Primnath Geelal and Rupnarine Geelal v The Chairman, Aldermen, Councillors and Electors of the Region of San Juan/Laventille

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice V. Kokaram
• Judgment Date: 22 February 2019
• Neutral Citation: TT 2019 HC 97
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No. CV2017-04558
• Date: 22 February 2019

IN THE HIGH COURT OF JUSTICE

Before

the Honourable Mr. Justice V. Kokaram

Claim No. CV2017-04558

Between

Primnath Geelal Rupnarine Geelal

Claimants

and

The Chairman, Aldermen, Councillors and Electors of the Region of San Juan/Laventille

Defendant

Appearances:

Mr. Ramesh Lawrence Maharaj S.C leads Mr. Kingsley Walesby and Ms. Vijaya Maharaj instructed by Ms. Odylyan Pierre, Attorneys at Law for the Claimants

Mr. John S. Jeremie S.C leads Mr. Kerwyn Garcia instructed by Ms. Raisa Caesar, Attorneys at Law for the Defendant

Legislation:

Public Health Ordinance, ss. 36, 46, 47

Municipal Corporation Act, s. 163

Town and Country Planning Act, s. 16

Judicial Review - Illegality — Whether defendant acted ultra vires — Whether impugned decision illegal — Whether defendant had no power to exercise action relative to alleged development works — Whether defendant fairly and rationally enforced planning codes and regulations

Constitutional Law - Fundamental rights and freedoms — Damages — Whether decision in breach of constitutional rights of claimant to enjoyment of property and due process — Whether decision in breach of constitutional rights of claimant to protection of law and equal treatment — Whether appropriate case for award of damages

TABLE OF CONTENTS

	Page No
Introduction	3
Issues	6
Planning law: Regulatory Framework	9
Planning law: The Enforcement Provisions	12
Brief Context to the Enforcement Decisions	19
The Enforcement Decisions	23
The Courts' Approach- Judicial Review Principles	32
The Jurisdiction Issue	36
A Flawed Process	45
Unreasonable Delay	45
No Proper Enquiry	48
The Tameside Duty	49
“Old or New Works”— A Precedent Fact	56
Irrationality— Wednesbury Unreasonableness	57
Natural Justice	60
• An Oral Hearing	60
• The Right to Be Informed	62
• Bad Faith/Bias	64
The Constitutional Dimension	66
• Protection of the Law	66
• Right to Property	67
• Right to Equality of Treatment	68
Notices Invalid as against Rupnarine Geelal	69
Damages	70
A Fresh Perspective	72
Conclusion	73
Relief	75

Introduction

“..in matters of planning control it is not so much the letter of the law which counts as the manner in which that law is going to be administered. The field of planning control is dappled with the overnight mushrooms of discretionary decision. How is this discretion being exercised at any given time? That is the question.” 1

1 The San Juan/Laventille Regional Corporation 2 has signalled to the Geelals 3, that they are in breach of our planning laws 4. The Geelals have built their home without obtaining the relevant statutory approvals required by these laws. Enforcement action against the Geelals is an immediate priority for the Regional Corporation. Enforcing the law means, among other things, that an entire third floor of Mr. Primnath Geelal's residence must be torn down. However, like with the exercise of any administrative discretion, the touchstone is fundamental fairness.

2 As a public law Court grapples with this question of the enforcement of planning laws, the message to the wider community about the observance of these laws should be clear: that while our planning laws must be observed, the discretionary powers of enforcement are to be exercised fundamentally fairly and with the observance of due process.

3 How does the rule of law flourish in creating a modern democracy, an orderly citizenry and just society? Does the rule of law gain its currency from “external constraint” or “inner inspiration”? Can modern regulators champion the rule of law through building consensus with the subjects of the rule of law? Is consent to and respect for the rule of law earned when decisions of the State are transparent, accountable and achieved through a process that is fundamentally fair? These are the much deeper issues that underlie this public law claim brought by the Geelals, against the Regional Corporation for taking enforcement action against them for alleged violations of our planning laws.

