AMERICAN DRYWALL BUILDING CENTRE LIMITED v DEVELOPMENT CONTROL AUTHORITY

.. ..... SAINT LUCIA: IN THE HIGH COURT OF JUSTICE (Civil) No: 1102 of 1998 Between: AMERICAN DRYWALL BliILDING CENTRE LIMITED Appellant vs DEVELOPMENT CONTROL AliTHORITY - Respondent Appearances: D. Th~odore for the Appellant Mrs. C. Hinkson Ouhla fOi' the 1999: JUDGMENT \/ "1' ii' Auvergne .J. 1 :;; \'1\ 1\ \ ' The Appellant being dissatistied with Zlll Enforcement Notice served on its Managing Director a Notice o( Appe:11 on of November, 1998 in High Court. The Grounds are as tOllows: I The date suted in the enforccment notice lor the I demolition is less than one month after the service of sLich cn notice on Novemh"r 1998, to Section /\(2) of Development (Interim Control) A.ct:1S ~lll1endecl (the Act), 'I The display of an IS not a the lIIIIIW. meaning of the Act.

3.The enfurcement notice was served in breach of the rules of J'l't' ~e In the decision to was Appellant having been as contemplated by Section 7(3) of the Act, to be on the (;ueslion whether the Respondent would, or would not, have permISSIOn the display of the advertisement. The enforcement notice not, to Section 1 ) Act upon IS or at specify proposed to be

