Deemster takes steps to stop Crossag Farm court action going “round in circles”

The next round of the Petition of J G Kelly and Jackson Homes (Southern) Ltd, against a decision of the Council of Ministers (COMIN) to refuse planning permission for the erection of 257 dwellings at Crossag Farm, Ballasalla, was heard in Court on Thursday (26^th June 2008).

Deemster Kerruish heard from Mr Coleman representing the Petitioners, Mr Helfrich representing COMIN, Mr Cain representing the Department of Local Government and the Environment (DLGE) and Mr Taylor representing Malew Parish Commissioners (MPC).

It was quickly established, by Deemster Kerruish that these were the ‘active’ parties to the proceedings, and that the Ballasalla and District Residents Association, Graham Cregeen MHK and several other individual parties had decided to adopt a ‘neutral’ stance - apparently, in most cases, on the grounds of avoiding the potential costs involved in continuing as an interested party - and dropped out of the proceedings.

However, it soon became apparent that a curved ball had been delivered by MPC. They asked whether all the original parties should be given a further opportunity to consider their position - on the grounds that the Petitioners had sought leave to amend their Petition.

The motion to amend the Petition, to add two further grounds for challenge, was delivered to the Court on the 24^th June 2008; and was apparently a reaction to some of the respondent’s answers to the Petitioners’ pleadings.

The following day COMIN also filed a motion seeking to amend their answer, which apparently contains an error.

This was when Deemster Kerruish saw the potential for the whole matter to go around in circles, with each side wanting an opportunity to respond to each others amendments; and, having stated he did not wish to go in circles, he explored ways of avoiding this outcome.

Mr Coleman said he would need to see if the amended answer, from COMIN, would affect the proposed changes to the Petition; and if it didn’t then this would overcome this potential problem.

Following a bit of further discussion, it was agreed this would be acceptable to all parties and that the Petitioners would be given until 4^th July 2008 to file their amended Petition. The respondents were given the following 7 days to file answers, the MPC and other parties until 18^th July, and the Petitioner has 7 days from then to file a response to the answers.

By this point in the proceedings it seemed it was accepted by all the ‘active’ parties that all parties, including those who had previously decided to ‘drop-out’, would be brought ‘back-in’ to the proceedings and offered a further opportunity to decide whether to participate or ‘drop-out’.

Having satisfied this aspect of the case Deemster Kerruish turned his attention to the challenge by MPC to the ‘locus’ of the Petitioners; as it was observed by the Deemster that, without a legitimate right to lodge the Petition, it could mean the finality of the proceedings.

Mr Coleman stated that the Commissioners were essentially on a ‘fishing expedition’ as they had, unsuccessfully, been attempting to get hold of the ‘agreement’ between the government and J G Kelly for some time.

He said that the ‘locus’ of the Petitioners was not being contested by COMIN or the DLGE and the fact that Jackson Homes owned some of the land, and had attended the planning inquiry, was sufficient to establish ‘locus’.

Deemster Kerruish pointed out that it was for MPC to decide the risk of being hit for costs if they lose the challenge; but just because one party didn’t mount the challenge it didn’t prevent another party from doing so.

Mr Coleman said that an offer had been made to disclose some of the information on a confidential basis and, following further exchanges with the Deemster, suggested that the matter be adjourned to a fixed date in one or two weeks time.

Mr Taylor was asked for his view, as it put to him that the ‘locus’ was not taken as a point and was, therefore, an issue that could be taken as a preliminary point.

Mr Taylor replied that he believed it was a simple point and that ‘locus’ had been pleaded but, as the MPC had not seen the ‘agreement’, they couldn’t know if this was correct.

Deemster Kerruish pointed out that they claimed ownership of some of the land and attendance at the inquiry.

Mr Taylor did not dispute the land ownership and acknowledged that this may present ‘pima facie’ that they have ‘locus’; but he said there were other issues. It was pointed out that neither J G Kelly nor Jackson Homes were considered ‘interested parties’ in terms of participation in the planning application process.

Mr Taylor accepted that a ‘redacted’ copy of the agreement being provided to MPC may be acceptable to his clients.

After further discussion, over the availability of parties and the Deemster, the matter was set down for consideration on the 17^th July 2008.

Provided this hurdle is overcome, case management of the substantive case was set down for 1^st August; when the issue of costs of the amended Petition, and answers, will also be considered.

The Manx Herald is concerned that, whilst the parties may have the right to their day in Court, it would be perfectly possible to resolve the issues, between the parties, without the necessity or expense of a court case.