The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 66 of 1996

 

Alfred David Barber Appellant

v.

(1) The Minister of the Environment and

(2) Scarborough Property Holdings Limited Respondents

 

FROM

 

THE COURT OF APPEAL FOR BERMUDA

 

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 9th June 1997

------------------

 

Present at the hearing:-

Lord Browne-Wilkinson

Lord Slynn of Hadley

Lord Lloyd of Berwick

Lord Hope of Craighead

Lord Hutton

  ·[Delivered by Lord Slynn of Hadley]

 

-------------------------

 

1. Mr. Barber, the appellant, owns a house in Pitts Bay Road, Hamilton, Bermuda from which at one time there was a clear view of the harbour.  Then, apparently when there was no restriction on it being done, a building was put on the opposite side of the road with an adjacent car park.  The building itself was of five storeys, the car park of three storeys.  The appellant could still see the harbour over the car park.  Scarborough Property Holdings Limited, the second respondent, as owner of the building wished to add two storeys to the car park so that the whole building would rise to five storeys.  In November 1992 they applied for planning permission to the Development Applications Board.  Their proposal would block the appellant's view of the harbour and not surprisingly he objected.  The relevant planning authority on 3rd March 1993 refused permission.  On an appeal to the Minister planning permission was given, subject to certain minor conditions, by letter dated 17th August 1993.  In the Supreme Court on Mr. Barber's appeal, Meerabux  J.  quashed  the  Minister's decision and remitted the matter to him for him to consider it according to law.  The Court of Appeal unanimously allowed the appeal and restored the Minister's decision granting planning permission.

 

2. Mr. Barber says that the Court of Appeal's decision was wrong and that the Minister was not empowered to grant planning permission for two further storeys.

 

3. The result of the appeal depends on the proper interpretation of the Minister's statutory powers and nothing turns on the question whether, if he had power, it was reasonable for the Minister to allow what is described as in-filling, or on the fact that pursuant to the Minister's decision, and before the Supreme Court's judgment, the two additional storeys were in fact built.

 

4. At the relevant time the development of land in Bermuda was subject to the provisions of the Development and Planning Act 1974 and, inter alia, to planning regulations made by the Minister under section 54 of the Act.

 

5. The proposed building was obviously development within the meaning of section 14 of the Act.

 

6. By section 6 of the Act it was the Minister's duty to carry out a survey of Bermuda and to prepare a development plan, which was to consist of a written statement formulating policy and proposals and making provision for any of the matters specified in the Second Schedule to the Act.  By section 9 the Minister was required at least once in every five years to review the plan and he might submit to the legislature proposals for such alterations or additions to any development plan as appeared to him to be expedient.  He had power by section 10 of the Act, at any time prior to the approval of a development plan by the legislature, by notice in the Official Gazette, to declare that a draft development plan should be operative as a development plan from such date as might be specified in the notice. 

 

7. What in fact happened here was that in 1992 the Minister prepared a draft development plan entitled "The Bermuda Development Plan 1992".  That was laid before the legislature, and by a notice in the Official Gazette pursuant to section 10 of the Act the draft plan was made operative as a development plan from 3rd July 1992.  By the Development and Planning Act (Bermuda Plan 1992) the plan was declared to continue operative until 2nd July 1994.

 

8. The control of planning could be exercised in a number of ways.  Thus the Minister was empowered to make a development order  granting  planning  permission  himself or providing for the Development Applications Board to grant such permission by section 15 of the Act.  Alternatively he could enter into an agreement with any person interested in land "for the purpose of restricting or regulating the development or use of the land" by section 34 of the Act.  The more usual procedure, where development was proposed, was, as happened here, for an application to be made to the Board for planning permission in accordance with rules prescribed by the Minister.  Section 17 defines the jurisdiction of the Board on such an application:-

"17 (1) Subject to this Act, where application is made to the Board for planning permission, the Board may grant permission either unconditionally or subject to such conditions as they think fit or may refuse permission and, in the exercise of their discretion under this section the Board

 

(a)shall not grant planning permission which would result in development at variance with this Act, a development plan, the regulations, a zoning order, a municipal bye-law or other statutory provision, to the extent that the same may be relevant to the application;

 

(b)shall have regard to any other relevant consideration."

