After receiving a few calls seeking clarification on parts of my commentary on this subject, I have decided to provide this follow-up.
From the outset, I wish to acknowledge that I prejudged the outcome of the Government’s appeal of the judgement of Judge Innocent of the Eastern Caribbean High Court. I can find no virtual record of an appeal being filed. I apologise to readers for this error. Further, I wish to clarify for the benefit of my two friends Matthias and Kingsley who called me on this particular matter, that the PMA was never declared a “Special Development Area.” The concessions granted to Mondesir Estates were made under the Special Development Areas Act. I treat with this later on.
Inherent Challenges in Administering Planning Law
My view, which is based on my training as an Urban Planner and my experience as a former Executive Secretary of the Development Control Authority (DCA), is that planning law is arguably the most inherently contentious law that exists in any country’s legal framework. Generally, people believe such laws are at best intrusive and at worst, violate their constitutional rights. They feel they have a right to build their homes and develop their property as they wish. Moreover, the standard defense of planning authorities that they exist to protect the “public interest” is increasingly being questioned, mainly because the public does not often have a say in deciding what is in its best interest. Given that planning laws exist, it is critical that planning authorities make every effort to build the public’s trust in its processes, procedures, laws, and decisions. The outcome of the case in the case: (No. SLUHCV2022/0262), between Mondesir Estates Limited (Claimant) and the Development Control Authority (DCA) and the Attorney General (AG), would likely have dented the public’s trust in the planning/development control system. Most members of the public would not have read the decision and would not know the factors that played in the developer’s favour in his case against the State. Frankly, the average citizen would be challenged by the language that clothes the judgement. Still, I feel that it has some important lessons for the State, and this is why from the outset, I encourage the Office of the AG, the Physical Planning Department and the DCA to use the opinions and insights shared by Judge Shawn Innocent of the Eastern Caribbean Supreme Court (High Court of Justice, Saint Lucia), to strengthen our planning laws and related planning and development control processes. This commentary is intended to contribute to this review process.
The learned Judge identified several flaws in the country’s legal framework and process. I highlight those among them that I consider to be critical.
Conversion of “Soft Law” into “Hard” Law
Over the past three decades, several global Conventions (soft laws) have been adopted on issues like climate change, heritage preservation, biological diversity, and the coastal and marine environment (Law of the Sea). Many countries (Saint Lucia included) have overlooked the fact that signing on to these Conventions obligates them to “harden” these Conventions by incorporating them into their legal framework. The Judge noted that this has not been done in the case of the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage to which Saint Lucia became a State Party in October 1991. I urge that the Office of the AG set up a task force to advise on the steps that must be taken to bring Saint Lucia into compliance with such international conventions.
Understanding the Context, Purpose, and Administration of Planning Law.
The judgement exposed several embarrassing features of the mindset of administrators of the Law.
First, we had the rather unfortunate situation of the DCA having to disavow the prior decision of the former Minister of Planning, and then DCA Chairman to grant the developer’s application for in-principle, approval. The judge reasoned that while Section 25 of the Planning Act gives discretionary power to the Minister to give written directions to the Head of the Physical Planning and Development Division to refer a particular application to the Cabinet, no evidence was presented to the court indicating that the Minister followed this procedure and therefore, any undertaking given by him, assuming there was one, contravened the Act and could not have conceivably have formed the basis of any legitimate expectation held by the claimant. From this, we can deduce the “principle of collective responsibility,” was not well served by the Minister and the DCA Chairman, as the decision taken at the meeting with the developer does not appear to have been endorsed by the full Cabinet and/or the Board of the DCA. This prompts me to recommend that upon assuming office, Ministers take the time to ensure that they and the members of Boards appointed by them, thoroughly understand the laws that apply to their various portfolios and mandates.
Second, the AG argued that the DCA is neither a servant nor an agent of the Crown (State) but that it is a statutory corporation with coercive powers established under the Act. The AG and the DCA also argued that the DCA had done nothing that violated the claimant’s/developer’s Constitutional rights and therefore the AG did not feel he should have been included as a party to the court proceedings. The Judge also understood the DCA to imply that its decisions are not subject to judicial review by a Court of Law. The DCA cited case law to defend its argument that it was guided purely by “material considerations” under the relevant statute and that in doing so it cannot be deemed to have violated any private right guaranteed to the developer under the Constitution. The Judge concluded that the DCA relied on the wrong case law and drew on several legal precedents in case law to knock down both the AG’s and the DCA’s arguments. He noted that the DCA had either overlooked or failed to consider that the procedures, regulations and policies it had followed in the case of the PMA, were approved only by Cabinet, and that the guidelines set out in the Limits of Acceptable Change (LAC) had not been incorporated into the physical plans for the PMA as provided for under Part 2 of the Act or adopted by the Ministerial Order under section 34 of the Act. There was another awkward situation in the case where the DCA implied that in exercising its powers under the Planning Act, it enjoyed absolute personal liability in any court for any act done or omitted to be done in “good faith.” Mindful that similar language appears in some other laws, it is important that public officers take note of the judge’s admonition that such language only protects Ministers and public officers IF they act in strict accordance with the Act. He further noted that neither the Minister nor the DCA is entirely free from liability for actions carried out in “bad faith” or otherwise not in conformity with the “four corners” of the Act. In other words, there is no protection if the Law is not followed. This is why I recommend that the AG’s Office hold regular review meetings with legal representatives of public agencies that operate outside of the ambit of his office, especially those with legal oversight of laws that bind the State, as the Constitution and Planning Act do. If a law binds the State, it binds the AG to ensure that a statutory authority or Ministry operates in a manner that does not expose the State to legal jeopardy.
Ensuring Consistency among Planning and Development Laws
The legal framework governing planning and development control is quite fragmented and in urgent need of consolidation. Many persons found it perplexing that the developer was granted “Approved Developer” status and concessions under the Special Development Areas Act. While Soufriere/Fond St. Jacques is one of several areas declared as Special Development Areas under that Act, it is challenging to grasp the benefits that would accrue to Soufriere/Fond St. Jacques from the construction of a private home within a contested area of the PMA. Perhaps, this was seen as the only way of giving the developer some relief, given that he would not be able to develop that part of his land that falls within the PMA.
Judge Innocent cited several inconsistencies in the planning law, including the use of terms that are not defined in the law. For example, while the Act contains an elaborate procedure for designating and declaring “protected areas” or “environmental protected areas,” the Act itself does not define either of these terms. Moreover, the developer argued, and the Judge agreed that there is no administrative scheme under the Act, approved by the Minister or by Cabinet governing coordination between the DCA, the Piton Management Area Advisory Committee (PMAAC) and any of the other referral agencies in the Act. I understood this to mean that the DCA erred when it transmitted directly to the developer the position of the PMAAC and not as a decision of the DCA Board. There’s also the case that the Planning Appeals Tribunal never heard the developer’s appeal, further strengthening his argument that his constitutional rights were infringed.
Further, it is noteworthy that no Order has been made by the Minister and/or published in the Gazette declaring the PMA to be a zoned area or a protected area for any purpose mentioned in the Act. Additionally, the PMA does not appear on any lists compiled by the Saint Lucia National Trust under the Saint Lucia National Trust Act or the National Conservation Authority under the National Conservation Authority Act. I therefore recommend that the Planning Act be reviewed with a fine-tooth comb to make it legally fit for purpose.