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Trinidad and Tobago High Court |
] [Hide Context] TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE HCA No. 818 of 2005
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PURSUANT TO ORDER 53 OF THE RULES OF THE SUPREME COURT 175 AND/OR THE JUDICIAL REVIEW ACT
2000
AND
IN THE MATTER OF THE TOWN AND COUNTRY PLANNING ACT CHAPTER 35:01 AND THE TOWN AND COUNTRY PLANNING
(CONTROL OF ADVERTISEMENTS) REGULATIONS MADE THEREUNDER
AND
IN THE MATTER OF THE ACT AND DECISIONS OF THE MINISTER OF PLANNING AND DEVELOPMENT THE HONOURABLE CAMILLE ROBINSON-REGIS RELATING TO THE HOARDINGS OF THE AP- PLICANTS
BETWEEN
LABEL HOUSE GROUP LIMITED PEARL & DEAN (CARIBBEAN) LIMITED GOMEZ BURKE & COMPANY LIMITED
CHARMAINE GUILLEN TRADING AS ADVERTISING PLUS
COSMIC SIGNS LIMITED
KYAM’S ADVERTISING LIMITED G.M. ADVERTISING LIMITED RAAKESH KHAN
LORINA SUMINTRA SIEWDASS-KHAN
BOTH TRADING AS L & R KHAN ADVERTISING PRODUCTIONS SEEDCON SIGNAGE LIMITED
AND
Applicants
THE MINISTER OF PLANNING AND DEVELOPMENT THE HON- OURABLE CAMILLE
ROBINSON-REGIS
Before
The Honourable Mr Justice Myers (Ag)
Respondent
JUDGMENT
1. Introduction
[1] I have to decide two matters. One is an interlocutory
application. The ot h- er is the substantive proceedings in which the
interlocutory
application arises.
1.1 The interlocutory application
[2] The interlocutory application is to strike out three affidavits sworn and filed in support of the Honourable Camille Robinson-Regis, the Minister of Plan- ning and Development (“the Minister”) in substantive proceedings brought by seven outdoor advertisers. The Ministry of Planning and Development (“the Ministry”) was and is the Ministry responsible for carrying out Government poli-
cy under the Town and Country Planning Act1 (“the Act”) and the Town and Coun- try Planning (Control of Advertisements) Regulations (“the Regulations”) made un- der the Act. Outdoor advertisers are business enterprises which engage in arrang- ing and supplying billboard advertising, including advertising hoardings of various
types. They call their professional grouping the Outdoor Advertising Association
of Trinidad and Tobago (“the Association”).
[3] Between 1991 and 2005, the Ministry came into repeated contact with the outdoor advertisers and the Association. In 2005, despite the Association’s repre- sentations, the Ministry began knocking down and removing advertising hoardings from what they called the “road reserve”, having published an ominous notice in
the Guardian newspaper on 9th March 2005.
1.2 The substantive proceedings—multiple and varied relief
sought
[4] The outdoor advertisers reacted. Seven came to Court. On their applic a- tion, I ordered the Minister to stop knocking down and removing the advertising hoardings. I also gave them permission to bring the present proceedings for judi-
cial review. They did so by a Notice of Motion filed on 6th April 2005. In it, they asked for multiple and varied relief—five declarations, an injunction, certiorari, damages, aggravated damages, exemplary damages, damages for breach of const i-
tutional rights, necessary and consequential directions, costs and such
further or other relief I might think fit.
(a) Declarations
[5] They were concerned that, and asked for declarations that,
certain aspects of the Honourable Minister’s conduct (including things
done for her after she had made decisions) were illegal, unreasonable,
disproportionate, and arrived at in a procedurally improper
manner, and in
breach of their legitimate expectations and/or fundamental human rights
enshrined in §§4(a), (b) and (d)
of the Consti- tution and were
therefore ultra vires, invalid, null, void and of no effect. Thus was their
position on the following:
1 Laws of Trinidad and Tobago Chapter 35:01.
2. The Minister’s decision to demolish and/or remove any or all of their
hoardings (described in the First Schedule to the Notice of Motion). 3
express consent of the Minister were in breach of the law and had
to be removed within fourteen days; and
(b) the Minister was entitled to remove hoardings which had not been removed
within 14 days of the Notice of 9th March 2005.4
(b) Injunction and prohibition
[6] Further, they asked for an injunction restraining or an
order, or both, for- bidding the Minister, whether by herself, her servants,
or agents or otherwise howsoever from:
(c) Certiorari
[7] They also seek an order of certiorari to bring into court and
quash the deci- sions, or any of them, described in paragraph [2] (ii)
and (iii)
above.8
(d) Damages, aggravated damages and other relief
[8] Finally, they seek damages for trespass and detinue, 9
aggravated damages for breach of constitutional rights, exemplary damages
or both exemplary damages
2 Notice of Motion 6th April 2005, paragraph (i).
3 Notice of Motion 6th April 2005, paragraph (ii).
4 Notice of Motion 6th April 2005, paragraph (iii).
5 Notice of Motion 6th April 2005, paragraph (iv).
6 Notice of Motion 6th April 2005, paragraph (v).
7 Notice of Motion 6th April 2005, paragraph (vi).
8 Notice of Motion 6th April 2005,
paragraph (vii).
and damages, all necessary and consequential directions, 10
costs,11 and, the sweep- up relief—such further or other
relief, or both as the Court considers fit. 12
1.3 The substantive proceedings—grounds
[9] Relief was sought on the following grounds, namely the
respondent and or her agents exercised their discretions and /or powers in
relation to the acts and matters complained of :
1. Unreasonably, irregularly or improperly;
3. In excess of their power and in breach of the principles of natural
justice;
4. In a manner unauthorised and contrary to law and/or to the policy of the
Act; and
6. Were in breach of the Applicants’ legitimate
expectations.
