NIA/Bass back in court… Parties awaiting decision

By Monique Washington  

The Eastern Caribbean Court of Appeal has allowed Anne Bass to appeal a decision made by a lower court in stopping the HTRIP Candy Resort in Liburd Hill as it allegedly may not have had a proper Environmental Impact Assessment completed.

Just one year prior on Jan. 18, 2016, Ms. Bass, a Liburd Hill property-owner, had attorneys Damian Kelsick and Garth Wilkin, file an application for judicial review at the High Court in Charlestown. A judicial review is a court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. Judicial reviews challenge the way a decision has been made, rather than the rights and wrongs of the conclusion reached.

The official court documents stated that Anne Bass applied for “leave to apply for judicial review, in particular to obtain an order of certiorari to remove into the high court and to  quash the  decisions of Director of Physical Planning  and the Development Advisory Committee granting permission to the Caribbean Development Consultant Ltd to construct a 17 building, 51 unit development with a guard house, restaurant, two parking lots, badminton courts and a volleyball site on 4.4 acres of coastal land in Liburd Hill referred to as the HTRIP Candy Resort Villa Development.”

Bass’s attorneys maintained that the Director  of Physical Planning and the Development advisory Committee acted without jurisdiction when they decided in April 2015 to grant permission to Caribbean Development Consultant Ltd. to construct Candy Resort Villa Development without an  Environmental Impact Assessment  (EIA)  for the materially revised plans, as required by law.

“And because of this the actions of the direct of physical Planning should be null because of their failure to examine and take into account the environmental impact assessment,” the request reads.

In Her Ladyship Justice Lorraine Williams’ decision the court noted that the Bass judicial review application is statute barred under the act and the applicant’s challenge is without merit.

“The respondents acted within their jurisdiction and authority and they can rely on the protection of the six month limitation for instituting proceedings under the Public Authorities Protection Act,” Williams said.

Later in the year Bass through her attorneys approached the court of appeal in considering  whether Public  Authorities Protection Act (PAPA) applies to  judicial review proceedings.

According to the court document “certain  factors should be  taken  into  account;  these  factors  include context, history, previous authority and the salutary caution that the right of access to the courts for the purposes of judicial review can only be abrogated by clarity of intent and of language.

“Accordingly, when examined contextually and practically, it  is  apparent  that  judicial  review  proceedings  are  not  caught  within  the  ambit  of PAPA and were not intended to be so caught absent clear language to this effect”

The court decided that “While  PAPA  does relate  to  proceedings  which  involve  acts  carried  out  by  public authorities the  question  in  this  appeal  was  whether  it  would  also apply  in instances where the aggrieved party seeks judicial review of particular decision taken or act carried out by the relevant public authority or government body”

Justice of appeal Gertel Thom and Justice of appeal Humphrey Stollmeyerconcluded “that   judicial   review proceedings  are  not  caught  by  the  provisions  of  PAPA  and the  appeal  was accordingly allowed. The application for leave  to  apply  for  judicial  review was remitted to the court below for consideration on its merits.”

Both parties await the Court of Appeal’s decision.