1. Paul Webster 2. Marjorie Mclean 3. Marjorie Connor 4. Phillipe Champault 5. Christine Champault 6. Anne Keller 7. Lloyd Sinclair 8. Neil Freeman 9. Wendy Freeman Claimants v The Attorney General (for the Government of Anguilla) Defendant Dolphin Discovery Interested Party
| Jurisdiction | Anguilla |
| Judge | Small Davis J |
| Judgment Date | 13 September 2010 |
| Judgment citation (vLex) | [2010] ECSC J0913-5,[2010] ECSC (AIA) J0913-5 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Docket Number | CLAIM NO. AXA HCV 2008/0015 |
| Date | 13 September 2010 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
A.D. 2010
CLAIM NO. AXA HCV 2008/0015
and
Mr. Ryan White and Ms. Tameka Davis, instructed by Webster Dyrud Mitchell for the Claimants
Mr. Mark Brantley and Mr. Ivor Greene, Instructed by the Attorney General's Chambers for the Defendant
Mr. Dane Hamilton QC, Mrs. Josephine Gumbs-Connor and Ms. Tolulola Agbelusi instructed by JAG
Gumbs & Associates for the Interested Party
Small Davis J [Ag]: On 19 January 2008 the Interested Party (hereinafter referred to as "Dolphin Discovery") commenced construction of a pier in the seabed off Sandy Point Beach, Blowing Point on the southeast coast of Anguilla. They had in hand an approval letter dated 12 December 2007 from the Land Development Control Committee approving its planning application to construct a dolphin pier, subject to a number of slated conditions, and a letter dated 18 January 2008 advising that the Government's Executive Council had approved the construction of a pier and enclosure and that it may proceed with the portion of the works that will be on the foreshore and seabed. The plan to develop an Open Water Dolphinarium featuring Swim with the Dolphins entertainment ("The Development"] was of a large scale, with plans for submerged dolphin pens accessed by boardwalks and a pier a restaurant, restrooms swimming pools, an aviary and retail shops, Dolphin Discovery was already a major tourist attraction for Anguilla, with annual visitors to the Dolphinarium averaging 25,000 between 2005 and 2007. It would be a major development for Anguilla and would, undoubtedly, have an economic, social and environmental impact.
By April 2008 Dolphin Discovery had substantially constructed the pier and dolphin enclosures in the sea at Sandy Point. On 26 April 2008 the Claimants applied for leave to make a claim for judicial review. They sought interim relief by way of an injunction restraining continuation of any construction works. The application was heard inter partes on 5 May 2008 and on that date the learned judge granted leave to the Claimants to make a judicial review claim and interim relief as follows: "All construction of all piers or structures or any encroachment on the foreshore or floor of the sea in whatever manner at the Sandy Point Beach or in the waters forming the Port of Blowing Point by any persons whether by themselves, their servants or agents, In violation of the requisite licensing provisions of the Beach Control Act and the Ports Harbours and Piers Act cease forthwith until further order." The Order directed the Government to do all things as may be necessary to ensure compliance with the injunction Dolphin Discovery was represented at the hearing of the application on a watching brief and took no active part.
The Government subsequently made an application to discharge the injunction which was dismissed by the judge. The learned judge gave a written judgment, in which she also set out certain findings of fact based on the state of evidence before her at the early stage of these proceedings and the submissions then made.
In an Agreed Pre Trial Memorandum, the Claimants and the Defendant identified the decisions that are under challenge as:
("The Decisions")
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(a) The purported decision of the Minister charged for the time being with the administration of Crown lands to grant a lease of Parcel 169 Block 28309 B Registration West ("Parcel 169") to Dolphin Discovery:
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(b) The decision of the Minister to grant a licence to use the Sandy Point foreshore and beach to Dolphin Discovery;
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(c) The decision of the Land Development Control Committee ("LDCC") to grant planning permission to Dolphin Discovery; and
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(d) The decision of the Building Board to grant building permission to Dolphin Discovery.
