Supreme Court quashes decision, orders PM to hear gas station construction appeal

Prime Minister Andrew Holness, as the minister of economic growth and job creation, who was the defendant in a claim, has been ordered by the Supreme Court to hear and determine an appeal brought by Charley’s Windsor House Limited challenging a June 2019 decision by the Town and Country Planning Authority (TCPA).

The TCPA had refused to grant an application to the claimant for planning permission to construct a gas station and convenience store at 9 Herb McKenley Drive, Kingston 6. The claimant had also applied to the Kingston and St Andrew Municipal Corporation to grant planning permission, but the application was also refused.

An appeal was made by the claimant to the defendant against both decisions, but the defendant dismissed the appeal on October 25, 2020.

In May 2021, the claimant took the matter to the Supreme Court seeking administrative orders and declaratory relief. The claimant contended that the decision or finding that the defendant made was unlawful, unreasonable, irrational, and illogical and thereby null and void. The contentions were that the defendant gave no reasons or adequate reasons for the decision.

The claimant contended that the defendant made a mistake of fact in its finding that the said property was in a predominantly residential area. The claimant stated further that there was no appeal procedure set out in the TCP Act to challenge the decision of the minister responsible for town and country planning, who is the defendant.

The claimant asked the court to determine whether the defendant erred in law in arriving at his decision and whether there was a common-law duty, which is cast on the defendant to produce reasons for his decision.

A meeting was held on May 21, 2019, and at the meeting, the TCPA refused the planning permission. Dissatisfied with the outcome, the claimant lodged an appeal with the defendant, who appointed Daryl Vaz, the then minister with portfolio responsibility for economic growth and job creation, to hear, receive, and examine the evidence on the appeal, which was heard on November 26, 2019. The claimant was advised by letter dated October 25, 2020, that the appeal was dismissed.

‘Unreasonable and illogical’

The defendant averred that Vaz heard the appeal after which a minister’s brief was prepared to provide him with a written report of the findings and recommendations for his determination. The defendant stated further that any failure of the defendant to hear the appeal himself, and after the expiration of the 21-day period from the appointment of the minister, did not render the appeal proceedings and/or any decision resulting therefrom invalid or null and void. The defendant maintained that there was no legal duty cast on him to provide reasons for his refusal of the appeal.

After hearing legal arguments, Justice Annmarie Nembhard ruled last month that the court accepted the submissions from attorney-at-law Trudy-Ann Dixon Frith, who represented the claimant, “that the decision and finding of the defendant do not condescend to provide particulars of the reasons for the decision and that the failure to give reasons, in the circumstances of this case, renders the decision unreasonable, irrational, and illogical”.

The court said it was of the view that an order of certiorari (a writ or order by which a higher court reviews a case tried in a lower court) ought to be granted to quash the decision and finding of the defendant.

Nembhard granted the order quashing the October 2020 decision and finding of the defendant. The matter was remitted for the defendant to hear and determine the appeal within the timeline stipulated under the TCP Act.

The claimant, which was also represented by Allyson Mitchell, instructed by DunnCox, did not get an order of mandamus to compel the defendant to allow the appeal or the declaratory order that the decision and finding of the defendant was null, void, and of no effect.

Attorneys-at-law Romario Miller and Rushell Duncan, instructed by the director of state proceedings, represented the defendant.

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