Maharaj and Concerned Residents of Cunupia v Minister of Planning and R.P.N. Enterprises Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Dean-Armorer, J.
• Judgment Date: 26 April 2016
• Neutral Citation: TT 2016 HC 70
• Docket Number: CV 2013-00804
• Court: High Court (Trinidad and Tobago)
• Date: 26 April 2016

High Court

Dean-Armorer, J.

CV 2013-00804

Maharaj and Concerned Residents of Cunupia

and

Minister of Planning and R.P.N. Enterprises Limited

APPEARANCES

Mr. Ramesh Lawrence Maharaj S.C., Ms. Marina Narinesingh Attorneys-at-law for the claimant.

Mr. Avory Sinanan S.C., Ms. Donna Prowell, Ms. Elena Da Silva and Ms. Petal Alexander, Attorneys-at-law for the defendant

Mr. Prakash Deonarine and Ms. Saajida Narine, Attorneys-at-law for the Interested Party

Judicial Review - Application for judicial review against the decision of the Minister of Planning and Sustainable Development to overturn his decision refusing planning permission for the operation of a Concrete Batching Plant — Whether the decision was flawed on the ground of illegality due to the fact that a public authority was required to be satisfied that the first decision was plainly wrong when reviewing an earlier decision.

Dean-Armorer, J.

INTRODUCTION

1 This was an application for judicial review against the decision of the Minister of Planning and Sustainable Development.

2 Having received complaints from the first claimant and other residents of Cunupia, the Town and Country Planning Division, investigated the establishment of a Concrete Batching Plant which stood on the premises of the RPN Enterprises Ltd (“the Interested Party”). In the name of the Minister of Planning and Sustainable Development, the Town and Country Planning Division refused to grant planning permission to the RPN Enterprises Ltd, for the operation of the Concrete Batching Plant. Upon an appeal by the Interested Party, the Minister overturned his first decision.

3 In the course of this judgment, the Court considered the circumstances in which a public authority could review its own decision, and when the review of an earlier decision could amount to an illegality.

PROCEDURAL HISTORY

4 On the 28th February, 2013, the claimants filed an application for leave to apply for judicial review, pursuant to Part 56.3 of the Civil Proceedings Rules (CPR) [Civil Proceedings Rules 1998 as amended ].

5 Two (2) applicants were named in the application, namely:

• a) Pundit Rameshwar Maharaj

• b) Concerned Residents of Cunupia, a non-profit organisation registered under the Companies Act 1996 [Chapter 81:01]

6 The proposed defendant was the Minister of Planning and Sustainable Development.

7 By their application for leave to apply for judicial review, the claimants sought the following relief:

• “1. A declaration that the said Planning Decision to permit the development of the said Concrete Batching Facility dated December 03 2012 is unlawful and/or unreasonable and/or irrational and/or null and void and of no effect.

• 2. An injunction restraining RPN Enterprises Limited its servants and/or agents or any person acting through it or by it or howsoever from operating the said Concrete Batching Plant until the hearing and determination of this action and/or further order.

• 3. An interim order staying the said Planning Decision and all further decisions and/or actions arising from and/or pursuant to the said Planning Decision pending the determination of the claim herein;

• 4. An Order of Certiorari quashing the said Planning Decision of the Intended defendant;

• 5. An Order of Mandamus directing the Intended defendant to reconsider the said Planning Decision in accordance with the findings of the Court pursuant to Section 21 of the Judicial Review Act, No. 60 of 2000(“JR Act”)

• 6. Leave be granted to the Intended claimants to read and use the affidavits of (i) Rameshwar Maharaj (ii) Balroop Seenath on behalf of the second intended claimant (iii) Dr. Mark Lloyd Chernaik (iv) Wayne Sooknanan (v) Horace Abraham (vi) Rena Ramdeo (vii) David Bissoon (viii) Helene Wilkie (ix) Jagdeo Ramhit (x) Dr. Rae Julien Furlonge (xi) Margaret McDowall-Thompson and (xii) Ryan Lalsingh and Dr. Mark Lloyd in support of its Claim;

• 7. Leave be granted to the Intended claimants to file and serve in further support of the claim, in lieu of the Affidavit prescribed by part 56.7(4) of the Civil Proceedings Rules, an Affidavit by the claimants: (i)stating the matters prescribed by part 56.7 (4), (a), (b), (c), (d), (f), and (g) of the CPR; and,(ii) Verifying and confirming the facts contained in the Affidavits of Rameshwar Maharaj and Balroop Seenath

• 8. Such other Orders, Directions or Writs as the Court considers just and as the circumstances warrant pursuant to the powers given to the Court by virtue Section 8(1)(d) of the JR Act;

• 9. Damages including aggravated damages;

• 10. Costs, and;

• 11. Such further and/or other relief as the Honourable Court may deem just and necessary.

