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 Page 1 of 13

2 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. K. Mohammed-Carter for the Defendant. Ruling The Applicant, Lisa Nanhoo-Chaitram, seeks leave to apply for judicial review of a decision of the Minister of Planning and Sustainable Development, ( the Minister ) contained in a letter dated 5 th June By that letter the Minister granted permission to Narine Nanansingh ( Nanansingh ) pursuant to the Town and Country Planning Act ( the Act ) to develop lots 3 and 5 Carib Street San Fernando. The permission relates in part to a lot of land adjacent to that owned by the Applicant. The Minister opposes the grant of leave to the Applicant on two grounds: that (i) there is an alternative remedy available to the Applicant and (ii) the Applicant has delayed in making this application. The facts deposed in support of the application are at this stage not opposed. For the purposes of this application the title the Minister shall be used to refer to all persons holding the portfolio responsible for town planning at the material time. The Applicant and Nanansingh are neighbours and prior to April 2010 shared a common boundary marked by a galvanised fence. In January 2010 Nanansingh commenced construction on his land. Around April 2010 he Page 2 of 13

3 removed the galvanised fence, encroached on the Applicant's land and commenced construction thereon. Complaints were made by the Applicant to the Minister through his south office in this regard. These complaints alleged among other things that Nanansingh was in breach of the terms of planning permission granted to him by the Planning Authority in By a notice dated 7 th February 2011 issued by the Minister Nanansingh was refused permission to develop the land and advised to cease all building operations. In addition, by a letter of advice dated 13 th May 2011 from the relevant Ministry, Nanansingh was advised that he was in breach of the provisions of the Act in that he did not have planning permission for the development being carried on his land. He was further advised that in the absence of such permission enforcement action could be initiated against him by the Minister pursuant to section 16 of the Act. Despite the notice and the letter of advice Nanansingh completed the construction of the building on the land. The Applicant also filed High Court Action CV against Nanansingh. By an order made by consent on 5 th December 2011 in those proceedings ( the consent order ) it was ordered among other things that Nanansingh demolish and remove that portion of the wall and so much of his building within four feet of the Applicant's eastern boundary line on or before 1 st March By a letter dated the 21 st November 2012 the Minister was advised and provided with a copy of the consent order. Page 3 of 13

4 Nanansingh has refused to comply with the consent order and by a claim No CV ( the second action ) now seeks to set aside the consent order. In these subsequent proceedings Nanansingh filed a copy of a notice of grant of permission containing the decision of the Minister the subject of these proceedings. By letter dated 12 th June 2013 the Applicant s Attorneys requested that in the light of the existing order of the High Court the Minister reconsider the permission granted to Nanansingh on the 5 th June This letter also threatened legal action. There has been no response to the said letter. Thereafter on the 26 th July 2013 the Applicant filed an application for leave to apply for judicial review of the Minister s decision. On 31 st July 2013 without notice to or hearing from the Minister I granted the leave sought on condition that the application for judicial review be filed and served within 14 days of the grant of leave. The application was not filed within the time limited and in the circumstances the leave lapsed. In accordance with the order made on the 31 st July however on the 22 nd October 2013, the date fixed for the first CMC Attorneys for both the Applicant and the Minister appeared before me. On that date I confirmed the status of the leave to apply for judicial review granted on the 31 st July. On the 26 th November 2013 this application seeking the same relief as in the first application was filed. With respect to the lack of promptness the Applicant deposes that since the matter involves a breach of public law duties by the Minister and the Minister s continued refusal and /or failure to exercise his statutory power she is of the opinion that she has satisfied the requirements of the rules with respect to promptness. With particular reference to the reasons for delay between the filing of her earlier application and this application the Applicant relies on the inadvertence by Page 4 of 13

5 her Attorneys in not filing the claim as ordered and only serving a filed copy of the application and a copy of the order on the Minister and the Solicitor General. She further deposes to the fact that the offices of her Attorneys were closed for the entire month of August 2013 and that by the time the offices were reopened the time for compliance with the said order had lapsed. Available Alternative Remedy The Judicial Review Act, Chap7:08 ( the JR Act ) provides that the court shall not grant leave to an applicant for judicial review of a decision where any other written law provides an alternative procedure to question, review or appeal that decision, save in exceptional circumstances. 1 Accordingly an applicant is required by the rules to state whether an alternative form of redress exists and if so why judicial review is more appropriate or why the alternative has not been pursued. 2 In this regard it must be noted that by her application the Applicant states that no alternative form of redress is available to her. Strictly speaking therefore the Applicant is not totally incorrect in this statement in that in accordance with the JR Act there is no other written law which provides the Applicant with the ability to question or challenge the Minister s decision to grant planning permission to Nanansingh. The JR Act apart however it is trite law that judicial review is a remedy of last resort. Courts have consistently stated that if other means of redress are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review 3 It is now accepted 1 Section 9 of the Judicial Review Act chapter 7:08 2 Part 56.3 (3) (c) Civil Proceedings rules 1998 as amended 3 Kay v Lambeth London Borough Council[2006]2 AC 465 at paragraph 30. Page 5 of 13

