Strategic Plan legal challenge stalls

The legal challenge, mounted by Baccarat, to the Island’s Strategic (development) Plan has stalled on the second day of the trial.

 

Deemster Kerruish had been unsettled, throughout most of the opening day, on one particular point - whether Baccarat meets the test of the ‘aggrieved person’ described in section 5 of the Town & Country Planning Act 1999, as without this standing, he would not have jurisdiction to hear the matter.

 

Yesterday morning (Wednesday) he finally decided that the matter perhaps should have been dealt with as a ‘preliminary point’; and so this particular issue will be considered next Wednesday, 14^th May 2008.

 

On Tuesday (6^th May), in the lead up to this decision, the Deemster had already been critical of the construction of another part of section 5 of the Act. This related to the time limit for a challenge; in which he said the legislation was not as clear as he hoped it would be.

 

However, it was finally conceded that it was not an issue being contested by the respondent, the Department of Local Government and the Environment, who is being represented by government Advocate, Stephen Harding; and that the Petition was delivered just within the time limit.

 

Also taxing the mind of the Deemster was how he would refer to the different versions of the plan, in any judgement, which had gone through several ‘evolutions’ in its seven year birth. Deemster Kerruish ultimately said he would make up his own mind.

 

Several other issues, that were due to be expanded on in the main presentation of Baccarat’s case, were run through by Mr Murray, who is representing Baccarat, assisted by Baccarat’s barrister, Alan Evans.

 

These included the fact that the DLGE had referred to the later document as a ‘re-write’ of the 2001 draft; the lack of an evidence base; the refusal to allow new evidence, in the form of the result of additional studies, to be tested at a second Public Inquiry; that the additional studies were not even what the Inspector had recommended; and that the DLGE ignored material points, because of a self-imposed deadline, of the July Tynwald, to get the plan approved before the summer recess.

 

Mr Murray made it clear that the Petitioner is seeking to have the whole plan quashed, as the DLGE had acted outside its powers, and that it wasn’t necessary for the Petitioner to show prejudice.

 

This was when the ‘aggrieved person’ test first became an issue, when Deemster Kerruish stated that if Baccarat didn’t meet the test they “didn’t kick-off”.

A short adjournment was agreed for Mr Murray to consider the matter.

 

When the hearing resumed, Mr Murray said that an overly rigorous construction of the entry threshold would prevent judicial scrutiny of a plan.

 

Deemster Kerruish was not satisfied and posed a rhetorical question, how do you interpret ‘aggrieved person’. Is a person, he wondered, who arrives from Australia and participates in the public inquiry and then says, I am aggrieved, even though he is only here for the week, pass the test.

 

The Nick Cusson’s case, involving a challenge over the long-wave radio mast, where he was allowed to challenge the Communication Commission’s decision to grant a full licence to IMIB, on the grounds of ‘public interest’ was quoted; but it was deemed debatable whether it was a valid argument in this matter.

 

Deemster Kerruish again made the point that if Mr Murray couldn’t persuade him that Baccarat had locus standi they had a problem. He added that Tynwald had included the reference to an aggrieved person, so they must have had a reason, and suggested it was to avoid vexatious challenges; although he was quick to say he didn’t consider Baccarat’s application vexatious.

 

Mr Murray again reiterated that Baccarat’s challenge was a ‘root and branch’ challenge and not isolated to single part of the plan.

 

Deemster Kerruish appeared to appreciate that the challenge was on the basis of a fundamental flaw in the plan, so it was an administrative issue; but still maintained he needed to be convinced Baccarat met the test of ‘person aggrieved’ otherwise they “were out”.

 

Mr Harding tried to make out that this was an issue the respondent had flagged before the trial and that the Petitioner had not proved sufficient interest, or land ownership; and certainly no interest above that of an ordinary member of the public. So how were they aggrieved; as especially, to his mind, they hadn’t really identified any part of the plan they were dissatisfied with.

 

Deemster Kerruish suggested they may be aggrieved because the DLGE had got a plan approved through ‘erroneous means’; i.e. it was not within the powers of that part of the Act.

 

Mr Harding responded by saying, on the basis of the Cussons’ case, he still didn’t think Baccarat had the standing needed to mount the challenge.

 

Deemster Kerruish now introduced the idea of the Society of the Preservation of the Manx Countryside and the Environment (SPMCE), who own no property, and suggested what if they argued the process was unsafe, and it resulted in a flawed outcome. You, Mr Harding, say they have no right to a challenge but Mr Murray says they do. So how would you address a challenge by the SPMCE, he inquired of Mr Harding.

 

He replied that he would expect them to identify what policy they were aggrieved by; but, even so, he thought they would still find themselves in the same difficulty as Baccarat on standing.

 

Deemster Kerruish again said Baccarat differed in opinion.

 

Appearing to be stuck between a rock and a hard place, Deemster Kerruish pondered on what would happen if he cracked on with the case and it was later ruled that he didn’t have jurisdiction. If that was so, what worth would there be on anything else he said in respect of the challenge.

 

He again pointed out that the world and his brother could participate in the Public Inquiry, even spend a lot of money in the process, but, if they didn’t own any land or property, did they have the right to make a challenge.

 

He then rose for an ‘early lunch’ to allow the parties to have some more time to consider the matter further.

 

On resumption, after lunch, the arguments began again but without much progress. Mr Murray suggested they crack on with the case and leave the jurisdiction issue for later.

 

Deemster Kerruish pointed out that the Courts do not embark on academic exercises, and asked if they had ever known a Court to determine it had no jurisdiction and then continue to determine the case.

 

A discussion then ensued as to whether involving the Attorney General was an option; on the basis of him taking the action on as a ‘public interest’ matter.

 

However, this idea was dismissed as probably inappropriate.

 In the end it was decided to carry on hearing Baccarat’s evidence and to return to the point later, which resulted with the decision reported above.