Lauretta Stoneham & Claudette Fleming v Attorney-General and Minister for Environment, Telecommunications and E-Commerce and the Development Applications Board

• Jurisdiction: Bermuda
• Judgment Date: 26 March 2008
• Date: 26 March 2008
• Docket Number: Civil Jurisdiction 2007 No. 211
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Bell, J

Civil Jurisdiction 2007 No. 211

BETWEEN:

Lauretta Lorna Stoneham and Claudette Fleming

Plaintiffs

and

The Attorney-General

The Minister for Environment, Telecommunications and E-Commerce

The Development Applications Board

Respondents

Mr D Clarke for the Applicants

Mr M Johnson for the Respondents

The following cases were referred to in the judgment:

R (on the application of Lim) v Secretary of State for the Home DepartmentUNK [2007] EWCA Civ 773

Hollis v Development Applications Board and SwanBDLR [2001] Bda LR 34

R v Birmingham City Council ex parte Ferrero LtdUNK [1993] 1 All ER 530

Green v Minister of the Environment and DarlingBDLR [1992] Bda LR 37

Development and Planning Act 1974

Judicial review — Planning permission — Alternative remedy of statutory appeal — Discovery — Appellate procedure — Delay

RULING of Bell, J

The Proceedings

1. These are judicial review proceedings, brought with leave which was granted on 10 August 2007. The proceedings seek orders for:

• i. certiorari quashing the decision made by the second respondent (‘the Minister’) on 27 February 2007, on an appeal against the refusal by the third respondent (‘the Board’) of an application for planning permission to build a parking lot on the grounds of the First Church of God (‘the Church’) at First Church Lane, North Shore, Pembroke;

• ii. prohibition prohibiting the Minister from overturning the decision of the Board refusing planning permission, made on 28 September 2005; and

• iii. damages to be assessed.

2. In the normal course, the failure of a public body to act in accordance with public law principles of itself gives no entitlement at common law to compensation for any loss suffered. Nor does the careless performance of a statutory duty in itself give rise to any cause of action in the absence of a common law duty of care in negligence, or a right of action for breach of statutory duty. However, it is not necessary for that aspect of matters to be the subject of any ruling or further comment at this stage.

The Respondents' Application

3. The hearing before me arose in consequence of a summons issued on behalf of the respondents (together ‘the Respondents’) seeking to set aside the grant of leave. The grounds of that application were, firstly, that the applicants (‘the Applicants’) had failed to make full and frank disclosure when applying for the grant of leave ex parte, and, secondly, that they had failed to take advantage of the statutory remedy of appeal provided for in section 61 of the Development and Planning Act 1974 (‘the Act’).

The History of the Planning Applications

4. On 25 February 2002, the Church had made application for planning permission to convert the single storey parking lot on its land at First Church Lane into a two storey parking facility. That application was refused by the Board on 24 July 2002. There followed an appeal by the Church against the decision of the Board on 28 August 2002, and that appeal was disallowed by the Minister on 24 July 2003.

5. On 24 March 2005 a further application for planning permission was made by the Church under planning reference P0311/05. According to the affidavit sworn by the first named applicant, Ms Stoneham, in support of the application for the grant of leave to issue judicial review proceedings, this application essentially duplicated that which had been made in 2002. This application was also refused by the Board on 28 September 2005.

6. According to Ms Stoneham, an appeal against that decision was again made by the Church, shortly after the Board's refusal. However, again according to Ms Stoneham, neither she nor the other objectors were informed of the appeal by the Church against the decision by the Board. On 27 April 2007, approximately 19 months after the Board's refusal, the Minister allowed the appeal and granted the permission sought. It was only then that the objectors became aware of the position.

7. Apart from the failure to notify the objectors of the appeal to the Minister, there are issues which arise in relation to changes which were made to the planning application between the time of the appeal and the Minister's decision to uphold the appeal. There are also issues in relation to the state of the Planning Department file, and whether all material documents were on the file at all material times.

The Discovery Application

8. I refer to this because of the weight which Mr Clarke for the Applicants sought to attach to it, and his submission that the need for discovery represented a special circumstance sufficient to justify pursuing judicial review proceedings despite the existence of an alternative remedy in the form of a statutory appeal. A summons seeking discovery pursuant to Order 24 rule 3 of the Rules of the Supreme Court 1985 (‘RSC’) was filed in the Supreme Court Registry on 31 October 2007. I pause to comment that applications for discovery in judicial review proceedings are governed by the provisions of Order 53 rule 8 RSC, but this may be academic, since Order 53 permits applications for discovery pursuant to Order 24.

9. In any event, the discovery summons came before a judge in chambers on two different occasions, on each of which counsel for the Respondents was present but Mr Clarke was not, and on each of which occasions the summons was dismissed. Mr Clarke has filed an affidavit in which he explains that he had no knowledge of either hearing. His affidavit concluded by indicating his wish to make an application for discovery at this hearing on the basis of the past summons. I indicated that my view was that since there is no extant discovery summons, such application could not properly be made, but said that Mr Clarke could argue the need for discovery as part of his submissions that there were exceptional circumstances which would affect the operation of the normal rule in judicial review proceedings in regard to the availability of an alternative remedy.

Lack of Full and Frank Disclosure

10. There were some five complaints by Mr Johnson in regard to the lack of disclosure, although there appears to be some overlap...