Jack and Armstrong v Minister of Public Works

• Jurisdiction: Bermuda
• Judgment Date: 28 August 2015
• Neutral Citation: [2015] SC Bda 62 Civ
• Date: 28 August 2015
• Docket Number: 2015: No. 203
• Court: Supreme Court (Bermuda)

[2015] SC (Bda) 62 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION

COMMERCIAL COURT

2015: No. 203

Between:

(1) Graham Jack

(2) Susan Armstrong

Plaintiffs

and

The Minister of Public Works

Defendant

Mr. Alex Potts, Sedgwick Chudleigh Ltd., for the Plaintiffs

Mr. Myron Simmons, Attorney-General's Chambers, for the Defendant (the ‘Minister’)

RULING

(in Chambers)

Introductory

1 The Plaintiffs issued a Specially Endorsed Writ of Summons on May 14, 2015. They jointly own a property known as “Banstead” (‘the Property’) which adjoins a portion of the Botanical Gardens for which the Defendant on July 4, 2012 obtained planning permission from the Development Applications Board (‘DAB’) to develop as an “industrial” base for the Department of Parks (‘the Site’). The Plaintiffs unsuccessfully objected to the grant of planning permission. Since then, they took various steps directed primarily at ensuring that developments at the Site complied with the conditions subject to which the planning permission was granted. In their present claim, they allege that the development activities at the Site constitute a nuisance and/or are unlawful.

2 In a Statement of Claim which runs to 14 pages, the first three paragraphs of the prayer seek the following relief:

‘ (1) An injunction to restrain the Defendant, by himself, his servants, or agents or otherwise from repeating or continuing the said nuisances or any nuisance of a like kind, and/or from continuing with unlawful development activities at the Site, and/or an injunction mandating the Defendant to abate the said nuisances or any nuisance of a like kind.

(2) A declaration that the development activities at the Site are unlawful.

(3) A declaration that the planning approval for the Site has lapsed altogether….’

3 On June 11, 2015, the Plaintiffs' interlocutory Summons for an interim injunction was issued. It was first heard on June 18, 2015. Directions were given for the filing of evidence, the listing of the Summons and for a site inspection to take place on the first day of the hearing. On July 2, 2015 the Defence was filed. On July 6, 2015, the Defendant applied to strike out various paragraphs in the Statement of Claim on the grounds that, inter alia, they consisted of pleadings of evidence and not material facts and/or were frivolous or vexatious. By agreement, the respective interlocutory Summonses were listed to be heard together.

The Evidence

4 The Plaintiffs relied primarily upon the First Affidavit of Graham Jack (‘First Jack’) but also on the First Affidavit of Jennifer Flood (‘First Flood’). Through First Jack the Plaintiffs explain that an application for the development of ‘169 South Road’ was advertised shortly after they purchased the Property. They belatedly discovered that the application related to the Site and filed an objection. They did not pursue an appeal of the DAB decision, partly in light of the conditions attached to the permission which mitigated some of their concerns. These conditions included the following:

• (a) ‘ 4…the proposed landscaping within the 20 feet setback area to the south of the proposed Building B…should be installed prior to the commencement of construction of the approved development…’;

• (b) ‘ 9. In the interests of visual amenity, existing trees shown to be retained on the approved plan shall be protected by 4 feet high fencing prior to the start of building operations…’;

• (c) ‘… In Principle and Final planning approvals are valid for two (2) years from the Board approval date, unless an alternative expiry date is explicitly noted as a condition of approval…’

5 In July 2013 the Site was cleared, the first signs that the development of the Site was actually moving ahead. A meeting took place that August with Planning Department representatives at which the Plaintiffs expressed various concerns. They were assured that the proposed water tower ‘ wasn't going to be one of those big water towers’ and that it would not even be visible from their Property. Mr. Jack agreed to sign an acknowledgment form agreeing to a reduction of a set-back but his wife did not. In September 2013 the Plaintiffs attended a meeting with the then Minister and attempted to persuade him to locate the Site elsewhere. The November 2013 Sage Report and the February 2014 Budget suggested that consideration was being given to outsourcing the work being done by the Parks Department giving the Plaintiffs cause to believe, in the absence of development activity on the Site in the interim, that the project was not proceeding. In March 2014 a large prefabricated water tank was put on the Property, which did not comply with the specifications of the plans. The Plaintiffs were told by workers on the Site that this was simply a left over from another project and had to be put somewhere.

