Guy Saner v The Chief Town Planner et al

2018: November 1

2021: October 29

Appearances:

Ms. Faye Finisterre, Ms. Lyanne Lowe and Ms. Christine Toppin-Allahar for the Appellant.

Ms. Jennifer Small and Mrs. Roslyn Marshall-Mapp for the Respondents.

Mr. Shane Brathwaite for the Interested Person.

DECISION

REIFER JA (ACTING):

INTRODUCTION

• This is an appeal of the refusal of Alleyne J to grant interim injunctive relief to the Appellant/Claimant (hereinafter Appellant) in this action, in the court below.
• The substantive action is one for judicial review commenced under the Town and Country Planning Act Cap. 240 (TCPA) and Regulations thereto, under section 5(1) of the Administrative Justice Act Cap. 109B (AJA) and under CPR 56.  But the core issue of the matter currently before us ultimately turns on whether the specific provisions of the TCPA, as opposed to the general provisions of the AJA, are applicable.  This point was apparently raised by the Respondents and adopted by counsel for the Interested Person(s) as addressed by the trial judge at paragraphs [27] and [28] of the decision of 19 January 2018. The substantive action has not been heard or the matter continued pending the hearing of this appeal, but all parties generally and summarily canvassed the issues of the substantive appeal in addressing the foundational issue of jurisdiction raised in limine at the hearing of the interlocutory application for a stay: namely, that the trial judge had no jurisdiction to hear this claim.

THE PARTIES

• The substantive action is between two parties.
• The Appellant is the owner and occupier of a beachfront property on the west coast of this island located at “The Garden” in the parish of Saint James. He describes himself in the Fixed Date Claim Form as an “individual” and “member of the public” and the owner/occupier of “a residential property”, presumably all matters relevant to his standing in commencing the subject action.  This however, was not an issue in the interlocutory proceeding.
• His cause of action is against two Respondents, the Chief Town Planner and the Minister Responsible for Town and Country Planning respectively, pursuant to the exercise of their authority under section 18 of the TCPA to refer and to grant permission for development respectively.
• However, the proposed action relates to development being carried out on an adjoining property owned by Ms. Natalie Olivia Sandiford and Mr. Euclid Sandiford (north of the Appellant’s). Quite rightly, the trial judge deemed them “Interested Parties” as the orders sought by the Appellant directly impacted these persons, as, if granted, these orders would stay the continued development of their property. Construction on that property was apparently well under way. According to the affidavit of Mr. George Brown, construction was scheduled to commence on 4 July 2017. Certain observations were made by the Respondents and Interested Person as to the content of photographs time-stamped 20 July 2017 taken by the Appellant and exhibited by him which corroborate the fact that work was in progress by that date.
• The trial judge therefore gave directions pursuant to Part 56.9 of CPR that the Interested Parties be served with all the process filed and permitted Ms. Natalie Sandiford on behalf of the Interested Person(s) to file an affidavit and written submissions; essentially enabling this Interested Person(s) to be heard in this matter.  Regrettably, this Order has not been made part of the record for our review.
• In the face of the repeated references to the Third Party in the Notice of Appeal and written submissions of the parties, we make the point that the order made by the trial judge appears to have been made under CPR 56.9 as opposed to section 3(1) of the Judicial Review Application Rules. We found no evidence of an application having been made under any other provision of CPR.
• Part 56.9 is a case management provision specific to judicial review matters. Under the rubric “Directions Hearing” it speaks generally to the powers of the judge or master to “give any directions that may be required to ensure the expeditious and just final hearing of the application”.  It specifically accords to the judge or master in judicial review matters the case management powers of Parts 25 to 27 of CPR.  The relevant provision, CPR 56.9 (2)(d), reads:

“(2)    In particular, the judge or master may

 

  (c)    ...

 

  (d)   direct whether any person, group or body having such an interest

(i)    is to make submissions in writing; or

(ii)   may make oral submissions at the hearing;

 

• Part 56.9 accords such a ‘person, group or body’ the opportunity to be heard. While such a person is a party by virtue of being served pursuant to Part 2.3 of CPR, it does not accord them the status of Third Party. We note the exploration of this point (to a limited extent) by Alleyne J in Anthony Kevin Trotman v The Public Service Commission and the Attorney General CV 1559 of 2015 (23 March 2017), when he considered whether Part 19 is limited to civil law claims as opposed to public law cases and the distinction he draws between a ‘formal party’ (a party named on the record) and ‘parties by notification’. There is relevant case law making the distinction between being joined as a party and being heard only and some of the submissions made by counsel for the Appellant show their alertness to this debate.  Since nothing turns on this point for the purposes of this appeal, we shall take it no further here.