2. The affidavits filed
[10] The parties swore and filed several affidavits in support of their respective positions. Eleven were sworn and filed on the applicants’ behalf:
1. Rima Mohammed, sworn to and filed on 6th April 2005, with exhibits “RM
1” to “RM 20” attached (Mohammed).
2. Abraham Mohammed, sworn to and filed on 6th April 2005, with exhibits
“AM1” to “AM 3” attached (Abraham Mohammed).
3. Alex de Verteuil, sworn to and filed on 6th April 2005, with exhibits “ADV
1” to “ADV 3” attached (de Verteuil).
4. Alfred Lousaing, sworn to and filed on 6th April 2005, with exhibit “AL 1”
attached (Lousaing).
5. Charmaine Guillen, sworn to and filed on 6th April 2005, with exhibit “CG
1” attached (Guillen).
6. Francis Andrew Gomez-Burke, sworn to and filed on 6th April 2005, with
exhibit “FAGB 1” attached (Gomez-Burke).
7. Gail Merhair, sworn to and filed on 6th April 2005, with exhibit “GM 1”
attached (Merhair).
9 Notice of Motion 6th April 2005, paragraph (viii).
10 Notice of Motion 6th April 2005, paragraph (x).
11 Notice of Motion 6th April 2005, paragraph (xi).
12 Notice of Motion 6th April 2005,
paragraph (xii).
8. Kyyam Mohammed, sworn to and filed on 6th April 2005, with exhibit
“KM 1” attached (Kyyam Mohammed).
9. Lorina Sumintra Siewdass-Khan, sworn to and filed on 6th April 2005,
with exhibit “LSSK 1” attached (Siewdass -Khan).
10. Natasha Pierre-Ram, sworn to and filed on 6th April 2005, with exhibit
“NPR 1” attached (Pierre-Ram).
11. Gail Rajkumar, sworn to and filed on 13th September 2005, with exhibit
“GR 1” attached (Rajkumar).
Four were sworn and filed on the Minister’s behalf:
1. Dr. Deborah Thomas, sworn to on the 3rd August 2005 and filed on the
17th August 2005 with exhibits “DT 1” to “DT
8” attached (Thomas).
4. Sylvan Seaforth, sworn to and filed on the 21st September 2005 (Seaforth
2nd).
3. The interlocutory application to strike out Jones and Seaforth 1 st and
2nd sworn to and filed in support of the Minister
[9] During the substantive matter, the applicants asked me to
strike out Jones and Seaforth 1st and 2nd.
3.1 The background to the application—why is Jones and Seaforth
1st and 2nd potentially relevant and important—the significance
of the “road reserve” in the substantive
proceedings
[10] The applicants say the Minister’s destroying and
removing the hoardings was, among many other bad things, illegal, unreasonable
and/or irrational. The Minister says–no, it was not. The hoardings were
on the “road reserve”. The Minister’s
policy deemed the
“road reserve”, a restricted area or zone.
[12] Therefore, the hoardings were there in breach of that policy, and, so, ille- gally. Thus, they could be removed. This being so, what the “road reserve” was, and whatever it was, whether the hoardings were physically located on it, became significant. the applicants, have contended that if there was no evidence, or no suf- ficient evidence the hoardings had been on the “road reserve”, I should conclude that the Minister’s conduct was either unreasonable or irrational or both unre a- sonable and irrational. So, what the “road reserve” is, and whether the hoardings
were on it, is a central part of the factual analysis. Jones and Seaforth 1st and 2nd
speak to this factual issue.
3.2 The applicants’ analysis of Jones and Seaforth 1st
and 2nd and their submissions on admissibility
[13] Mr. Heffes-Doon and Mr. Dass set the context for their
headline submis- sion on admissibility by first briefly analysing the detail
and
constituent parts of Jones and Seaforth 1st and 2nd. This
is what they said.
[14] As an engineering surveyor, Mr. Seaforth uses surveying instruments to search for boundaries using data in his possession. He does not establish bounda- ries. This is the province of a registered land surveyor.13 One of these boundaries is the “road reserve”, which has already been demarcated by others. The “road
reserve” is set out in plans from the Lands and Surveys Department. Mr. Seaforth conducted a site visit to determine which hoardings were within the “road re- serve”.14 He determined the hoardings that were within the “road reserve” on
the basis of a visual inspection by reference to iron markings and “witnesses” (tall monuments painted red and white), which had been placed on the land in question by a registered land surveyor contracted by the Director of Surveys. 15 He also ex- amined the “road reserve” using maps.16 He also describes other data and materi-
al which he had in his possession, namely plans and surveying data.17 However, he said nothing about the use to which the plans and surveying data were put in how
he identified the “road reserve”.