5.There has been no proper service of the enforcement notic{'! on the Oil its Appel service and not on s sec or as Section the Interpretation Act, No. \ 8 The Act does not provide display of an advertisement, per sc. any to The Act does not the ~:(ll1ction of demoll the amenity of any area, per Sc'. the vertical In any event the erection of an advertisement al ignl11ent the main Canaril's!SoLi Road at Canaries does not constitute, and is incapable or constituting, an injury to the amenity of the area whether by reason of any ruinous, unsafe or dilapidated condition of any bui or or di condition of any building or by the deposit or rl'fuse. spoil or or by an occupation the purpose oj" the repair of vehicles. The enforcement IS on as it does not ... indicate the date of service of tl·, ~ said it does not indicate to whom it is directed and it identifies as owner of the sign to be demolished an entity d~,-,s not Enforcement Notice number reads as "TAKE NOTICE that the of the Development (Interim ) Act No.8 of 1971 as amet1ded by the Land Development (Interim Control Act No. 1984, intends to demolish a si American Drvwall Company William Charles and situated ~1t Cunorics WHEREFORE you are given notice of the of the id Bill Board on the day of 1998, The grounds tor the above are as fo: YOli have constructed a Bill The of the CanarieslSollfricre Road or This Action in to Secrion 20 Section of the Land Development Ae! V 7 /. You are enti tied to to <l notice ill \\[thin from the datc on which (he ,lbo"c \OiICC Ius b<.:<.:n sen'cd on \ \ll1" Bill Board reads: AlYIERICAN DRYvV ALL IO()°It) Satisfaction Guaranteed ST. LUCIA! Sillll'/~' Beall/if"/ I on the I of I, was The appeal was fixed for ~ on that day. At the trial the Managing Director, William Charles, Operat·ons Personnel Officer Anselm and Secretary to Managing Director, nda James on Timothy a Building of the Respondent responsibility for the areas Soutt'iere, Choiseul and Canaries, Fergus Gilbert another Building Officer and Delia Didier the Development Control Officer of the Respondent gave evidence on of the Respondent. Charles said that "it was day of , 1998 the afternoon" that Timothy Mangal along with Fergus Gi came into his office Clnd served "Enforcement Notice No. Ill" (noted earlier) which the Respondent's intention to ish a bill board owned by American Drywall Company constructed "Cllong the alignment of the Main Canaries/Soufriere road at Canaries": that he immediately gave his the Notice to the Appellant's secretary speci tic instructions to lCitors and he was aware that did so. said notice was served in a pleasant He assured the Court that of November, ]998 and not the 28 th atmosphere and that it was the the Respondent. of October, 998 as alleged Glenda James calmly identified "Enforcement Notice No.~lll" as the fax sent to the Appellant's solicitor, Mr. Dexter on the of November, 1998 at 8:47 a.m. She ;lIso said that she affixed a cover note to ... the said 'lotice which she signed. She identified the cover note as page one I) of her fax. again this witness assured servIllg did but "a not take place on the 28'" day of p.m. on of November, 1998." saw the Anselm Clauzel told the Court that he Order on day of November, 1998 and he noted that it had a signature there was no date serving stated on it. He Ii the notice described what the bill board (hereinafter called not know whether the said sign was erected mothy Mangal told the Court that at 2:UO p.m. on the of October, 1998 during his normal motoring exercise at Canaries he observed a construction of a sign along the verticli alignment of the Canaries/Soufriere Main road, that the sign measured apPl'Oximately 40 feet in height and 80 feet wide and is elevated 20 above mad described the sign as being mocie up of "Cement Sand mOlOr squid embedded or plastered against a surface earth. On this cement and sand motor squid is a placement of .2 x 2 squared ceramic tiles. It is in hree colours, blue at the perimeter of the sign, Ivhite the body of in red tiles." the sign background and the words and are of October, 1998 at H~ said that the following day, " ! ...... 9:30 a.m. he went to he met the Managing Director who acknowledged for the construction of the "sign", he drafted served t!~~· ';Jid Notice No. III on Charles at office. agreed that he wrote every letter on Notice and signed his name. He acknowledged both as being his and ad that "I made a mistake when I wrote American I" "I th~lt the detj h~IS been ~l!nended. I did not it because it me. I did not do . also placed words ve it was on the lIe to him to retain the "sign" the was a one and was unsure whether he would to return to the He )1 the omitting of the "\v~lS an l b~11~1I1ce of the cross eXall1il1~llioll W(lS a discourse ',IS [() the meaning of Act 1971) (fmeri 111) various sections of the ( to have as amended which the Appellant was r. Mangal the Court that in his opinion as a Building Ofticer the "the board or sign IS a to lhe motorist)." en:;us Gilbert . ~ he to the at ........ about 8:30 to 9:00 a.m. on the 2 October, forcement Notice. Unlike Mr. he said that it was a visit and that he recalled "seeing Glenda James on the Il1 " .\hibited a page diary to his statements . Debra Didier Nicholas assured the Court on the '" October, 998 she instructed Fergus Gilbert to accompany Ti to lant for the serving of the nOlice. said that saw a rep0I1 concerning servi notice ") of October, 1998 before the of ber, I She acknowledged her signature and s~lid -, and the clate 28/10/98 were placed on the exhibit by to confirm that she received report that it was an active lile. concluded evidence S:lylng "it is !lot it been received me th~1t " ARGUMENTS Counsel for Appellant commenced his urging the to adopt an Ical to the l\1e:lIllllg of word "development" which udes huilding operations (Sec 2 of the Land Development (Interim Control) J\ct No.8 of It)] I). He said that while it was true til:lt the sign in .