Broadgate Place Property Company Ltd v Minister of Planning Economic and Social Restructuring and Gender Affairs
| Jurisdiction | Trinidad & Tobago |
| Judge | Rajnauth-Lee, J. |
| Judgment Date | 04 October 2012 |
| Neutral Citation | TT 2012 HC 321 |
| Docket Number | CV 4524 of 2010 |
| Court | High Court (Trinidad and Tobago) |
| Date | 04 October 2012 |
High Court
Rajnauth-Lee, J.
CV 4524 of 2010
Mr. Douglas Mendes S.C. leading Mr. Michael Quamina and instructed by Mr. Ronald Simon for the claimant.
Mr. Russell Martineau S.C. leading Mr. Kelvin Ramkissoon and instructed by Ms. Florence Ramdin and Ms. Grace Jankey for the defendant.
Judicial Review - Decision refusing permission to develop land — Application of principle in Carltona Limited v. Commissioner of Works and others [1943] 2 All ER 560 — Irrationality — Illegality — Legitimate expectation.
This is a claim for judicial review. The claimant is a limited liability company whose registered office is situate at Nos. 18–20 Pembroke Street, Port of Spain, formed for the purpose of developing lands formerly owned by Transcorp Development Company Limited (“Transcorp”), the company formerly responsible for the Broadgate Place Project.
The defendant is the Minister with responsibility for the granting of permission to develop land and is the line Minister for the Town and Country Planning Division (“the Division”) which is located at the Eric Williams Finance Building, Independence Square, Port of Spain.
By an Application Without Notice dated and filed on the 2nd November, 2010 the claimant applied for an order for permission to make a claim for judicial review pursuant to Part 56.3 of the Civil Proceedings Rules, 1998 as amended (“the CPR”) of the decision of the defendant contained in a letter dated the 19th July, 2010 and received by the claimant on the 3rd August, 2010 refusing permission to develop land located at 6, 8, and 10 Broadway, 56, 58 and 60 South Quay and 7 and 5 Henry Street, Port of Spain by carrying out building operations, that is, the erection of a building for office and retail purposes (“the Minister's decision”).
The Application was supported by two affidavits filed on the 2nd November, 2010 of Ms. Jacqueline Melissa Bowen, the Executive Director and Corporate Secretary of the claimant (“Ms. Bowen”) and Mr. Ronald Simon, instructing attorney for the claimant (“Mr. Simon”).
By an Order of the Court dated the 10th November, 2010 the claimant was granted permission to make the claim for judicial review. The claimant filed its claim on the 24th November, 2010.
The claimant seeks inter alia an order of certiorari to remove into this Honourable Court and to quash the Minister's decision, and a declaration that the Minister's decision is unlawful, null and void and of no effect. At the conclusion of oral addresses, however, Mr. Mendes S.C. on behalf of the claimant made it clear that the claimant was no longer seeking an order of certiorari to quash the Minister's decision.
Several affidavits were filed in this matter. The following affidavits are highlighted:
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i. The first affidavit of Ms. Bowen filed on the 2nd November, 2010;
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ii. The second affidavit of Ms. Bowen filed on the 24th November, 2010;
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iii. The affidavit in reply of Ms. Bowen filed on the 18th February, 2011;
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iv. The first affidavit of Ms. Sheryl-Ann Haynes, the former Director of the Division (“Ms. Haynes”) filed on the 28th January, 2011;
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v. The second affidavit of Ms. Haynes filed on the 8th April, 2011.
The Town and Country Planning Act, Chap. 35:01 (“the Act”) makes provision for inter alia the development of land and the grant of permission to develop land. The Minister's permission is required for any development of land pursuant to section 11(1) which provides as follows:
“Subject to this section and section 12, where application is made to the Minister for permission to develop land, the Minister may grant permission either unconditionally or subject to such conditions as he thinks fit, or may refuse permission.”
An application for permission to develop land (“Application for Planning Permission”) may be made by the owner of the land or by an agent. The Application for Planning Permission must be accompanied by plans and drawings which describe the development which is the subject of the application.
