MINISTRY OF INFRASTRUCTURE HOUSING PLANNING AND DEVELOPMENT
DEPARTMENT OF PLANNING
On the 1st of October 2020, the Honourable Chief Justice Agyemang made her final ruling in a Judicial Review matter initially heard remotely over two days in July this year. The applicants, Mr. Eric Le Vin, Mr. Daniel Le Vin and the Proprietors of Strata Plan No. 84 sought judicial review of the decision of the Physical Planning Board to grant Outline Development Permission (‘ODP’), subject to 64 conditions, to “The Yard Limited” to build an Eighty-seven (87) bedroom hotel on parcel 60801/76 in Providenciales.
The Respondents the Director of Planning, the Physical Planning Board, the Cabinet of the Turks and Caicos and HE, the Governor of the Turks and Caicos Islands, all of whom were represented by the Attorney General’s Chambers.
“The Yard Limited” who had brought the application for the subject ODP of the hotel were an interested party in the proceedings, they submitted evidence before the Court and also made oral arguments.
One of the central points of contention in this case was that this particular application for ODP was for the construction of an Eighty-seven (87) bedroom hotel in an area zoned as (R4) medium density residential (3-6 units per acre), therefore was inconsistent with the land use zoning for the area.
The applicant’s case was that the proposed development would have a negative impact on their properties. They feared that the proposed development would compromise their quality of life in a place where they alleged, they had a legitimate expectation it would remain residential. In addition, they challenged the legality of the grant of ODP, asserting that an application for ODP should not include an application for change of zoning. They further argued that no Environmental Impact Assessment (“EIA”) was conducted prior to the grant of ODP, that it was wrong to grant ODP without a full public consultation. They complained that their lengthy objections were not given due consideration. One of the applicants further claimed that a change of zoning would set a bad precedent and would open a floodgate of others seeking a change of zoning.
On behalf of the Respondent’s, Director Dainer Lightbourne deposed an affidavit, his evidence was that the Physical Planning Board (“PPB”) gave full and proper consideration to all matters pertaining to the application. As already mentioned, the application for ODP was for the construction of an eighty seven 87 bedroom room hotel in an area zoned as (R4) medium density residential (3-6 units per acre), therefore was inconsistent with the land use zoning for the area. As a result, if the PPB were minded to grant conditional approval, the application would have to be referred to the Minister for Infrastructure Housing, Planning and Development, pursuant to Section 39(2) of the Physical Planning Ordinance.
Section 39(2) procedure requires a referral by an otherwise approving PPB, to the Minister, and through him, to the Governor in Cabinet, for his decision which would come in the form of advice from the Board.
The Director of planning further explained to the Honourable Court that the decision not to require an EIA before the grant of the ODP, was in accordance with an age-old practice, the reason for which is that an EIA involves substantial expense, and the issuance of terms of reference which require the input of stakeholders. One of the 64 conditions of the ODP in this case was not only the requirement of an EIA but also a Comprehensive Impact Assessment (“CIA”), by independent experienced experts in the field.
After hearing oral arguments for 2 days on the 28th and 29th of July remotely, the Honourable Chief Justice gave her ruling on the 14th of September where she ruled, among other things, that:
- That the applicants’ proposition that the Physical Planning Ordinance makes no room for rezoning, so that Cabinet acted unlawfully was misconceived as it was based on two false premises, the first was that the application that found its way to Cabinet, was an application for rezoning of land, and secondly, that the Governor has no power under the PPO to grant a rezoning of land.
She found that the application from “The Yard Limited” had never been one for rezoning or change of zoning but rather an application for ODP. The application was inconsistent with the use of land, i.e. residential, was not reason to refuse it, as the existence of Section 39 of the PPO recognizes that such applications may be presented to the PPB.
- Consideration was given to complaints and concerns at every stage of the decision making process.
- There was no wrong doing, impropriety, or even lack of prudence in, or about, the lack of an EIA before the grant of the ODP, especially as the grant was conditional upon a number of things including the conduct of a CIA, including an EIA
- The application for judicial review was dismissed and costs were awarded against the applicants.
Please see a link to the referred judgement: