Dolphin Park

Dolphin Discovery Relocation at Sandy Point to be Investigated. This case is not over. A final decision still has to be given. We have to be careful what we write. It is important not to pollute justice by writing things that can be read as intended to wrongfully influence the court.

However, we cannot let the making of the recent order in the High Court pass without any notice at all.

The court had been asked to permit the neighbours of the Dolphin Discovery to bring the government to court. The alllegation is that government did not follow its own procedures and laws for permitting an activity such as this to begin at the Sandy Spit at Blowing Point Harbour. I have written about this previously, most recently here, and here, and here.

The court listened to the argument by the neighbours and by the government. The court agreed that the matter needed to be fully ventilated. While the matter is being made ready for argument, the court ordered the dolphin people to stop their construction.

The story of the court's decision has been published in the newspapers. You may like to read the actual words of the judge. This is what she said:

“THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

TERRITORY OF ANGUILLA

(CIVIL)

AD 2008

CLAIM NO. AXAHCV/2008/0015

BETWEEN:

PAUL WEBSTER
MAJORIE MACCLEAN
MAJORIE CONNOR
PHILIPPE CHAMPAULT
CHRISTINE CHAMPAULT
ANNE KELLER
LLOYD SINCLAIR
NEIL FREEMAN
WENDY FREEMAN
Applicants/Intended Claimants

And

THE ATTORNEY GENERAL
(FOR THE GOVERNMENT OF ANGUILLA)
Respondent/Intended Defendant

TRANSCRIPT OF DECISION

6th May, 2008 at 9:10 a.m.

BY: HON JUSTICE JANICE GEORGE-CREQUE, Judge.

APPEARANCES: Ms. Palmavon Webster, Ms. Tameka Davis and Mr. Gerhard Wallbank for the Applicants;

Mr. Ivor Greene for the Respondent;

Mrs. Josephine Gumbs-Connor: (watching brief on behalf of Dolphin Fantaseas Anguilla).

PROCEEDINGS

THE COURT: Now yesterday, I granted leave to the Applicants to make a claim for judicial review of the various decisions of the governmental bodies or persons giving rise to the construction of a dolphin pier and/or a dolphinarium at Sandy Point Beach in Anguilla, and I reserved until today the question as to whether interim relief ought also to be granted pursuant to CPR 56.4(9), which in essence states that the Court, on hearing an application for leave for judicial review, may, if it considers that it is just to do so, grant such interim relief. Now, counsel for the Applicants made this application in light of certain information given by counsel for the Respondent in connection with this matter.

From the evidence adduced the following matters appear to be clear and uncontroverted.

(1) On the 12th of June, 2007, Dolphin Fantaseas Anguilla, applied for permission to construct a dolphin pier in the water at Sandy Point, Blowing Point, Anguilla and in respect of Block 28309, Parcel 169. (See exhibit "VP3" to the first affidavit of Vincent Proctor)

(2) This parcel is properly described as Registration West, Block 28309 B, Parcel 169 and is owned by the Crown having been acquired by compulsory acquisition for public purposes, namely: The development of a public park and a sports complex. (See Statutory Rules and Orders 1997 No.8).

(3) Planning approval was given by the Land Development Control Committee, LDCC, on 12th December, 2007. (This is exhibited at "VP3" to the first affidavit of Vincent Proctor).

(4) Apart from the LDCC's planning approval, the only other written approval granted by any other governmental body or person appears to be for a building to be located at Sandy Point, Blowing Point, in respect of an application dated either 14th or 19th February, 2008, bearing application No. 0017/07 in respect of parcel 169, shown as having been approved on December 14th 2007 by the Anguilla Building Board.

(5) Sandy Bay Point Beach is a protected beach pursuant to the Beach Protection Orders, Revised Regulations of Anguilla, B25-1 made under section 2 of the Beach Protection Act (Revised Statutes of Anguilla Chapter B25)

(6) The Port of Blowing Point as per the Prescribed Ports Regulations, Revised Regulations of Anguilla P55-4, made in accordance with the provisions of the Ports Harbours and Piers Act (the Revised Statutes of Anguilla Chapter P55), encompasses an area of sea and land extending on both sides to the extremities of the Blowing Point Beach and seawards to the edge of the farthest reef or to a distance of 1,000 yards from the mean shore line where no reef exists and includes the harbour and piers situated therein.

(7) Construction of a Dolphinarium or Dolphin pier commenced in the water in an area falling within the prescribed limits of the port of Blowing Point at Sandy Point Beach. Photographs and plans are exhibited depicting the site and the physical location of the structure being constructed.

(8) The Beach Control Act (Revised Statutes of Anguilla Chapter B20) vests all rights in and over the foreshore of Anguilla and the floor of the sea in the Crown. (This is set out in section 2 of that Act.). Section 3 prohibits the use of the foreshore and the floor of the sea without a licence. The Act also provides for a licence to be granted by the Minister and that Minister is the Minister charged with the administration of Crown Lands upon application being made. The application must be published in the Gazette and members of the public must be afforded an opportunity of making representations to the Minister in respect thereof. Encroachment on or use of the foreshore by any person without a licence attracts a penal sanct ion.

