Fairness in planning in St Lucia
The Court of Appeal of the Eastern Caribbean has found that The Landings, a holiday resort, was treated unfairly in not being allowed to comment on a planning application on a neighbouring site. The judgment in Landings Proprietors Unit Plan No2 of 2007 v Development Control Authority SLUHCVAP2019/0019 was handed down on 7th November 2022.
In 2007, Two Seas Holdings Limited, who operate Sandals resorts, made an application to the Development Control Authority (the "DCA"), for approval of a tourism development comprising a hotel and other facilities on land at Pigeon Point, Gros Islet, St Lucia. On the eastern boundary of the site is The Landings Hotel Resort & Spa which is operated by the appellant (The "Landings"). Approval by the DCA was granted in 2008 for land use only on Parcel 272. The following year, Two Seas' environmental consultant submitted an environmental impact statement ("EIS") to the DCA. The EIS identified The Landings Hotel as being within the sphere of influence of the proposed development. By 2011, Cabinet approval for the development was received for the said development. However, Two Seas did not proceed with their plans.
After several years, the development was restarted in 2017 with a revised design and concept plan on a larger scale and with buildings up to 9 storeys in height. In October 2017, two meetings were held between the consultant and representatives of The Landings to discuss the development. The Landings' representatives were not given application drawings, but were able to view some, for a short period at the meeting, on the environmental consultant's laptop. On 30th October 2017, an environmental and social impact assessment ("ESIA") and ESIA Addendum Update report (the "ESIA Addendum Update") were submitted to the DCA on behalf of Two Seas. Notably, the ESIA Addendum Update failed to include the views of The Landings' representatives on the proposed development scheme and its potential adverse impacts on The Landings' property. Furthermore, the ESIA Addendum Update recorded that certain adverse impacts of the development on The Landings' property, such as loss of views, had increased owing to the revised design.
In November 2017, Two Seas submitted an application for approval to proceed with this new development. In January 2018, The Landings' lawyers wrote to the DCA stating that their client was concerned about the neighbouring development, and they requested a copy of the development plans under consideration by the DCA. In March 2018, The Landings' lawyers inspected the register of planning applications, which contained a one line entry referencing the application without details or drawings. Their request to see the application documents was denied. By letter dated 17th April 2018, The Landings' lawyers expressed their concern to the DCA that they had not been consulted in relation to the development, and that the DCA failed to consider material considerations stipulated in their Manual for Developers. The DCA however approved the application, following an appraisal report which did not refer to The Landings' concerns nor specifically identify any adverse impact on The Landings other than relocation of a beach access.
The Landings' judicial review was dismissed at first instance but allowed on appeal.
The Court held that there was no statutory duty to consult The Landings, nor did a legitimate expectation arise. However where a statutory process is insufficient to ensure that the requirements of fairness are met, the common law will intervene and imply into the statute procedural safeguards to ensure that fairness is achieved.
In this case fairness did require that The Landings be consulted and allowed to make representations for two principal reasons: The Environmental Impact Statement had identified impacts on The Landings and the DCA had a policy of considering effects on tourism. The statutory duty to have regard to all material considerations, which included those identified by policy, and the Tameside duty to be sufficiently informed contributed to require The Landings to be consulted.
Fairness further demanded that an adversely affected party be given sufficient pertinent information so as to make informed representations. On the facts, the DCA's failure to consult The Landings as a matter of fairness, was compounded by their failure to provide The Landings with copies of the application documents. A proper construction of requirements for the register under section 47 of the Physical Planning and Development Act meant that the public had a legitimate expectation and right of access (subject to the payment of the prescribed fee) not only to the information on the register, but also to the underlying application documents. As a result, it was a requirement that the register contain sufficient information to inform a member of the public of the type of development applied for.
There had been a failure to consult, tantamount to only hearing one side. The process was patently unfair and irrational and the planning consent was quashed.
Richard Harwood KC appeared for The Landings in the Court of Appeal, leading Renee St Rose and Marie-Ange Symmonds of Fosters.