Silly Creek Estate and Marina Company Ltd v Attorney General of Turks and Caicos Islands

Heard on 15 February 2021

At Silly Creek on Providenciales in the Turks and Caicos archipelago, a narrow peninsula stretches from Sapodilla Bay to the western edge of the creek, with a small island, Silly Cay, at its tip. Silly Cay lies within the Chalk Sound National Land and Sea Park (“the National Park”). The National Park, which extends to some 3,600 acres of land and water, was designated in August 1992 under the National Parks Order 1992. Its environmental features, as described in Part 1 of the Schedule to the National Parks Order, are “scenic water; bone fishing; boating; picnic area”. This case, which comes to the Board on appeal from the Court of Appeal of the Turks and Caicos Islands (Mottley JA, President, Adderley JA and Hamel-Smith JA), concerns a proposed development of dwelling-houses and guest-houses, a dock and a marina on the Silly Creek peninsula and Silly Cay.

A lease for development at Silly Creek was granted by the Turks and Caicos Islands Government in July 1995 (“the July 1995 Lease”). Proceedings for an alleged breach of the July 1995 Lease were settled by an agreement entered into on 10 October 2006 (“the Settlement Agreement”), and on the same day a 99-year lease was granted for development on Silly Cay (“the Silly Cay Lease”). A subsequent application for detailed development permission for the construction of a dwelling-house on a single plot on Silly Cay was refused in November 2009, and an appeal against that refusal was dismissed in March 2011.

The dispute in the proceedings is about the legal effect of the Settlement Agreement and the Silly Cay Lease. The appellant, the Attorney General of the Turks and Caicos Islands (“the Attorney General”), appeals against the order of the Court of Appeal, dated 5 February 2019, allowing the appeal of the respondent, Silly Creek Estate and Marina Company Ltd (“the company”) against the dismissal by the Chief Justice (Ramsay-Hale J) of its claim for damages for an alleged breach of the Settlement Agreement and the Silly Cay Lease. The company contends that these documents constituted, in themselves, a “grant of development permission” for its proposed development on Silly Cay, namely a permission to subdivide land under section 29(c) of the Physical Planning Ordinance 1998 (“the Physical Planning Ordinance”), and in any event that they had the effect in law of precluding the refusal of detailed development permission in 2009, because they gave rise to a relevant legitimate expectation and a property right under the constitution of the Turks and Caicos Islands.

Four main issues arise from the Attorney General's grounds of appeal. First, was the Court of Appeal wrong to conclude that the execution of the Settlement Agreement and the Silly Cay Lease represented the exercise by the Governor of his discretion under section 4(1)(a) of the National Parks Ordinance 1975 (“the National Parks Ordinance”) to approve development of the type shown on the “Land Use Plan” that had been submitted with an application for development permission in November 1994? Secondly, was the Court of Appeal wrong to conclude that the Governor's discretion under section 4(1)(a) could lawfully be exercised to approve the proposed development? Thirdly, was the Court of Appeal wrong to entertain the question of whether, by failing to comply with its obligations under the Settlement Agreement and Silly Cay Lease, the Government had acted in breach of the company's constitutional rights to property? And fourthly, if the Court of Appeal was not wrong to entertain that question, did it err in concluding that the execution of the Settlement Agreement and the Silly Cay Lease gave rise to a legitimate expectation that the company would be able to carry out development of the type shown on the Land Use Plan annexed to the Silly Cay Lease, and in failing to apply the principle of proportionality correctly in light of the Board's decision in United Policyholders Group v Attorney General of Trinidad and Tobago[2016] UKPC 17, [2016] 1 WLR 3383?

At the relevant time, the statutory scheme for development control in the Turks and Caicos Islands lay in the Physical Planning Ordinance and regulations made under it, including the Development Permission Regulations 1990 (“the Development Permission Regulations”).

In Part V of the Physical Planning Ordinance, “Development Control”, section 28(1), “Restriction on development”, provided that “[no] person shall carry out any development unless, prior to the commencement of such development, approval therefor has been obtained under the provisions of this Ordinance …”. The definition of “development”, in section 2(1), was “the carrying out of building, engineering, mining or other operations in, on, over or under any land, the making of any material change in the use of any building or land or the subdivision of any land”; “parcel” meant “an area of land which is separately delineated and given a number on the Registry Map …”; and “subdivide” meant “… to divide a parcel of land into two or more parcels”.

Section 29, “Types of development permission”, provided:

“29. A grant of development permission shall be one of the following –

(a) outline development permission, the effect of which is to give to the grantee, or his successor in title, approval in principle to the proposed development which is the subject of an application, but not to permit any actual development to take place until a grant of detailed development permission has been made in respect of the same development, or part thereof, for which outline development permission was given;

(b) detailed development permission, the effect of which is to permit the grantee, or his successor in title, to carry out the development, subject to the terms and conditions of the grant of detailed development permission;

(c) permission to subdivide land, the effect of which is to permit the grantee, or his successor in title, to subdivide, or to make an agreement to subdivide, land which is the subject of the application, subject to the terms and conditions of the permission to subdivide the land;

(d) permission to display an advertisement …”

Section 30, “Applications for development permission”, provided:

“30. (1) An application for a grant of development permission shall be submitted to the Board through the Director, in accordance with the requirements of any regulations made with respect to such applications, and shall be accompanied by the fee prescribed therefor.

…

(3) The Director shall notify the applicant for development permission, in writing, of the decision on the application, giving –

(a) where the application is granted, the conditions (if any) subject to which the permission is granted and the reasons therefor; or

(b) where the permission is refused, a brief statement of the reasons for such refusal.”

Section 35, “Development Agreements”, provided:

“35. (1) The Board may, on the advice of the Director, and with the consent of the Governor, enter into an agreement with any person as to the nature, scope, timing or any other aspect of any proposed or contemplated development.

(2) Notwithstanding any other provision of this Ordinance, where an agreement to which subsection (1) relates, provides that the Board will grant an application for development permission subject to compliance with the provisions of that agreement, then on receipt of an application complying with such provisions for development permission, the Board shall grant that permission and may not impose on such grant, conditions other than those (if any) contemplated by that agreement.”

Section 36(1), “Decision of the Board on applications”, provided:

“36. (1) The Board may grant an application for development permission either unconditionally or subject to such conditions as it may require or may think fit to impose, or may refuse an application.”

Section 42(2)(b), “Reference of applications for a grant of development permission to the Governor”, provided that “the Board shall … refer to the Governor for his decision any application for development permission to which section 4 of the National Parks Ordinance relates”.

In Part VII, “Conservation of Natural Environment”, section 63(1), “Commercial or industrial development in conservation areas”, provided that “[any] person who proposes to submit an application for the grant of development permission … in respect of land situated in a conservation area shall, prior to submission of such application, have prepared … an environmental impact statement …”.

The Development Permission Regulations apply to “all applications for … (a) a grant of development permission …” (regulation 3). Schedule 1 sets out “the forms to be used in respect of the various applications [and] decisions …” (regulation 4). Regulation 5(1) provides that “[an] application to which these Regulations apply shall be submitted to the Director on the application form set out in Schedule 1 …”. Regulation 5(4) provides that “[the] Director shall not accept any application which … does not conform to any other of the requirements of these Regulations”. Regulation 22(1) provides that “[a] register of applications...