Page 1 of 32

Republic of Trinidad and Tobago

In the High Court of Justice

Claim No. CV 2011-05011

Between

PARADISE GARDENS LIMITED

Claimant

And

THE MINISTRY OF PLANNING, ECONOMIC, SOCIAL

RESTRUCTURING AND GENDER AFFAIRS

Defendant

Before the Honourable Mr Justice James C. Aboud

Dated: 19 July 2013

Representation:

Mr Ian Benjamin with Mr Ravi Heffes-Doon instructed by Ms Nalini Jagnarine for the

claimant

Mr Russell Martineau SC leading Mr Gerald Ramdeen, Ms Tinuke Gibbons-Glenn, and

Ms Antoinette Alleyne, instructed by the Chief State Solicitor represented by Ms Kamala

Mohammed-Carter for the defendant

JUDGMENT

1. This judgement concerns the adduction of expert opinion evidence in judicial review

proceedings. The claimant has applied for permission to use the affidavit evidence of a

land surveyor and a town planner at the substantive trial. The defendant has applied for an

order striking out those affidavits. The question is whether these witnesses are experts

Page 2 of 32

within the meaning of Part 33 CPR and whether their proposed evidence is useful to the

determination of the issues raised in the judicial review.

Factual background

2. On 16 December 2011 the claimant obtained permission to apply for judicial review after a

protracted contested hearing involving many days of argument. The Fixed Date Claim

form was filed on 29 December 2011. It was supported by the affidavits of Vernon Da

Silva (the principal officer of the claimant company) and Leslie Akum Lum, a licensed

land surveyor.

3. The claimant is seeking a review of the defendant Minister’s decision (a) to refuse to grant

the claimant planning permission to develop a number of townhouses on a portion of its

land holdings at Paradise Gardens, Tacarigua, that lies within an existing 1979 building

scheme, and (b) to refuse to modify the 1979 permission to change the use of the proposed

town house site from “open space” to lands approved for such a purpose.

4. At the forefront of the application is the allegation that the Minister, and, by extension, the

officers advising her, acted unreasonably. The claimant contends that there is a long

standing policy or requirement that in the development of land for multi-family use at least

10% of the total development must be retained as “open space”. Further, the claimant

contends that the available “open space” in the development scheme at Paradise Gardens

comprises 15.3% of its total area and that it proposes to landscape the unused “open space”

to facilitate its use as “active or passive recreation space.” In other words, the allegation is

that the available “open space” after the proposed town house development would exceed

the policy requirements.

5. The judicial review application also raises other contentious red flags: the Minister failed

to take into account certain relevant considerations, among them the suitability of alternate

“open spaces”; the discretion was exercised in an irregular or improper manner; the right to

be heard on reasons for refusal other than the long standing policy was not entertained; and

Page 3 of 32

that the claimant’s legitimate expectations that the long standing policy would be

implemented were frustrated.

6. The claimant’s case is that there is ample and adequate “open space” in the development

other than the site of the proposed town houses. It says that the proposed town house site

has been wrongly regarded as the only “recreational open space” in the development and

that there are other “open spaces” available for that use in keeping with the alleged long

standing policy.

7. In dealing with the affidavits I will only treat with those parts of the evidence that touch

and concern the pre-trial applications, the subject of this judgment. Evidence that goes to

the substantive matter, insofar as it is immaterial to the pre-trial applications, will be

ignored or glossed over.

Record of the filing of affidavit evidence

8. Two affidavits were initially filed in support of the Fixed Date Claim Form. Mr Akum

Lum, a licensed land surveyor, swore an affidavit that basically gave spatial measurements

and a physical description of Paradise Gardens. Attached to it is a composite survey of the

entire development, showing all of its roads and developed building lots and all of its

available undeveloped lands, which he describes as “open space”. A large portion (but not

all) of these undeveloped lands is located in the North-Western area of the development

scheme, a portion of which is contiguous to the Tacarigua River. Mr Akum Lum’s

affidavit recites his qualifications as a land surveyor licensed since 1962 and that he has

produced over 3,000 cadastral plans in his career. It also contains a declaration in

compliance with Part 33.10 CPR that he understands his duty as an expert to be impartial,

independent and that if his expert opinion is qualified he has a duty to state how it is

qualified. No evidence has been presented to refute Mr Akum Lum’s credentials or

experience as a land surveyor. The other supporting affidavit was filed by Mr Vernon Da

Silva, the claimant’s principal officer. It recites the history of the claimant’s acquisition

and development of Paradise Gardens and the application process that led ultimately to the

defendant Minister’s refusal. After the initial application for approval was refused the

Page 4 of 32

claimant initiated a review before the defendant’s Advisory Town Planning Panel that

confirmed the refusal. He describes the review process as one that involved a discussion of

only spatial matters, namely, whether or not Paradise Gardens had 10% of its undeveloped

lands available as “open space”. He says that there is adequate alternative “open space” at

Paradise Gardens and that the refusal is unreasonable. He says that after the Panel’s refusal

the Claimant made a direct application to the Minister, putting forward further proposals,

but the Minister also confirmed the refusal.

9. After obtaining permission for an extension of time to do so the defendant filed five

affidavits opposing the application.

(a) Sheryl Ann Haynes, Acting Deputy Permanent Secretary of the defendant (affidavit of

21 March 2012)

Ms Haynes provides a walk-through of the application for planning permission

process, importantly defining “open space” as the space reserved for “recreational

use by the residents in the development and must therefore be of a topography,

location, and size to be useable and functional as recreational open space”. She also

testifies that the claimant made a proposal to utilize lands other than the proposed

town house site as recreational “open space”, “however those areas were either too

small, sloping lands, or lands forming part of the river reserve.” Based on the

opinion of certain unnamed engineers from the Ministry of Works, she says that any

land adjoining a river is unsuitable as rivers might overflow their banks or need to be

de-silted. Ms Haynes questions the size of the available “open space” at Paradise

Gardens, namely, the proposed town house site, by reference to the written

designations printed on the plan attached to the 1979 planning permission. They

refer to the proposed town house site as an “open space” and no other area is so

described on the 1979 plan, including the undeveloped lands in the North-West

corner. She says that all “open space” in a development is not “useable recreational

open space” and makes a distinction between “active” and “passive” recreational

“open space”. She gives the reason for the decision to refuse to modify the 1979

Page 5 of 32

permission in these terms: “The application was therefore determined on the fact that

there was inadequate alternative ‘open space’ for recreational use.”

(b) Aldwyn Sin Pang, professional photographer (affidavit of 21 March 2012)

This witness provides the court with numerous photographs of the proposed town

house site and the proposed alternative site in the North-West corner. These photos

will obviously form an important part of the defendant’s evidence at the substantive

hearing.

