UKPC 7
Privy Council Appeal No 0013 of 2010
J & O Operations Limited and another; Eloise Mulligan and Grace Wong (Appellants) v The Kingston and Saint Andrew Corporation (Respondent)
From the Court of Appeal of Jamaica
JUDGMENT DELIVERED BY
7 March 2012
Heard on 7 February 2012
Allan S Wood QC
(Instructed by MA Law (Solicitors) LLP)
Rose M Bennett-Cooper
(Instructed by Charles Russell LLP)
"5.-(1) Every person shall, before laying out or sub-dividing land for the purpose of building thereon or for sale, deposit with the Council a map of such land; such map shall be drawn to such scale and shall set forth all such particulars as the Council may by regulations prescribe and especially shall exhibit, distinctly delineated, all streets and ways to be formed and laid out and also all lots into which the said land may be divided, marked with distinct numbers …
(2) Every such person shall also deposit with the Council as respects each street and way as shown on the said map –
(a) a specification showing how such street or way is to be constructed … Such specification shall, if the Council by regulations so prescribe, be accompanied by plans and sections …
(b) an estimate of the probable expenses of the street works being done."
" … the Council shall on such deposit as prescribed in section 5 consider the said map, specifications, plans and sections and estimates and shall, by resolution … refuse to sanction or sanction subject to such conditions as they may by such resolution prescribe, the sub-division of the said land and the formation and laying out of the said streets and ways, and may approve of the map, specifications and estimates of the said street works or may alter or amend the same as to them may seem fit and may prescribe the time within which the said street works shall be completed."
The map, which the Board will refer to as the approved plan, showed the development as comprising 360 lots, set out in a grid divided by the principal streets. Many of the lots were arranged back to back in such a way that some had frontages on to those streets and others, lying to the rear, had frontages on to secondary streets, which were designated on the map as car parks and piazzas. Each secondary street could be entered at either end from one of the principal streets, the entrance at one end being suitable for vehicular traffic and the entrance at the other end being a narrower passage suitable only for pedestrians. All the streets, including those designated as car parks and piazzas, were shown as being bounded by sidewalks. The dimensions of the lots, streets and sidewalks were shown on the map. The secondary streets were shown as being wider than the principal streets, consistently with their proposed use for car parking.
"That this Committee hereby approves of the plans, specifications and estimates … for construction of roads, drains, culverts, kerbs and paved sidewalks … and of the application … on behalf of the owners for permission to subdivide the said premises into 360 lots on the following conditions …"
The conditions included several relating to the proposed roadways, the respondent being the statutory roads authority. They included the following:
"(c) That no building be erected on any of the lots fronting on the proposed roadways until they have been constructed to the satisfaction of the City Engineer and taken over by [the respondent].
(d) That the title for the roadway to be handed over to [the respondent] be prepared from the deposited plan in the Titles Office.
(g) No transfer of any lot adjoining any proposed roadway shown on the Map shall be registered until there has been lodged with the Registrar of Titles, a certificate by the Town Clerk that the proposed road has been completed."
There were also conditions in the following terms:
"(h) That the titles for the car parks and piazzas shall be prepared in the name of [the respondent] from the deposited plan and handed over on completion.
(m) All sidewalks shall for their entire widths be paved with 4 inches of 1:3:6 cement concrete and 3 inches of stone ballast and wood floated to the satisfaction of the City Engineer."
"126. Any proprietor subdividing any land under the operation of this Act for the purpose of selling the same in allotments shall deposit with the Registrar a map or diagram of such land exhibiting distinctly delineated all roads, streets, passages, thoroughfares, squares or reserves, appropriated or set apart for the use of purchasers and also all allotments into which the said land may be divided …
Provided always that when any such land is situated within any portion of a parish to which the provisions of the Local Improvements Act and any enactment amending the same shall apply the proprietor shall deposit with the Registrar copies ... of the map deposited with [the respondent] and the resolution of [the respondent] sanctioning the subdivision, and no transfer or other instrument effecting a subdivision of any such land otherwise than in accordance with the sanction of the Board shall be registered."
As required by the proviso to section 126, copies of the approved plan and of the resolution of 2 October 1958 were also deposited with the Registrar of Titles. It was explained in evidence that the purpose of the deposited plan was to provide precise information as to the location and dimensions of the individual lots, based upon a survey of the development as constructed, to which reference could be made in the certificates of title. The deposited plan differed from the approved plan in that the former did not show the sidewalks and piazzas shown on the latter. Notwithstanding that difference, it is apparent that sidewalks were in fact constructed.
The issues in the appeal