Corporation of Hamilton v Minister of Environment, Planning and Natural Resources and Billings

• Jurisdiction: Bermuda
• Judgment Date: 06 April 1998
• Docket Number: Civil Jurisdiction 1997 No. 318
• Date: 06 April 1998
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Meerabux, J

Civil Jurisdiction 1997 No. 318

The Corporation of Hamilton

Appellant

and

The Minister of the Environment, Planning and Natural Resources

First Respondent

and

Dorothy Billings

Second Respondent

Mr. K. Hastings-Smith for the Appellant

Ms. N. Stoneham for the First Respondent

Mr. J.H. Cooper for the Second Respondent

ELS Wholesale (Wolverhampton) Ltd. v Secretary of State [1987] JPL 844 (QB)

Seddon Properties Ltd. and James Crosbie and Sons v Secretary of State for the Environment 248 EG 950

Barber v the Minister of the Environment (P.C.) No. 66 of 1996 p.7

Tesco Stores v Secretary of State (H.L)UNK [1995] 2 All ER 636

Associated Provincial Picture Houses Ltd. v Wednesbury Corp.UNK [1947] 2 All ER 680

Stringer v Minister of Housing and Local GovernmentUNK [1971] 1 All ER 65

Westminster City Council v Great Portland EstatesELR [1985] 1 AC 661

Westminster Bank Ltd. v Minister of Housing and Local Government (H.L)UNK [1970] 1 All ER 734

Rhodes v Minister of Housing and Local GovernmentUNK [1963] 1 All ER 300

Development and Planning Act 1974 s. 57; 61

City of Hamilton Plan 1984 paragraph 16

Town and Country Planning Act 1990 (U.K. Act) s. 70(2)

Bermuda Constitution s.13

Appeal by Corporation of Hamilton to quash the decision of the Minister — Whether the Minister erred in law — Final planning permission to the DAB to build 2 storey extension to Woodmont Nursery School — DAB approved — Corporation appealed — Minister upheld DAB's decision — Appeal must be on a point of law

JUDGMENT

PRELIMINARY

This is an appeal by the Corporation of Hamilton, the Appellant, under section 61 of the Development and Planning Act 1974 (hereafter referred to as ‘the Act’) that the decision of the Minister under section 57 of the Act, given by letter dated 26 August 1997 be quashed and that the costs of, and incidental to this application be paid by the First Respondent, or that such Order as to costs be made as the Court may think fit.

It is not in dispute that the only issue before the Court is whether the Minister erred in law when he dismissed the Appellant's appeal on 26 August 1997.

FACTUAL BACKGROUND

The following is not in dispute. On 29 January 1997 the Second Respondent applied for final planning permission to the Development Applications Board (hereafter referred to as ‘the Board’) for permission to build a two-storey extension to Woodmont Nursery School, situate at 27 Dundonald Street, Hamilton. The Board approved the application on 21 May 1997. The Appellant on 5 June 1997 appealed the decision. The First Respondent (hereafter referred to as ‘the Minister’) upheld the Board's decision on 26 August 1997.

The Woodmont Nursery School occupies a substantial plot of land, comprising some 30,000 square feet, situate on the north-west corner of the junction of Dundonald Street and Cedar Avenue. The present school building is a two-storey structure which occupies only 2,014 square feet of the 30,000 square feet and accommodates sixty children. The Second Respondent wishes to expand the school to accommodate an additional fifteen children. Vehicular access to the school is gained via the north side of Dundonald Street. The Appellant has also provided due west of the access dropping-off bays which are operational between 8.30 a.m. and 5.00 p.m. on weekdays. The proposed extension, according to the Second Respondent's application for planning permission would extend over an additional area of 399 square feet and would add two new classrooms and a washroom to the school. In other words, approximately 6.7% of the total lot area is presently covered. The present structure is a non-conforming building for it infringes the 15 feet road-allowance line along Cedar Avenue.

POINT OF LAW

As an appeal under section 61 of the Act it is to be noted that the section permits an appeal to the Supreme Court only on a point of law. An appeal on a point of law was the subject of comment in E.L.S. Wholesale (Wolverhampton) Ltd v Secretary of StateUNK[1987] J.P.L. 844 (Q.B.) which I adopt and apply to the instant case. At 845 and 846 it is stated thus:

“MAY L.J. said that an important point to bear in mind in appeals of this type under section 246(1) was that they only lay on points of law. In many other contexts appeals lay to the court or, for that matter, to the Court of Appeal, only on questions of law: for instance, where appeals were brought to the Court of Appeal against the exercise by a judge below of his discretion, in respect of an injunction perhaps, the custody of children or whatever else it might be. An appeal then lay if the judge below had erred in law.

It was his experience that, more often than not in those cases—and indeed in this particular case—the grounds of appeal contained in the notice of appeal were on these sort of lines: that the judge or the Inspector had paid no or no sufficient heed to something; or that there was no or no adequate evidence upon which the judge or Inspector could have reached a particular conclusion; or, finally, that the judge or Inspector had failed to take into account sufficiently or at all some consideration in reaching his conclusion.

If there were no evidence for a particular finding, or if the tribunal had not taken into account at all a relevant consideration then those could well be grounds of appeal raising a question of law. But the contention that a tribunal had failed to give adequate weight to evidence, or adequate or sufficient consideration to a particular circumstance did not. The weight which a tribunal, Inspector or judge gave to a particular piece of evidence or a particular consideration was a matter for that tribunal, judge or Inspector. In Seddon Properties Ltd. And James Crosbie and Sons v Secretary of State for the Environment and AnotherUNK248 E.G. 950, the same point was made by Forbes J. in his judgment at page 951:

‘Since the courts will interfere only if he acts beyond his powers (which is the foundation of all the above principles’ [which was another way of saying, in the context of that case, that the courts would only interfere on a point of law] ‘it is clear that his powers include the determination of the weight to be given to any particular contention; he is entitled to attach what weight he pleases to the various arguments and contentions of the parties; the courts will not entertain a submission that he gave undue weight to one argument or failed to give any weight at all to another.’

The prosecution of appeals and consideration whether or not appeals were likely to succeed would, he (May L.J.) thought, be considerably expedited if parties and their legal advisers appreciated that a contention that the mere weight given by a tribunal to evidence or material considerations did not raise a question of law.’

The concept of error of law, is set out in de Smith, Woolf and Jowell, Judicial Review of Administrative Action (Fifth Edition, 1995) at page 286, and it includes ‘the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof.’

MINISTER'S FUNCTION

It is not in dispute that under section 57(3) of the Act the Minister is empowered to deal with the appeal as if it had been made to him in the first instance.

I must point out that under section 57(7) of the Act in the exercise of his functions on an appeal, the Minster ‘shall have regard to’ the relevant provisions of the development plan and to any material consideration. ‘The Minister must have regard to the development plan. He cannot ignore it altogether. But once he has had regard to it he may still grant or refuse planning permission.’ Per Lord Slynn of Hadley delivering the advice of the Board in Barber v The Minister of the Environment(P.C) No. 66 of 1996 at page 7. At page 8 Lord Slynn continued thus:

‘The Minister must have regard to the prohibition in the limitation (and the more precise the restriction and the more limited the area to which it relates may lead him to observe the limitation or prohibition as one having been carefully worked out as a statement of intent in a particular area) but he may still say that on a particular application he will depart from or modify it. This would be so even if there were no reference in section 57(7) to other material considerations. But the Minister is required to have regard not merely to the development plan but also to ‘any material consideration’. Other material planning considerations may point in a different direction to those in the plan. If so the Minister must...