 

9. Section 57 of the Act is central to the present appeal.

"Appeals to the Minister

 

57  (1) The Director or any person aggrieved by a decision of the Board may by notice under this section appeal to the Minister.

...

 

    (3) The Minister, subject to this section, may allow or dismiss the appeal, or may reverse or vary any part of the decision of the Board, whether the appeal relates to that part or not, and may deal with the application as if it had been made to him in the first instance.

 

    (4) Before determining an appeal under this section, the Minister shall, if the applicant so desires, afford him an opportunity of appearing before, and being heard by, a person appointed by the Minister for the purpose.

 

    (5) Subject to section 61 the decision of the Minister on any appeal under this section shall be final.

 

    (6) If before or during the determination of an appeal under this section in respect of an application for planning permission, the Minister forms the opinion that, having regard to this Act a development plan, zoning order or other provision of law, planning permission -

(a)could not have been granted by the Board; or

(b)could not have been granted by them otherwise than subject to the conditions imposed by them,

he may decline to determine the appeal or to proceed with the determination.

    (7) In the exercise of his functions under this section the Minister shall have regard to the provisions of the development plan for the area where the land in question is situated, in so far as those provisions are material to the development of that land, and to any material consideration."

 

10. The Minister is given certain other powers under the Act which indicate further his role in the procedures.  It is necessary only to notice three for present purposes.  First that by section 25 of the Act if it appears to him that it is expedient, "having regard to the development plan and to any other material considerations that any planning permission should be revoked or modified, he may by order revoke or modify the permission to such extent as appears to him to be expedient as aforesaid".  Second, under section 60 of the Act he may substitute his own decision for that of the Board where he considers that a decision of the Board is contrary to the development plan or the Act.  Third, by section 62 the Minister is given power "if he considers it expedient so to do having regard to the provisions of the development plan and to any other material considerations" to serve an enforcement notice.

The Second Schedule to the Act lists those matters for which provision may be made in development plans which include the height of buildings and the prohibition of building or other operations on land.

 

11. The appellant says that the relevant development plan, the Bermuda Plan 1992, has two quite distinct kinds of provision.  First there are general statements of policy or guidance; secondly there are precise requirements.  Examples of the general statements are to be found in paragraph 4.1 of the Plan viz.:-

"The Board shall apply the environmental analysis provisions and other relevant provisions of the Statement [the written statement forming part of the Bermuda Plan 1992] in a matter which enables the Board to be satisfied that -

(a)the application site is suitable for the use and form of development proposed;"

 

12. A further example is to be found in paragraph 7.1 viz.:-

"The Board shall apply the subdivision of land provisions and other relevant provisions of the Statement in a manner best calculated to -

(a)prevent the unnecessary fragmentation of large tracts of open land;"

 

13. Examples of the precise quantitative requirements are to be found, for example, in paragraph 5.2 viz.:-

"The minimum gross floor area for dwelling units shall be as follows -

(a)studio unit275 square feet"

 

14. And in paragraph 8.5(1):-

"Any new estate road proposed in a scheme subdivision shall have a carriageway not less than 12 feet in width and a grassed verge or verges totalling not less than 6 feet in width."

 

15. In addition, though not directly relevant for present purposes, there are precise provisions which are subject to the Board's discretion to depart from them or to modify them as, for example, is found in relation to the maximum height provisions for commercial development in R.S.D. 28(1).

 

  The provision in issue in the present appeal is to be found in a section headed "Development Zone: Commercial".  In particular paragraph COM.8(1):-

"Development within the Pitts Bay Road area shall be subject to the following provisions -

 

(a)all development fronting Pitts Bay Road shall be compatible with the scale, appearance and design of traditional forms of architecture;

(b)the maximum building height shall be three storeys;

(c)the minimum setback from Richmond Road shall be 20 feet and all other setbacks shall be at the discretion of the Board."