(c) Parasram Ramlogan, Chief Engineer, Drainage Division, Ministry of Works

(affidavit of 20 March 2012)

This witness testifies that, in the past, approval for the development of lands

contiguous to rivers did not require the approval of the Ministry of Works’ Drainage

Division, but that nowadays a set-back or river reserve of 15 metres is required for

river maintenance or improvement. He says that he walked on the development in

2012, during the course of these proceedings, and, on the basis of his recent

observations, there is less than 15 metres of river reserve along the entire length of

the developed lots on the West “in certain places.” He does not however say whether

the area in the North-West corner offered as an alternative “open space” would

suffice in terms of its size alone, were the 15-metre setback to be applied.

(d) Colin Lynch, Acting Administrative Officer II of the defendant’s Advisory Town

Planning Panel (affidavit of 20 March 2012)

This witness provides a walk-through of the Panel’s review process when an

application for permission is refused. He gives a narrative of the proceedings in the

claimant’s review process. He sat as a member of that panel and the claimant sent a

representative (one Mr Mooleedhar) to present his case. He does not specifically

contradict the claimant’s allegation that when the Panel sat to hear the claimant’s

appeal, it only deliberated on the issue of the 10% “open space” policy. However, he

does not provide any minute of the hearing to refute the claimant’s allegation nor

Page 6 of 32

provide specific reasons for the Panel’s refusal. Instead he pithily says that the panel

“considered the claimant’s representations” and subsequently upheld the refusal.

(e) Ancil Kirk, Senior Land Use Planner, Town and Country Planning Division, of the

defendant Ministry (affidavit of 20 march 2012)

This witness is a skilled town planner. His duties include the processing of

applications for the development of land, advising applicants on development

proposals, supervising the work of the Development Control Inspectors and advising

on policy review matters. As with all previous witnesses Mr Kirk is responding to

the affidavits of Mr Da Silva and Mr Akum Lum. Mr Kirk narrates that in February

2012, during the course of these high court proceedings, he made a site visit to the

subject lands in the company of two legal officers. He made a number of

observations:

(i) The proposed town house site that was approved for “open space” in 1979

was vacant, over-grown with bush, and did not appear to be in active use.

The size of this site, according to the 1979 permission, is 35,000 square feet.

(ii) The proposed alternative “open space” in the North-West corner is either

“too steep or too near the river reserve”. It comprises (moving from the

West to the East) a flat area close to the river, a sloping area, and then a

larger flat area near the public road. The flat area near to the river forms

part of the river reserve and cannot be used as “recreational open space”.

The flat area closer to the road on the North-West of the site, is the only area

where any “active recreation” may occur and this flat area is small and has

an irregular shape. This witness testifies that he personally considered the

claimant’s application for planning permission. He says this: “I was not

averse to considering alternative open spaces: however the lands identified

as alternative open space must be appropriate and meet all the requirements

for public open space such as size, shape, location, accessibility and

topography. I bore these matters in mind while considering the [claimant’s]

Page 7 of 32

application”. He further states that there is some inconsistency in Mr Da

Silva’s affidavit concerning the physical size of the “open space” being

proposed for the town house development.

10. Pursuant to my earlier directions for the filing of the claimant’s affidavits in reply, the

claimant (having obtained an extension of time to do so) filed two affidavits:

(a) Mr Akum Lum (reply affidavit of 21 May 2012)

Mr Akum Lum provides a survey plan that he made in May 2012 of the North-

Western corner of the development. He says that he undertook this plan at the

request of the claimant and one Mr Maulton Fabien, a town planner. The survey plan

provides a detailed drawing of the alternative “open space” in the North-West corner.

It demarcates a sloping area closest to the river (comprising 10,107 square feet), a

“relatively flat” area leading to the river reserve (comprising 28,150 square feet), and

a flat area closer to the public road (comprising 10,070 square feet). In addition, Mr

Akum Lum calculates the square footage of other undeveloped lands in the building

scheme. He locates four such parcels. They are adjacent to four identified lots that

are demarcated in his composite survey plan. These four parcels of land together

comprise 17,130 square feet. Mr Akum Lum completes his testimony by again

repeating his Part 33.10 CPR duties.

(b) Mr Maulton Fabien, Town Planner (affidavit of 18 May 2012)

This witness says that he retired in 1996 as the Assistant Director of the Town and

Country Planning Division (“TCP Division”). He says he started off at the division

as a Development Control Inspector. In 1969, he was awarded a scholarship by the

Canadian International Development Agency and he obtained a Bachelor’s Degree

from the University of Waterloo, Canada in Environmental Studies (Urban and

Regional Planning). He also obtained a Certification of Management of Urban

Growth Centres at Milton Keynes in the United Kingdom. He was eventually

promoted to the office of Assistant Director of the TCP Division in charge of

Development Control and Administration, a position that involving the supervision

of, among other things, outline applications for planning permission and the

Page 8 of 32

modification of planning permission. Since his retirement, he has been doing town

planning consultancy work on a private basis. Mr Fabien’s affidavit, which also

contains CPR Part 33.10 declarations, provides the following evidence:

(i) A statement of the objective of planning communities and urban centres and

the goals of the town planner;

(ii) A definition of the following words in the lexicon of town planning - “open

space”; “active recreation”; and “passive recreation”;

(iii) A description of the functions of “open space” in a residential development,

and the factors that sound town planning policies should reflect in relation to

it;

(iv) A statement that the TCP Division’s Guide to Developers and Applicants for

Planning Permission (‘the Guide’) acknowledges that a variety of “open

spaces” is desirable (A copy of the relevant pages of the Guide are annexed to

his affidavit);

(v) The statement that he walked on the entire development in May 2012 during

the course of these judicial review proceedings and that, in his opinion, the

area running along the length of the river backing the homes of those

residents along the Western flank of Paradise Gardens is not suitable for

“active recreation” but instead only useful for their aesthetic or scenic value.

Further, that the four areas adjacent to the four numbered lots (identified in

Mr Akum Lum’s composite survey) are suitable for “passive recreation” as

children’s play lots or small parks. Finally, that the flat area in the North-

West Corner, excluding the portion which is contiguous with the river, is

suitable for “active recreation”.

(vi) The opinion that the North-West corner, excluding the portion contiguous

with the river, has characteristics that make it more desirable for “active

Page 9 of 32

recreation” than the area described or demarcated as “open space” on the

1979 plan, which is the proposed site for the subject town houses.

(vii) The opinion that, by applying Mr Kirk’s requirements for recreational open

space (size, shape, topography and location), the North-Western corner,

excluding the part contiguous to the river, is a viable alternative “open space”

for “active recreation”.

(viii) That having read the affidavit of Mr Ramlogan, Ms Haynes and Mr Kirk he

has formed the opinion that relevant considerations were not properly and

fully considered in deciding the application to modify the permission.

11 The court thereafter invited both counsel to agree a draft timetable for the trial of the

substantive application but the hearing to consider and fix their draft timetable was

adjourned on several occasions. These undue delays were occasioned by their commitments

in the CLICO/ HCU Commission of Enquiry, a year-long event that boldly intruded itself

throughout these proceedings despite their best efforts. On 16 July 2012, while the matter

was still being case managed, the claimant filed a notice of application (“the claimant’s first

notice of application”) seeking permission under Part 33 CPR to call Mr Akum Lum and Mr

Fabien as experts at the trial and to admit their affidavits as expert evidence.

