19th Apr 2021
Rowan Pennington-Benton, Instructed by Charles Russell Speechlys LLP for the appellant.
At Silly Creek on Providenciales in the Turks and Caicos archipelago, a narrow peninsula stretches from Sapodilla Bay to the western edge of the creek, with a small island, Silly Cay, at its tip. Silly Cay lies within the Chalk Sound National Land and Sea Park (“the National Park”). The National Park, which extends to some 3,600 acres of land and water, was designated in August 1992 under the National Parks Order 1992. Its environmental features, as described in Part 1 of the Schedule to the National Parks Order, are “scenic water; bone fishing; boating; picnic area”. This case, which comes to the Board on appeal from the Court of Appeal of the Turks and Caicos Islands (Mottley JA, President, Adderley JA and Hamel-Smith JA), concerns a proposed development of dwelling-houses and guest-houses, a dock and a marina on the Silly Creek peninsula and Silly Cay.
A lease for development at Silly Creek was granted by the Turks and Caicos Islands Government in July 1995 (“the July 1995 Lease”). Proceedings for an alleged breach of the July 1995 Lease were settled by an agreement entered into on 10 October 2006 (“the Settlement Agreement”), and on the same day a 99-year lease was granted for development on Silly Cay (“the Silly Cay Lease”). A subsequent application for detailed development permission for the construction of a dwelling-house on a single plot on Silly Cay was refused in November 2009, and an appeal against that refusal was dismissed in March 2011.
The dispute in the proceedings is about the legal effect of the Settlement Agreement and the Silly Cay Lease. The appellant, the Attorney General of the Turks and Caicos Islands (“the Attorney General”), appeals against the order of the Court of Appeal, dated 5 February 2019, allowing the appeal of the respondent, Silly Creek Estate and Marina Company Ltd (“the company”) against the dismissal by the Chief Justice (Ramsay-Hale J) of its claim for damages for an alleged breach of the Settlement Agreement and the Silly Cay Lease. The company contends that these documents constituted, in themselves, a “grant of development permission” for its proposed development on Silly Cay, namely a permission to subdivide land under section 29(c) of the Physical Planning Ordinance 1998 (“the Physical Planning Ordinance”), and in any event that they had the effect in law of precluding the refusal of detailed development permission in 2009, because they gave rise to a relevant legitimate expectation and a property right under the constitution of the Turks and Caicos Islands.