 

16. In fact by the time the plan was approved finally by the legislature the Minister had introduced an amendment to provide that the maximum should be four storeys rather three storeys.  Section 17, to which reference has been made, gives the Board a discretion as to whether or not planning permission should be granted but the exercise of the Board's discretion is subject to two matters.  In the first place section 17(1)(a) provides that the Board "shall not grant planning permission" where the permission would result in development at variance with a development plan.  In the second place section 17(1)(b) provides that in exercising its discretion the Board "shall have regard to" any other relevant consideration.  Whatever the scope of the second of these provisions it is plain, and is common ground between the parties, that the first provision prohibits the Board from giving planning permission if the result would be contrary to the provisions of the development plan.  Accordingly the Board was bound by COM.8(1)(b) to refuse consent for five storeys.

 

17. The appellant says that the Minister is subject to the same prohibition.  When section 57(3) of the Act enables the Minister to deal with the application as if it had been made to him in the first instance he cannot, as an appellate authority, have wider or different powers from the Board, the tribunal from which appeal is brought.  As a general proposition this may be true of appeals in the ordinary courts.  The appellant says that it is also true as a general proposition for administrative tribunals and he relies on the judgment of Sir David Cairns in Clyde & Co. v. Secretary of State for the Environment [1977] 3 All E.R. 1123 at page 1126.  There the Local Planning Authority in considering an application for planning permission was required under section 29(1) of the United Kingdom Town and Country Planning Act 1971 to "have regard to the provisions of the development plan".  The Secretary of State was empowered by section 36(3) of the Act "to deal with the application as if it had been made to him in the first instance".  Sir David Cairns said at page 1126:-

"... by reason of section 36(3) the Secretary of State has to deal with the matter on the same basis" [as the Local Planning Authority].

 

18. The issue in the present case does not, however, appear to have been discussed and it may be that section 57(3) of the Bermuda Act is intended not to limit the Secretary of State's powers on an appeal but to empower him to grant planning permission which but for that section he would not expressly have been given under the Act.  Another possible interpretation of section 57(3) is that it is intended to confer on a Minister the same powers as he had when making a development order under section 15 when he is not subject to the same conditions as is the Board on an initial application for planning permission.

 

19. It is not, however, necessary to decide whether either of these possible interpretations of section 57(3) applies if the Minister's powers or duties on an appeal are spelt out elsewhere.  In section 57(7) in the exercise of his functions on an appeal the Minister "shall have regard to" the relevant provisions of the development plan and to any material consideration.  The words the Minister "shall have regard to" are to be contrasted with the words the Board "shall not grant" in section 17.  On the face of it there is a clear distinction.  Under section 57 there is no absolute embargo on the grant of planning permission.  The Minister must have regard to the development plan.  He cannot ignore it altogether.  But once he has had regard to it he may still grant or refuse planning permission.  Under section 17 the Board cannot grant permission if the development would be at variance with the development plan.

 

20. This is the approach which has been adopted in cases where the same words have been used in United Kingdom legislation.  Thus in Simpson v. Edinburgh Corporation 1960 S.C. 313 where the requirement under section 12 of the Town and Country Planning (Scotland) Act 1947 was to "have regard to the provisions of the development plan so far as material thereto and to any other material considerations", Lord Guest said at page 318:-

"It was argued for the pursuer that this section required the planning authority to adhere strictly to the development plan.  I do not so read this section.  `To have regard to' does not, in my view, mean `slavishly to adhere to'.  It requires the planning authority to consider the development plan, but does not oblige them to follow it.  In view of the nature and purpose of a development plan, to which I shall refer later, I should have been surprised to find an injunction on the planning authority to follow it implicitly, and I do not find anything in the Act to suggest that this was intended.  If Parliament had intended the planning authority to adhere to the development plan, it would have been simple so to express it."

