The cost of an improper decision
IF you are a resident in a community within which developments are springing up around you, you should be aware of the legal mechanism to hold public bodies accountable.
Judicial review is the process by which the Supreme Court exercises its inherent supervisory jurisdiction over inferior courts, tribunals and other bodies or persons performing public law functions. This includes entities which form central government as well as government agencies, government ministries and their officials, parish councils and other public institutions.
In exercising this jurisdiction, the court is tasked with examining the decisions taken by these entities to ensure that they do not offend the core principles which underpin public law. The judicial review court is not conducting an appeal of the decision but, as the name suggests, conducting a review of the decision-making process.
There have been several cases brought by residents of communities where the judicial review court has quashed permits issued by the Kingston and St Andrew Municipal Corporation, and the Natural Resources Conservation Authority.
The principles, which define the parameters within which the court must consider applications for judicial review, can be grouped into three main categories: illegality, irrationality, and procedural impropriety.
Illegality, as a ground for judicial review, means that the decision-making process was not conducted in accordance with the law which authorises the relevant government entity to make the decision. So, for example, if a developer fails to place notice of their intention to apply for a building permit at the site, and at the nearest police station or post office, the Building Act states that the application is deemed to be incomplete. The parish council cannot legally consider or approve an incomplete application for a building permit. If it were to issue that building permit, it could be quashed as being illegal.
Irrationality means that the public body came to a decision which is so outrageous and defies logic or acceptable moral standards much so that no sensible person tasked with making a decision of that nature, could have come to the same conclusion. So, for example, if the law requires a developer to show “compelling reasons” why they should be allowed to exceed the maximum density prescribed for the area, but the parish council approves the application without any discussion or deliberation on those compelling reasons, the judicial review court can quash the permit as being irrational.
Procedural impropriety refers to acting outside of the procedural rules expressly set out by the legislation which confers the entity with the authority to act. It includes ensuring that the decision-maker has regard to principles of natural justice towards the person who will be affected by the decision.
In balancing the interests, the court is mindful of the fact that developers expend substantial amounts of money in their developments and that third parties would likely have made deposits and be engaged in agreements for purchase. Ultimately, however, the court, while considering the potentially adverse financial consequences for the developer, will also consider the developer’s own conduct to see whether they themselves have caused or contributed to the potential hardship.
If permits issued in respect of a development are quashed, the development cannot continue; and whether that development is complete or not, it may be subject to an order for demolition. Demolition of these developments may be ordered up to 12 years after they have been completed, and irrespective of whether the property has been sold to a third-party or is the subject of a mortgage to a financial institution. In either of those circumstances, the purchaser may have recourse to the developer to repay the purchase money, plus interest and other charges.
It goes without saying that the Government is positioned to exercise its authority, through its respective arms, on just about any person. Inevitably, the exercise of this governmental authority will impact those who are the subjects of its decisions. Judicial review therefore provides an opportunity for the judiciary, as an independent arm of government, to act as a check and balance for the executive and legislative arms, in the exercise of the said authority.
One way to determine whether judicial review may impact a development, is to obtain copies of the permits or all court documents related to the development. Whichever side of the equation you might find yourself on, there is a lesson for you; as, a resident you may very well have more power than you think; and as a developer, you may need to assess your proposed development for exposure, failing which, you might find yourself suffering from a very costly decision.
Jovan Bowes is an associate at Myers, Fletcher and Gordon. He may be contacted at email@example.com or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.