, was the proviso. According to the proviso if it was shown on the survey plan that any portion of the building including cantilevers and/or eave lines protruded beyond the certified western boundary of the property planning permission should be denied until any offending portion is removed. In this regard therefore of utmost significance was the requirement that the survey plan show an accurate location of the building with the setbacks from the property boundaries. 52. It is clear therefore that the Panel was concerned with possible encroachments onto the property adjoining the land on its western boundary. Further it is clear that the Panel was not prepared to merely recommend that Nanansingh Page 19 of 22

20 provide these documents in the existing application but required Nanansingh to start from scratch as it were with a new application. This suggests to me that the Panel required that the procedure usually followed with respect to applications be followed in this instance. This procedure would have included site investigations and reports from the investigator. Such investigations would have facilitated the Division being able to confirm the accuracy of the survey plan provided in accordance with the requirement by the Panel that the survey show an accurate location of the building. 53. In this regard while it is evident that on a strict and narrow interpretation of the recommendations of the Panel it could be said that Nanansingh complied with all the stipulations and conditions and in particular provided a survey plan showing no encroachment. It is equally evident that in complying with the requirements all was not above board with respect to the survey and the concerns of the Panel with respect to the encroachments on the land along the western boundary. 54. In this regard the Minister would have had before him in the said application two survey plans diametrically opposed to each other on the very issue over which the Panel had expressly indicated its concern. Faced with this fact it would seem to me that the only logical conclusion to be drawn from the existence of these two survey plans was that one of the plans was incorrect or that Nanansingh had since the submission of the first survey plan removed the offending part of the building. 55. This was a question which could easily have been answered had a site investigation been done and a report submitted to the Town Planner in accordance with the usual procedure with respect to applications for planning permission. In my Page 20 of 22

21 opinion, at the very least, the existence of these two survey plans ought to have raised a red flag to the Minister that something was amiss. 56. Further an examination of these two plans reveal that the name of the surveyor who signed both plans was unrecognisable. Of greater significance however is the fact that both plans purported to have been compiled using survey plans by L. Roopchand dated the 17 th August 2010 and Mr. H Ramrekha dated the 25 th August As well they both purport to have been done pursuant to a survey done by the surveyor in October The plans therefore suggest that there was only one site visit to the premises by the surveyor and that was in October With absolutely the same base data therefore the question that arises is: how could the survey plans legitimately be different. More importantly since the visit by the surveyor was prior to the preparation of the first plan it could not be that the offending part of the building had been removed after the date of the first survey plan. 57. It would seem to me that given the recommendations of the Panel and in particular the concerns expressed by the proviso, even in the absence of knowledge of the contents of the letter dated the 21 st November 2012, on a consideration of the application and in particular given the existence of the two survey plans, in my opinion, no sensible person, having the knowledge of the recommendations of the Panel and the usual procedure followed by the Division in dealing with such applications, applying him or herself to the request for permission contained in the third application as amended could have arrived at the decision to grant Nanansingh planning permission. Page 21 of 22

22 58. It would seem to me that there was a duty on the Minister, prior to the exercise by him of his undoubted discretion to grant planning permission, to have the accuracy of the contents of an application confirmed by site investigation. This was the usual practice but it was not followed in this case. This position is in my opinion made even more acute in this instance by the existence of the two conflicting survey plans in the same application. 59. Of course it goes without saying that the Minister s position is even more untenable if at the time the decision was made there was on the records of the Division the letter of the 21 st November There is nothing on the evidence to suggest that this letter had not been received by the Division by the time the Minister s decision of 5 th June 2013 was made. 60. In the circumstances it would seem to me that this is a suitable case for this Court to exercise its discretion and grant the Claimant relief. In the circumstances the Claimant is entitled to a declaration that the decision of the Minister, contained in the letter dated 5 th June 2013, to grant permission to Nanansingh to retain the existing building on the land amounts to an unlawful exercise of his powers under the Act and is consequently illegal, null and void and of no effect. The Claimant is also entitled to an order of Certorari removing into this Court and quashing the said decision. Dated this 2 nd day of March, Judith Jones Judge Page 22 of 22