Depending on the type or scale of development to be undertaken, an applicant may choose first to make an application for outline permission (“Outline Application”). Although this may be used for single family residential applications, it is usually used for non-residential projects. The reason for this is that the Outline Application will give the applicant the criteria to be followed when designing the building. Obtaining these criteria through the outline process can also reduce costs in the long term and avoid the redrawing of plans. An Outline Permission letter gives the applicant one year to submit the reserve matters listed in the document for approval.
When an Outline Application has been approved, the applicant may then submit his Application for Planning Permission in conformity with the conditions and reserved matters listed in the Outline Permission letter.
The application process requires that an application be filed and a reference number be assigned to it. The decision on the application is generally made in accordance with the approved land use policy for the area.
The Division uses two (2) levels of approval for development projects. The Outline Application grants approval for the use of the site based on conditions and reserved matters stated in the approval letter. The reserved matters refer to approvals and standards to be met in the design. One of the usual conditions of the Outline Permission is that it will lapse after one (1) year from the date of dispatch. There is a provision for the renewal of the Outline Permission up to three (3) times. The second type of approval is an Application for Final Permission based on detailed plans submitted for the project.
The background facts which are important to understanding this matter are somewhat extensive.
Over several years several parcels of prime land in downtown Port of Spain totalling over 60,000 square feet were acquired originally by Transcorp Credit Union Co-operative Society Limited (“TCU”) and Transcorp [incorporated in September, 2003 with 100% of the shareholding owned by TCU] for the purpose of constructing a multi-storey high office building with retail stores and car parking facilities to be called the Broadgate Place Project (“the Broadgate Project”). Based on discussions with the Government of Trinidad and Tobago (“the Government”) it was understood that the Government would occupy all the office space.
By letter dated the 30th September 2005, the Ministry of Public Administration informed TCU of Cabinet approval to lease 235,012 square feet of office space in the building complex to be known as the Broadgate Project on terms and conditions to be negotiated in accordance with Government procedures and approved by the Cabinet.
Negotiations in relation to the finalization of the terms and conditions of an Agreement to Lease and a Form of Lease continued for many years between Transcorp and the Government. By letter dated the 4th April, 2007 the Government through the Ministry of Public Administration and Information indicated Government's agreement to lease 391,687 square foot of a 26 storey office tower in the Broadgate Project.
By an Agreement to Lease dated the 17th June, 2009 between the claimant and the Government [the claimant then being the owner in fee simple absolute of the lands in the Broadgate Project], the Government agreed to lease the said 391,687 square feet of office space in a proposed twenty-seven (27) storey office tower (“the Agreement to Lease”). The claimant and the Government also executed a Consent and Agreement dated the 4th September, 2009.
On the 12th October, 2009 there was a meeting held with representatives of the claimant, Turner Alpha Limited, its Project Managers (“Turner Alpha”) and the Division with Ms. Haynes, the Director in attendance. At the meeting discussions were held as to the requirements for the obtaining of final approval of the Broadgate project. The Division was concerned that the Broadgate Project must not be taller than the highest building in the Port of Spain International Waterfront Project Centre (“the Waterfront Project”).
The claimant has contended that the determining factor was that the Broadgate Project must not be higher than the Waterfront Project in terms of metres. The defendant has contended on the other hand that the determining factor was that the Broadgate Project must not be higher than the Waterfront Project in terms of number of floors.
By letter dated the 24th November, 2009, Turner Alpha made an application for final approval. This letter purportedly addressed the matters raised in the meeting of the 12th October, 2009, including the fact that the Broadgate Project was going to be shorter [10.4 metres] than the Waterfront Project.
Several applications for outline approval were made in respect of the Broadgate Project. The first Outline Application was dated the 22nd May, 2000 and submitted on the 26th May, 2000 by Planviron Limited for the development of land situated at No. 5 Henry Street, Port of Spain and stated to comprise 614.8 square metres in area for the erection of a building to be used for commercial purposes. The application was referenced T1M:1055/2000. Outline Permission was granted for that application in June, 2000. That site now forms part of the Broadgate Project site. One of the conditions of the Outline Permission was that the maximum height of any proposed building shall not exceed six (6) storeys or 21.5m from ground level.
The second Outline Application was...
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