Auburn Court Ltd v Kingston and Saint Andrew Corporation
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 23 February 2004 |
| Neutral Citation | [2004] UKPC 11 |
| Court | Privy Council |
| Docket Number | Appeal No. 76 of 2002 |
| Date | 23 February 2004 |
[2004] UKPC 11
Privy Council
Present at the hearing:-
Lord Hope of Craighead
Lord Slynn of Hadley
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Sir Kenneth Keith
[Delivered by Lord Hope of Craighead]
This is an appeal by Auburn Court Limited ("the appellant") from the decision of the Court of Appeal of Jamaica (Harrison and Panton JJA, Downer JA dissenting) on 31 July 2001 dismissing an appeal from a decision of the Full Court (Wolfe CJ, Ellis and Clarke JJ) on 16 May 1997, with reasons given on 16 February 1998, by which that court dismissed the appellant's motions to quash two notices issued by the Kingston and St Andrew Corporation relating to a building which was being constructed at 15 South Avenue, Kingston.
The facts
The appellant is the registered proprietor of the property known as 15 South Avenue, Rest Pen, Kingston, in the Parish of St Andrew ("the premises"). The Council of the Kingston and St Andrew Corporation ("KSAC") is the building authority for the purposes of the Kingston and St Andrew Building Act ("the Building Act"), as defined by section 2 of that Act. It is also the town and country planning authority for the purposes of the Town and Country Planning Act ("the Planning Act"): see section 3(1) of that Act. The first respondents are the Corporation and the Building Surveyor, who is the Surveyor as defined by section 2 of the Building Act. The second respondents are the town and country planning authority and the Government Town Planner, who is ex officio a member of the planning authority: see section 3(2) of the Planning Act.
The appellant is the owner of an apartment building on the premises. This building contains a number of residential units which are let to tenants, mostly foreigners. In 1995 the appellant decided to develop the premises by erecting a new building to serve as a recreation area for the benefit of the occupiers of the apartment building. It was to contain a bowling alley, a games area for table tennis and bathroom facilities. Section 10(1) of the Building Act provides that every person who proposes to erect any building or part thereof shall give notice thereof to the building authority. Section 10(2) provides that every person who shall erect, or begin to erect any such building or part thereof without previously obtaining the written approval of the building authority or, in the case of dispute, of the tribunal of appeal shall be guilty of an offence, besides being ordered to take it down by the court. The carrying out of any building operations on land constitutes "development" within the meaning of section 5 of the Planning Act. Permission to develop land must be granted under Part III of the Planning Act, section 10(1)(d)(ii) of which provides that permission for the development may be granted by the local planning authority. Section 23(1) of the Planning Act empowers the Government Town Planner or the planning authority to serve an enforcement notice on any person who carries out or takes steps to carry out any development of land without the grant of planning permission required in that behalf under Part III.
The appellant commenced the construction of the new recreational building without first obtaining written approval for its construction from the building authority and without having obtained the grant of planning permission for the development from the planning authority which was required by Part III of the Planning Act.
In or about January 1996 Mr Lorn Whittaker, the Chief Traffic Engineer of the Ministry of Local Government and Works, observed that the new building was under construction. He was aware that there was a proposal for the widening of South Avenue. It occurred to him that the new building might be within the area of the road widening. On 26 February 1996 he wrote to Mr Leslie Gabay, the Deputy Building Surveyor of KSAC and acting Chief City Engineer, pointing out that it was in the reservation to be used for the road widening and enquiring whether a building permit had been issued for its construction. As a result of his intervention on 4 March 1996 the appellant submitted a building application for the erection of the new building to the building authority. No plans were submitted with the application. But the appellant paid the fee of $1,800 which Mr White, who had entered the relevant details on the application form, had assessed as payable.