 

FACTUAL AND PROCEDURAL BACKGROUND

• In this outline, we shall start with the factual circumstances or background of the Interested Person(s) at the heart of this matter.
• It appears undisputed that these parties, owners of the property adjoining the Appellant’s on the west coast of this island, sought the permission of the Chief Planner, sometime in 2015, to renovate and extend one of two existing buildings on their property. The application appears to have been made by co-owner Ms. Natalie Sandiford (the Interested Person) with respect to the structure known as Plombagine Cottage. The Chief Town Planner pursuant to section 18 of the TCPA referred the application to the Minister Responsible for Town and Country Planning and on or about June 2017 the Minister issued the said permission under the hand of the permanent secretary of that ministry.
• Construction work (on an undetermined date) accordingly commenced thereafter on the property of the Interested Person, ostensibly in accordance with the said permission.
• Sometime in November 2017 (approximately 5 months later) the Appellant’s agent visited the Town and Country Planning Office with the intent of accessing and inspecting the application register. It is unclear what his agent was allowed to access other than the Register of Applications (there is some reference to an officer allowing the Appellant’s agent to make notes from his computer), but the filing makes clear that he was denied access to the application form for permission, the plans and drawings accompanying the said forms and the decision made pursuant to the application. After this, there followed a written request made by the Appellant’s lawyers for these documents on 28 November 2017, which has not been satisfied.
• Legal action by way of Fixed Date Claim Form, later amended on 6 December 2017, was filed 1 December 2017. There are two components to the substantive action: (i) a challenge to the process or protocol that refused the Appellant access to, sight of or copies of the application and other documents and (ii) a challenge to the lawfulness of the permission granted to the Interested Parties pursuant to section 18 of the TCPA.
• As part of this claim, the Appellant also sought urgent interlocutory relief, the subject of this appeal, in the following terms:

“1.1 Under the Administrative Justice Act Cap. 109B section 5(2) and CPR 56.1(4) an urgent interim injunction/interlocutory order until final judgment in this claim;

 

• a stay of the second respondent’s decision to authorize Natalie Olivia Sandiford, a third party from proceeding with the development at The Garden, Mount Standfast, St. James to wit: the renovation and extension of Plombagine Cottage;

 

• an order prohibiting Natalie Olivia Sandiford, a third party from carrying out or continuing any development at the Plombagine Cottage site pursuant to the decision;

 

• an order prohibiting any person on whom this Order is served from carrying out or continuing any development at the Plombagine Cottage site.”

 

• There were other aspects to this interlocutory application which appear to relate to the actions of the Chief Town Planner as opposed to the Minister which dealt with orders for discovery and rights to copies of documents. According to the trial judge’s decision, these matters were deferred at the request and/or acquiescence of the Appellant whose primary focus appeared to be to stop the construction work on Plombagine Cottage, temporarily and permanently. This statement at paragraph [5] of the decision is significant when one reviews the Appellant’s Grounds of Appeal and written submissions. The trial judge states as follows:

“... Counsel for Mr. Saner, Professor Eddy Ventose and Ms. Christine Toppin-Allahar who act in association with Ms. Faye Finisterre and Ms. Lyanne Lowe indicated then that the discovery application could be deferred.”

 

• What is clear, is the fact that the Appellant never sought to resolve what was potentially a material dispute of fact. For reasons made clear later in the judgment, we consider this significant in the determination of the issues arising before us.
• The trial judge, after hearing the matter on 21 December 2017, delivered his decision on 19 January 2018, refusing the interim interlocutory relief sought.

 

THE TRIAL JUDGE’S DECISION

• The trial judge’s decision was on an in limine submission, so fundamental that not only did it, in his opinion, speak to the application for interim injunctive relief but he made the further observation that it had the more far-reaching consequence that the substantive action itself would fail as presently constituted. This finding was, that the Appellant had no jurisdiction to bring the claim that he did, and consequentially, that the court had no jurisdiction to entertain the application for interlocutory relief.
• Stated differently, if the court had no jurisdiction to hear the substantive claim, it can have no jurisdiction to grant the interim relief sought, since in the words of Diplock LJ in The Siskina [1977] 3 ALL ER 803 at page 824:

“A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action.”