 

21. This interpretation of the words "have regard to" was adopted without regard to the particular facts of the case and is consistent with the interpretation of the same words in other contexts (see e.g. De Falco v. Crawley Borough Council [1980] Q.B. 460 under the Housing (Homeless Persons) Act 1977; R. v. Police Complaints Board, ex parte Madden [1983] 2 All E.R. 353 under the Police Act 1976).

 

22. Thus in the United Kingdom the obligation to "have regard to" certain matters means that they must be taken into account or kept in view; it does not mean that these matters are binding and must automatically be followed by the decision-making bodies.  The appellant seeks to draw two distinctions between the Bermuda Statute and Plan and the English cases.  In the first place he says that, although general statements of policy or guidance must be considered and having been considered may be departed from or modified, precise quantitative provisions must be strictly observed.  The only way to have regard to a limitation of height stated in the development plan is to comply with it.  The only way to observe a complete prohibition - "no building shall exceed three storeys" - is not to build more than three storeys.

 

23. Their Lordships reject this approach.  The Minister must have regard to the prohibition in the limitation (and the more precise the restriction and the more limited the area to which it relates may lead him to observe the limitation or prohibition as one having been carefully worked out as a statement of intent in a particular area) but he may still say that on a particular application he will depart from or modify it.  This would be so even if there were no reference in section 57(7) to other material considerations.  But the Minister is required to have regard not merely to the development plan but also to "any material consideration".  Other material planning considerations may point in a different direction to those in the plan.  If so the Minister must decide between them so that he cannot be rigidly bound by the provisions of the development plan.

 

24. Moreover the distinction between "policy" and "quantitative detail" is not in any event an absolute one.  In dealing with such planning matters as the height of buildings, the policy and detail merge and the most effective way of expressing policy is by laying down quantitative limits.

 

25. The appellant sought also to distinguish the Bermuda Act and the development plan by saying that the legislature is closely involved in Bermuda under the Act in the making of the Plan whereas in England the plan is the Minister's plan.  In Bermuda when the Minister has prepared the plan, the appellant submits that the legislature can approve it or amend it in accordance with the proposals submitted by the Municipality.  In those circumstances it would be quite wrong, he submits, to read the Act as authorising the Minister to depart from a plan when the legislature has played an active role in its production and when the legislature has in any event given it legislative rather than merely executive approval.  The appellant relies on the decision of Summerfield C.J. in Member of Executive Council v. The Bermuda Drug Company Limited (unreported), 19th September 1972 under the Development and Planning Act 1965.  There the Chief Justice said:-

"There can be no doubt that, under Part II of the Development and Planning Act, a development plan has and is intended to have legislative effect." Their Lordships do not consider that the role of the legislature in this process is such as to require a meaning to be given to the words "shall have regard to" which is different from that which they have indicated and which they consider to be the natural and ordinary meaning of the words.

 

26. Under section 6 of the 1974 Act it is for the Minister to make the plan and under section 9 he is to review it at least once in every five years and report to the legislature.  At any time he may submit to the legislature proposals for such alterations or additions to the plan as seem to him to be expedient.  Before the legislature approves his plan the Minister may by notice in the Gazette declare that a draft development plan shall be operative as a development plan in effect for a period not exceeding eighteen months (section 10).  By section 11(1) the Minister shall, "in the course of preparing a development plan" or proposals for alterations or additions, consult with the Municipality and he may consult with such other persons or bodies as he thinks fit.

 

27. It is thus clear that he must give the Municipality and other persons an opportunity to make objections and he must if objections are received appoint a tribunal to hold a public inquiry into such representations.  By subsection (4) of section 11 before submitting a plan "the Minister shall take into consideration the objections or representations together with the reports thereon of the Tribunals, and shall include such reports with the plan or proposals submitted to the legislature".  If the Minister receives alternative draft plans or proposals from a Municipality he shall include those in his report submitted to the legislature unless "modifications in the development plan submitted by the Minister to the legislature take account of such alternative draft plans or proposals to the satisfaction of that Municipality".  By subsection (8):-

"The Legislature may, by resolution of each House, approve a development plan, or proposals for the amendment of such plan either as originally prepared or as modified so as to take account of any objections or representations made under this section and the report of the Minister thereon."