The relief the Claimants seek is:
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(a) An order of Prohibition prohibiting the Defendant from disposing of, or permitting the continuing possession or use of Parcel 169 by any person other than as a public park and or sports complex;
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(b) An order of Prohibition prohibiting the Defendant from disposing of, or permitting the continuing possession or use of Parcel 169 by any person other than under a duty granted disposition pursuant to Section 26 of the Registered Land Act and subject to full and proper consideration in accordance with the requirements set out in Section 12 of the Anguilla Royal Instructions, 1982;
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(c) An order of Certiorari to quash the decision (whether it has been granted or not) permitting Dolphin Discovery to possess or occupy Parcel 169 without a duly granted lease or other disposition pursuant to section 26 of the Registered Land Act and in accordance with the requirements set out in the Anguilla Royal Instructions 1982;
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(d) A declaration that no application for a licence pursuant to the Beach Control Act was made by Dolphin Discovery;
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(e) An order of Certiorari to quash the decision of the Defendant to cause or permit Dolphin Discovery to encroach on or use the foreshore or floor of the sea and to construct or install a pier without a licence duly granted pursuant to section 4 of the Beach Control Act and without the written permission of the Minister with responsibility for ports, harbours and piers and without a licence pursuant to sections 36 and 37 of the Ports, Harbours and Piers Act;
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(f) An order of Prohibition prohibiting the Defendant from causing or permitting or continuing to permil any person from encroaching on or using the foreshore or the floor of the sea, whether by the construction, installation or operation of a pier, or otherwise without full and proper consideration according to law and the rules of natural justice and the observance of any other procedures as may be required by law and without every and any necessary licence;
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(g) An order of Certiorari to quash the decision of the Land Development Control Committee to approve the application for planning permission dated 12 December 2007;
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(h) An order of Certiorari quashing the decision of the Building Board to approve the Building Permit application in respect of Parcel 169;
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(i) A declaration that the draft Environmental Impact Statement dated November 2007 is incomplete, inadequate and deficient and is accordingly fatally flawed.
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(j) An order that all construction or any encroachment on the foreshore or floor of the sea at Sandy Point Beach or in waters forming the Port of Blowing Point by any persons, without such necessary preconditions as may be required by law having been met and without all such procedures as required by law having been followed, cease forthwith, including the operation of the pier as a dolphin facility,
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(k) Costs.
A large volume of affidavits and exhibits were before the court. Detailed reference to the evidence will be set out in the discussion of the particular issues.
The parties agreed and put forward a list of nineteen legal issues to be determined at trial. These issues will be reproduced under the relevant heads so as to ensure that proper consideration is given to the issues which all learned counsel have considered are relevant to the decision that the court has to make.
I gratefully adopt the principal issues in relation to each of the Decisions as identified by Mr. Brantley, counsel for the Defendant as follows;
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(a) Where land is compulsorily acquired for a specific purpose, whether it is open to the Government to use or permit the use of a portion of the said land for an alternative purpose;
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(b) Whether a party may only possess or occupy Crown Land by a lease or " other duly granted disposition";
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(c) Whether it is unlawful for the Government to permit the construction of the pier without a licence under the Beach Control Act. and without written permission from the Minister or a licence under the Ports, Harbours and Piers Act or any other licence that may be required under law.
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(d) Whether the Government gave 'full and proper consideration' before permitting the construction installation or operation of the pier;
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(e) Whether the Claimants may successfully challenge the decision-making process adopted by the LDCC and the Building Board in granting approval of the Development.
The parties also agreed a list of twenty six factual issues to be determined. These will not be set out seriatim. Rather, my findings of facts as I find them will be stated.
There are some fundamental points and issues of broad spectrum that relate to all the decisions and which will help to put the particular issues relating to each decision in context. I propose to first deal with those general legal issues in the hope that the discussion of the particular ones will be shortened. But first, it is necessary to set out a chronology of at least the uncontroversial and clearly documented facts leading up to the Decisions complained of and which give rise to these proceedings.
Parcel 169 was compulsorily acquired by Government in 1997 for a public purpose and the land was registered as Crown land in August 1998. The Declaration stated that the Government considered that the lands should be acquired to facilitate the development of a public park and sports complex. No development has occurred on Parcel 169 since it has been acquired.
Dolphin Discovery is in the business of providing entertainment through the antics of dolphins held in captivity and first made their entry into Anguilla in 1999. The operations were previously located in Meads Bay.
In or about June 2005 Dolphin Discovery sold the land on which they operated the...
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