 

• Why the court has no jurisdiction is answered by the trial judge more particularly at paragraphs [64] and [65] of his written decision and is in effect an application of the provisions, inter alia, of sections 69 and 72 of the TCPA. It reveals his opinion on the efficacy of what he terms the ‘time limit review clauses’ or partial ouster clauses and full or complete ouster clauses such as section 69  His view is that the effect of these provisions is a ‘partial’ ouster of the court’s jurisdiction, his authority being the line of cases following Smith v East Alloe Rural District Council [1956] AC 736, which he distinguished from Anisminic Ltd. v Foreign Compensation Committee (1962) 2 AC 147 (Anisminic). He relied also on the authority of R v Secretary of State for the Environment, ex parte Ostler [1976] 3 ALL ER 90; R v Secretary of State for the Environment, ex parte Kent [1990] JPL 124. The facts of these cases are outlined by the trial judge in his decision of 19 January 2018. 
• This is contrary to the opinion of counsel for the Appellant, which is that the statutory provisions do not oust the jurisdiction of the court; that there exists a dual regime and that section 72 of the TCPA does not preclude the making of an AJA application in relation to ministerial decisions made pursuant to section 18 of that Act.
• While the parties appear to have accepted as a matter of law, that the AJA allows the making of applications in relation to ministerial decisions made pursuant to the TCPA, both the Respondents and Interested Person(s) hold strongly to the view that such applications must be made within a six-week period following the ministerial decision.

 

• The trial judge states as follows at paragraphs [64] and [65]:

   “[64] Turning to the TCPA, I am satisfied that the statutory provisions under review manifest a clear legislative intent to provide a special statutory regime for judicial review of decisions of the Minister made pursuant to section 18(1) of the TCPA. Section 69(1)(c) provides that the decisions of the Minister “shall not be questioned in any legal proceedings whatsoever”. Those are strong words but they are subject to the allowance made in section 72(1)(b). That section gives “aggrieved” persons a six-week period from the date of decision within which to institute proceedings on the grounds it specifies. Section 72(3)(a) go (sic) on to stipulate the available remedies.

 

   “[65] These provisions constitute a complete statutory code for judicial review of the decisions of the Minister made pursuant to section 18. I have detected no ambiguity and therefore no basis on which it is open to me to construe them in such a way as to allow for court action outside of the six-week time limit or pursuant to the AJA as has happened in this case, or in any way other than provided for in section 72 of the TCPA.”

 

• And at paragraph [69] the trial judge states further:

   “[69] I am fortified in my view on sections 18, 69 and 72 of the TCPA by a review of their legislative history. Sections 69 and 72 formed part of the TCPA when it was enacted in 1965 but for paragraph (e) of section 69(3) which was added in 1998 by an amendment brought about by section 43 of the Coastal Zone Management Act, 1998-39. At the date of the enactment of the TCPA, the time limit review clauses were well-known to the law. Wade and Forsyth inform at page 622 that the first example of that type was provided in the United Kingdom by the Housing Act 1930.  At that time also, Smith was the dominant authority in respect of this type of provision and favoured its effectiveness. Given the strong historical influence of English law on our law and the highly persuasive force of decisions of the House of Lords in this jurisdiction, I must take it that parliament was aware of that case and the meaning it had generally given to clauses akin to sections 69 and 72”.

 

• And at paragraph [70]:

   “[70] Parliament enacted the AJA in 1983. The AJA provides generally for judicial review of administrative acts or omissions, terms which are defined by section 2 to include the decisions of Ministers made pursuant to any statutory power or duty. On the face of it, this includes Ministerial decisions made under the TCPA.  However, the AJA does not repeal any of the provisions contained in the TCPA.”

• This discourse laid the foundation for the trial judge’s application of the maxim ‘generalia specialibus non derogant’, that is, a general provision does not derogate from a special one. See also his reference to and reliance on Bennion on Statutory Interpretation 5th Ed., at paragraph [72] of the judgment.
• It is important to note, that while this ruling effectively answers the application, the trial judge did not end there. He explains why he has rejected several of the arguments made before him by counsel for the Appellant on both the interlocutory and substantive applications, but most importantly, why in his opinion “the AJA does not repeal any of the provisions contained in the TCPA” (see paragraph 70).
• While the application is rejected on the basis of lack of jurisdiction, which means that it was not necessary for him to consider and apply the legal principles applicable to applications for interim injunctive relief, he nonetheless does so as an addendum. He expresses a lack of satisfaction that the Appellant’s case meets the requisite legal threshold of a serious question to be tried; and secondly, that on the second limb of American Cyanamid, ‘were he called to embark on it’, since he can find no allegation or fact of loss to the Appellant, he would have to conclude that the balance of justice would favour the refusal of the application.