6 however that the existence of an alternative remedy does not oust the jurisdiction of the court but rather is relevant to the exercise of the court's discretion whether or not to grant leave or relief. 4 The Minister submits that not only is there available to the Applicant an alternative remedy in the form of proceedings against Nanansingh but the Applicant has in fact obtained a judgement against him which only needs to be enforced by way of proceedings for contempt. According to the Minister this is an appropriate and equally effective and convenient method of disposing of this matter. The Applicant in response refers to the pending action by Nanansingh seeking to set aside the said order and an undertaking given by the Applicant in those proceedings restraining him from executing the order. The Applicant submits that in these circumstances there is in fact no suitable alternative remedy available to her. I do not accept the submission of the Applicant. While the undertaking is a factor to be taken into consideration in the exercise of my discretion the mere fact that the Applicant has given an undertaking in the pending action cannot prevent the pursuit of private proceedings against Nanansingh from being a suitable alternative remedy. At the end of the day it cannot be disputed that the aim of the Applicant in both proceedings is to prevent the continued trespass on her land and nuisance to her as a result of the actions of Nanansingh. It is clear that the Applicant seeks to achieve this end by different means both of which are available to her. That said the remedies sought in these two proceedings, civil and administrative, are not the same. The real question is whether the existence of a remedy in 4 Leech v Deputy Governor of Parkhurst Prison[1988]AC 533at 580 C-D Page 6 of 13

7 damages and for injunctive relief against Nanansingh is, in the circumstances, a more convenient and effective means of redress available to the Applicant. From the facts before me it is clear that the civil action has not worked. Despite its conclusion by way of consent order in 2011 the trespass and nuisance alleged by the Applicant continues. It is clear therefore that in these circumstances the private action can by no means be considered to be an effective remedy. Even if the Applicant were able to enforce the order by way of contempt proceedings the options open to the court by way of such enforcement are limited and do not include the right to break down and remove the building. On the other hand the relief available under the Act, should the Applicant, succeed is much wider and allows the Minister under certain circumstances to enter onto the land and remove the unauthorised building. Further on the facts before me it is open to me to conclude that the Applicant has indeed treated the judicial review procedure as a last resort she having resorted to it only when Nanansingh failed to comply with the consent order. For these reasons alone I am of the opinion that the private proceedings do not amount to an effective means of redress. Looking at the facts from another angle however it is clear that, despite the fact that the ultimate goal of the Applicant in both proceedings is the same, the proceedings seek different things and address different issues in law. In the civil action the actions of Nanansingh were being challenged. In the instant proceedings the challenge is to the decision of the Minister pursuant to his powers under the Act. Here the issue is the procedural propriety of the Minister s decision particularly in the light of the consent order. There is no other procedure for the Applicant to Page 7 of 13

8 challenge such a decision. To my mind of additional significance to the exercise of my discretion is the public interest in the subject matter of these proceedings: the exercise of the Minister s discretion under the Act in the light of what is in effect a valid court order reflecting on the legality of the subject matter of the permission. In the circumstances I am of the opinion that there is no other means of redress conveniently or effectively available to the Applicant. Further, even if the pursuit of enforcement proceedings pursuant to the consent order was a suitable alternative remedy, I am satisfied that given the public interest in this issue this is a case in which I ought to exercise my discretion to allow the Applicant to pursue the proceedings before me. Delay Section 11 of the JR Act provides that an application for judicial review should be made promptly and in any event within three months of the date when the grounds for the application first arose, unless the court considers that there is good reason for extending the period within which the application shall be made. The section further provides that the court may refuse to grant leave to apply for judicial review if it considers that there has been undue delay in making the application and that the grant of any relief would cause substantial hardship to or substantially prejudice the rights of any person, or would be detrimental to good administration. 5 Insofar as it is relevant to these proceedings Part 56.5 of the Civil Proceedings Rules 1998 as amended ( the CPR ) mirrors the requirement that an application for leave must be made 5 Section 11(2) of the JR Act. Page 8 of 13

9 promptly. In this regard the rule provides that leave may be refused in any case where the judge considers there has been unreasonable delay before making the application and states that the general rule is that an application for leave to make a claim for an order of certiorari must be made within three months of the proceedings to which it relates. 6 Similarly the rules provide that in considering whether to refuse leave because of delay the question of substantial hardship or prejudice to the rights of any person and the detriment to good administration must be considered. 7 The effect of these provisions is that an applicant is required to make the application promptly. Although there is no evidence as to precisely when the decision complained of was brought to the attention of the Applicant it is clear that more than three months have passed. Indeed the Applicant admits that these proceedings were filed some two months outside the three-month period stipulated under section 11 of the JR Act. On the facts therefore I am satisfied that the application was made at least two months outside of the three month limit recommended by the JR Act. Although not framed in the manner of a submission there is some suggestion by the Applicant that time taken in an attempt to resolve the dispute, whether by discussion or pre-action protocol letter, provides a good reason for the delay. With respect to the issue of a pre-action letter however the practice direction establishing the protocol specifically provides that this shall not affect the time limits with respect to judicial review proceedings 8. In any event it is clear that these attempts to resolve did not prevent the Applicant from making her first application for 6 Part 56.5 (1)and (2) of the CPR 7 Part 56.5(3) of the CPR 8 Practice direction CPR Appendix D 1.7 Page 9 of 13

10 leave within the three month period. The Applicant s present difficulty arises as a direct result of the failure of her Attorneys to comply with the order of the court and the delay which arose thereafter. It is not in dispute however that there resides in the court a discretion to extend the period within which the application can be made if there is good reason to do so. The Minister submits that I ought not to exercise my discretion in this regard, because (a) the Applicant has not adduced any reasonable explanation for the delay and (b) in any event the reasons that are provided result in substantial prejudice to a third-party and detriment to good administration. In this latter regard I take the submission of the Minister to mean that the delay itself results in prejudice to a thirdparty and that to grant leave at this stage is detrimental to good administration. I accept the Minister s submission that no reasonable explanation has been provided for the delay. In this regard the Applicant's reference to the inadvertence of counsel, while providing an explanation, such an explanation cannot be considered reasonable in my view. Not only was the condition that the application be filed within 14 days contained in a written order of the court but such a condition is mandated by the rules. 9 With respect to the prejudice to the interest of a third-party the Minister submits that the decision affects Nanansingh. Understandably given Nanansingh s role in the whole matter no submissions have been made on exactly how the delay would have prejudiced Nanansingh. On the facts before me I am not convinced that there is any prejudice to Nanansingh by the grant of leave at this stage, he already having to grapple with the fact of his consent order. 9 Part 56.4(11) of the CPR. Page 10 of 13

11 With respect to the detriment to good administration the Minister submits that it would be at variance with the efficient administration if, on an application of an applicant, the rights of a third party can be held in limbo while through inadvertence of counsel the matter is left to flounder on the Claimant s interpretation of the Minister s action. In this regard the Minister relies on this statement of Lord Goff in Reg v Dairy Tribunal, Ex p Caswell (H.L(E)) 10 : In asking the question whether the grant of such relief would be detrimental to good administration, the court is at that stage looking at the interest in good administration independently of matters such as these. In the present context, that interest lies essentially in a regular flow of consistent decisions, made and published with reasonable dispatch; in citizens knowing where they stand, and how they can order their affairs in the light of the relevant decision. I accept the statement as being an accurate statement of the law. On the facts before me, however, it is clear that this application is based on the fact of inconsistent decisions by the Minister with respect to the development of the land by Nanansingh and the apparent refusal of the Minister to consider the court order in this regard. In these circumstances it would seem to me that good administration requires that these conflicts be resolved by explanation or otherwise. I am satisfied therefore that it has not been demonstrated that the grant of leave would be likely to prejudice any third-party or be detrimental to good administration AC G to H Page 11 of 13

12 In this jurisdiction the very issues raised by the Minister were dealt with in the Court of Appeal decision in the case of Abzal Mohammed v The Police Service Commission 11. The issue for determination in the Court of Appeal was whether the first instance judge erred in not extending the time for the application for permission. With respect to the legislative scheme the Court was of the opinion that on a correct interpretation of section 11 of the JR Act it is only if there is both undue delay and prejudice or detriment that the court may refuse to grant leave. Similarly with respect to Part 56.5(3) of the CPR they were of the opinion that: The rule demonstrates the delay alone is not the deciding factor on whether to refuse leave. 12 As in this case the Court of Appeal in the Abzal Mohammed case was of the opinion that the only hurdle left for the appellant to jump was whether he could show that there is good reason for the court to extend the period for making the application under section 11(1). 13 In this regard Kangaloo JA was of the opinion that: It was sufficient to say that among the factors to be taken into account are (a) length of delay; (b) reason for delay;(c) prospect of success;(d) degree of prejudice;(e) overriding principle that justice is to be done and (f) importance of the issues involved in the challenge. This list he opined was not exhaustive. I am satisfied that the issue for my determination is an important one the resolution of which is in the public interest. While the length of the delay in the instant case is in excess of the 20 day delay in Abzal Mohammed and reasons provided are by no means acceptable it is clear that, as in Abzal Mohammed, it cannot be said that the Applicant slept on her rights. The Applicant seeks to challenge the decision on the grounds of Wednesbury unreasonableness. At this stage and in 11 Civ App No 53 of Per Kangaloo JA at paragraphs 21 and 22, pages 7 and Per Kangaloo JA at paragraph 24 pages 8-9. Page 12 of 13

13 the absence of any reasons provided by the Minister it is fair to say that there is a reasonable chance of success. I am satisfied that there is no prejudice to either the Minister or third parties. It would seem to me that in the circumstances as presented justice requires that the time to bring the application be extended and leave be given to the Applicant to seek judicial review of the decision of the Minister as reflected in the letter of the 5 th June Dated this 12 th day of February, Judith Jones Judge Page 13 of 13