(9) The Ports, Harbours and Piers Act section 36 states, in effect, that no person shall construct any pier on any part of the foreshore without the written permission of the Minister (and in this case it is the Minister responsible for Ports, Harbours and Piers). Section 37 of the said Act provides for owners of piers or constructions on the foreshore to apply for a licence, renewable annually. It further fixes the responsibility for the management of Ports with the Supervisor of Ports and also charges the Supervisor with the responsibility for the management and protection of the foreshore with power to order the removal of any obstruction or construction thereon. The Supervisor is also empowered to operate the ports as appears best calculated to serve the public interest.

Counsel for the Respondent stated that:

(1) There has been no decision to lease Parcel 169;

(2) That no licence has been issued by the Minister responsible for Crown Lands pursuant to the Beach Control Act. He refers, however, to the first affidavit of Vincent Proctor, paragraph 25, where Mr. Proctor alludes to information passed on to him by the Permanent Secretary, Ministry of Lands, to the effect that "the Ministry of Lands gave the Developer permission to commence building the pier" and that "the licence to use the beach is a new concept, the details of which is still being developed". From this it is readily inferred as accepted by counsel for the Respondent, that no licence has been granted for the use of the foreshore or of the floor of the sea as required by the Beach Control Act.

(3) There is no written permission given by the Minister of Ports pursuant to the Ports, Harbours and Piers Act. Indeed, there is no evidence of any permission in any manner given by the Minister of Ports for the construction of a pier on that part of the foreshore falling within the domain of the port of Blowing Point, or that any licence for such has been applied for or granted by the Superintendent of Ports as required under the Ports, Harbours and Piers Act. Breach of any provisions of the Ports, Harbours and Piers Act also attracts a penal sanction. (See section 44 of that Act.)

Despite the lack of such licences and permissions under the Beach Control Act and the Ports, Harbours and Piers Act, it is not challenged that construction of a Dolphinarium or a Dolphin Pier has been proceeding apace in the water forming part of the port and harbour of Blowing Point and encroaching on the foreshore and floor of the sea at Sandy Point Beach. It is because of the Dolphinarium's peculiar location which brings it within the ambit of the provisions of these Acts quite apart from any other law which may be applicable thereto. Admittedly, the construction as being carried out runs afoul of the provisions of these Acts. This then begs the question: "How could such activities which attract criminal sanctions, in the absence of the requisite licences and permissions, simply be allowed to occur and proceed unabated without the necessary intervention by the relevant servants or agents of the Crown?" Yet no steps have been taken to bring such activities which are being carried out in plain sight to a halt. Can such a dereliction or abdication of responsibility be permitted to the detriment of the public interest? I think not. It is after all in the public interest that the laws of the land be applied and obeyed. Such is essential for the good governance in a democratic society. Accordingly, in such an instance, the Court must step in with a view to safeguarding the interest of the ordinary citizen.

Based on all the circumstances as I have set out, I am satisfied that the granting of interim relief is warranted to halt the activities being undertaken in admitted violation of the provisions of the Beach Control Act and the Ports, Harbours and Piers Act.

Accordingly, it is ordered as follows:

(1) That all construction of all piers or structures or any encroachment on the foreshore or floor of the sea in whatever manner at the Sandy Point Beach or in the waters forming the Port at Blowing Point by any persons whether by themselves, their servants or agents, in violation of the requisite licensing provisions of the Beach Control Act and the Ports, Harbours and Piers Act cease forthwith until further order.

(2) The Respondent shall perform all acts and do all things as may be necessary to ensure compliance with the terms of this order.

(3) It is further ordered and directed that this order be served upon Dolphin Fantaseas Anguilla, being a person appearing to the Court to be directly affected by the making of this order.”

What is the significance of this decision? It is that when an Anguillian resident has a good reason to believe that government has not been following its own laws and procedures, that resident can ask the court to review the decision of government. Government is under the Constitution and the law. The court has power under our Constitution and our law, if it finds that government came to a decision that adversely affects some or all of us by following an incorrect procedure, to cancel that government decision. It can call up the government's decision into the court and set it aside, declaring it to have been an illegal decision. Damages can follow. That is why government ministers always get the opinion of the Attorney-General before making any important decision. They need to be sure their decision is legal.

That is where we are. The court has given permission for the case to go ahead. The court is now going to hear the argument in June. Until then, the construction at Blowing Point must stop.

All Anguillians wait with baited breath to see if the Mexicans will obey the order of the court. The law is that every order of the court must be obeyed, regardless of how you object to it.

Since the order was made against Government, what will happen if the Mexicans proceed with their construction in defiance of the order of the court? We shall keep our ears to the ground.