[15] Mr Seaforth provided Michael Jones with drawings, which comprised a computer plot of the location of the removed hoardings.18 While on a site visit, Mr. Seaforth pointed out to Mr Jones, the location of the bases (“stems”) of the
removed hoardings,19 and Mr Jones was able to corroborate the placement of these objects with computer plotting.20 On a further site visit, Mr Jones identified ca-
dastral control marks within the land. These are fixed by the north and east co- ordinates with a national survey grid.21 Mr Jones was able to pinpoint a more exact location of the bases (“stems”) by the use of the cadastral control marks.22 He made temporary survey marks from the cadastral control marks. He used the te m- porary survey marks to take measurements from each of the stems previously
identified. Mr Jones also used cadastral control marks to locate and confirm the dimensions of the “road reserve”.23 He conducted a cadastral survey of the “road reserve”. This was done presumably by reference to the cadastral control
marks.24 Also, by examining the recent surveys done on private
land along the ar- ea of land adjoining the highway. These surveyors had made
“links” onto the road
13 Seaforth 1st, paragraph 1.
14 Seaforth 1st, paragraph 4.
15 Seaforth 1st, paragraph 4.
16 Seaforth 1st, paragraph 5.
17 Seaforth 1st, paragraph 4.
18 Jones, paragraph 4.
19 Seaforth 2nd, paragraph 4.
20 Jones, paragraph 5.
21 Jones, paragraph 6.
22 Jones, paragraph 6.
23 Jones, paragraph 6.
reserve. And then“[u]sing the marks” (presumably the cadastral control marks, the temporary survey marks and the links onto the road reserve); Mr Jones was able “to mathematically fix the road reserve.” There upon identifying 37 bases (“stems”) “placed on the road reserve of the said area of land adjoining the ... Highway” (the lands on which these stems were situated were private lands). Two of the stems were placed on State Lands to the south of the “road res erve”
and not on the “road reserve” itself.25
[16] Having summarised the challenged evidence in that manner, Mr
Heffes- Doon and Mr Dass submit that Mr Jones’ and Mr Seaforth’s
evidence is without value and inadmissible because:
Symmetrically, from this two pronged assertion, Mr Heffes-Doon and Mr Dass
identified two issues. First, does the reliance on hearsay
evidence to determine
the area of land known as the “road reserve” and consequently that
the hoardings or stems were
on the “road reserve” make Mr.
Seaforth’s and Mr. Jones’ evidence inadmissible? Second, does their
failure
to explicate the method by which the iron markings, cadastral control
marks, maps and surveys were used to determine t he size and
dimensions of the
“road reserve”, make Seaforth’s and Jones’ evidence
inadmissible?
(a) Mr Seaforth’s and Mr Jones’ reliance on hearsay
evi- dence to determine the area of land known as the “road
reserve”
and consequently that the hoarding or stems were on the “road
reserve” makes their evidence inad- missible
[17] Mr Heffes-Doon and Mr Dass submit that Mr Seaforth and Mr
Jones de- termined the area and dimensions of the land abutting the highway
known as the “road reserve” by relying entirely on the following
markings and information:
Moreover, they submit, it is clear by reason of the definition of the
“road reserve” given by both Mr. Seaforth and Mr.
Jones, as an area
of land “which has been de- marcated as such”, that their
determination of the size and dimensions
of this area
was made entirely in reliance on the markings placed on the land, maps and sur- veys prepared by third parties.
[18] The decision by the English Court of Appeal in R v Abadom26 considered the question of the permissibility of an expert placing reliance on data that he had not been personally responsible for collecting, or producing. There, expert evi- dence was called to establish the refractive index of shards of glass found on the person of the accused and to show that the refractive index of those fragments was the same as the glass from a broken window pane where the incident in question had occurred. The expert also sought to rely on statistics collated by the Home Office Central Research Establishment to establish the probability of glass with the same refractive index coming from different sources. The court considered the question of whether the expert could rely on this evidence. This is what Kerr LJ
said:27
In the context of evidence given by experts it is no more than a statement of
the obvious that, in reaching their conclusion they
must be entitled to draw
upon material produced by others in the field in which the expertise lies.
Indeed, it is part of their duty
to consider any mate- rial which may be
available in their field, and not to draw conclusions merely on the basis of
their experience...
However, it is also an inherent in the nature of any statis- tical
information that it will result from the work of oth- ers in the
same field
...
In that regard it seems to us that the process of taking ac- count of
information stemming from the work of others in the same field
is an essential
ingredient of the nature of expert evidence.
[19] The court went on to summarise the effect of the authorities in
this area:
First, where the expert relies on the existence or non ex- istence of some
fact which is basic to the question on which he has been
asked to express his
opinion, that fact must be proved by admissible evidence... Thus it would not
doubt have been inadmissible if
(the expert) had been told by somebody else
that the refractive index of the fragments of the control sample was identical,
and
any opinion expressed by him on this basis would then have been based on
hearsay. If he had not himself determined the refractive
index, it would have
been necessary to call the person who had done so...
Secondly, where the existence or non-existence of some fact is in issue, the
report made by an expert who is not called as a witness
is not admissible as
evidence of that
27 Ibid, pp.129-131.
fact merely by the production of the report, even though it is made by an
expert.
These, however, are in our judgment the limits of the hearsay rule in
relation to evidence of opinion given by experts ... In other
respects, their
evidence is not subject to the rule against hearsay in the same way as that of
wit- nesses of fact ... Once the primary
facts on which their opinion is based
have been proved by admissible evi- dence, they are entitled to draw on the
work of others
as part of the process of arriving at their conclusion. How-
ever, where they have done so, they should refer to this material in
evidence so
that the cogency and probative value of their conclusion can be tested and
evaluated by reference to it.28
It was accordingly held that the expert’s reliance on the statistical
data did not run afoul of the hearsay rule.
