ANOTHER VICTORY FOR ANNE HENDRICKS BASS AGAINST THE NIA: COURT OF APPEAL CONFIRMS THE PUBLIC’S RIGHT TO ACCESS DEVELOPMENT PLANS AND APPLICATIONS IN NEVIS
The Court of Appeal on Thursday, June 15, 2017, upheld Justice Lorraine Williams’ ruling in January 2017 that the public has a right to access and copy documents related to land development applications made to the Nevis Island Administration’s Department of Physical Planning. The Court of Appeal dismissed the Director of Physical Planning’s appeal against the said High Court ruling of Justice Williams. This new legal precedent is being viewed by many as a victory for the public’s right of access to government records and the promotion of transparency in the land development approval process in Nevis.
The Court of Appeal’s decision brings an abrupt end to the practices of the NIA’s Department of Physical Planning to limit the public’s right to access information submitted in the planning and development process of Nevis. In Justice Williams’ judgment of January 2017, the High Court ruled that the Director of Physical Planning acted “unlawfully and illegally” when his Department refused to allow public access to documents regarding a currently stalled development project known as the “HTRIP Candy Resort”.
Located in Liburd Hill, St. James, the HTRIP Candy Resort project is the subject of another legal challenge by Mrs. Anne Hendricks Bass, a resident of Long Haul Bay, St. James, where she claims that the planning permission for the project was unlawfully granted by the NIA’s Department of Physical Planning.
In early 2016, seeking to determine if the planning approval for the HTRIP Candy Resort project was in compliance with the Nevis Physical Planning and Development Control Ordinance, representatives for Mrs. Bass visited the Department’s office in Charlestown and made requests in person to view and copy documents related to the HTRIP Candy Resort. The Department refused to provide the requested records. As a result, Mrs. Bass filed a separate legal challenge against the Director of Physical Planning for refusing to provide access and argued that the Ordinance, in fact, gives the public a right to access and copy such documents.
The Director of Physical Planning argued at the trial of Mrs. Bass’ claim in September 2016 and in his subsequent appeal heard last week, that the Department was not required by the Ordinance to make land development applications, and the related materials, available for public access or for copying. In his testimony at the trial the Director of Physical Planning actually stated, “It is not mandated by the Ordinance for the public to see the physical plans, and the reason for not allowing access to the public is because certain documents are private. It is in my discretion to allow parties to see plans once we get to approval stage.”
Justice Williams responded to the Director’s arguments by stating in her Judgment, “I am of the respectful view that to interpret the Nevis Physical Planning and Development Control Ordinance in the way [the Director of Physical Planning suggests] would defeat the purposes of Section 47 of the said Ordinance, and import absurdity into the objectives of the Ordinance that is contrary to its expressed language.” This statement of Justice Williams was expressly sanctioned by the Court of Appeal.
Justice Williams further explained “that the Director of Physical Planning’s decision to restrict public access to information regarding applications for development purposes is unlawful and illegal and in breach of Section 47 of the Nevis Physical Planning and Development Control Ordinance”. “[The Director of Physical Planning] has acted ultra vires [outside the law] and reached a conclusion on an erroneous basis and interpretation of the law.”
Now that the Court of Appeal has upheld Justice Williams’ ruling, the law of Nevis is settled on the question of whether or not the public has a right to access land development application documents filed with the Department of Physical Planning. The public now clearly has a right to access the Department of Physical Planning’s register for the purpose of viewing, inspecting, and copying the contents of applications and supporting materials submitted to the Department.
The Court of Appeal also awarded Mrs. Bass costs for having to defend the judgment on appeal, since a prevailing party who sues the government for wrongdoing can recover costs.
It is hoped that the planning authorities of Nevis will not seek to further frustrate the obligation of transparency confirmed by the High Court and the Court of Appeal. A copy of the High Court judgment can be viewed on the Eastern Caribbean Supreme Court website.
Justice Lorraine Williams. The Court of Appeal recently upheld her ruling that the public has a right to access and copy documents related to land development applications made to the Nevis Island Administration’s Department of Physical Planning.