Strategic Plan challenge - judgment reserved in matter of ‘any person aggrieved’

At Wednesday’s (14^th May 2008) hearing, as to whether Strategic Plan ‘challenger’, developer Baccarat, qualified as ‘any person aggrieved’, in accordance with section 5 of the Town & Country Planning Act 1999, Deemster Kerruish said, after nearly 4 hours of arguments, he would reserve his judgement.

During the previous week’s hearing, Deemster Kerruish had, belatedly, decided that this matter needed to be determined; prior to hearing the substantive arguments as to why he should issue an Order quashing the Plan.

The reason given, as to why the matter needed to be determined, is that if Baccarat did not have locus standi then the Court had no jurisdiction to determine the substantive matter; and, therefore, it would pointless to continue with the case.

In opening, Deemster Kerruish said he had had time to consider both side’s skeleton arguments and he had three options. Firstly, he could determine the matter and give reasons; secondly, determine the matter without reasons, and reserve his remarks; and thirdly, reserve his judgment entirely for later.

He said if he was not with Baccarat, then that would be the end of the matter, but if he found for Baccarat he would allow the Department of Local Government & the Environment an opportunity to appeal; but he would “crack-on” hearing the substantive case at the earliest opportunity.

There was then a short break whilst a technical problem with the digital recording system was resolved.

When the hearing recommenced, Deemster Kerruish said that it appeared to him to be a simple issue. On the one hand, Baccarat says they qualify through land ownership and by the discretion of the Court to determine who is a ‘person aggrieved’. On the other hand, the Department says not, particularly if the term ‘person aggrieved’ falls within the standard definition, that is, someone with an interest above that of an ordinary member of the public.

Kieran Murray, representing Baccarat, developed his argument that as the Strategic Plan was not ‘site specific’ it was not necessary to have an ‘interest in land’.

Tynwald, in its wisdom, had included a statutory right, in the Act, to challenge a Plan where an unlawful process had been followed, as in this case.

Deemster Kerruish said he would need to be persuaded by the plaintiff that this was so; particularly why he should adopt a liberal interpretation of ‘person aggrieved’.

Mr Murray pointed out that this was not the same as in Doleance cases, where the Court had a residual discretion; here the discretion was in the interpretation of the term ‘person aggrieved’.

Deemster Kerruish then wondered what the boundaries of the liberal construction should be.

Mr Murray responded by “putting his cards on the table”. The Department was arguing the plaintiff had to demonstrate ‘damage particular to oneself’, which effectively was introducing a ‘substantial prejudice’ test. However, this was contrary to the construction of the legislation which has clear separation of the parts.

He used the example of an environmental pressure group, who owned no land, which, under the Department’s interpretation, would be unable to challenge the Plan; and that couldn’t be the intention. He also added that it shouldn’t be more difficult to launch a statutory challenge than a doleance challenge.

Further exchanges took place before Deemster Kerruish stopped Mr Murray and said this is an important point I want to make a note. He then recited what he had noted, to make sure he had got it down correctly. Your argument is, he said, that a doleance test is more restrictive. In doleance, you are out if you do not meet the person aggrieved test; unless there is a public interest aspect and the Court can exercise its discretion to consider the matter. In section 5 (T&CPA 1999) it is not restricted to a landowner, so if you have a grievance or dissatisfaction you should look at the context; and if there is a public interest aspect, which could be one factor but not necessarily the fundamental factor, you should not exclude a discretion.

Mr Murray reiterated that Tynwald had included the statutory right of challenge, and where some one had participated in the process, and believed it to have been unlawful, then they shouldn’t be shut out by an overly restrictive interpretation. He later added, “Why should an unlawful plan be allowed to stand?”

Deemster Kerruish appeared to get the point and remarked about a ‘powerful state institution’ acting ultra vires.

Mr Murray pointed out that if the test is made more difficult than in doleance cases then it would be difficult to perceive how any body could mount a challenge.

Deemster Kerruish seemed still concerned that a liberal approach would allow a ‘busybody’ access to a challenge; but Mr Murray countered this by saying the challenge is one of legality and integrity of the process and that this isn’t just dissatisfaction.

Deemster Kerruish put it to Mr Murray he could have presented his case in one paragraph: I am Henry Kennaugh, a developer, I have no particular interest in any land, I participated in the process, I am challenging the plan on the basis of the legality and integrity of the process for the following reasons, bang, bang, bang.

Mr Murray agreed, but he had developed it a bit.

Deemster Kerruish, before rising for 5 minutes, threw in that it might be necessary to consider the effect of the Order of Tynwald which predated the publication date; but added perhaps it was a matter for another day.