8 The claimants relied on the following grounds:

• “a. illegality

• b irrationality

• c. bad faith

• d. failure to take into account material considerations

• e. taking into account irrelevant matters

• f. abdicated his and/or surrendered his jurisdiction

• g. acted in conflict of the land use policies of Trinidad and Tobago and of the Town and Country Planning Division (“TCPD”) Chapter 35:01

• h. acted contrary to legislative intent of the Town and Country Planning Act Chapter 35:01 (“TCP Act”)

• i. acted contrary to the rules of natural justice

• j. acted contrary to principle of sustainable development

• k. acted in breach of a legitimate expectation of both a substantive and procedural benefit

• l. acted unconstitutionality.”

9 Twelve (12) affidavits were filed in support of the application.

10 On 28th March, 2013, the Honourable Justice Charles granted leave to the claimants to file and serve their claim for judicial review. Thereafter the claim was transferred to the docket of this Court.

11 Pursuant to the grant of leave by the Honourable Justice Charles, the claimants filed their fixed date claim on the 9th April, 2013. By their fixed date claim, the claimants abandoned their applications for interim orders and restricted their claim seeking the following relief:

• “1. A declaration that the said Planning Decision to permit the development of the said Concrete Batching Facility dated December 03 2012 is illegal and/or unreasonable and/or irrational and/or an act of bad faith and/or a failure to take into account material considerations and/or taking into account of irrelevant matters and/or an abdication of duty and/or a surrendering of jurisdiction and/or in conflict with policy and/or a breach of natural justice and/or contrary to the principle of sustainable development and/or a breach of legitimate expectation and/or unconstitutional and is hereby null and void and of no effect.

• 2. An order of certiorari questioning the said planning decision of the Intended defendant

• 3. An Order of Mandamus…

• 4. Such other Orders, Directions or Writs as the Court considers just…

• 5. Damages including aggravated damages

• 6. Costs…” [See the Fixed Date Claim Form filed herein on the 9th April, 2013.]

12 By their notice of application filed on the 6th May, 2013, RPN Enterprises Ltd sought an order that they be joined as an Interested Party in these proceedings. An order in terms of the application was granted on the 27th July, 2013.

13 Affidavits were filed on behalf of all parties. The affidavits are itemized at paragraph 17 below. Expert Reports were filed, as well, on behalf of the claimant and the Interested Party.

14 On the 25th February, 2014, the claimant sought an order that the Court appoint a mutually agreeable expert. Counsel for the Interested Party objected. The Court gave directions for the filing of a formal application for the order.

15 Numerous extensions of time were granted to enable the parties to discuss the appointment of an expert. This issue was eventually resolved on the 17th June, 2014, when the Court granted permission to the claimant to rely on the expert evidence of Dr. M. M. Mc Dowell, Dr. Mark Chernaik and Mr. Rae Furlonge. Permission was granted to the Interested Party to rely on the expert evidence of Dr. Victor Coombs.

16 On the 17th June, 2014, the Court directed that expert reports be filed on or before the 31st July, 2014. The Court directed further that Written Submissions be filed on behalf of all parties and that supplemental submissions be heard on the 19th February, 2015.

17 On the 9th February, 2015, learned attorneys-at-law for the defendant and those for the Interested Party sought an adjournment. Learned Senior, Mr. Maharaj agreed that the supplemental submissions be heard on the 11th, 12th, and 13th May, 2015.

18 The trial of these proceedings commenced on the 12th May, 2015 and ended on the 15th May, 2015.

THE EVIDENCE

19 The evidence before the Court, in these proceedings, was by affidavit only. All parties filed affidavits of facts, while the claimant and the Interested Party filed reports of experts in respect of which they had obtained the Court's permission.

20 The claimants filed twelve affidavits in support of the application. The deponents were:

• • Rameshwar Maharaj

• • Balroop Seenath

• • Dr. Mark Lloyd Chernaik

• • Wayne Sooknanan

• • Horace Abraham

• • Rena Ramdeo

• • David Bissoon

• • Helene Wilkie

• • Jagdeo Ramhit

• • Dr. Rae Julien Furlonge

• • Margaret McDowall Thompson and

• • Ryan Lalsingh

21 On the 9th April, 2013 and following the grant of leave to apply for Judicial Review, the claimant filed two supplemental affidavits. They were: the affidavit of Rameshwar Maharaj and that of Ramdath Ramcharitar. On the 17th April, 2013, a further affidavit was sworn by Balroop Seenath and filed on behalf of the claimants.

22 In opposition, the defendant filed three affidavits. The deponents were:

• • Timothy Mooleedhar whose affidavits was filed on 8th November, 2013

• • Kerry Pariag whose affidavit was filed on 16th December, 2013

• • Bhoehendradath Tiwary whose affidavit was filed on 16th December, 2013

23 Four affidavits were filed on behalf of the...