12. On 30 August 2012 the defendant, having obtained permission by consent, filed a further

rebuttal affidavit of Mr Kirk self-described as a supplemental affidavit, but essentially

containing contrary opinions to those expressed by Mr Fabien.

13. In this affidavit Mr Kirk agrees with the basic summary of the objective of planning

communities and urban centres but disagrees with the dimensions of available “open space”

as originally contained in the 1979 permission. Using his expertise as Senior Land Use

Planner in the TCP Division he gives the following evidence:

Page 10 of 32

(a) He provides a definition of “open space” contained in the Guide from which he

quotes verbatim.

(b) He says that there are other planning manuals that depict the functions of “open

space” and these do not restrict them to the three functions described by Mr

Fabien. Further, that Mr Fabien has not provided “the source this information,”

meaning, I take it, the source of his opinion evidence.

(c) He says that he has not seen the composite survey plan attached to the first

affidavit of Mr Akum Lum and which was also referred to in Mr Da Silva’s

affidavit in support. I find that unusual as, at this stage, there was no ruling (or

indeed any application) to exclude Mr Akum Lum’s affidavit evidence.

Deprived of a view of the composite survey plan he nonetheless opines that the

four parcels adjoining certain numbered lots are suitable only for “passive

recreation” and landscaping. Further, he states that he has seen the Akum Lum

plan of the North-Western corner and agrees that the “flatter sections” comprise

38,232 square feet, but however opines that because it is “located so close to the

river,” with the land sloping downwards, the area would not be suitable to fulfil

all the requirements of “open space.” Mr Fabien does not say whether this area

is unsuitable to fulfil any of the requirements of “open space”. I pause to note

that this will likely become one of the issues at the substantive application.

(d) He provides a counter opinion to Mr Fabien’s view of the suitability of the

proposed townhouse site, which is demarcated as “open space” in the 1979

permission: it is the best site for active recreation, it can be made private by

fencing, it can be better managed, because more ‘eyes’ can be brought to bear on

the site. He admits that there is an open storm drain and feeder drains running

through the site, but it does not decrease its functionality as an “active recreation

space.”

Page 11 of 32

(e) Finally, he says that all relevant matters were considered by TCP Division in

dealing with this matter, contrary to Mr Fabien’s view.

14. In October 2012 two procedural steps were taken. On 12 October 2012 the claimant filed a

notice of application seeking leave to file a further affidavit of Mr Fabien (“the claimant’s

second notice of application”). A draft of the proposed affidavit is attached. It basically

identifies the areas in the discipline or profession of town planning where the two deponents

agree and the areas where they differ. He provides an extract from a professional text book

to support his earlier view of the three functions of “open space” in the sphere of town

planning. He factually disputes Mr Kirk’s statement that the land in the North-Western

corner is not flat, saying that only 10,107 square feet is sloping, but the remainder is flat and

not close to the river. He invites Mr Kirk to make a joint site visit. He responds to Mr

Kirk’s preference for the subject “open space” by drawing reference to the main storm drain

that bisects the area, and the smaller feeder drains that traverse the site and empty into it. He

concludes by stating that if given the opportunity by the court he would like to meet with Mr

Kirk and agree a joint statement of their agreed and their disputed opinions.

15. The claimant’s second notice of application accordingly seeks a further order under Part

33.11 CPR for the experts to confer and report to the court with a joint statement of their

agreed and their disputed opinions.

16. In addition to the claimant’s two notices of applications, the defendant filed its own notice of

application on 31 October 2012. It seeks to strike out the two Akum Lum affidavits, and the

Moulton Fabien affidavit of 18 May 2012. Alternatively, it seeks to strike out numerous

paragraphs or parts of paragraphs in the affidavits of Mr Da Silva, Mr Akum Lum and Mr

Fabien, all of which are identified and against which a variety of objections are taken.

17. The orders to strike out the affidavits are based on the following grounds:

(a) Expert evidence is not reasonably required to resolve the proceeding justly;

Page 12 of 32

(b) No permission was sought by the claimant or granted by the court to adduce the

expert evidence;

(c) Insofar as the evidence seeks to adduce an opinion that the Minister or the TCPD was

irrational such evidence would usurp the function of the court;

(d) The evidence of the experts was not before the Minster, constitutes fresh evidence

and cannot be used to challenge the Minister’s decision; and

(e) Expert evidence is generally inadmissible in judicial review proceedings and there

are no exceptional features in this case that warrants its admission.

Determination of the defendant’s notice of application of 31 August 2012

18. For convenience I will deal first with the defendant’s notice of application as my ruling

here will be pivotal to my ruling on the claimant’s two notices of application. The

defendant’s application has two objectives: (a) to strike out the expert testimony on Part

33 grounds and (b) to strike out individual paragraphs or sentences in the claimant’s

affidavits based on hearsay and other evidential objections.

First Part of the defendant’s application: striking out the expert testimony on Part 33

grounds

19. The part 33 grounds of the application are set out in para 17 above and I will deal with

each in their given order.

(a) First ground: The evidence is not reasonably required to resolve the

proceedings justly.

20. In Kelsick v Kuruvilla and Ors CA (Civil Appeal No P277 of 2012, unreported, judgement

of 19 March 2013) Mr Justice Jamadar JA, writing on behalf of the majority, usefully

provided the governing principles in deciding whether permission should or should not be

granted to allow expert evidence. He said that the principle is stated in Part 33.4 CPR:

“Expert evidence must be restricted to that which is reasonably required to resolve the

proceedings justly”. In understanding the legitimate considerations that impact on this

requirement he said that the court must have regard to the overriding objectives of the CPR

Page 13 of 32

set out in Part 1.1 (2). Among the matters to be considered in order to deal with cases justly

are these:

1.1 (2) dealing justly with the case includes -

(a) ensuring, as far as practicable, that the parties are on an equal footing;

…

(b) dealing with cases in ways which are proportionate to -

(i) the amount of money involved;

…

(iii) the complexity of the issues;

…

(d) ensuring that it is dealt with expeditiously;…

21. Mr Justice Jamadar JA went on to say this (and I quote in extenso):

“8. In determining whether permission should be granted to use expert evidence

and what expert evidence is reasonably required to resolve the issues that arise for

determination, a court ought to weigh in the balance the likelihood of the

following (assuming admissibility):

(i) How cogent the proposed expert evidence will be; and

(ii) How useful or helpful it will be to resolving the issues that arise for

determination.

In determining whether this evidence is reasonably required to resolve the

proceedings justly, the following factors that allow one to assess proportionality

should also be weighed in the balance:

(iii) The cost, time and resources involved in obtaining that evidence,

proportionate to the quantum involved, the importance of the case, the

complexity of the issues, the financial position of each party involved in

the litigation, and the court resources likely to be allocated to the matter

(in the context of the court’s other obligations);

Depending on the particular circumstances of each case additional factors may

also be relevant, as such:

(iv) fairness;

(v) prejudice;

(vi) bona fides; and

(vii) the due administration of justice.

