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 Star (St. Lucia) - - REGIONAL -

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.

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