It seems that the prolonged contention between The Landings Resort, the Development Control Authority (DCA) and Sandals, represented in court by Two Seas Holdings Limited, over a decision by the DCA to approve development on land adjacent to The Landings Resort, is over.
The Appeals court this week delivered a judgement in favour of The Landings that may very well see the matter being put to rest once and for all.
It all started in 2007 when Two Seas Holdings Limited (“Two Seas”) made an application to the DCA for approval of a tourism development comprising a hotel and other facilities on land registered as Parcel 1257B 272 at Pigeon Point, Gros Islet.
Parcel 272 is bounded on the east by The Landings Hotel Resort & Spa. Approval by the DCA was granted in 2008 for land use only on Parcel 272.
According to court documents the following year, Ms. Alison King-Joseph engaged by Two Seas, submitted an environmental impact statement (EIS) to the DCA. The EIS identified The Landings Hotel as being within the sphere of influence of the proposed development.
Further, by 2011, Cabinet approval for the development was received. However, Two Seas Holdings Ltd did not proceed with their plans. After several years, the development was restarted in 2017 with a revised design and concept plan on a larger scale and with buildings up to nine storeys in height.
Court documents noted that in October 2017, two meetings were held between Ms. King and representatives of The Landings to discuss the development. No officer of the DCA participated in these meetings. On 30th October 2017, an environmental and social impact assessment (ESIA) and ESIA Addendum Update report were submitted to the DCA by Ms. King on behalf of Two Seas Holdings Ltd. Notably, the ESIA Addendum Update failed to include the views of The Landings’ representatives on the proposed development scheme and its potential adverse impacts on The Landings’ property.
Furthermore, the ESIA Addendum Update recorded that certain adverse impacts of the development on The Landings’ property, such as loss of views, had increased owing to the revised design. In November 2017, Two Seas Holdings Ltd submitted an application for approval to proceed with this new development on Parcel 272. In January 2018, The Landings’ lawyers wrote to the DCA stating that their client was concerned about the neighbouring development, and they requested a copy of the development plans under consideration by the DCA.
Court documents revealed that the DCA responded pointing them to the register of planning applications established under section 47 of the Physical Planning and Development Act (PPDA). In March 2018, The Landings’ lawyers inspected the said register kept at the DCA, which provided few details regarding the proposed development on Parcel 272. The Landings’ lawyers’ request to see the application documents was denied. By letter dated 17th April 2018,The Landings’ lawyers expressed their concern to the DCA that they had not been consulted in relation to the development on Parcel 272, and that the DCA failed to consider material considerations stipulated in their Manual for Developers as applicable to this type of development, prior to arriving at their decision.
According to court documents despite the concerns expressed by The Landings and their lawyers, by letter dated 18th April 2018, the DCA communicated its approval of the development on Parcel 272 to Two Seas Holdings Limited. Being dissatisfied with the DCA’s decision, The Landings commenced judicial review proceedings. They sought an order quashing the decision and damages owing to the impact of the development on their property. They claimed that the approval by the DCA was illegal, arbitrary and in breach of natural justice since the DCA failed to consult them before making its decision, when its property would have been adversely affected by the development on Parcel 272.
In giving judgment on The Landings’ judicial review claim, the judge found that the DCA had not consulted with The Landings, and that the October 2007 meetings which Ms. King had with representatives of The Landings, was not consultation by the DCA. However, in dismissing The Landings judicial review claim, the judge found that it had failed to establish that the DCA had a duty under the PPDA to consult with them, or that a duty to consult arose out of a legitimate expectation, whether arising by promise or an established practice.
The judge also found that section 23(1) of the PPDA and the Manual, whilst requiring the DCA to have regard to material considerations, did not lead to a duty to consult with The Landings, and that The Landings had failed to show that the impacts on its property has not been considered by the DCA in coming to its decision on the Two Seas Holdings Ltd application.
Being dissatisfied with the judge’s ruling, The Landings appealed. On appeal the central issue for determination was whether the DCA had a duty to consult The Landings before granting approval of the Two Seas’ Holdings Ltd application. The Landings argued that the DCA had a duty to consult them which arose by legitimate expectation, fairness, and by the duty to have regard to material considerations, including those stipulated at paragraphs 4.8.1 and 4.8.3 of the Manual. They contended that this duty to consult having arisen, it ought to have been exercised properly, and the DCA’s refusal to permit The Landings access to (and copies of) the underlying application documents breached this duty.
The matter came up before Appeals Court Justices Mario Michel, Paul Webster and Gerald St. C Farara. Both Michel and Webster concurred with the judgement written by Farara.
The justices not only set aside the decision of the judge, but on the issue of cost entered judgment for The Landings on the FDCF and quash the decision of the DCA.
Wrote Justice Farara, “I am also mindful that The Landings have succeeded in their appeal on certain grounds and not in relation to others. In the circumstances, not having heard counsel for the parties on the issue of costs during the hearing of the appeal, I would make an order for the filing, by each party, of short written submissions on this issue within a specified time frame after delivery of this judgment.
“Accordingly, I would make the following orders:(i) the decision and order of the court below dismissing The Landings’ FDCF is set aside;(ii)judgment is entered for The Landings on its FDCF filed on 13th July 2018;(iii) it is declared that the decision of the DCA made on 11th April 2018 as set out in the letter dated 18thApril 2018 from the DCA to Two Seas Holdings Ltd is unfair, unreasonable and in breach of the rules of natural justice; and (iv) the said decision of the DCA is accordingly quashed;(v)the parties shall each file written submissions, not to exceed 3 typed pages, on the incidents of costs flowing from the decision and judgment of this Court, within 14 days of delivery of this judgment.”
Appearing on behalf of The Landings Resort were Mr. Richard Harwood KC, Ms. Renee St. Rose and Ms. Marie-Ange Symmonds. Mr. Dexter Theodore KC and Mr. Adrian Etienne appeared on behalf of the DCA. Mr. Garth Patterson KC, Mr. Mark Maragh and Ms. Taylor Laurayne appeared on behalf of Two Seas Holdings Ltd., which is listed in court documents as the Interested Party. Mr. Rene Williams held a watching brief for the Attorney General.
