Strategic Plan challenge – Baccarat is a ‘person aggrieved’

In a judgement delivered by Deemster Kerruish today (27^th May 2008) developer Baccarat has been adjudged to satisfy the test of ‘any person aggrieved’ in section 5 of the Town & Country Planning Act 1999.

Developer Henry Kennaugh’s company launched a bid in 2007 to have the Island’s strategic planning document quashed for being ultra vires and, at hearing earlier this month, Baccarat’s standing to make the challenge was questioned.

At a sitting of the court held, on the 14^th May, 2008, to determine this specific issue Stephen Harding, Advocate for the Department of Local Government and the Environment, argued Baccarat didn’t have the standing whilst Kieran Murray, representing Baccarat said they did.

In Deemster Kerruish’s conclusions he said he didn’t agree with Mr Harding that the test applicable is the one applied in Petition of Doleance cases, but without the court’s “residual discretion”. He said Tynwald had made a specific provision, in the Act, to allow a person aggrieved to make a legal challenge; and that it would be too restrictive if a ‘person aggrieved’ was limited to some one who has to demonstrate damage to peculiar to himself or above that of a member of the public.

He dismissed the notion that the Attorney General’s fiat was required as in certain circumstances it may lead to an injustice if the only bar to a legal challenge was the A.G.’s attitude to a Petition.

He agreed with Mr Murray that the term should be given a broad meaning and it would be for the court to determine whether the petitioner had satisfied, in terms of the legal and factual context of the challenge, the test of ‘person aggrieved”. The court would be able to reject challenges that were vexatious, frivolous, had oblique motives; or were brought by mere busybodies.

His Honour said that a claim for ‘person aggrieved’ status, if questioned, would have to be pleaded and evidenced and could be dealt with as a preliminary point or during the substantive hearing; whichever the circumstances demanded.

In questioning whether Baccarat satisfied this requirement, Deemster Kerruish said that the proceedings could not be considered as vexatious, frivolous or those of a busybody. Even though the motive of the Petitioner may not be totally clear he was not concerned in the context of this case.

He found that Baccarat is a ‘person aggrieved and thus entitled to mount its challenge.