[20] This authority was relied on by the Court of Appeal of Trinidad and Toba- go in Ramsaran v Sandy.29 There the Court considered the admissibility of the evidence of a valuer as to the quantum of losses of certain crops. The valuer testi-
fied that he relied in part upon what he was told by a third party as to the extent of cultivation of the land in question. Further, in fixing the value of the loss, the val- uer relied on “Guidelines for Valuation of Crops, Plants by the Extension, Train-
ing and Information Division of the Minister of Agriculture.” Nelson
JA, con- cluded that this evidence was inadmissible:30
The law is clear that before a court can assess the value of an opinion it
must know the facts on which it is based...In other
words, the expert must
himself ascertain the primary facts, or if he ascertains them from a second
person, that person and no other
must give direct evi- dence of what primary
facts he supplied to the expert.
Accordingly, because the valuer relied on what he was told by a third party
with regard to the condition of the land and because the
third party had not
given evidence of the same the expert opinion was inadmissible.
Further, his evidence was also inadmissible by reason of the reliance placed
on the report of the Ministry of Agri- culture and because
the report was not
produced in evi- dence, there was no evidence as to who prepared the sta-
tistics and on what qualifications
or methodology and there was no evidence
that the guidelines of the Ministry were accepted as part of the corpus of
knowledge in
the field of crop valuation ... There was no opportunity
to
28 Ibid at p.131.
29 CvA No 55 of 2003.
30 At p.11
test the cogency and probative value of the material in the report and its
applicability to the said parcel of land.
[21] In the present case, Mr Heffes-Doon and Mr Dass argued,
the primary facts on which Mr Seaforth and Mr Jones base their opinions
are,
firstly, the di- mensions of the “road reserve”, and, secondly, the
location of the stems (bases) of the hoardings.
Conjointly, they concluded that
the stems of the hoardings were on the “road reserve”. As the
authorities show, the primary
facts on which an e x- pert opinion is based must
be proved by admissible evidence. Mr Seaforth used iron markings and the witness
(tall monument painted red and white) placed by a registered Land Surveyor to
determine the first primary fact, that is to say, the
dimensions of the
“road reserve”. In other words, Mr Heffes-Doon submitted,
impermissible reliance was placed on hearsay
evidence.
[22] Mr Heffes-Doon further submitted that the exception to the hearsay rule delineated in Abadom31 is inapplicable to the application before me. In that case,
the expert relied on material produced by third parties in relation to the question of the likelihood or unlikelihood of some event or fact happening. The issue de-
posed to by the experts in the present case is not of this nature–Mr
Seaforth and Mr Jones were concerned with some more concrete
and factual, namely
the di- mensions of a physical thing.
[23] In any event, and in the alternative, Mr Heffes-Doon submitted, even if the more liberal principles in relation to hearsay and expert evidence are applic a- ble here, it would be necessary for the maps and surveys relied upon to be put into evidence. Further and adopting the reasoning in Ramsaran,32 there is no evidence
as to who prepared the maps and surveys, or who placed the iron markings and
cadastral control markings on the land, or as to the
methodology they employed
in doing so. Consequently, there was no opportunity to test the cogency and
proba- tive value of the material
relied upon.
(b) Mr Seaforth’s and Mr Jones’s failure to explicate
the method by which the iron markings, cadastral control
marks, maps and
surveys were used to determine the size and dimensions of the “road
reserve” makes their evidence valueless
and inadmissible
[24] An expert’s duty is to furnish the fact finder (whether judge or jury) with the necessary scientific or methodological criteria for testing the accuracy of their conclusions so as to enable the fact finder to perform their independent judgment
by the application of these criteria to the facts provided in
evidence.33
[25] In a classic judgment in the New South Wales Court of Appeal in Makita
(Australia) Pty Ltd v Sproules,34 on which Mr Heffes-Doon
relied, Heydon JA (as
31 Above.
32 See above.
33 Davie v Edinburgh Magistrates (1953) S.C 34, 40 per Lord Cooper.
34 [2001] NSWCA 305; [2001] 52 NSWLR 705.
he then was), after listing the duties and responsibilities of expert
witnesses, had this to say:35
While some of these matters have an ethical dimension, taken together they
point to the need for the trier of fact to be fully informed
of the reasoning
process deployed in arriving at the expert opinion ...
... the expert must reveal the whole of the manner in which it (the
information supplied to the expert) was dealt with in arriving
at the
formation of the expert’s opinion.
[26] In the decision of, unusually, a five panel Court of Appeal of Trinidad and Tobago in Rampersad Ramdial v The State,36 de la Bastide CJ examined the under- pinnings of this rule of law and identified instances where the rigours of its re- quirements would, in practice, be relaxed. The decision concerned the evidence of
a scientific officer attached to the Forensic Science Centre in relation to the que s- tion of whether the contents of certain packages were cocaine. The entirety of the
evidence of the methodology and scientific criteria applied by the officer
was as follows:37
I carried out a test on the samples taken ... I conducted further tests on
the four samples and I confirmed the presence of cocaine
hydrochloride in the
samples. Co- caine hydrochloride is a salt. Cocaine hydrocholoride is a salt of
base cocaine.
The Court of Appeal was of the view that the state of the law as described by Cross was not one of universal application. Rather, it merely represented a general rule. The Court preferred the formulation of the rule in Phipson on Evidence, where
the learned editors of that work said:38
In general, an expert may give evidence in chief as to the grounds on which
he has rendered his opinion, and it may be said that,
without the grounds, the
opinion is val- ueless.
[27] In commenting on this passage, and in explaining the Court of Appeal’s
preference for it, de la Bastide CJ reasoned:39
I refer here to the use of the phrases “in general” and “it
may be said”. It seems to me that the need to
be guarded springs from the
great variety in the content and context of the evidence given by experts which
is classified as
35 At p. 740.
36 Cr.A. No 97 of 1992.
37 Cr.A. No 97 of 1992 at p.2
38Cr.A. No 97 of 1992 at p. 8. see also Phipson on Evidence 15th Edition para 37-38.