 

28. Under this procedure the Minister will no doubt have regard to the various objections and representations which he receives, particularly of the Municipality, and he will no doubt have regard to matters raised in any debate in the legislature.  But, as the Attorney-General and counsel for the second respondents submit, the plan remains his plan and it is for him to decide whether he will introduce an amendment.  No one else has the power to compel amendments.  At the end of the day it is for the Minister to decide whether to amend or to risk having his plan rejected by the legislature.  Without in any way underestimating  the  importance  of  objections  raised by the members of the legislature their Lordships consider that counsel for the respondents were right to stress that the plan is, and in the last resort remains, the statement of policy which the Minister is prepared to adopt.  It is therefore not surprising that the Minister, unlike the Board who have no role in the preparation of the plan, should be given a discretion in particular cases to depart from it, particularly in the light of other material considerations to which the Minister must have regard and in the light of the fact that the plan may be in place for five years or even longer if no new plan or amendment is approved by the legislature.

 

29. The appellant further submits as follows:-

"Under the 1965 Act [the Development and Planning Act 1965] it was clear that a specific provision such as a height limitation which was laid down in the development plan was binding both at the original level and on appeal.  If, therefore, the 1974 Act is to be construed as the Respondents contend, the 1974 Act would mark a substantial shift in the traditional Bermudan approach to planning".

 

30. It seems to their Lordships that, as the Attorney-General and Mr. Froomkin have submitted, that is precisely what has happened.  Under the 1965 Act the Central Planning Authority, subsequently the Development Applications Board, was required to prepare the development plan and to submit it to the legislature.  If the Authority received objections it was for the Governor-in-Council to appoint a public inquiry.  Their report had to be submitted by the Authority to the legislature for approval (section 8(3) of the 1965 Act).  By section 10 of the 1965 Act no development was to take place without planning permission having been granted "and no such permission shall be given which would result in development at variance with a development plan".  By subsection 12(3) "subject to the provisions of section 40, the decision of the Authority on any application made to them under this section shall be final".  The Central Planning Authority, subsequently the Board, could delegate to Municipal authorities the power to deal with planning applications and, on appeal from the Municipality, the Authority (the Board) were empowered to deal with the application as if it had been made to them in the first instance.  There is, however, no provision in section 14(3) comparable to section 57(7) of the 1974 Act.

 

31. By section 40 of the 1965 Act any person aggrieved by a decision of the Authority (Board) might appeal to the Appeal Tribunal by way of rehearing on the ground that the decision of the Authority was erroneous in law, unreasonable or "is at variance with a development plan having effect in relation thereto", but not otherwise than on the specific grounds mentioned.  From the Appeal Tribunal an appeal lay to the Supreme Court.

 

32. There are thus major differences between the two Acts.  In particular in the 1965 Act both before the Authority and before the Appeal Tribunal planning permission could not be given which was contrary to the provisions of the development plan.  There was no discretion given to either body to depart from the plan.  The change is obvious and it is quite plain that it was intended to revise the procedure.  The key to the change lies in the role of the Minister as the authority who not only prepared the plan, but who on an appeal had the discretion once he had had regard to the plan, to depart from it in giving planning permission.  It is obvious that, if it had been intended to give the Minister the same powers as the Appeal Tribunal under the 1965 Act or as the Development Planning Board in section 17 of the 1974 Act, the legislation would specifically have provided that the Minister should not grant planning permission which would result in developments at variance with the development plan.  It is impossible to avoid the conclusion that this change was deliberately made.

 

33. In their Lordships' view the Court of Appeal came to the right conclusion on this case and accordingly their Lordships will humbly advise Her Majesty that the appeal ought to be dismissed.  The appellant must pay both respondents' costs before the Board.

 

© CROWN COPYRIGHT as at the date of judgment.