Blakes Estate Ltd v The Attorney General (2nd Judgment)
| Jurisdiction | Montserrat |
| Judge | Edwards, J. |
| Judgment Date | 31 July 2002 |
| Neutral Citation | MS 2002 HC 2 |
| Docket Number | 2 of 2002 |
| Court | High Court (Montserrat) |
| Date | 31 July 2002 |
High Court
Edwards, J.
2 of 2002
Mr. Elliott Mottley, Q.C. instructed by Phoenix Chambers counsel for claimant.
Mr. Kenneth Allen, Q.C. instructed by Allen Markham & Associates counsel for defendant.
Judicial review - Decision of Government to acquire some of the claimant's land for a public purpose, namely location of a public cemetery — Claimant not given the opportunity to be heard as required by the Physical Planning Act, section 16 and the approved Physical Development plan for North Montserrat, 2000–2009 — Order that the planning permission granted to the Minister of Health for a public cemetery at Blakes Estate be set aside and the defendant be restrained from using the lands as a burial ground until the relevant procedures were complied with.
This is an Application for an Administrative Order by way of a Fixed Date Claim pursuant to PART 56.7 of the Eastern Caribbean Supreme Court Civil Procedure Rules, 2000. The applicant/claimant is the Owner of approximately 700 acres of prime property situated in North Montserrat known as Blakes Estate. Its President is Dr. Roy Lee.
The Affidavits and Documents exhibited that were filed and relied on by both Parties along with the oral evidence disclose the following Facts. In or about 1996 the Volcano eruptions in Montserrat caused about two thirds of the lands in the East, West, and South of Montserrat to become inaccessible. The Government declared lands in those areas to be a part of the Exclusion Zone where entry was prohibited by law. With the exodus of people from these areas to the North, this increased the demand for land in the North; and it became clear to the Government by 1998/1999 that there was an urgent need to acquire land in the North for a Public Cemetery.
The Government through its Chief Physical Planner, Ministry of Agriculture Trade and the Environment/Ministry of Agriculture Land Housing and the Environment/Ministry of Agriculture, Lands, Health and Environment and other Government Officers had consultation with various interest groups in the Society including the Christian Council, in its efforts to find a suitable site in North of Montserrat for the Public Cemetery. At the end of the consultations, and decision making process, the Government of Montserrat compulsorily acquired approximately three (3) acres of the claimant's land at Blakes Estate in North, Montserrat for the Public Cemetery. This land was subsequently licensed as a Public Cemetery by a Proclamation of the Governor in Council before an Application for Planning Permission was made to the Planning and Development Authority. The claimant has brought this Application because of certain procedural requirements under the Laws of Montserrat which were not complied with before the Proclamation by the Governor was made.
The Chief Physical Planner is Mr. Franklyn Greenaway, and he is attached to the Ministry of Agriculture, Land Housing and the Environment, and works in the Physical Planning Department where there is the Physical Planning Unit.
The Physical Planning Unit carries out the day to day operation of the Planning and Development Authority which is a Statutory Body established under section 3 of The Physical Planning Act, No. 4 of 1996 (‘The Act’)
By virtue of section 12 of this Act, “no development shall be commenced on land in Montserrat except with a permission” issued by the Planning and Development Authority (‘The Authority’).
Section 5 of the Act assigns to the Authority the task of Preparing a National Physical Development Plan (“the Development Plan”) for Montserrat. This Development Plan should include among other things:–
“5(3)(a) a statement of the principal aims and objectives with respect to the development and use of land in each area of Montserrat;
(b) a Report on the existing conditions of each area of Montserrat including:
(i) the principal physical, social, economic and environmental characteristics of each area including the principal purposes for which land is used; ….
(v) any other matters which may affect the development and use of land;
(c) a statement of the policies, proposals and programs for the future development and use of land in each area including principles for regulating and promoting the use and development of land and measures for the maintenance and improvement of the environment.”
Section 6 of the Act requires the Authority to publicize the matters it intends to take into consideration for the Development plan and permit the public; interested persons and organizations to make representations.
The Government it appears complied with Section 6 of the Act; and after such representations concerning the site for the Public Cemetery; the Government began focusing on the Blakes Estate lands as a possible site for the Public Cemetery.