39 Cr.A. No 97 of 1992 at p. 8
opinion evidence and therefore subject to the rules which are said to govern such evidence.
His Lordship continued:40
There is no doubt that if the dicta in the judgment and textbooks relied on
by the appellant ... with regard to the need for an expert
to state the grounds
of his opinion, are applicable to the evidence of [the scientific officer] in
this case, then those grounds
not having been stated ... his evidence would be
valueless. Whether in those cir- cumstances one also went on to describe it as
“inadmis-
sible”, is really of no importance. It would mean that the
prosecution had failed to prove an essential element of the offence
charged. The
fact that the defence had failed to cross examine ... about the tests he
performed would not serve to mitigate the
consequences of the failure. The
question therefore is: are those dicta applicable in this case?
[28] The learned Chief Justice was of the view that there were circumstances where the rigours of the rule of law as expressed by Cross would, on the basis of issues of principle, and a practical commonsense view of the rule’s objects and purpose, be relaxed. His Lordship reasoned thus–the object and purpose of the rule is to enable the trier of fact to independently assess the cogency of the expert opinion. If the methodology and principles employed by the expert in analysing information is of such complexity, or belong to a field of knowledge such that it could be said that the ordinary man, or judge (as the case may be) would be unable to understand and appreciate it, then slavish adherence to the rule’s formal re- quirements would serve no valid purpose. This view is clear from the following
passages41:
The rule that the expert must explain his conclusions is not an arbitrary
one: it serves a purpose. The main pur- pose it serves,
at the authorities make
clear, is to enable the judge or jury to assess what value or weight should
properly be given to the expert’s
conclusions. The reality is that such an
assessment is both more important and more feasible in some cases than in
others. As has
been suggested there are some cases in which a high quotient of
the ‘value added’, provided by the expert, is the prod-
uct of his
subjective judgment. Such cases are to be con- trasted with others in which the
expert reports the re- sults produced
almost automatically by the proper appli-
cation of some branch of established science or technology ...
And at pages 12 and 13:
40 Cr.A. No 97 of 1992 at p. 9
41 Cr.A. No 97 of 1992 at pp 11-12.
There is also the question of the usefulness of the expert attempting to
explain the basis for his conclusions in such a way
as to equip the judge or
jury to assess the ac- curacy. The handwriting or fingerprint expert can by the
use of enlargements or magnifiers
enable a judge or jury to come to some
appreciation of the similarites or the dissimilarities produced by the
comparison on which
his conclusion is based ... By contrast, it is at best
doubtful whether a jury would be greatly enlightened or assisted by a
perfunctory
explanation of the tests used to detect the presence of cocaine, or
whether the purpose served by a more in-depth explanation
would justify the
time spent on it in the absence of any challenge of his findings. Would a
perfunctory explanation of the test,
such as was given at the preliminary
enquriy, have equipped the jury any better to assess the validity of the
scientific officers
finding? If, as I would suggest, the answer to that is no,
then to hold that the effect of the scientific officer’s fail- ure
to
offer such an explanation, is to render his evidence valueless, would seem to
make little sense.
... it is not the invariable rule that such evidence is value- less unless
the expert which gives it explains the nature of the test
which he has performed
and have led him to his conclusion. I have identified what I understand to be
the principal purpose of such
an explanation, i.e. to help the jury to assess
the value of the opinion expressed.. to serve ... any other useful
purpose–then
the failure of the expert to provide such an explanation does
not render his evidence inadmissible or valueless.
[29] In the later case of Leroy Clint v The State,42 also a judgment of de la Bas- tide CJ, the principles in Ramdial43 were applied to the report of an armourer, which purported to identify certain objects as homemade firearms and the pistol
cartridge by simply stating that he “examined and tested” the exhibits. The Court
of Appeal found that the evidence was valueless and inadmissible on the ground,
inter alia, that a juror was far more capable of understanding and considering an armourer’s description of the features of a firearm, which bring it within the stat u- tory definition that he would be of appreciating and critically assessing a scientific
explanation of how the presence of cocaine was detected.44
[30] Mr Heffes-Doon and Mr Dass accordingly submitted the failure
of Mr Seaforth and Mr Jones to explicate the method by which the marks
were used
to determine the size and dimensions of the “road reserve” renders
their evidence in relation to that issue,
valueless and inadmissible. The
conclusions arrived at by these experts and the process or methodology utilised
in determining the
size and
42 Cr.A. No 44 of 1999 (Court of Appeal of Trinidad and Tobago).
43 See below.
44 See page 18.
dimensions of the road reserve cannot be described as subjective in nature.
Nor could it be said that the trier of fact, in this case
the judge, would not
be equipped, or would be incapable of appreciating and understanding it.
3.3 The respondent’s analysis of Jones and Seaforth 1st
and 2nd and submissions on admissibility
[31] Counsel for the Respondents summarize their arguments on
admissibility as follows.45
(a) Seaforth 1st and 2nd and Jones comply with the
founda- tion evidence principle
[32] The foundation principle derives from a reading of RSC 1975 Order 41 (1) and a synthesis of the common law principles on admissibility. That rule provides that “[a]n affidavit may contain only such facts as the deponent is able of his own knowledge to prove.” This echoes the common law principle which may be e x-
trapolated as follows:46
Without prejudice to any other rule of admissibility, a deponent’s
evidence on a particular matter, or matters, shall not be
admitted, unless there
is other evidence suf- ficient prima facie at least, to suggest that the
deponent has personal knowledge of
the matter, or those matters, about which he
or she is to testify.