THE GROUNDS OF APPEAL

• The Appellant filed thirty (30) Grounds of Appeal which will not be reproduced here, but suffice it to say that the appeal raises errors of law and errors of fact by the trial judge and a wrongful exercise of his discretion, in that, he failed to take into account matters that he ought to have, based his discretion on a misunderstanding of the evidence and inferences of fact that were wrong. On this basis counsel submitted that the trial judge’s decision was arrived at wrongly and ought to be set aside in its entirety.
• We feel constrained to make several observations about the Grounds of Appeal as drafted.
• Firstly, several of the grounds and arguments reflect matters concerning the discovery order application that was deferred and to a lesser extent, causes of action in the substantive claim. For example, arguments that the actions of the Minister were grounded in errors of fact, that he exercised his discretion irregularly or improperly, or that the question of whether there was a change of use was an error of law made by the trial judge. These matters, among others, were not ruled on by the trial judge. It now appears from the Appellant’s arguments and submissions on the appeal that these two applications were inextricably linked. At paragraph [99] the trial judge records the admission of counsel for the Appellant that without sight of the plans and drawings they had no way of knowing what was applied for.  That appears to have prompted the trial judge’s assessment of the state of the evidence at the time of filing and his judgment of the case as having no real prospect of success.
• In consequence, it is our view that it was a fundamental error to separate and defer that part of the application. Having done so, the Appellant cannot fault the trial judge for failing to take certain matters into account that were not before him and for failing to make findings that depended on the hearing of the disclosure application and matters arising in the unheard substantive action, in particular, the declaratory relief sought.
• We note that counsel for the Appellant Ms. Finisterre, in addressing this Court, made the point that she was not present on 21 December 2017 and made the submission, erroneously, that her co-counsel did not relinquish the issue of disclosure. On this issue we therefore have the judge’s note at paragraph (5) of his decision, not that it was ‘relinquished’ but rather ‘deferred’. As stated before, this in our opinion was significant. 
• Secondly, the trial judge did not exercise his discretion to refuse the interim injunction. Despite the fact that from paragraphs [19] to [26] he outlines the legal principles that must inform him on an application for interim injunctive relief, he ultimately determined in limine, as a matter of law, that he did         not have the jurisdiction to hear the application, as can be seen from paragraphs [27] to [76].

“[76] In the circumstances, I agree with Mr. Brathwaite and Counsel for the respondents that I have no jurisdiction to hear Mr. Saner’s substantive claim and therefore, cannot grant him interim injunctive relief sought.”

 

• Everything stated from paragraphs [77] to [109], on whether there was a serious issue to be tried and where the balance of convenience lay, was obiter dicta, and in consequence, not appealable.  This taints Grounds xxviii to xxx.

ISSUE ARISING ON APPEAL

• Consequently, we are of the view that there is only one issue for the consideration of this Court on appeal, and that is, whether the learned trial judge made an error of law in ruling that he had no jurisdiction to hear the application for interim relief. Stated differently, whether the failure of the Appellant to file his claim within the time limits of the TCPA ousted the jurisdiction of the court.

 

• This is the sole issue raised by Grounds xxiii to xxvii as follows:

   “(xxiii.) The learned judge proceeded on an incorrect statement of law.

 

     (xxiv.)  That sections 69 and 72 of the TCPA manifest a clear legislative intent to provide a special statutory regime for judicial review of the Second Respondent made pursuant to section 18. [64]

 

     (xxv.)  That sections 69 and 72 of the Town and Country Planning Act Cap. 240 constitute a complete statutory code for judicial review of the decision of the Second Respondent made pursuant to section 18. [65]

 

     (xxvi.)  That there is no ambiguity in sections 69 and 72 of the Town and Country Planning Act Cap. 240 and therefore no basis on which the Court may construe sections 69 and 72 in such a way as to allow for court action:

 

• outside the six-week time limit; or
• pursuant to the Administrative Justice Act Cap. 109B; or
• other than provided for in section 72 of the Town and Country Planning Act. [65]

 

(xxvi.)  That the time bar in section 72 is substantive and not procedural. [67]”

 

SUBMISSIONS OF THE PARTIES ON THE APPLICATION

The Appellant’s Submissions

• For the reasons outlined above we have limited the Appellant’s submissions to those relevant to the in limine ruling on jurisdiction.
• In this regard, the Appellant made the submission, which was rejected by the trial judge, that the limitation defence had to be specifically pleaded for the Respondents to rely on it. His authority was the case of      Alves v Attorney General of the Virgin Islands, Claim No. BVIHCV2007/0306 (24 October 2011).
• Generally, however, the Appellant challenges the trial judge’s interpretation of the relevant sections of the TCPA. His argument is that the judge erred in law in holding that sections 69 and 72 of the TCPA constitute a complete statutory code for judicial review of the decisions of the Minister made pursuant to section 18.  The effect of the judge’s ruling was that section 72 was substantive and not procedural.
• The Appellant’s view was that section 72 partial ouster clause is “of no more than procedural significance”. The main force of his argument is that there exists a duality of jurisdiction between the TCPA (section 72) and the AJA (section 5). He argues that section 5(1), under which the Appellant made his application, contains a much wider range of remedies than those under section 72(1)(b) and that a narrow construction of section 72(1) does not oust the court’s jurisdiction on judicial review to grant a remedy under section 5. His authorities in support were Michalak v General Medical Council and others [2017] UKSC 71 (Michalak); The Honourable Attorney General and another v Isaac (Antigua and Barbuda) [2018] UKPC 11 (Isaac).
• He distinguished the cases cited by counsel for the Respondents and the Interested Person on the basis that in all those cases the “person aggrieved” was given direct notice of the order or decision, or the order or decision was made public.
• Even this submission was intertwined with the application for discovery which called for an interpretation of the TCPA provisions, in particular section 17(3) which provides:

   “(3) The Chief Town Planner shall keep, in such manner as may be prescribed, a register containing such information as may be prescribed, with respect to applications for planning permission made to him, including information as to the manner in which such applications have been dealt with.”

 

• Counsel argued that if section 72 were engaged, that it cannot apply to a situation where the Appellant had no notice of any decisions made by the Minister. These were not issues of the application for interlocutory relief and were not ruled on by the trial judge.

The Respondents’ Submissions

• On the in limine ruling on jurisdiction, counsel for the Respondents agreed with the trial judge’s reasoning and asked that his decision be affirmed.
• Counsel submitted that section 72(1)(b) of the TCPA may be regarded as not ousting the court’s jurisdiction, but limiting the time within which it can be invoked. On the authority of Smith v East Elloe Rural District Council and R v Secretary of State for the Environment, ex parte Ostler (supra), recourse to the court may be terminated after the expiry of the specified period in the time limit clause. The Appellant’s recourse based on the allegation in his claim, was pursuant to section 72(1)(b) but he failed to bring such an action within the specified six-week period.
• Counsel argued further on the authority of Warburton v Loveland (1832)  5 ER 499, that as long as the words used in the legislation are clear, the court must obey the parliamentary intent. And if those words are clear, they may be interpreted in their natural and ordinary meaning: Corporation of the City of Victoria v Bishop of Vancouver Island [1921] 2 AC 384. Counsel submitted that the words of the TCPA were clear and unambiguous. There is no ambiguity in sections 69(1) and 72(1) which would allow an application outside of the six-week limit, nor does the AJA provide for such.
• The trial judge’s application of the Latin maxim ‘generalia specialibus non derogant’ and its effect, that is, a rejection of the dual jurisdiction argument of counsel for the Appellant, was affirmed by this counsel. Further, counsel argued that if a later law and an earlier law are potentially but not necessarily in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute especially where there are no express words of abrogation: North Level Commissioners v River Well and Catchment Board [1938] Ch. 379.
• Counsel submitted that the court has no power to extend the time for making the application because the bar was substantive and not procedural.
• In her additional submission filed October 2018, counsel further commended to the Court The Independent Commission of Investigations v Digicel (Jamaica) Limited CA [2015] JMCA Civ 32 where Brooks JA applied the principle of ‘generalia specialibus non derogant’ in the Court of Appeal’s consideration of whether the general words of the 2010 Independent Commission of Investigations Act (Indecom Act) override the specific provisions of the Telecom Act 2000. Brooks JA (as he then was) had this to say:

“Section 47(1) of the Telecom Act (passed 2000), is that earlier provision specifically requiring a telecommunications provider to keep subscriber information secret. It could not be held abrogated by the later, general provision of the Indecom Act which states that Indecom may require information from any person.”

 

