Appeal Court Puts the Brakes on Proposed 11-Storey Sandals Building!

In 2007, Two Seas Holdings Limited made an application to the Development Control Authority for approval of a tourism development comprising a hotel and other facilities on land registered at Pigeon Point, Gros Islet, on land bounded on the east by the Landings Hotel Resort and Spa, operated by Landings. The DCA granted approval in 2008 only on parcel 272. In 2009 Ms. Allison Joseph-King, on behalf of Two Seas, submitted an environmental impact statement to the DCA that identified Landings Hotel as being within the sphere of influence of the proposed development. By 2011 Cabinet approved the development. But Two Seas did not proceed with their plans.

The development was restarted in 2017 with a revised design and concept plan on a larger scale and with buildings up to nine storeys. In October of that year two meetings were held between Ms. King and representatives of Landings to discuss the development. No officer of the DCA participated. On 30 October 2017 an Environment and Social Impact Assessment and EISA addendum update report was submitted to the DCA by Ms. King on behalf of Two Seas. The EISA addendum update did not include the views of Landings’ representatives on the proposed development scheme and its potential adverse impacts on the Landings property. Moreover, the EISA 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 the new development on parcel 272. In January 2018, Landings’ lawyers wrote to the DCA stating their client was concerned about the neighboring development and requested a copy of the development plans under consideration by the DCA. In its response the DCA pointed the lawyers to the register of planning applications established under Section 47 of the Physical Planning Development Act. In March 2018, the Landings’ lawyers inspected the register kept at the DCA, which provided few details regarding the proposed development of parcel 272. The lawyers’ request to see the application documents were denied. By letter dated 17 April 2018 the Landings’ lawyers expressed to the DCA their concern that they had not been consulted in relation to the development of parcel 272 and that the DCA failed to consider material considerations stipulated in their Manual for Developers as applicable to this type of development prior to arriving at their decision. Despite the expressed concerns of Landings and their lawyers, by letter dated 13 April 2018, the DCA communicated its approval of the development on parcel 272 to Two Seas.

Dissatisfied with the DCA’s decision, Landings started judicial review proceedings. They sought an order quashing the decision and damages owing to the impact of the development on their property. They claimed the approval by the DCA was illegal, arbitrary and in breach of natural justice since the DCA failed to consult them before making its decision when its property would have been adversely affected by the development on parcel 272. In giving judgment on the landings’ judicial review claim, the judge found the DCA had not consulted with the Landings and that the October 2007 meetings which Ms. King had with representative of the Landings was not in consultation with the DCA. In dismissing the Landings review claim, however, the judge found that it had failed to establish that the DCA had a duty under the PPDA to consult with them, or that a duty to consult arose out of a legitimate expectation, whether arising by promise or an established practice. The judge also found that section 23 (1) of the PPDA and the Manual, while requiring the DCA to have regard to material with considerations, did not lead to a duty to consult with the Landings and that the Landings had failed to show that the impacts on its property had not been considered by the DCA in coming to its discussion on the Two Seas application.

The Landings appealed. Its central issue for determination was whether the DCA had a duty to consult the Landings before granting approval for the Two Seas application. The Landings argued that the DCA had a duty to consult them which arose by legitimate expectation, fairness, and by the duty to have regard to material considerations, including those stipulated at paragraphs 4.8.1 and 4.8.3 of their Manual for Developers. They contended that this duty to consult having arisen, it ought to have been exercised properly, and the DCA’s refusal to permit the Landings access to, and copies of, the underlying application documents breached this duty.

After citing several precedents, the appeal court ordered that the earlier court judgments be set aside and declared the decision of the DCA made on 11 April 2018 with regard to Two Seas “unreasonable, unfair and in breach of the rules of natural justice,” and quashed it.

Have the brakes been effectively applied to the politically ballyhooed proposed 11-storey Sandals building on the Landings boundary?

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Rick Wayne