[33] Mr Thorne submitted that, in the context of the foundation
evidence prin- ciple, evidence may be divided into two categories. First,
the fact itself to be proved. And, second, the evidence of the basis of the
fact. Ideally, he said, person-
45 Respondent’s Written Submissions, pp 9 to 10.
46 Sangit Chaitlal v The Attorney General of Trinidad and
Tobago , Myers J, paragraph 14, page 13.
al knowledge is the best evidence of the basis of the fact. However Mr Heffes- Doon and Mr Dass categorized the point in their submissions, what in fact t hey had been saying was Mr Seaforth and Mr Jones had not provided any evidence to show the basis for their “knowledge”. By way of example, Mr Seaforth had identi- fied an area of land extending beyond the Churchill Roosevelt Highway, which he
says had been demarcated as a road reserve.47 Mr Thorne submitted that the
“foundation” of his knowledge relating to demarcation was threefold. First, his
qualifications–he is a qualified Engineering Surveyor with more than twenty seven years of experience. Second, his expertise in investigating and picking up surve y- ing data prepared by the Lands and Surveys Department. Third, the availability of official records consisting of maps and plans located in the Ministry of Works and
Lands and Surveys Drainage Department, and plans of all roads in Trinidad and
Tobago, including the Churchill Roosevelt Highway.48
[34] So far as the second and third items mentioned above are concerned, that is to say, his reliance on surveying data, including the relevant maps and survey plans demarcating the road reserve, Mr Thorne submitted it would have been burdensome to tender this material into evidence. It is comprised of several parts, which would have taken up, to quote Mr Thorne, “quite a bit of space, as well as created difficulty for reproduction.” It was always open to the Applicants, submit- ted Mr Thorne, to request a copy to be prepared at their own cost. This restrictive approach to producing evidence is supported by Macpherson J in R v Ministry of
Agriculture Fisheries and Food ex p. National Farmers Union.49 There, the judge
warned against the “widespread tendency ... to overburden the court
with docu- ments and argumentative affidavits.”50 The material
supplied satisfied the strict foundation principle.
(b) Judicial review and hearsay
[35] Alternatively, Mr Thorne submitted, a proper reading of the authorities suggest that the strict principles governing the admissibility of evidence, which are applicable in trials, are not necessarily to be adhered to in judicial review procee d- ings. Support for this is to be found in the decision of the Court of Appeal of En g- land and Wales in R v Secretary of State for the Home Department, ex parte Rah-
man.51 There, the court held that, in determining whether a person was an illegal
entrant on an application for habeas corpus, the court could take into
account all the material on which the Secretary of State had
legitimately relied
on in reaching his decision, and was not confined to considering only such
evidence as was pre- sented in strictly
admissible form. The court could
therefore take into account hearsay evidence, as the Secretary of State was
entitled to do, while
making the appropriate allowance for the weight it
attached to that evidence. Having referred
47 Seaforth 1st, paragraph 2.
48 Seaforth 1st, paragraph 1.
49 [1995] 3 CMCR 116.
50 At page 118.
to several speeches from R v Secretary of State for the Home Department, Ex parte
Khawaja,52 Hobhouse LJ said:53
[t]he tenor of all these quotations which I have made from the speeches is
the acceptance of evidence which does not necessarily
meet the criteria of
admissibility for a court conducting a trial. It is implicit that the court can
take into account all relevant
material making appropri- ate allowance for the
weight which is to be attached to it which, of course, does not exclude the view
that certain evidence should be disregarded if it not worthy of any
weight.
The rationale behind this principle, Mr Thorne submitted is that the court in
judi- cial review proceedings performs a supervisory
jurisdiction to determine
whether the conclusion reached by the respondent was reasonable. It is not a
trial of fact, as is the case
of a writ action involving a dispute of
fact.
[36] The decision of the England and Wales Court of Appeal in
Alliance Against the Birmingham Northern Relief Road & Ors v Secretary of
State for the Environment, Transport and the Regions
& Midland Expressway
Limited 54 provides further support for this approach. There Lord
Woolf said:55
In any event it is not inappropriate in an affidavit in op- position to an
application for judicial review or an appli- cation to
quash a statutory
decision to refer to hearsay. It happens regularly and is encouraged by the
courts to en- able respondents to place
information which would not otherwise be
available to the court of which the court should be aware before it reaches it
decision.
To like effect, Mr Thorne further submitted was the decision of Stephen
Richard J in R v London Borough Council of Camden , Ex Parte
Adair,56 where the learned judge said:57
The position is complicated by the fact that there is some indirect evidence
that Ms Kazumba had already received additional information
from the DHO ... I
appreciate that this is hearsay and must therefore be treated with con-
siderable caution, but in an application
of the present na- ture I do not think
that it has to be left altogether out of account.
[37] In the present case, Mr Thorne told me, my function is to
supervise the decision of the Ministry of Planning in determining that certain
outdoor adver-
52 [1984] AC 74.
53 At page 176.
54 EWCA, QBCOF 98/1421/4, Transcript.
55 Transcript, pp 6 to 7.
56 (1997) 29 H.L.R 236
57 Ibid, p.247.
tisements (quite apart from satisfying certain criteria) were illegally placed on State lands. The Minister of Planning and Development made her decision relying on Mr Seaforth’s identification of the land. Mr Seaforth indicated that the method
of identification was by using maps and surveyor data.58 It was not for the Minister of Planning and Development to have brought before her the maps, plans and sur-
veying data Mr Seaforth had relied on, which according to Mr Heffes-Doon and
Mr Dass, here is necessary for trial proceedings. In
this action, the court is
only here to supervise the Minister’s decision in the face of receiving Mr
Seaforth’s expertise
and his access to records, which are in the
State’s possession. That form of hearsay, Mr Thorne said, is more than
acceptable
in these judicial review pro- ceedings, where the Minister’s
decision is subject now to judicial supervision.