Page 14 of 32

9. Under cogency, the objectivity, impartiality, and independence of the proposed

expert, together with the qualifications and experience of the proposed expert, in

relation to both the specific subject under consideration and the particular issues to

be resolved, are material considerations. At this stage of the proceedings a trial

judge is simply required to assess how cogent the expert evidence is likely to be.

That is, how convincing and compelling it is likely to be based on the stated

considerations. Under usefulness or helpfulness, the technical nature of the evidence

to be reconciled and the focus of the issues to be determined, as well as the

familiarity of the expert with the areas under scrutiny, are material considerations,

especially when that expertise is relevant for necessary fact and/or inferential

findings. As with cogency, at this stage of the proceedings the trial judge is only

required to assess the likelihood of usefulness or helpfulness.

10. These two factors (of cogency and usefulness/helpfulness) contain some

commonalities and there will often be overlap in what one considers under these two

heads. Proportionality involves a comparative assessment of the multiple

considerations stated in the Overriding Objective (Part 1.1 CPR). These

considerations are not exhaustive and only serve to assist the court in determining

what is required to deal with a case justly.

11. In summary, for expert evidence to be appropriate in light of the CPR, and for

permission to be granted to use it, that evidence ought to be relevant to matters in

dispute, reasonably required to resolve the proceedings and the proposed expert must

be impartial and independent and have expertise and experience which is relevant to

the issues to be decided. In addition, the use of expert evidence must also be

proportionate in light of the factors set out in Part 1.1 CPR. Economic

considerations, fairness, prejudice, bona fides and the due administration of justice

are always matters that may have to be considered depending on the circumstances

of each case.

12. To ensure that there is no uncertainty we wish to clarify that the above factors are

not to be understood as hurdles to be cleared when considering whether to grant

permission for expert evidence. They are intended to function as guidelines to assist

the court in determining whether to grant permission. We also wish to note that the

factors of cogency and usefulness/helpfulness may also be relevant at the stage in the

proceedings when the trial judge has heard the evidence and is analysing the expert

evidence and determining the matter on the merits.

22. In R v Luttrell [2004] EWCA Crim 1344, Rose LJ sitting in the English Court of Appeal

summarised the test for admissibility at para 32:

For expert evidence to be admissible, two conditions must be satisfied: first, that

study or experience will give a witness’s opinion an authority which the opinion of

one not so qualified will lack; and secondly, the witness must be so qualified to

express the opinion. The first was elucidated in Bonython (1984) 38 SASR 45,

where King CJ (at p 46) said that the question

‘may be divided into two parts: (a) whether the subject matter of the opinion is

such that a person without instruction or experience in the area of knowledge

or human experience would be able to form a sound judgment on the matter

Page 15 of 32

without the assistance of witnesses possessing special knowledge or

experience in the area, and (b) whether the subject matter of the opinion forms

part of a body of knowledge or experience which is sufficiently organised or

recognised to be accepted as a reliable body of knowledge or experience, a

special acquaintance with which by the witness would render his opinion of

assistance to the court’.

23. The claimant in this case is basically questioning the reasonableness of the defendant’s

decision to refuse to change the use of the “open space” demarcated in the 1979

permission. It claims a declaration that the defendant unreasonably failed to take into

account matters that are said to be relevant considerations, namely,

(a) the alleged long standing policy or requirement that at least 10% of its total area must

be “open space”;

(b) the subject lands are overgrown with bush and are not capable of being used as a

recreation ground; and

(c) there is an alternative “open space” capable of being used for recreational purposes.

The claimant is also claiming that its legitimate expectations were not met, both in terms of

the substance of the decision and the procedure used in arriving at it.

24. I have come to the conclusion that in order to fairly adjudicate and rule on whether these

reliefs should or should not be granted the following questions need to be determined:

(a) Whether there is a long standing policy or requirement that 10% of a development

must be retained as “open space”;

(b) If so, does this policy apply to a development such as exists at the claimant’s

development scheme;

(c) If not, why not;

(d) What are the technical meanings of the following words in the lexicon of the town

planning profession:

“open space”

“active and passive recreation”

“active and passive recreational open space”

(e) What are the factors that ought to be or are normally considered by town planners in

selecting or designating “open space” for active or passive recreation?

Page 16 of 32

(f) What is the square footage of undeveloped land in the claimant’s development

scheme at Paradise Gardens?

(g) What portion of it can be described as “open space”;

(h) Does the available “open space” so defined amount to more or less than 10% of the

total area, assuming that a long standing 10% open space policy exists and is

applicable;

(i) Can any of the total undeveloped area, assuming that it can be properly described as

“open space”, be used or designated as “active or passive recreational open space”,

and if so, what is its total or composite square footage in relation to the total square

footage of the development scheme, and more particularly what is the square footage

of the lands in the North Western corner that can be so utilized or designated (if at

all);

(j) What are the relative strengths and weaknesses in terms of the size, shape, location,

topography, accessibility, usability, functionality (or any other town planning factors)

of (i) the lands sought to be modified into a town house site and (ii) the alternate

lands suggested by the claimant as being suitable for “active or passive recreational

open space”;

(k) Whether any, and, if so, which of the above matters are relevant considerations, from

a town planner’s perspective, and if so, whether they were or ought to have been

considered in arriving at the town planning decision to refuse permission to erect the

town houses or to refuse to modify the 1979 permission to convert the designated

“open space” into a town house development.

25. The evidence sought to be adduced by Mr Akum Lum and Mr Fabien (and, for that matter

by Ms Haynes, Mr Ramlogan and Mr Kirk, whose affidavits also contain paragraphs that

are purely opinion evidence) is cogent and helpful in determining what are the relevant

town planning considerations involved in decisions of this type and whether they were

considered properly or at all. Expert opinion evidence is reasonably required to answer

the questions I posed immediately above. In my view the evidence will be useful and

helpful at the substantive trial. However, its ultimate value can only be weighed and

measured at that time.

Page 17 of 32

26. I am satisfied by the credentials of Mr Akum Lum and Mr Fabien as experts in their

particular fields and I openly express my unfamiliarity with the theoretical and practical

applications of this specialized area of knowledge. The evidence is prima facie admissible

under the test set out in Luttrell. I am also satisfied with the credentials and expertise of

the defendant’s expert witnesses to whom I shall also look for guidance in resolving this

dispute. The complexity of the issues and the sub-issues is therefore a pertinent

consideration.