The Interested Person’s Submissions

• Counsel for this party submitted that the AJA is not the appropriate legislation to ground an application for judicial review of a decision of the Minister made pursuant to section 18 of the TCPA. He argued that the applicable principle is ‘generalia specialibus non derogant’. While on the face of the AJA it appears applicable to the decision of the Minister to grant planning permission to the Interested Person, there is however prior specific legislation and statutory provision under the TCPA which provides for the review of such a decision. The Barbados Parliament was aware of the earlier TCPA when it passed the AJA, yet the latter did not repeal or amend the provisions of the former. In consequence, he submits, any judicial review of the Minister’s decision is therefore limited to the provisions of section 72 of the TCPA where the decision to be reviewed by the court relates to a decision of the Minister made pursuant to section 18.
• With respect to the Appellant’s argument that the Chief Town Planner may fail to notify an interested party during the six-week time limit, counsel argued that the reasoning of Lord Bridge in the case of Griffiths v Secretary of State for the Environment (1983) 1 ALL ER 439 (Griffiths) should be applied, rather than the dissenting judgment of Lord Scarman relied on by counsel for the Appellant.
• Counsel argued that the policy considerations in imposing a time limit on appeals to planning permission was explained in Griffiths and Bethel and others v The Attorney General of the Commonwealth of Bahamas [2013] UKPC 31 (Bethel).
• Counsel’s view was that the issue of jurisdiction is a substantive matter.    Where there is a partial ouster clause, these time limits are construed strictly as seen in R v Secretary of State for the Environment, ex parte Ostler (supra), Smith v East Elloe Rural District Council (supra) and R v Cornwall County Council, ex parte Huntington [1992] 3 ALL ER 566.   He opined that the trial judge expressed the correct view of the law when at paragraph [67] of his judgment he stated that the court had no power to extend time limits.
• On the Appellant’s arguments that the time limit was not pleaded, counsel submitted that the Interested Person cannot file a defence as there is no cause of action against her, but agrees that as held by the judge, he should be allowed to make representations to the court because his client’s interests would be adversely affected. And further, that even if no one pleaded the issue of time limits, as argued by the Appellant, the court must satisfy itself that it has jurisdiction to deal with the substantive cause of action before it can grant an interlocutory order: The Siskina [1977].

DISCUSSION AND ANALYSIS

• Before embarking on our discussion in this matter, we pause to remind ourselves of our jurisdiction in this appellate process. While the statutes allow this Court to review and/or rehear matters heard in the court below and to interfere with the judgment of the court below, the policy of appellate deference is well entrenched. It is, that in exercising its statutory power of interference it is not the role of the appellate court to retry its cases; nor is it their role to substitute its views for the views of the trial judge according to what it thinks the evidence establishes. This Court operates on the presumption that the decision of the lower court was right and that it is for the Appellant to displace that presumption.
• The issue on appeal as discussed above, is a question of law, namely whether the court had jurisdiction to entertain the application. The proper approach to be adopted by this Court in such circumstances was summarized by this Court in Clico International General Insurance Limited v Aubryn Bridgeman Civ App No 4 of 2015 (28 December 2018) at paragraph [39] as follows:

   “[39] On an appeal on a question of law, there can be no doubt that, in exercising its primary function, an appellate court is free to review a trial judge’s findings and to replace the opinion of the trial judge with its own to correct errors of law. The standard which determines appellate interference on questions of law is one of correctness; and an appellate court is thus free to replace the opinion of the trial judge with its own where there is an error of law.”

 

• Bearing this in mind, we turn to the relevant statutory framework to be found generally in the AJA and specifically, in the TCPA.
• Firstly, the AJA provides, with the objective of improving administrative justice, a statutory framework for the conduct of judicial review matters generally. Prior to this, our courts were guided by traditional English common law principles relating to judicial review.  It is generally accepted that the AJA has amplified the remedies available on judicial review by introducing the hitherto civil law remedies of injunction, declaration, damages and restitution into the arena of judicial review. These remedies now go beyond the traditional and historical prerogative writs of certiorari, mandamus and prohibition and provide a simpler route to judicial review. This is not in our view indicative of a dual regime.
• Secondly, the matter with respect to the interlocutory ruling concerns the administrative actions of the Town Planning Department which prior to the passing of the AJA set out its own statutory framework in the TCPA which, as already mentioned, contains time-sensitive review clauses, otherwise known as statutory ouster clauses. The ouster provisions are set out primarily at sections 18 and 69.  Section 18(1) to (3) sets up the process of having planning applications referred from the Chief Town Planner to the Minister for decision-making. What is important to note is section 18(4) which provides:

   “18 (4) The decision of the Minister on any application referred to him under this section shall be final.”

 

• Section 18 does not stand on its own, it is read in conjunction with sections 69 and 72 which speak further to this. In short, read together the ‘strong words’ of section 18 are mitigated by the provisions of sections 69 and 72.  Relevant are sections 69(1)(c), 3(a) and (4).
• Section 69(1)(c) provides:

   “Except as provided by the following provisions of this Part, the validity of

 

• …

 

• …

 

• any such action on the part of the Minister as is mentioned in subsection (3),

 

shall not be questioned in any legal proceedings whatsoever.”

 

• Section 69(3)(a) provides:

   “(3) The action referred to in paragraph (c) of subsection (1) is an action on the part of the Minister of any of the following descriptions, namely

 

• any decision of the Minister on an application for planning permission referred to him under section 18.”

 

• Section 69(4) provides:

   “(4) Nothing in this section shall affect the exercise of any jurisdiction of any court in respect of any refusal on the part         of the Minister to take any such action as is mentioned in subsection (3).”