6 In January 2015, a meeting took place with the current Minister of Public Works and representatives of the Parks Department and the Planning Department at which the Plaintiffs expressed concerns about non-compliance with planning conditions. (That same month, according to First Flood, the deponent formed Take Back Our Park (‘TBOP’) to campaign against the development of the Site. TBOP had, by the time of the swearing of First Flood, collected over 3250 signatures in support of its campaign). The Plaintiffs experienced the overall attitude of Government as hostile and they were questioned about their links to TBOP. Following the meeting they were told that planting (which the planning permission contemplated would serve as a visual screen while the work was carried out) would only be done after the building work was completed rather than before. In March 2015 the Plaintiffs discovered that the set-back on their northern boundary, already reduced from 20 feet to 16 feet, was now proposed (according to plans in the Planning Department files) to be further reduced (without notice to them) to 9 feet. First Jack then proceeds to particularize the acts of nuisance complained of in the Plaintiffs' Statement of Claim.

7 The First Affidavit of William Francis, Acting Permanent Secretary in the Ministry of Public Works, was sworn in support of the Defendant's strike out application. This Affidavit supported (without elaboration) the complaint that paragraphs 2 to 23 of the Statement of Claim failed to plead material facts. It also averred that the same pleading was prejudicial and embarrassing in not enabling the Defendant to know what the Plaintiff's claim at trial for nuisance would be. Thirdly, the legal point was made that because the Plaintiffs had failed to appeal the granting of planning permission to the Defendant in respect of the Site, it was not open to them to advance any public law challenges to the validity of the planning permission in the context of a private law claim.

8 The Second Affidavit of William Francis responds to the Plaintiff's injunction application. It is averred that past damage to the shared northern boundary due to overgrowth has been repaired. It is averred that dust reduction measures have been taken on the Site, impliedly admitting a departure from the planning conditions. It is denied that the peace and tranquillity of the Botanical Gardens will be destroyed. It is not positively disputed that the development will result in the Site being used as a ‘ daily, early morning, mustering centre for the Department of Parks staff (estimated to be 100 or more people) as well as all of their vehicles, trucks, tractors, trailers, plant and equipment, as well as a vehicle wash-down location… (all of which is currently being done and has been done for the past 13 years from a site at Marsh Folly or the Quarry); this Site will also have a paint workshop, a carpentry shop, as well as a bio-pit which will require emptying by sewage trucks…’ (First Jack, paragraph 52.1). The suggestions that the Site would be a throughway and a water loading facility were denied. No assertions are made as to the timetable for the proposed works or inconvenience which would be occasioned were an interim injunction to be granted.

The Strike Out application

Pleading complaints

9 The criticism that paragraphs 2–23 of the Statement of Claim pleaded evidence and not material facts did not appear to me to be seriously pursued at the hearing. Paragraphs 2–4 describe the Minister's responsibilities. Paragraphs 5–9 describe the location and environmental law status of the Site. Paragraphs 9–10 make averments relating to the Plaintiffs' right of access to the property over a route the precise legal status of which is apparently contentious. Paragraphs 12–23 (‘Background Facts’) make various averments about the Defendant's application for planning permission to develop the Site, which are, arguably at least, relevant as a foundation for some if not all of the substantive claims asserted later in the pleading.

10 The first pleading complaint is rejected.

11 The second pleading complaint, that the Defendant is insufficiently informed of the case he has to meet at trial, needs to be viewed in light of (a) the additional particulars of the Plaintiffs' case on nuisance provided in First Jack (at paragraph 49), and (b) that the Defendant has been able to plead to the allegations and has not yet sought further and better particulars from the Plaintiffs. This complaint lacked substance in these circumstances.

12 The second pleading complaint is also rejected, without prejudice to the right of the Defendant, if so advised, to seek further and better particulars of the Plaintiffs' pleaded case on nuisance.

Do the Plaintiffs lack the standing to seek findings in relation to the validity of the Defendant's planning permission?

13 Mr. Simmons broadly submitted that the scheme of the Development and Planning Act 1974 (‘the 1974 Act’) excluded the Plaintiffs from launching a collateral attack on the decision to...