~ ceme;'t sand (mortar) and ti on a it was not a were within the meaning of the said Act since cel"t:lin cbsses or 1,:L:d :lod could be ken the Development ami submitted then the of a sign did not require prior permission (Section 9 (Interim Development ) Act Section m Control)(Amendment) Act No. Learned Counsel contended that the Principal Act as nmended by No. II of 1990 clearly states that nn advertisement could with permission of the /ulthority nnd that it breach could only amount to the ng of 2'1 action in the 'ct the who if wOi.r1d be ~111 I i11 pOS I ofa Learned Counsel said by Section 3 (Interim Control)(Amendment) Act a new Subsection 7A \vas inserted which requires the Authority to state in its Enforcement Notice the n~lture action the Authority proposes to t:lke :lI1d tile lIpon it proposes to take such action; that the Enforcement ~otice charged constructing sign 111 of Section 7(1) he argued, created a 1':1 of the required prior Development Control lIe quoted the case of Francis vs Yiewsley and West Dnlyton Urhan District r::ollllcil 1957 3ALLER page 529. an that case the COlirt of m .... Notice which falsely stated that a ' was Ollt planning permission. Counsel argued the assertion was the same in the terms on tbe was that a development was out further argued that ....:~"h",,.., I) it demolishing to serve notIce on instance notice was not on owner case C~lravans and Automobiles Ltd vs Southall Bor'ough Council 1963 ALLER page 533 notice on was He contented that the rules the developer did not on whether or not or not gIven to build. also argued that there was no proper on a He said that service should have been on the clerk to the boav or association or sent to the secretary. He concluded the date of service must be Learned Counsel for Respondent "development" was not an exception the Act provides "Buildings not used ilnrI othC'r on agricultural holdings not and subdivision land for agricultural purposes. She argued that before a can be considered as an exception there must the two pre-requi ( 1) ,' .... bt,lilding must be one not used for human and must an agricultural holding; that no evidence had been led to demonstrate tn,"~ the sign was erected on agricultural holdings, She stressed that the burden of th,; rules and proof was on the Appellant to show that it not regulations of the Planning Control Authority, said that the Appellant (1) displaying an advertisement Section 20 of the Act; (2) by injuring occupation of the land Section 19( I) of the Act; and to obtain written permission of Ollt a 7(1) of the Act. argued that to adopt the argument a can be constructed without permission mllst to the sign is to make a nonsense of the purpose Act since the construction and display of a sign is a action alld should not be divisible, She contended Section 513 of the Company's Act No. 19 of 1996 has superseded Section 23 of the Interpretation Act No. 18 of J 968 which states: "A notice or document may be served on a company leaving it at or sending it by telex or telefax or by prepaid Dost or cable addressed to the Registered Office of the Company or (b) by personally serving any Director Officer Receiver, Receiver Manager or Liquidator of Company." vehemently argued that the ~e in the form of a report by Timothy Mangal to -- October, 1998, and Development Control Officer and dated entry of the accompanying Officer substantiated tl:at the Enforcement of October, 1998, Notice was in fact served on the Appellant on the 28 She said that there was no doubt of said advertisement was a "development" under the Act and was to note Learned Counsel had so conceded. argued that once there is a procedure available cdlowing an applicant it and afterwards be heard he had to avail himself of it and not the rule GfNatural Justice had been Glynn vs Keele University 1971 2AER page 89 Learned Counsel contended that the Appellant not denied that it was responsible the erection of the sign. She Miller-Mead vs Minister of Housing 1963 lAER at 459 at page 467 which states tl1at no information, defect or error is a material one except it is such as to produce said that the Appellant was in no doubt as to was being referred to and that the name American Drywall was synonymous with the Appellant, the misnomer not invaI the Fnli,rr:emt'Pt 1\Jrltice She concluded by urging the Court to the El1force~nent Notice and award costs to the Respondents. ,... CONCLUSION . NO.8 The Land Development (Interim Control) Act 1971 as 984 and No. II of 1990 i~ pro' to progressive development of the amenities ... " Section 7A(2) of the said Act provides: "The date stated in a notice seri'ed this section as the date on or after ,vhich the intended exercise p01ver mentioned is intended to begin shall be not less than one after the service of such notice and the Authority shall not do any act or thing in exercise of sllch power in relation to the or in the notice before the said date, " Subsection 3 sets out what a person served with a notice may do if he considers the period fixed by such a notice to be 1 t therefore the date on an Enforcement Notice is of crucial follows in my judgment Importance. Section 19 of Act reads: "Ifit appears to the Authoriry allY area is seriously inillred reason 0/ the ruino1ls, condition of any building or by the condition anv refllse, spoil or derelict vehicles or occupation oj land or a public road/or LIny purpose including rhe re/hlll' (}1l'C:llIc!L's,~ir fl1O)} serve on the owner or occupier the land or the person for ..... abating ,:-,., offence a notice requiring such steps to as may be specified by the Authority. is not (2) If any step specified in the notice to abate complied the Alithority rna.v execute the the injury and recover from the OHmer or expenses reasonably incurred for any step A Section. " Section 20(1): "No advertisement whether attaclzect a UlIl!ctmrz or a except with the written oermissiof1 A Any person who displays any advertisement without the written permission of the Authority shall be guilzv of an ojIence against Act. " The Respondents led evidence and tendered exhibits three people assured the Court that the Notice was served on the 28 1h of October, 1998. the same number of Appellant on the other hand led evidence Enforcement was persons and also tendered exhibits to show that one month served on the day of November, 1998 thus period set by law. and other works on not partition and .... subdivision ofland solely for agric:1turctl purposes." my judgment that simply mean:" <is as one not intend to In IS no planning approval is required. indisputably a sign and by no stretch the could it be said that it was constructed for disagree interpretation forward by Learned Counsel for the Respondent on of Act (noted earlier). therefore find that the said sign namely: AMERICAN DRYWALL 1000/0 Satisfaction Guaranteed ST. LUCIA constitutes an excepted development Schedule as amended the Act. regard to contravention Section! Act. The section is explicit but the for determination of matter is a Court Jurisdiction as stated by Subsection 3 of Section 22. Having arrived at this conclusion I do not find it necessary to decide on grounds pleaded and argued. .... order is as follows: ) The appeal is allowed. That there be no order as to costs. ~ ,~~ ~~ ..... \~~ ...........

SUZIE d'AUVERGNE

Suit No: 1102 of 1998 D’Auvergne, .J. Delivered: 19/05/99