TCIG has successfully defended against a claim totalling over $8m brought by Silly Creek Estates and Marina (SCEM). The claim, brought into the TCI Courts back in 2014, was wholly dismissed by the Honourable Chief Justice.
SCEM brought a claim for damages for breach of covenants contained in a 2006 Commercial Lease which allow for certain commercial development on Silly Cay, which falls within the boundaries of the Chalk Sound National Park. The damages claimed totaled more than $8m.
Central to the issues being litigated was a consideration of section 4 of the National Parks Ordinance, effect it has on the lease and SCEM’s ability to undertake commercial development in a National Park. The Court decided that:
The Arbitrators’ Awards were previously confidential, but a recent agreement between the parties means publication is now permitted. The First Award, dated 13 October 2016 is 280 pages long and followed many weeks of hearings earlier that year; a short summary of it has more recently been prepared by the Tribunal. The First Award decided that:
(a) the development of privately owned residence, villas or guesthouses or private beach clubs is inconsistent with the statute’s requirement that land in a National Park be for the enjoyment of the public;
(b) Crown cannot restrict the exercise of its powers in the public interest. Although the Crown is bound by the commercial contracts it makes, it is not bound by assurances as to what its executive action would be in the future as it cannot validly fetter its future executive action. Therefore, a promise to grant development permission, if one had been made, would amount to a fettering of the Governor’s discretion to grant or reject an application for development permission and would be invalid. Such a promise would also be invalid as being contrary to the Physical Planning Ordinance and the statutory procedures set out therein with respect to the application for and grant of development permission;
(c) for the Crown to dispossess itself of Crown Land in a national park, the land would first have to be removed from the boundaries of national park. However, the Governor would not be entitled to remove land from an area designated as a national park without going through the requisite process of legislative change following a period of public consultation, a process in which the TCIG engaged in 2015/2016 and which informed their decision not to vary the boundaries of the Chalk Sound National Park or remove Silly Cay from the national park system;
(d) Commercial development on Silly Cay is unlawful and any promise to permit the development was made without lawful power and the claim for loss of opportunity to sell Silly Cay as land capable of being commercially developed therefore failed.
The Attorney General Hon. Rhondalee Braithwaite Knowles OBE commented; “TCIG is delighted to have received such a positive outcome in this litigation. An adverse result would have been potentially disastrous to the Government’s efforts to ensure that there is protected land available to the public for recreational use and for enjoyment of the natural environment.
This also marks an important decision on the TCI’s jurisprudence with respect to the exercise and fettering of discretion. I am particularly pleased with the work of Principal Crown Counsel Ms. Khalila Astwood who represented the Government on this very important piece of litigation.
Thanks too was also extended to the Hon. Chief Justice for dealing with the difficult legal issues at play with such clarity.”
