Green v Minister of the Environment and Darling 1992 Civil Appeal No. 6

• Jurisdiction: Bermuda
• Judgment Date: 26 October 1992
• Date: 26 October 1992
• Docket Number: Civil Appeal No. 6 of 1992
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

In the Court of Appeal for Bermuda

Huggins, J.A.

Henry, J.A.

Civil Appeal No. 6 of 1992

Civil Appeal No. 6 of 1992

BETWEEN

Charles Green and Carol Green

Appellants

and

The Minister of the Environment

and

Peter H. Darling

Respondents

Charles Green

Carol Green

Appellants

and

The Minister of the Environment Peter H. Darling

Respondents

R McMillan for the Appellants

P Holder for the 1st Respondent

G Elkinson for the 2nd Respondent

Mr. McMillan for the Appellant8

Mr. Holder for First Respondent

Mr. Elkinson for Second Respondent

B Johnson & Co (Builders) Ltd v Minister of HealthUNK [1947] 2 All ER 395

Trina Investments Ltd v Development Application Board & Minister of Planning Housing & Environment 1980 Civil Appeal No. 22

Lake District Special Planning Board v Secretary of State for the Environment [1975] JPEL

Re Manchester (Ringway Airport) Compulsory Purchase Order (1935) 153 LT 219

Planning objection — Natural justice — Direction for rehearing by the Minister — Administrative capacity — Quasi-judicial capacity — Site visit by Minister to development site

JUDGMENT

Huggins, J. A.: The Second Respondent wished to build an extension to his house. He applied to the Development and Planning Board for planning permission. The Appellants are his neighbours and they lodged an objection to the scheme. The Board refused the application on grounds which are not material to this appeal.

The Appellants appealed to the Minister (the First Respondent) under s.57 of the Development and Planning Act 1974 and the Minister's decision-to allow that appeal was contained in a meticulously detailed and careful letter. However, two things happened which aggrieved the Appellants. First, the Minister, before the appeal to her had been determined, visited the Second Respondent's premises, where she met the Second Respondent in the absence of the Appellants. Whether or not it would have been physically possible for her to enter the site in the absence of the Second Respondent to give her access, if she had not asked his consent she would have been trespassing. Secondly, prior to giving her decision the Minister saw a letter from the Second Respondent which was not communicated to the Appellants. Consequently the Appellants appealed to the Supreme Court on the ground that there had been breaches of the rules of natural justice. Other grounds of appeal were notified, but these were abandoned. The Chief Justice held that, although there had not been any impropriety on the part of the Minister, she could not be perceived to have acted fairly, and he remitted the appeal to the Minister for ‘rehearing’.

The Appellants complain merely of the direction for a rehearing. However, the Second Respondent cross-appeals and contends that the Minister's decision should be restored. In addition the Second Respondent lodged notice of two preliminary objections to the Appellants' appeal, but these were not pursued.

Although Rule 8 of the Development and Planning (Appeals to the Minister) Rules 1974 makes no provision for a view of the locus in quo, no objection has been taken to the fact that the Minister had a view. The gravamen of the complaint is that there was opportunity for the Second Respondent to make representations to the Minister when she was at the site and when the Appellants were not there. There is no evidence that the Second Respondent in fact accompanied the Minister during her view. We are told only that they met, and there is evidence that no representations were made to the Minister by the Second Respondent. However, the Appellants are able to point to a passage in the letter which was not communicated to them which reads:

‘We have had the courtesy of a visit from the Minister who has seen for herself what the proposal involves on the ground. It was our submission that the addition of a bathroom and two walk-in closets would not in any way impinge on our neighbours' privacy.’

The two sentences being contained in the same paragraph it is possible to read them as connecting the making of the submission with the occasion of the visit, although they are manifestly ambiguous. Moreover, in an affidavit sworn by a Mr Rowlinson, who accompanied the Minister, there is a statement that ‘[t]he extent of the proposed extension on the ground was shown to the First Respondent, and certain features of the subject site were drawn to her attention.’ He does not say it was the Second Respondent who drew them to her attention but, again, the statement appears in a paragraph which starts by seeking to explain the contact between the Minister and the Second Respondent.

Much of the argument before us has been directed to the question whether the Minister was acting in an adminstrative capacity or in a quasi judicial capacity when she made her visit. The view of the Chief Justice appears to have been that she was acting quasi judicially, but counsel for the Minister and the Second Respondent urge us to hold that the Minister was in truth acting in an adminstrative capacity and that the only requirement was that she should act fairly in that context.

The fact that the Minister was conducting ‘an appeal’ is not of itself decisive of the judicial nature of all her functions. Section 57(3) does not require the Minister to proceed on the basis of a consideration of the Board's conclusions but ‘may deal with the application [i.e. the application for planning consent] as if it had been made to [her] in the first instance’. By sub-s.(4) she has, if the applicant so desires, to afford him an opportunity of appearing not before herself but before ‘a person appointed by the Minister for the purpose’. It seems clear that such person is not involved solely for the purpose of recording the applicant's evidence and representations but could properly interpose his own views on what he has heard. That is more consistent with the Minister's exercising an adminstrative function than a judicial function.

Again, the minister is not required to hold an enquiry but may do so at her discretion: r. 8 and Part III of the Rules. Where, as here, no inquiry is held, the Appellant and the Director of Planning are required to file a ‘case’ (rr. 3(c) and 5(1)) and the Minister may require any other party ‘to make such written submissions in the matter or produce such written or documentary evidence as such party may think fit: r. 8(1)(a). The Minister may require evidence to be given in the form of or verified by an affidavit: r. 8(3). The Minister may ‘determine the appeal on the basis of the record, written submissions and written and documentary evidence’: r. 8(2). Finally, by s.57(7):

‘In the exercise of his functions under this section the Minister shall have regard to the provisions of the development plan for the area where the land in question is situated, in so far as those provisions are material to the development of that land, and to any material consideration.’

In coming to her decision the Minister would inevitably have to exercise her own discretion in relation to the impact of the public interest on the case, as did the Minister in the English case of B. Johnson & Co. (Builders) Ltd. v Minister of HealthUNK1947 2 All E.R. 395. That case concerned a compulsory purchase order made by a local authority under s.74 of the Housing Act 1936, which was confirmed by the Minister. It was complained that the Minister had, in considering the objections to the order, failed in his duty to act judicially in that he had not made available to the objector the contents of letters written to the minister by the local authority...