 

• We interpret this to mean, that the refusal of the Minister to act in accordance with section 69 is justiciable.
• The exception, referred to by the trial judge as a time-review clause, and counsel for the Interested Person as a partial ouster clause, and otherwise, as a time-limit ouster clause, is section 72(1)(b), which stipulates the six week review period. In effect, it does not per se oust the court’s jurisdiction, it limits the time within which it can be invoked. In this regard it differs from total ouster clauses. It states as follows:

“72. (1) Any person aggrieved

 

• …

 

• by any action on the part of the Minister to which this section applies who desires to question the validity of that action, on the grounds that the action is not within the powers of this Act or that any of the relevant requirements have not been complied with in relation to that action,

 

may, within six weeks from the date on which the order is confirmed or published in the Official Gazette, or the action is taken, as the case may be, make an application to the High Court under this section in accordance with any rules of court.”

 

• The philosophy behind a time-limit review clause is discussed by the trial judge in his judgment. He references the learned authors of Administrative Law 10^th, Wade and Forsyth where they state at pages 621 to 622:

“A prominent feature of many modern statutes is a provision which allows judicial review to be sought only within a short period of time, usually six weeks, and which thereafter bars it completely. These provisions have become common, particularly in statutes dealing with the compulsory acquisition and control of land. They are therefore of great importance in administrative law.”

 

• See also his reference to the further exposition of the learned authors at pages 624 to 625; and closer to home, that of Byron JA (as he then was) in the The Public Service Commission et al v Shillingford Civ App No. 10 of 1998, Court of Appeal of Dominica (29 April 1991) (Shillingford) and Caribbean scholar Francis Alexis in his text Changing Caribbean Constitutions 2^nd at 17.161.
• This point was further amplified by counsel for the Interested Person in his reference to the majority decision in Griffiths when they stated as follows:

“the six week time limit is of much greater importance in the case where the case was to grant planning permission.  Six weeks after the Secretary of State has granted permission on appeal the applicant for that permission should be in a position to proceed with confidence to carry out the development of or to buy or sell the land with the benefit of the permission. But if time does not run until all interested parties have been given notice of the decision and if by some administrative oversight the decision was never communicated … the permission would be liable to be invalidated after the development had been carried out or the lands changed hands at a price reflecting the value of the planning permission.  I do not believe such a bizarre result could have been intended.”

 

• A similar viewpoint was expressed by Lord Carnwath in Bethel where he stated:

“there is a marked difference between a complete ouster of the court’s jurisdiction and exclusion after a defined period. There is nothing objectionable in principle in limiting the right of access to the court to a relatively short period in view of the importance attached to certainty in relation to a major development of this kind (see for example R v Secretary of State for the Environment Ex parte Ostler [1977] 1 QB, upholding an absolute six week period for any legal challenge under the equivalent English legislation).”

 

• As a general rule, the objection to a challenge to a time sensitive review clause is often grounded in the absence of a discretion in the court to extend the time limit.
• In this jurisdiction, Chief Justice Sir Denys Williams is often cited and quoted in R v Minister of Housing and Lands; ex parte Knitwear Limited BB 1991 HC 34 (Knitwear) on the same statutory provision, that is, section 69 of the TCPA. It was one of the authorities relied on by counsel for the Respondents in the case at bar. In that case, Williams CJ noted that section 69 prohibited him “from giving any relief that would bring into question the Minister’s decision”. Strangely, there was no mention in this judgment of section 72 which of itself is an acceptance that the Minister’s decision can to a certain extent be brought into question. While subsequent decisions have not ostensibly overruled Knitwear, it is safe to say that the frontiers of judicial review have continued to evolve and broaden since that decision was handed down in 1991. Knitwear now represents the “old” or traditional approach to judicial review.
• All the parties appear agreed that, however the time period is computed, by December 2017, when the judicial review proceedings were initiated, that period had long expired, perhaps by some 5 or 6 months. Counsel for the Appellant informed this Court that the time for review under the TCPA expired sometime in July 2017.

 

 

THE ISSUE OF DUALITY OF JURISDICTION

• Duality of jurisdiction, as argued by the Appellant, challenges the norm of statutory interpretation in these circumstances and has the effect of displacing the well-trammeled principle of ‘generalia specialibus non derogant’. Such a principle impliedly reinforces our view that a duality of jurisdiction would perforce have to be created by clear and express words to that effect. Hitherto, our courts have always interpreted the AJA as broadening the structural framework of judicial review.  In our view, the argument that there is a duality of jurisdiction (other than the distinction between judicial review and the appellate jurisdiction) goes against authority and we are not persuaded that there is merit in it.
• We have difficulty also with the argument that the ouster provisions of the TCPA are procedural and not substantive. Ouster provisions have always been characterized as substantive as opposed to procedural. The learned author of the text Commonwealth Caribbean Administrative Law appears to share this view.  He states in his introduction to the chapter titled ‘Exclusion of Judicial Review’ at page 87 as follows:

     “… judicial review is not a right that the applicant has in all circumstances.  Although he is able to bring a claim to the courts, there exist various bars that will prevent the courts from considering the judicial review application itself.  Some of them are procedural, such as alternative remedies, and some are substantive, for example an applicable ouster clause.”