On 25 March 1996 a meeting took place at 15 South Avenue which was attended by Mr Whittaker, Mr White, the appellant's managing director Mr Delbert Perrier and the appellant's consulting engineer Mr Colin Husbands. There is a dispute about what was said at that meeting. Mr White maintains that he advised Mr Perrier to cease work on the building as his application for building and planning permission had not yet been processed or considered. Mr Perrier denies this. He says that Mr White told him that the plans which he delivered to Mr White when he was filling in the application form were approved, and that he was never at any time informed of a proposal to widen South Avenue. On 28 March 1996 the appellant submitted the plans for the building to KSAC.
According to Mr White, work on the building continued despite his request that it should be stopped. On 29 April 1996 KSAC in its capacity as the local planning authority served an enforcement notice on the appellant under section 23 of the Planning Act prohibiting it from continuing or carrying out any development or operation on the land and requiring it to restore the land to its condition before the development took place. This notice was signed by Mr White for the chairman of the planning authority. On 5 June 1996 KASC in its capacity as building authority served a notice of irregularity dated 30 May 1996 under section 38 of the Building Act requiring the appellant within 48 hours of service to tear the building down. This notice was signed by Mr White for the Building Surveyor.
The notice of irregularity was in these terms:
"Kingston & St Andrew Corporation
Building Authority
Notice Due To Irregularity
Kingston & St Andrew Corporation Building Act section 38
To Delbert Perrier
Managing Director
Auburn Court Limited
15 South Avenue
Kingston 10
NOTICE – that you are hereby required within 48 hours of service Tear Down the Building constructed by you from c.c. blocks, reinforced c.c. columns, c.c. beams and c.c. slab roof consisting of 3,600.0 sq. ft. approx and situate at 15 South Avenue, Rest Pen and which does not conform with The Building Act, Vol 10 revised Laws of Jamaica.
Failure to comply with this Notice will render you liable to prosecution under the Kingston and St Andrew Corporation Act
Date the 30th day on May, 1996
Signed: A. White
Building Surveyor"
On 19 June 1996 the appellant's application for building and planning permission was considered at a meeting of the building and planning committee of KASC. After considering the advice of its advisory panel, the committee decided to refuse the application. On 1 July 1996 the appellant was advised that the application had been refused. On 22 August 1996 KSAC in its capacity as the local planning authority informed the appellant that its application for planning permission had been refused and served on it a second enforcement notice under section 23 of the Planning Act.
The second enforcement notice was in these terms:
"The Town and Country Planning Act
Contravention of Development Order
Enforcement Notice
(Pursuant to section 23)
To: Delbert Perrier
Auburn Court Limited
Of15 South Avenue, Vol 1127 Fol. 105
Kingston 10
Nature of Contravention Notice
1. WHEREAS you have contravened or caused a contravention of the Town and Country Planning (Kingston) Confirmed Development Order 1966.
By erecting without permission on the land known as 15 South Avenue registered at Vol. 1127 Folio 105 of the Register Book of Titles, a building comprising ground floor plus one using the existing southern perimeter wall and extending it upwards to from the southern wall of the said building on approximately the position marked X on the plan attached
Prohibition regarding use of land and contravening of conditions
2. You are prohibited from –
continuing or carrying out any development or operation or using the land in respect of which the notice is issued.
3. YOU ARE HEREBY REQUIRED to take the following steps –
(i) to cease construction of the building immediately from the date on which this notice takes effect.
(ii) to demolish the building being constructed within 7 days from the date on which this notice takes effect.
(iii) to remove from the land all building materials and rubble resulting from the demolition of the building within 10 days from the date on which this notice takes effect.
(iv) to restore the land to its condition before the breach of erecting the building without permission within 14 days from the date on which this notice takes effect.
4. THIS NOTICE TAKES EFFECT, subject to paragraph 5 at the expiration of three (3) days after the date of service.
Appeal
5. If you are aggrieved by this notice you may (pursuant to section 23A of the Act) appeal against the notice to the Appeal Tribunal within 28 days of the service of this notice.
Entry on land of local planning authority
6. If you fail to take steps required by this Notice to be taken (other than the discontinuance of any use of the land) the local planning authority may enter on the land and take those steps and may file a suit in a Resident Magistrate's Court, for the recovery of any expenses reasonably incurred by them in that behalf.
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