[38] I do not accept this submission. The purpose of Mr.
Seaforth’s evidence is to assist me in determining whether or not the
hoardings
were erected on the road reserve which the respondent has submitted
gives the power to direct their re- moval. It would have been
helpful had the
maps and plans been presented in evi- dence so I could have better assessed his
evidence. Additionally, this is not
a case of drawing on materials from other
experts in one’s field but the work of experts in another field. As Mr
Seaforth admitted
the demarcation would have been done by a land surveyor while
he served as an Engineering s urveyor. Having admitted that demarcation
of
boundaries was outside his expertise I cannot accept his creden- tials or those
of Mr Jones are sufficient to satisfy the foundation
evidence princi- ple. In
the premises, I find that the evidence of both Mr. Seaforth and Mr. Jones as to
what constitutes “road
reserve” is inadmissible.
(c) The applicants’ affidavit evidence breaches the
“foun- dation” principle regarding their effort to prove
the le- gal
interests in the land, of those persons from whom they say they leased the
land
[39] I have already noted the law relevant to this area. On the
evidence the ap- plicants have merely exhibited lease agreements which
name
specific individuals as the owner of the property upon which the advertisements
was erected. There is nothing to suggest that
the applicants have personal
knowledge or undertook any investigations to verify the ownership of the
properties. According, I find
that the Chaitlal principle has not been
satisfied.
4. The substantive proceedings
4.1 Background
[40] I have already set out the nature of the substantive
proceedings. In sum- mary, this action arises out of a decision by the
Minister
to demolish existing hoardings owned by the applicants. This decision
was taken having refused the applicants request for permission
to maintain these
hoardings. Refusals were based on a policy document establishing the criteria
for outdoor advertising, a
58 Seaforth 1st, paragraph 4.
document in respect of which the applicants through their Association were
con- sulted during the initial stages.
4.2 Issues
[41] The issues for determination in the substantive proceedings are:
1. Did the Minister have the power to order the demolition of the
hoardings?
(a) Did the Minister have the power to order the demolition of the
hoardings?
[42] The principal issue for determination is whether the
Minister had the power to order the removal of the hoardings. Counsel on
both
sides has submitted their interpretation of what they conceive to be the
relevant sections and regula- tions. Mr Hosein SC submitted
that based on
§16 of the Act the respondent had no power to order the removal of the
hoardings for two reasons:
1. The hoardings had been erected more than four years prior to the
decision.
2. The enforcement procedure had not been observed.
[43] In response the respondent contended §16 was not
applicable on the facts of this case. It deals with the enforcement of planning
control and provides:
(1)If it appears to the Minister that any development of land has been
carried out after the commencement of this Act without the
grant of permission
required in that behalf under this Part, or that any conditions subject to which
the permission was granted in
respect of any de- velopment have not been
complied with, then the Minis- ter may within four year of the development being
car-
ried out, or in, case of non compliance with a condition, within four years
after the date of the alleged failure to comply with
it, he considers it
expedient to do so having regard to the provisions of the development plan and
to any other material considerations,
serve on the owner and occupier of the
land a notice under this section.
...
(4)When within the period mentioned in subsection (3), an application is made
to the Minister under this Part for permission-
For the retention on the land of any building or works to which the
enforcement notice relates; or
For the continuance of any use of the land to which the enforcement notice
relates, the operation of the en-
forcement notice shall be suspended pending the final determination of the
application and if the permission applied for is granted
on that application,
the enforce- ment notice shall not take effect.
...
[47] This is an important section which provides certain
safeguards before a development could be removed. As such the relevant
question
was whether the hoardings in this case could be considered a
development. Section 2 of the Act provides that development is given
the meaning
ascribed to it by §8. Section 8 (3) addresses advertisements and
states:
(3)Without prejudice to any Regulations made under this Act relating to the
control of advertisements, the use for the display of
advertisements of any
external part of a building that is not normally used for that purpose shall be
treated for the purposes of
this section as a material change in the use of
that part of the building.
Essentially the purport of this section is that where advertisements
constitute a material change in the use of the building then
it is considered a
development and would be entitled to the safeguards provided for in §16 of
the Act.
[49] The Applicants posited that the hoardings were developments
since adver- tisements may be a structure, any structure is a building
and
development includes the carrying out of any building operation: §2 of the
Act. The Respondent’s sub- mission is a
simple one: the absence of the
inclusion of the phrase “any other land” means the simple
erection of advertising
hoardings on land without more would not make
it a development of land.
[44] I find that advertisements may be developments within the meaning of §8 of the Act but not for the reasons advanced by the applicants. Subsection 3 clearly refers to a change of purpose of the external part of a building. The ordinary natu- ral meaning of the word “external” is “outside of” and therefore it is no cons e- quence that the legislation does not mention “any other land” since outside the building would be the land. Further, in my view the erection of hoardings would be an unusual purpose for the external part of a building, which would suffice to categorise it as a development under the Act.