27. Mr Martineau submitted that since Mr Fabien was a paid consultant and (as the evidence

disclosed) had been retained by the claimant in making a previous planning application he

could not properly be described as impartial. If this submission is correct then the

cogency of his expert evidence would be severely diminished. In Vanessa Garcia v The

North Central RHA, CV2012-00463, unreported, dated 15 July 2011 the English case of

Armchair Passenger Transport Limited v Helical Bar PLC [2003] EWHC 367 is

discussed. In that case a number of (to my mind) useful principles were extracted by

Nelson J. In summary, while it is always desirable that an expert should have no actual or

apparent interest in the outcome of the proceedings, the existence of such an interest,

whether as an employee of one of the parties or otherwise does not automatically render

the evidence inadmissible. The decision on admissibility in those circumstances is a

matter of fact and degree not involving any test for apparent bias: the question to be

decided is whether the person has the relevant expertise and whether he is aware that his

primary duty is to the court. In deciding this, the court must weigh the alternative choices

open if the expert evidence is excluded, having regard to the overriding objectives of the

CPR. Even if the witness has an interest which is not sufficient to exclude his evidence,

the interest may nevertheless affect the weight of his evidence at the trial.

28. In my view Mr Fabien has satisfied the court that he understands that his first duty is to

the court. He plainly says so under oath. His previous employment by the claimant does

not automatically obstruct the discharge of that duty. As well, too, I must form my

opinion on the cogency and usefulness of his evidence from a close reading of what he is

actually saying. I do not consider it tendentious, argumentative, or lacking in objectivity,

Page 18 of 32

and I take into account what was said in this regard by Madam Justice Rajnauth-Lee JA in

NEM (West Indies) Insurance Ltd v. David Strisiver and Ors, Civ App P223 of 2012,

unreported judgement of 19 February 2013.

29. Applying the reasoning of Mr Justice Jamadar JA in Kelsick I have also taken into account

the following further factors:

(a) Fairness: the defendant’s witnesses have openly given expert opinion evidence

and equality of arms is not to be unduly or unreasonably restricted if it will

produce fairness (in this regard see ES v Chesterfield and North Derbyshire

Royal Hospital [2003] EWCA 1284, a decision of the English Court of

Appeal);

(b) Prejudice: the exclusion of the expert evidence materially prejudices the

claimant’s ability to question the reasonableness of the Minister’s decision;

(c) The due administration of justice: trial dates have not been set so the court’s

timetable is unaffected. Further, the adjudicative work of the court will be

lightened in those areas where the experts agree.

(b) Second ground: No permission was sought by the claimant or granted by the

court to adduce expert evidence.

30. There is in fact an application by the claimant now before the court. The claimant’s first

notice of application predates the defendant’s application and it specifically seeks such

permission. Each of the claimant’s questioned affidavits contain Part 33.10 declarations and

statements of their professional credentials. The matter is still at the case management stage

so the application can in no way be described as fatally belated. The position would be

different if the claimant had made no Part 33 CPR application. A court would be

mechanically shackled to the technicalities of form if evidence were excluded on this ground

Page 19 of 32

in the circumstances of this case. This objection rings less loudly in light of the defendant’s

decision not to apply for the use of its own expert evidence, particularly that of Mr Kirk.

(c) Third ground: Insofar as the evidence seeks to adduce an opinion that the

Minister or the TCP Division was irrational such evidence would usurp the

function of the court.

31. One of the functions of the court in this judicial review is to determine whether the

Minister or the TCP Division acted unreasonably in excluding relevant considerations. To

decide this I will first have to determine what are the relevant planning considerations and

whether or not any or any proper regard was paid to them. Even if no regard was paid to

these allegedly relevant considerations, the question still remains open as to whether their

exclusion amounts to Wednesbury unreasonableness such as to make the decision “so

outrageous in its defiance of logic...that no sensible person who had applied his mind to

the question to be decided could have arrived at it...” (per Lord Diplock in CCSU v

Minister for the Civil Service [1995] AC 374 at 410). The claimant will still have to

hurdle Tesco Stores Ltd v. Secretary of State for the Environment [1995] 2 All ER 636,

where Lord Hoffman stated at p 657: “If there is one principle of planning law more

firmly settled than any other, it is that matters of planning judgement are within the

exclusive province of the local planning authority or the Secretary of State”. Those are

matters to be finally decided, not at this stage, but at the trial, when the reasonableness of

the decision, and the process used to arrive at it have been fully ventilated. In light of my

earlier remarks as to whether the evidence is reasonably required to resolve the issues

justly, it would not do justice to the claimant to exclude the evidence at this stage. Its case

would be pre-emptively shut down.

32. In any event, I do not regard the admission of any expert evidence that points to

irrationality as a usurpation of the court’s functions. The ultimate issue to be decided is

whether relevant considerations were excluded and, if so, whether their exclusion was

unreasonable. The sub-strata of the case is built upon the opinion of the experts on both

sides to establish:

(a) The meaning of the town planning terminology;

Page 20 of 32

(b) The relevance (if any) or the application of basic planning principles;

(c) The identification if any, of a 10% “open space” policy; and

(d) The size, location, and topography of the subject land or the alternate “open

space” sites.

These are matters for the court and not the experts. Insofar as any particular words or

sentences stray into the exclusive province of the court I will strike them out when I come

later to consider the other reliefs in the defendant’s application.

(d) Fourth ground: The evidence of the experts was not before the Minister,

constitutes fresh evidence, and cannot be used to challenge the Minister’s

decision.

33. Assuming for the sake of argument that what the claimant says are relevant considerations

are in fact proven to be such, then the mere assertion that they are relevant considerations

cannot amount to fresh evidence, as it must be assumed that the Minister or her officers

would have contemplated them. It seems to me that there is little or no fresh evidence

disclosed on the affidavits of the experts. The development at Paradise Gardens was

readily available for inspection by the Minister as to its configuration, its spatial

measurements, its undeveloped spaces (assuming that they qualify as “open spaces” or

“active or passive recreation spaces’’) and its topography. I can only assume that when

the Minister made the decision that it was an informed decision. The so-called long

standing 10% “open space” policy is either a fact or it is not a fact. If it is a fact, I can

only assume that the Minister took it into consideration, or felt that there was a good

reason to depart from it. The relative strengths and weaknesses of the alternative “open

space” proposed by the claimant is of course a matter of opinion. I can only assume that

opinions were expressed to her, or that she formed her own opinion on the alternate sites,

before deciding to refuse permission. That competing opinions are now being expressed

as to the strengths or weaknesses of the alternative “open spaces” does not mean that she

Page 21 of 32

did not have regard to a variety of opinions (including these now-competing opinions) on

the day that she made her decision. In any event, the competition between the opinions is

blurred by a disagreement about the corporeal and spatial dynamics of the various sites

and their functionality to achieve, in the technical language of the town planning

profession, an ideal development. Evidence from experts to establish the existence of a

so-called policy and its proper application in a given fact situation cannot in my view

amount to fresh evidence.

34. The admission of fresh evidence in judicial review proceedings is rare. In R. v Secretary

for State, Ex parte Powis [1981] 1WLR 595, the English Court of Appeal limited its

admission to three categories of evidence: (1) evidence to show what material was before

the inferior tribunal; (2) evidence to establish the jurisdiction of the tribunal or whether

essential procedural requirements were observed; and (3) evidence establishing that the

proceedings before the inferior tribunal are tainted by misconduct such as bias, fraud, or

perjury.