4 The Geelals complain that the decisions embodied in a Notice to Demolish and a Show

Cause Notice made in December 2017 5 by the Regional Corporation 6 are irrational, illegal and procedurally improper. The Geelals also complain that these decisions constitute a breach of their constitutional rights to the protection of the law, the right to the enjoyment of property and the right to equality of treatment. The Regional Corporation disagrees. They contend that the notices were properly issued within the jurisdiction of the relevant legislation, consistent with the Regional Corporation's statutory and common law powers, made for a legitimate purpose and breached no fundamental human rights guaranteed by the Constitution 7

5 The main question raised in the Geelal's public law claim is whether the Regional Corporation as a planning authority fairly and rationally enforced our planning codes and regulations?

6 Enforcement of laws has notoriously plagued our nation. Philosophically, Professor Drayton observed the deeper problem of enforcement of laws in the Caribbean:

“..no incarceration, flogging or hanging can do the work of rooting the law in the spirit of the people. … Laws can only move from external constraint to inner inspiration, if they are grounded in justice and embody the personality of all citizens. …” 8

7 There may be deep socio-political reasons for non-compliance with the law as examined by Professor Drayton in his examination of true consent of a post-colonial society to a rule of law that was superimposed and not one which is an organic “Caribbean centric” legal system. Enforcement also poses unusual challenges for our regulators of planning laws in light of the development of unregulated and sporadic settlements, the by-product of our colonial past. While unregulated development can be seen as a scourge on a nation's progress, many communities may have already been developed around the haphazard erection of buildings, businesses and homes without reference to standards, building codes

or buildings regulations. It may be both a recipe for chaos as well as a reflection of a deeper underlying problem of our peoples' lack of consent to the rule of law. In this case which involves planning laws dating back to 1917, an era of “barracks” and “tenement yards”, the challenge faced by planning authorities such as the Defendant is obtaining true consent from the public to regulate their buildings and homes in conformity to the planning laws

8 Enforcement of building violations are no doubt a pressing and urgent matter. It appears from the Regional Corporation's evidence that steps are being taken against many persons who have unauthorised structures. While enforcement of the law is a priority, the enforcement process adopted by the Regional Corporation must comport to the basic principles of public law, the familiar tripartite categorisation of Lord Diplock of rationality, legality and procedural propriety 9, as well as due regard to fundamental human rights. Moreover, the Regional Corporation must act in the context of the history of the Geelal's, their homes and businesses, humanely or proportionately and fundamentally fairly. In matters such as these, the Court must evenly balance the rights and interests of the State in enforcing undoubtedly salutary sound principles of planning regulations and on the other end, the important proprietary interests of citizens which are detrimentally impacted by such enforcement action.

9 Ultimately, enforcement action must therefore be conducted within the strict prism of public law and constitutionality. While insisting upon a strict and rigid adherence to statutory formalities when enforcing the planning laws, the Court must also balance the rights of owners subjected to interference and an interference which is for the common good.

10 For the reasons set out in this judgment I have held that it is open to the Regional Corporation to take enforcement action against the Geelals notwithstanding the time limit imposed in the provisions of the Town and Country Planning Act Chapter 35:01. The issuing of the Notice to Demolish and the Show Cause Notice, however, are procedurally irregular, unreasonable and a breach of the principles of natural justice. Ultimately, a proper inquiry

must be conducted by the Regional Corporation to determine the true nature of the offending works and it would be wrong and premature for the Regional Corporation to act without properly satisfying itself of all the relevant circumstances that will impact on the question of enforcement

11 In this judgment, I have set out the main issues for determination, the brief factual backdrop, an examination of the notices which are the subject of the action, the main legal principles and an analysis of these traditional public law principles with the undisputed facts. Although not central to determining the issues in this matter, I explore the new test of proportionality in judicial review and its application for the exercise of discretion by modern regulators. As consent to the rule of law can only be achieved through proportionate and rational responses of administrators, this judgment will also highlight the role of administrators in public law and examine their responsibility to act humanely in order to inspire its citizens to consent to the creation of an orderly society by compliance with its laws.

Issues

12 I commend both Senior Counsel and their respective legal teams for diligently setting out their detailed arguments in their written submissions. A main problem highlighted by the Claimants is the failure of the Regional Corporation to determine whether the...