 

• This is the approach taken by the learned author of the text Albert Fiadjoe Commonwealth Public Law 3^rd at page 78:

     “The starting point on statutory ouster clauses which have sought to protect decisions from challenge after the expiry of a time limit seem to have been upheld by the courts.  And the justification is that statute only limits rather than ousts the total jurisdiction of the courts.”

• Fiadjoe states further at page 79:

     “Professor Peiris commends an evolving Australian approach which, while recognizing the validity of ouster clauses, nevertheless interprets the jurisdiction of inferior tribunals generously.  That way, supervisory courts would only intervene on exceedingly strong grounds.”

 

• This appears to be the approach adopted regionally in making a distinction between absolute ouster clauses and time-limited ouster clauses, as is seen by the statements of Byron JA (as he then was) in Shillingford. In that case, he stated as follows after reviewing the authorities:

     “These cases reflect important principles. They emphasize that the Court must examine the relevant statute and interpret it in accordance with the strict legal principles of construction.  When a statutory provision takes away the jurisdiction of the High Court to enquire into the validity of orders made by inferior tribunals it is necessary to distinguish (1) whether the order is administrative or judicial and (2) whether the clause ousting jurisdiction does so absolutely or merely imposes a limited time within which proceedings to test the validity of the order can be instituted. Where the order is administrative and the clause merely limits the time within which the proceedings may be instituted the time limit will be absolutely enforced.  Where the order is judicial and the ouster clause absolute the court will enquire whether it is a real order or a purported order or one which is in fact null and void and of no effect.”

 

THE APPELLANT AUTHORITIES DISTINGUISHED

• Counsel for the Appellant used as authority for his dual jurisdiction theory the cases of Bethel, Michalak and Isaac.
• We agree with counsel’s recognition in the written submissions that these cases were not on point given the differences between the provisions in these jurisdictions and ours and we accordingly decline to extrapolate therefrom a dual or multiple jurisdiction theory.
• Michalak was a case where the Board found that the employment tribunal had jurisdiction to hear the respondent’s complaints against The General Medical Council. The essential issue for the Lord Justices was whether the availability of judicial review excludes the jurisdiction of the Employment Tribunal pursuant to section 120(7) of the Equality Act of 2010, and in particular (1) whether judicial review could properly be described as “a proceeding in the nature of an appeal” and (2) whether it was available to the respondent “by virtue of an enactment”.
• Isaac was an appeal to the Privy Council from Antigua and Barbuda as to whether the fixed date claim form filed by Ms. Isaac (the respondent) was an application for judicial review for which leave was required. In that case the Board adopted the view that the respondent’s fixed date claim form was in reality and form for declarations and damages, and not an application for judicial review for which leave was required.

CONCLUSIONS

• We find it interesting, perhaps significant, that counsel for the Appellant has adopted none of the traditional challenges to ouster clauses in seeking to avoid section 72. Counsel has not argued, inter alia, that the Minister’s actions were ultra vires (Sowatilal v Fraser (1960) 3 WIR 70) or jurisdictional error over fact and law (Anisminic). In fact, we note from the judgment of Alleyne J and indeed, in argument of this matter before this Court, that counsel for the Appellant has been at pains to make it clear that “(we) do not have a disagreement as to the applicability of partial ousters”. Instead, they have argued, in answer to the trial judge’s view that he has no jurisdiction, a duality of jurisdiction and that the ouster clause is procedural and not substantive.
• We hold to the view, that the Appellant brought this action outside the six week period prescribed by section 72 of the TCPA. This provision is substantive and not procedural. The AJA shows an intent to improve administrative justice by, inter alia, creating a statutory framework that reflected the important developments in UK administrative law, such as the Wednesbury principle and Anisminic, to name a few of those key developments. In our opinion, it was neither intended nor did it create a dual jurisdiction.
• We accept the trial judge’s reasoning and subsequent ruling that he had no jurisdiction to hear this matter as presently pleaded. In our view, there is no basis on which this Court can interfere with the judge’s decision.

DISPOSAL

• In view of the premises, the appeal is dismissed.
• The Respondents are awarded their costs in this application to be assessed, if not agreed.

 

 

 

 

Chief Justice

 

 

Justice of Appeal                                                 Justice of Appeal (Ag.)