35. In R (on the application of Lynch) v General Dental Council [2004] All ER 1159

at1167,1168 Collins J sitting in the QBD applied the Ex Powis categories but provided an

amplification of the second category of admissible fresh evidence:

“I have no doubt that fresh evidence involving expert evidence should in general not be

admitted unless it falls within the Ex Powis guidelines. However, it is and has always been

recognized that irrationality is an error of law which can lead to a decision being quashed.

If the decision in question is made by an expert tribunal or indeed by anyone dealing in a

field involving consideration of matters which would not obviously be fully understood by

a layman without some assistance from an expert in that field, it may be necessary at the

very least to have some explanation of any technical terms. Mr Garnham accepted that

expert evidence could be adduced to provide such explanations. Without it, the court might

well be unable to consider properly any irrationality argument. When I use the word

‘irrationality’ I am intending to include not only perversity but also a failure to have regard

to a material matter or a taking into account of an immaterial matter...It is clear that the

court’s function must not be usurped. But it seems to me that the court must be enabled to

carry out its function. To do this it must understand the material which is put before it.

There is in my view a real distinction between a report from an expert which seeks to

explain what is involved in a particular process and how complicated the process is and one

Page 22 of 32

which goes on to opine that it was irrational for the body to have reached the conclusion

that it did.”

Collins J recognised that he was extending the application of the Ex Powis guidelines and

expressed words of caution at p 1168:

“Where the inferior tribunal is composed of experts or has been advised by an expert

assessor...it will be virtually impossible to justify the submission of expert evidence which

goes beyond the explanation of technical terms since it will almost inevitably involve an

attempt to challenge the factual conclusions and judgment of an expert. That is something

that is inappropriate for a reviewing court.”

36. In this case the claimant is contending that there is a long standing 10% “open space”

policy and that it was disregarded. The contention is that by failing to pay regard to

material matters, or by taking account of immaterial matters, the Minister acted

irrationally. In order to understand this contention the court needs assistance in

understanding the technical terms used in the town planning discipline. I refer here to

terms such as “open space”, “active” and “passive” recreation, and “active” and “passive”

recreational “open space”. Beneath the surface meanings of these technical terms other

technicalities are lurking. For example, what are the known factors in the town planning

discipline that are normally used in selecting or designating “open spaces” for active or

passive recreation? This is as much a matter of opinion as it is of fact; it has more to do

with the general mechanics or process of decisions in this field than with the particular

conclusions arrived at by the decision-maker in this case. The claimant is further

contending that the failure to implement the long standing policy, and the failure to have

regard to other, self-described, relevant considerations, amounted to a procedural error. It

says that this procedural error, apart from leading to an unreasonable decision, frustrated

its legitimate expectations. The upshot of the allegation is that the procedural error

resulted in a perverse decision. Irrationality, perversity, and procedural error: they are

words expressly used by Collins J in Lynch in his amplification of the ambit of the second

Ex Powis category. I do not think that Collins J envisaged the existence of any rigid

common law code that must be mechanically applied in every case. He expressed his

understanding of the Ex Powis categories as a general and not an unalterable or binding

principle and went on to say that in those disputes involving fresh expert evidence the

assistance of an expert to explain technical terms “may be necessary at the very least”

Page 23 of 32

(emphasis mine). He was not only expressly recognising the usefulness of an expert’s

explanation of technical terms but also an expert’s explanation of their “underlying

significance to the decision-making process under review”. To me the importance of

understanding the underlying significance of technical terms applies whether the decision-

maker is an expert body or not.

37. The danger of admitting evidence that challenges the factual conclusions or judgment of an

expert body in judicial review proceedings must not be overlooked. However, at this

preliminary stage of the proceedings, I do not think that the evidence sought to be

introduced is directly challenging the Minister’s factual conclusions or judgment so much

as challenging the reasonableness of the bases upon which the conclusions were reached.

The lines can sometimes become blurred but, in those cases where they do, a court’s

default position ought to be the achievement of a just and fair determination of the

proceedings.

38. In my opinion, as I have said, the evidence is not fresh evidence because knowledge of

both the physical landscape and the underlying principles of town planning must be

assumed to have been within the contemplation of the Minister and her officers. If I am

wrong in my assessment then the evidence falls within the expanded second category of

Ex Powis, as interpreted by Collins J in Lynch. Furthermore, parts of the evidence fall

within the first category of Ex Powis, namely evidence to show what material was before

or must be taken to have been before the Minister. I refer here to the TCP Guidelines and

the whole body of learning in the profession of town planning from which it is derived.

Finally, I take note of Collins J’s rider that there is a real distinction between a report from

an expert that seeks “to explain what is involved in a particular process...and how

complicated that process is and one which goes on to opine that it was irrational for the

body to have reached the conclusion that it did” (p 1167 J). Insofar as any part of the

evidence seeks to do the latter I will strike it out when I come to deal with the second part

of the defendant’s application.

Page 24 of 32

(e) Fifth Ground: Expert evidence is generally inadmissible in judicial review

proceedings and there are no exceptional features in this case that warrants its

admission.

39. In considering this ground of objection I have been persuaded by the reasoning of Buxton

LJ in Southampton Port Health Authority v. Seahawk Marine Foods Ltd [2002] EWCA

CIV 54 at para 34:

“While in some cases it will be possible for a court to reach a conclusion on an issue

of proportionality on the basis of common sense and its own understanding of the

process of government and administration, I doubt whether it will often be wise for a

court to undertake that task in a case involving technical or professional decision-

making without the benefit of evidence as to normal practices and the practicability

of the suggested alternatives. That caution is reinforced by reference to the authority

relied on by [the defendant] in support of a proportionality approach in this case, the

speech of Lord Steyn in R (Daly) v. Home Secretary [2001] 2 AC 532, at Para 27.

Lord Steyn said, in comparing a proportionality approach with the traditional

Wednesbury review that:

‘The doctrine of proportionality may require the reviewing court to

assess the balance which the decision maker has struck, not merely

whether it is within the range of rational or reasonable decisions...the

proportionality test may go further than the traditional grounds of

review inasmuch as it may require attention to be directed to the

relevant weight accorded to interests and considerations.’

It is difficult to see how, in a case involving decision-making on a technical

issue, the court can pursue both of those enquiries, and in particular the first of

them, without the benefit of technical evidence.”

40. In my view, this judicial review application is a proper case for the inclusion of expert

evidence. Its exceptional feature is that it concerns a technical matter involving an area of

specialized knowledge, the nature of which I have previously described. No cases have

been cited to me that exclude the type of expert evidence sought to be admitted into

evidence in this case. Mr Martineau relied on R.V Secretary of State for Transport ex

parte Richmond-upon-Thames LBC [1994] 1 WLR 74 but I do not find that case

particularly helpful. It contains some strong language about the lack of value of an

expert’s report on the effect of aircraft sound levels on sleep. It was a case involving the

Page 25 of 32

judicial review of the Secretary of State’s decision to permit more landings and take-offs

of smaller aircraft from the London airports. Mr Justice Laws said this at p 25:

“.... Where the statute itself does not specify the considerations to be taken into

account in arriving at a discretionary decision, it will be for the decision-making

body to decide what is and what is not a relevant consideration, and this decision

will itself only be subject to review on Wednesbury grounds.”