There was much communication between the claimant's President, Dr. Roy Lee, the Chief Physical Planner, and other Government Agencies regarding the suitability of that area of land called Blakes Yard and other areas on the Estate for the Public Cemetery.
Between February 1999 and November 2000, Dr. Lee sought to dissuade the Government from choosing the Blakes Yard area on his Estate, by identifying three (3) other sites on the claimant's lands at Blakes Estate as alternatives for the Public Cemetery and other lands elsewhere. Mr. Lee was unsuccessful. These alternative sites on Blakes Estate were visited by the Chief Minister, other Government Ministers and the Chief Planning Officer, Mr. Franklyn Greenaway and subsequently declared unsuitable. While this was happening; the Physical Development Plan for North Montserrat 2000-2009 was prepared by the Authority, Approved by the Governor in Council, and Published in January 2000.
The Development Plan States as its purpose at page 5:– “…to guide and direct from a physical planning perspective the development and rebuilding of Montserrat in the North of the island… to provide a framework for land use and development by Government, the Private Sector and the Community, and to help instill confidence in the future of the island…”
The area of Blakes Yard on the claimant's property at Blakes Estate is designated as one of the Historic Sites to remain in open use, and that one of the Plan's Development goals is “To conserve and protect sites of landscape, ecological, historic and cultural value and ensure they fulfill a role in the future of the island.”
The Plan recognises the urgent need for more than five (5) acres of land for Cemetery purposes, and proposes that Government should acquire private land at a site or sites, to be determined. The persons or Agencies designated with the head responsibility for this are identified in the Plan as the Physical Planning Unit and the Christian Council.
Dr. Lee in his many discussions and correspondence with the Chief Physical Planner and other relevant Government Officers, emphasized the goals and objectives in the Development Plan. His dissuasive arguments against focusing on Blakes Estate as a Public Cemetery, included the fact that the claimant had earmarked the area near the proposed Cemetery site on Blakes Estate for the construction of homes in the Bentley Subdivision Development and he had plans to build his house in the Blake Yard area. That the proposed Public Cemetery site would impact negatively on the claimant's Subdivision plans, devalue its adjoining lands, deter private investment and probably lead to the harmful contamination of a pond on the Estate.
Dr. Lee also focused on the need for the relevant Government Agencies to carry out an Environmental Impact Assessment before deciding that the proposed site was suitable for the Public Cemetery.
In a letter written by the Chief Physical Planner, Mr. Allan Gunne-Jones on the 16th February, 1999 to Dr. Lee, the Criteria for the proposed Cemetery site was stated thus:–
“…the site should be accessible and conveniently located in relation to population centers. In addition ground conditions should be suitable for excavation and no watershed areas should be impacted.
In another letter dated 13th May, 1999 from the Chief Physical Planner to the Permanent Secretary, Agriculture Trade and Environment, Mr. Gunnes Jones further stated that the proposed Cemetery site …..should be accessible to the population and can with good design and landscaping, coexist with residential communities……”
It appears that on the 26th October 1999 the Chief Physical Planner Mr. Franklyn Greenaway by letter informed the claimant that the Executive Council on the 9th September 1999 had decided that its land at Blakes Estate was “required for a Public Purpose, namely the development as a Public Cemetery.” And that “a preliminary ground study to confirm the suitability” of this site would be undertaken.
Mr. Lee authorised the Government's Entry on his Land after Notice of Entry to Land pursuant to Section 4 of the Land Acquisition Ordinance, Cap. 251 was served on claimant.
It is not clear whether the letter of the 26th October 1999 referred to that parcel of land in the present Claim as this is disputed by Mr. Lee.
Apparently, soil tests were carried out after the 30th November 2000 by the Government. On the 27th May 2001 and 30th June 2001 the Government's Acquisition of the land in question; approximately three (3) acres for a Public Cemetery, was Gazetted.
By letter dated 13th July 2001 (“EM2” referred to in para. 10 of Mr. Roy Lee's Affidavit in Support of the Application for Leave to apply for Judicial Review's sworn to and filed on the 26th February 2002). Claimant's counsel Mr. Mottley, Q.C. wrote to Mr....
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