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The Landings Resort Emerges Victorious In Court Battle with DCA

The Landings Resort
The Landings Resort

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.

Micah George is an established name in the journalism landscape in St. Lucia. He started his journalism tutelage under the critical eye of the Star Newspaper Publisher and well known journalist, Rick Wayne, as a freelancer. A few months later he moved to the Voice Newspaper under the guidance of the paper’s recognized editor, Guy Ellis in 1988.

Since then he has remained with the Voice Newspaper, progressing from a cub reporter covering court cases and the police to a senior journalist with a focus on parliamentary issues, government and politics. Read full bio...

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