However, in that case, it was established on the evidence that the Secretary of State did

have regard to the sleep prevention issue. Whether the defendant Minister ignored any

relevant considerations (assuming that they are first proven to be relevant and to have been

wrongly ignored) is still to be decided in this care. In any event Mr Justice Laws did not

rule out the usefulness of such evidence in a case involving Wednesbury unreasonableness,

and it is one of the grounds for relief in this case.

41. I therefore feel satisfied, for the reasons stated above, that the evidence of Mr Akum Lum

contained in his two affidavits and that of Mr Fabien, contained in his affidavit of 18 May

2012, can properly be admitted into evidence as the testimony of experts, subject to my

analysis of the evidential objections to individual paragraphs and sentences.

Second part of the defendant’s application: striking out individual paragraphs and

sentences from the affidavits filed on behalf of the claimant

42. Many of the objections to individual paragraphs or sentences in the affidavits of Mr Akum

Lum and Mr Fabien are based on their inadmissibility as opinion evidence. Having come

to the conclusion that Mr Akum Lum and Mr Fabien are experts and, subject to my orders

below to grant Part 33 CPR permission to use their affidavits, I will immediately overrule

those objections. I will now adjudicate on the remaining paragraphs.

43. For the sake of convenience I will summarise the evidence and the nature of the evidential

objection and then state my ruling.

Page 26 of 32

Affidavit of Mr Da Silva filed on 29 December 2011

Para 7 provides a measurement of the subject “open space” proposed for the townhouse

development. The objection is that no foundation was laid to give this evidence.

Objection overruled. The witness refers elsewhere in his affidavit to the composite plan

drawn by Mr Akum Lum and the dimensions of the “open space” are clearly stated.

Moreover, Mr Akum Lum has also sworn an affidavit attesting to the dimensions.

Para 11 states the deponent’s awareness as a land developer since 1969 that there is a

policy of “open space” comprising at least 10% of a development. The objection is that no

foundation was given to say this and that he is not an expert. Objection overruled. The

witness can say what he was aware of, bearing in mind his very long involvement in land

development. Ultimately, his awareness of a policy will be weighed at the trial to

determine its usefulness.

Para 14 provides the measurements obtained from Mr Akum Lum after he carried out his

composite survey plan. The objection is that this evidence is based on information and

belief and is inadmissible in final proceedings. Objection overruled. The dimensions of

the development are properly in evidence via Mr Akum Lum’s affidavit. The position

would be otherwise if Mr Akum Lum was not being called as a witness.

Para 15 exhibits the letter from Mr Akum Lum which states the dimensions of the

development and the aggregate square footage of the open space within it. The objection is

that the exhibit is hearsay. Objection overruled, for the reasons stated immediately above.

Para 16 contains the statement that the development site met and exceeded the planning

requirements embodied in the 10% “open space” policy. The objection is that this is expert

evidence. Objection sustained. Mr Da Silva is a land developer not a town planner.

Para 18 contains statements that there is ample “open space” available on the site and that

the sole purpose the residents use the proposed town house site is as a pedestrian short cut.

Page 27 of 32

The objection is that the first part is expert opinion and the second part contains no

foundation. The first objection is sustained, the second objection is overruled. Whether

the “open space” is ample is a professional judgment in the discipline of town planning.

Whether the subject land is used as a short cut is a question of fact that a landowner is

presumed to be familiar with, and may be tested in cross examination, if so desired.

Para 20 contains the statement that Mr Da Silva was informed by instructing attorney’s

legal secretary that certain unnamed TCP officials told her that the claimant’s files cannot

be accessed. The objection is that this is hearsay. Objection sustained. This is second

hand hearsay.

Para 24 states the belief that the TCP Division concluded that the only available “open

space” was the space so demarcated in the 1969 development plan. The objection is that

this is opinion evidence. Objection overruled. The witness is an experienced land

developer and he says this in response to and as an interpretation of a letter he received

from the TCP division (exhibit “VDS4”). He is stating what conclusions he drew from the

written document, and it can be tested in cross examination, if so desired.

Para 26 exhibits a letter from Mr Tim Mooleedhar, a town planning advisor which the

defendant caused to be written to TCP division. The objection is that this is hearsay.

Objection overruled. If he caused a letter to be written that is a question of fact. Whether

its contents are true is another matter. I accept it as proof that a letter was written.

Para 31,32 & 33 narrate the events that occurred at the hearing of the TCP Panel on 8

February 2007 as related to Mr Da Silva by the claimant’s consultant Mr Tim Mooleedhar.

Mr Da Silva did not attend the hearing but was informed by Mr Mooleedhar that the only

concern that the Panel expressed to him was whether the proposed development scheme

had the requisite 10% of “open space” and, further, that no other standard was suggested as

applicable or weighed against the claimant. The objection is that this is hearsay evidence

and it is inadmissible in final proceedings such as these. Objection sustained. This is not

evidence of the state of mind of the members of the panel, nor is it tendered as a statement

of the fact that certain things were said. Instead, paras 32 and 33 (but not para 31) are

tendered as evidence of the truth of the contents of the statements made by the panel. It

Page 28 of 32

goes to the heart of the issue now before the court. There is no exception to the hearsay

rule that can cure this defect in final proceedings. However, I notice that in the affidavit of

Colin Lynch, a member of the Panel on that day, he deals with the account given to Mr Da

Silva by Mr Mooleedhar in this way:

“At the hearing of the matter on 8 February 2007 the Panel met with Mr Tim

Mooleedhar, a representative of Mr Da Silva. This was the claimant’s hearing at the

first instant (sic). The Panel then considered the claimant’s representations and

subsequently held discussions with the TCPD before coming to a decision”

One thing that struck me at first was the absence of a denial or an alternative account of the

proceedings before the Panel, especially since Mr Lynch says that he has read and is

responding to Mr Da Silva’s affidavit. I find it curious and somewhat disquieting that a

minute of this important meeting (which is required to be taken under section 8 (5) of “The

Constitution and Procedure of the Panel”) was not tendered into evidence by Mr Lynch,

nor was any reason provided for not doing so. His testimony is vague when it should be

unequivocal, is economic when it should be compendious. Such parsimony with the

records of the State in judicial review proceedings is part of the ancien regime and has no

place in modern public law courts. The State has a duty to make full and fair disclosure of

its evidence, including evidence inimical to its interests (Susan Charleau v Commissioner

of Police and Ors, HCA S-868 of 2004, unreported, judgment of 31 July 2006, HC). Mr

Benjamin has complained from the bar table that his instructing attorneys are having great

difficulty in accessing the records of the State and stated his client’s intention to apply for

discovery of documents, in particular, a copy of the minutes of this meeting. If such an

application is made I will hear and determine it but I hope that such an application is

unnecessary.