On resumption Mr Stephen Harding, Government Advocate, commenced his response.

He went through some English case law and stated that the Arsenal F C case was very important, in that it made clear a person aggrieved had to show how he was ‘affected’ by the matter he was complaining about. He put it to Deemster Kerruish that Baccarat had failed to do this and therefore their motives needed to be considered. He suggested that their motives were “somewhat questionable” in claiming a sort of public interest. As they were not clear it made it difficult to respond; but he was concerned that if they were successful, and got the plan quashed, they would actually be sweeping away policies which he considered may assist them at planning.

He said the public interest of having a robust plan, on which everything else hangs, was an important consideration.

Deemester Kerruish interrupted him, but if ultra vires, and the plaintiff succeeds, it is for you to argue that the Court exercises its residual discretion that despite the bad, rottenness of the plan that it shouldn’t be quashed.

Mr Harding attempted to counter by saying that the other side needed looking at but Deemster Kerruish said that it should be left for the substantive case; where it would be open, for the respondent, to argue that the rottenness was not material and that it would be more detrimental to quash.

Moving on, Mr Harding pointed out that Tynwald could have included the ‘sufficient interest’ test, but didn’t and the petitioner had taken no account that no residual discretion had been included. Therefore, in his view, doleance had a greater chance of success for a person to gain access to Court.

So how do deal with a flagrant breach of Schedule 1 (T&CPA 1999), inquired Deemster Kerruish, and the A G advises the Department to crack on, albeit he stated we were now in the realms of fantasy, and Tynwald approves the Order. Everybody says the plan is rubbish, there are no land owners, so how does anybody challenge the Order if the A G does not exercise his fiat?

Mr Harding agreed that we were in the realms of fantasy but he felt that the A G would have to be relied upon to take the case.

This argument was developed further and potential difficulties were identified in this line of reasoning.

Deemster Kerruish pointed out that, in the Cussons’ case, the Staff of Government had left the door open on what would happen if the A G refused to give his consent to exercising his fiat. Perhaps this was to leave open a further relaxation in the party aggrieved test, he suggested.

Mr Harding replied, “You have my substantive point” and left it at that.

He continued to maintain that the plaintiff had to demonstrate damage to his interests and that they had only demonstrated ‘dissatisfaction’ not damage. He pointed out that they could have approached the A G to take the challenge, but had not.

Deemster Kerruish asked if he thought it was a failing.

“Yes” replied Mr Harding as even on a wider interpretation it was a public interest challenge, although what the motive was was questionable and it would do no good whatsoever to quash the whole plan.

Yes was Mr Harding’s response.

Mr Harding said that his submission was that it is.

He objected to Baccarat’s claim of alleged procedural irregularities, which he said didn’t stand scrutiny, and again said you needed to understand their motives.

Deemster Kerruish pointed out that the motives may be academic if the process ultra vires, and pointed out that where the legislation is silent it is not necessary to show motive; and if it is public interest that may be motive enough. If they get past the hurdle of person aggrieved, he added.

The Cussons’ case featured some more with Deemster Kerruish pointing out that it effectively showed, in doleance cases, you didn’t have to be a party aggrieved to be heard.

Mr Harding suggested Tynwald had deliberately chosen to set a high threshold to limit challenges and he anticipated that most challenges would be aimed at the site specific area plans. In fact, he said, he couldn’t find any cases of where ‘structure plans, as he thought the Strategic Plan is called in England, had been challenged.

Deemster Kerruish again stated that Tynwald had included, in their wisdom, a right to a challenge so why should it be left to the A G. Mr Harding didn’t know why; and suggested Tynwald had not thought about it.

Deemster Kerruish inquired, that if he was with the Department on the 6 week issue, should the Court ‘slam the door in the face of Baccarat’ for not having approached the AG.

“Yes”, was the simple reply.

Deemster Kerruish then requested Mr Murray to make his response.

He said that the person aggrieved had been lifted from English planning law and had not been derived from judicial review. Even so it had never been tested before under section 5 so there was no Manx case law to act as precedence.

It would be unfair to shut some one out at the first hurdle or where they couldn’t show substantial prejudice.

He pointed out that if the Strategic Plan was rotten everything that flows from it could also be rotten; to which Deemster Kerruish added that even if everything that flowed from it was ‘good’, if it had flowed from something rotten it undermined the whole process. If something is bad in law then it was in the public interest to correct.

Mr Murray said, in summarizing his main points, the entry shouldn’t be overly restrictive as otherwise it would prevent proper scrutiny, there was no precedents that could be referred to in order to exclude Baccarat and as Tynwald had included a statutory right for a challenge then the Court shouldn’t prevent a person getting through the door.