Blakes Estate Ltd v The Attorney General

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Edwards, J.
• Judgment Date: 16 May 2002
• Neutral Citation: MS 2002 HC 1
• Docket Number: 2 of 2002
• Date: 16 May 2002

Blakes Estate Limited

and

The Attorney General

Edwards, J.

2 of 2002

High Court

Injunction - Interim injunction — Injunction sought to stay work on land designated for a public cemetery until hearing of claim for judicial review — Principles to be applied — Application granted.

Appearances:

Mr. Elliott Mottley Queen Counsel for applicant Blakes Estate Ltd.

Mr. Kenneth Allen Queen Counsel for respondent Attorney General.

Edwards, J.

1 ) The Court delivered its decision on the 25th March 2002 and set aside the Interlocutory Order which had been made on the 20th February, 2002.

2 ) This was because the Application by Blakes Estate Limited dated 14th February 2002 for further Interim Relief had been made without Notice to the respondent.

3 ) On the 10th April 2002 in Anguilla, the Court Reheard the Application by Blakes Estate Limited for further Interim Relief. This was after the respondent had filed the Affidavit of Franklyn Greenaway sworn to and filed on the 22nd February, 2002; Affidavit of Trevor Howe sworn to and filed on the 22nd February, 2002, exhibits referred to in the said Affidavit of Franklyn Greenaway marked “FG1” to “FG5”, a Supplementary Affidavit of Franklyn Greenaway in Support of Application to Set Aside Order filed on the 2nd April 2002 and Exhibits referred to in the said Supplementary Affidavit marked “A” to “L”. All of these documents and Affidavits were in support of the respondent's opposition to the Application for Further Interim Relief.

4 ) Counsel for the applicant relied on the Affidavits of Roy Lee sworn to and filed on the 14th February, 2002 and the 15th February 2002.

The evidence in these Affidavits disclosed the following:–

• i) The respondent was served on the 12th February with the Court Order dated 8th February, 2002. (This Court Order granted leave to the applicant to make a claim for Judicial Review of the Proclamation No. 1 of 2002 dated 10th January 2002 made by the Governor in Council under section 30 of the Burial Grounds Ordinance, 1944. The Order directed among other things at paragraph 2:–

“The grant of leave shall operate as a stay of the proceedings to license the said parcel of land described in the Governor's Proclamation No. 1 of 2002 dated 10th day of January, 2002 as a public burial ground, until the full hearing of the claim for Judicial Review in May, 2002”.

• ii) The respondent had circumvented the Order on purely technical grounds and the Minister of Lands had given orders for the construction work on the cemetery which had begun on the 12th February, 2002, to continue.

• iii) If this construction were to continue the action begun for Judicial Review would be frustrated.

5 ) The Application for Interim Relief in substance, requests that no further work be done on the land designated for the Public Cemetery until the hearing of the Claim for Judicial Review. Both counsel submitted and the Court agrees that the guiding principles to be followed when deciding whether or not a Court should grant an Interlocutory Injunction is reflected in the judgment of Lord Diplock in American Cyanamid Co v. Ethicon Ltd. [1975] 1 All E.R. 504.

6 ) These principles are:–

• a) Whether there is a serious or real issue to be tried;

• b) The Adequacy of Damages to the applicant

• c) The Undertaking in Damages by the applicant and whether this undertaking is an adequate protection for the defendant.

• d) Balance of Convenience including preserving the Status Quo

• e) Merits of the claim otherwise stated:–

If the incompensable damage to claimant and defendant does not differ widely; then as a last resort the Court should look at the relative strength of the claimant and defendant's case on the Affidavit evidence; if this evidence is credible and not in dispute in deciding the balance of convenience.

7 ) The Court has also borne in mind that Interlocutory Injunctions are discretionary, they are no fixed rules for granting same, and the Court should not attempt to resolve complex issues of disputed facts or law. See Blackstone's Civil Practice 2001, Interim Injunction Para. 37.27.

8 ) Mr. Mottley Queen Counsel has argued that there are serious issues to be tried under the American Cyanamid principles for the following reasons:–

• i) The Physical Planning Act No.4/96 sets out the scheme of what should be done in terms of Planning Applications – See section 11

• ii) The Act provides for a Development Plan regarding the use of land in Montserrat and established the Development Planning Authority to prepare a National Physical Development Plan.

• iii) Section 12 of the Act controls the Development of Land in Montserrat, by providing that no development shall be commenced on land expect with a permission issued in accordance with the provisions of the Act.

• iv) Section 15 defines the meaning of “Development” to include, the carrying out of building, engineering, mining, or other operations in, on, over or under land, and the making of material change in the use of any building or land.

• v) The Act prescribes in Sections 16, 17 and 18 the steps that the Planning Authority must take prior to granting permission for the Development of Land.

• vi) In particular the Act provides for the Authority to notify persons who may be affected by the proposed development, giving them sufficient information, to enable such persons to determine the manner in which their interest may be affected.

• vii) Notification should be in a timely manner, normally allowing the affected persons fourteen (14) days within which to submit their comments from the date they receive the notification.

• viii) The Act provides that unless otherwise directed by the Authority, every application for development specified in the Third Schedule to the Act must be accompanied by an Environmental Impact Assessment of the proposed development in terms of matters specified in the Fourth Schedule.

• ix) Section 16 (4) of the Act provides that the Authority shall not determine an Application for development permission until the fourteen (14) day period has passed and all comments received in respect of the proposed development have been considered.

9 ) Queen's Counsel Mr. Mottley has argued that the applicant is affected by the Proposed Development for the Public Cemetery and was not notified by the Planning Authority as the Act required the Authority to do.

10 ) Furthermore, the evidence reveals that the Authority granted permission for the development of the Public Cemetery twenty (20) days after the application for permission to develop the Public Cemetery was made.

11 ) Mr. Mottley submitted that although the Act provides for how the Development Plan must be modified, if the Authority considers it expedient to depart from the plan; then they must give reasons as their decisions must not be arbitrary or irrational.

12 ) Mr. Greenaway's opposing Affidavits,...