Paras 44 narrates Mr Da Silva’s assessment of the meaning of the letter of refusal dated 29

September 2010 and his conclusion that the Minister had considered the matter afresh. The

objection is that this is opinion evidence. Objection overruled. While this is a borderline

ruling the statement of his interpretation of the meaning of the letter is narrowly acceptable

on the grounds of his long career as a land developer.

Page 29 of 32

Para 45 contains the statement that no consideration other than the 10% “open space”

policy was ever stated, nor was he informed of any matter weighing against the claimant’s

application other than the alleged policy. The objection is that this is opinion evidence.

Objection overruled. Mr Da Silva is stating his understanding of the meaning of a written

record. Para 45 is a statement of fact that may be tested in cross examination, if so desired.

Para 48 contains the statement that Mr Da Silva was informed by his Attorney that the

decision is flawed on the grounds set out in the fixed date claim form, which are then

reproduced verbatim. The objection is that this is inadmissible hearsay evidence.

Objection overruled. Part 57.7(4) CPR prescribes that the supporting affidavit must

contain the grounds upon which relief is sought. The recitation of his Attorney’s advice as

to the reasons why the decision is flawed, while adding to the prolixity of the evidence, is

nonetheless inoffensive and permissible. The practice of including such a paragraph at the

bottom of a litigant’s supporting affidavit has long been condoned in our courts.

Affidavit of Mr Moulton Fabien filed on 18 May 2012.

Paras 5, 8, 9, 10, 11, 14, 15, 17, 18, 19, 20, 21, 25, 26 and 27 contain Mr Fabien’s expert

opinion. The objections that they are inadmissible opinion evidence are overruled for the

reasons given earlier.

Para 16 recites that Mr Fabien was informed by Mr Akum Lum that the aggregate size of

the 4 lots of land adjourning the 4 numbered parcels of land amounts to 17,130 square feet.

The objection is that this is hearsay. Objection overruled. Mr Akum Lum is a witness and

is giving evidence at the trial in the exact terms. Mr Fabien is not repeating a statement

made out of court by a person who is not a witness.

Para 27 contains Mr Fabien’s opinion that all relevant considerations were not properly

taken into account by the defendant’s deponents. The objection is that this is opinion

evidence. Objection sustained. It is not within the province of Mr Fabien’s expertise to

say what was within the minds of the defendant’s deponents. Such conclusions can only

be drawn or inferred by the court.

Page 30 of 32

Affidavit of Mr Akum Lum filed on 3rd

January 2012.

Para 3 contains a statement of what Mr Akum Lum understands “open space” to be. The

objection is that this is opinion evidence. Objection overruled. Mr Akum Lum has given a

very broad if literal definition of his understanding of the term as being land that is not

owned by any residents and upon which there are no structures. While his opinion is not of

great weight, it is not inadmissible as it is given by a professional surveyor who is expected

to know the difference between developed and undeveloped land and whether the land is

owned by anyone. He can be cross examination on this, if so desired.

Para 4 contains the statement that Mr Akum Lum knows that there is a long standing 10%

“open space” policy. The objection is that this is opinion evidence. Objection sustained.

Although an expert in matters of land surveying, Mr Akum Lum is not an expert in matters

of town planning.

44. In light of these findings the defendant’s notice of application is dismissed save with

regard to the several evidential objections which were sustained.

The claimant’s first notice of application of 16 July 2012

45. For the reasons stated above I grant permission to the claimant under Part 33 CPR to

adduce the expert testimony of Mr Akum Lum in his affidavits of 3 January 2012 and 21

May 2012 and the expert testimony of Mr Fabien in his affidavit of 18 May 2012 and to

produce their exhibits as evidence at the trial.

The claimant’s second notice of application of 12 October 2012

46. This application seeks permission to file the draft affidavit by Mr Fabien (which was

attached to the application) responding to the second affidavit of Mr Kirk, the defendant’s

town planning expert. It expresses a number of opinions, some in agreement with, and

some contrary to those of Mr Kirk. The defendant did not specifically or at all analyse

this affidavit or indeed file any submissions in opposition to this application save those

that questioned his status as an expert in these proceedings. After reading this draft

Page 31 of 32

affidavit I have formed the view that it is not argumentative or tendentious; it attempts to

identify the common ground between the experts and to provide an alternative

professional opinion on the technical terms and their underlying significance. His request

for a joint site visit seems desirable to me, if only to shorten the process of identifying

what, if any, are relevant considerations and whether, if at all, the provision of an alternate

site could be reasonably ignored, and if so, why.

47. There must be an end to affidavits but refusing permission to the claimant’s expert to

respond to the defendant’s expert does not do justice to the claimant, especially since the

burden of proof rests on the claimant. I might add that insofar as he expresses agreement

with some of Mr Kirk’s opinions such consensus will save valuable time. I therefore give

permission to the claimant to file and serve the draft reply affidavit of Mr Fabien attached

to this application, as expert evidence pursuant to Part 33 CPR.

48. The other relief sought in the claimant’s second application is a direction under Part 33.11

CPR for the experts to meet and report their findings to the court. I will need to hear from

Mr Martineau before I rule on this and I await his submissions.

Concluding remarks

49. For the avoidance of doubt, I wish to remind the parties that the court is not a town

planning authority and cannot substitute its own decision for that of the Minster or the

TCP Division. The court’s only duty is to decide whether the process used to arrive at the

decision to refuse permission was unreasonable, irrational, unfair, or procedurally

improper by reason of the exclusion relevant considerations, if any, and whether the

claimant’s expectations were legitimate, and, if so, whether they were breached. In many

ways the evidence appears to be pitched in a manner that may be better suited to a

renewed application to the TCP Division for permission. The parties have fully stated and

ventilated their respective positions in a manner, sadly, that only belatedly occurs inside

the costly crucible of a courtroom. The best-case scenario for the claimant at the end of a

no doubt protracted trial would be an order of mandamus compelling the defendant to re-

Page 32 of 32

consider the application in accordance with such lawful considerations and procedures as

this court may direct. Such a scenario entails substantial costs and delays to the

claimant’s development plans at Paradise Gardens and will lead to another drawn out

application process before the TCP Division. In this scenario the legal costs won in the

judicial review will be minuscule compared to the economic cost of the delay. The other

scenario is the court’s refusal to grant judicial review relief, in which case it is perfectly

open to the claimant to alter his proposals to meet the requirements of the TCP Division

and to re-apply. In the second scenario the claimant will be saddled with the legal costs of

these proceedings, but the final destination of the application returns inexorably to the

same place as in the first scenario, namely, within the offices of the TCP Division. I make

these remarks with a view to urging both parties to consider alternate strategies that may

be more practical than protracted litigation. I need not add that in addition to the drain on

their respective resources, the court is also expending resources. I will discuss these

matters with counsel at the next Case Management Conference.

50. I will now hear Counsel on the question of costs.

Justice James Christopher Aboud

Judge