[45] The evidence of the Respondent is that her authority to act
is as follows:59
Further examination and interpretation of the Town and Country Planning
(Control of Advertisements) Regula- tions revealed that
removal of
unauthorised advertise- ments did not require enforcement proceedings. These
regulations authorised the Honourable
Minister to re- quire the removal of
any advertisement being displayed without his express consent ... accordingly,
it was decid-
ed that a notice should be published in the Guardian
59 Deborah Thomas, paras 32-33.
Newspaper advising that outdoor advertisements dis- played without the
express consent of the Honourable Minister had to be removed
within 14 days
...
[46] I note these regulations are made under §21 of the
Act, which basically gives the power to make regulations for the control
of
advertisements. It is clear there are two schemes which govern advertisements
that is, advertisements which are considered developments
and advertisements
simpliciter. However, the only evidence that the applicants have produced is
that these hoardings had been erect-
ed on private lands. There is nothing that
can substantiate a material change in use. Therefore, I find that the hoardings
on the facts cannot be regarded as devel- opments and therefore attract
the safeguards provided by section 16 of the Act.
[47] Section 16 of the Act provides for the service of a notice
within four years of the development. The evidence of the applicant which
has
not been disputed is that the hoardings removed were in existence of over four
years, however, as based on my findings (above)
this fact did not exempt these
structures from re- moval.
(b) Were the principles of natural justice observed in the removal of the
hoardings?
[48] Having found that the Minister had the power to order the
removal of the- se structures it is necessary to consider the relevant
regulatory
procedure to ena- ble removal and whether it was observed in this
case.
[49] Regulation 15 of the Town and Country Planning (Control of
Advertise- ments) Regulations provide:
Without prejudice to any penalty elsewhere prescribed, the Minister may
require-
The removal of any advertisement being displayed; or
The discontinuance of the user of any site being used for the display of
advertisements
Where the display or user is in contravention of the pro- vision of these
regulations.
[50] Regulation 2 specifically provides that the express consent
of the Minister is necessary for the erection of advertisements. The applicants
have all accepted that the Minister’s consent was refused with respect
to their different applic a- tions. So it cannot
be in dispute that the
Minister’s power to require the removal had arisen.
[51] In so requiring the removal it would be necessary for the
Minister to notify the defaulters that they are in contravention of the
Regulations. There are no spe- cific regulations which address such
notifications either in substance or form how- ever some help
may be obtained
from §21(d) of the Act. This basically provides that Regulations may be
made to enable the Minister to require
the removal of ad- vertisements and for
that purpose the provisions of the Act to wit enforcement
notices may be applied subject to such adaptations and modifications
specified in the Regulations.
[52] As earlier noted, the Regulations are silent on the issue
of enforcement notices, however, it is clear from §21 that removal
was a
draconian remedy and notice had to be given. Additionally, it was envisioned
that such notice would not substantially differ
from that provided in §16.
I do not accept the respondent’s submission that the Minister, having
failed to specifically
make regulations to ad- dress the issue of notice can now
seek to benefit from that and assert that a news- paper publication was
effective.
[53] Counsel for the applicant has urged several authorities on
the interpret a- tion of delegated legislation to the effect that it cannot
be
construed to have dra- conian interference with individual rights. With
respect, I find these submissions unhelpful. No regulations
were made as to how
the Minister might require remov- al. And one cannot suggest that the Minister
simply in publishing a notice
was at- tempting to make this the
regulatory procedure.
[54] The pertinent question therefore becomes, in the absence of a regulatory framework was the newspaper publication sufficient to protect the natural justice rights of the applicants. In Council of Civil Service Union v. Minister for the Civil Service60 Lord Mustill underscored the need to act fairly when he stated obiter, if
the power was derived from a statute then the Minister exercising delegated pow- er would be subject to an obligation to act fairly, as with the present case. The du- ty to act fair is not an objective test but varies according to the peculiar circu m- stances. Lord Mustill in another case, R v Secretary of State for the Home Secretary
ex parte Doody61 noted that the particular circumstances must be viewed in the context of the statute which creates the discretion both its language and the shape
of the legal and administrative system within which the decision is taken
.
[55] In this case the applicants through their Association were
invited to vari- ous consultations on an appropriate policy to regulate
outdoor
advertisements. Moreover, each application was individually considered and
likewise notified of the reasons for its refusal.
[56] It is necessary to remember in judicial review proceedings
that the court is merely reviewing the decision and not substituting its
own.
In all the circum- stances, the applicants were given an opportunity to be heard
before the decision was made. However, though
the regulations give the Minister
a discretion as to how she may require the removal, the method chosen must be
regarded as reason-
able. The Minister opted to run the notice in one daily
newspaper in a country where there are three daily newspapers. Additionally,
this advertisement was only placed once, which further reduced the probability
of it reaching the attention of affected parties.
The applicants have given
evidence previous Ministers had served individual notices and though I offer no
comment on the correctness
of the
60 (1985) AC 374.
61 [1993] UKHL 8; (1994) 1 AC 531 @560
method used, the probability of actual notice in the present circumstances
was minimal and as such unfair in the circumstances.
(c) Whether the applicants had a legitimate expectation to be
consulted on the final policy, having been consulted on the interim
policy
[57] The Applicants submitted that, having been engaged in
various dialogue and consultation with the Ministry, it was reasonably to be
expected there would be continued consultation and discussion with a view to
clarifying the issue with respect to the criteria to
be employed when dealing
with the applicant’s hoard- ings. This expectation is premised on a
promise made during one of the
consulta- tions. This the respondent has
disputed. There being no minutes of these consul- tations it is a case of hard
swearing.
[58] There is no statutory requirement for any consultations in
the develop- ment of policies relative to the criteria to be used when
granting
consent for the erection of advertisements. Therefore, the Applicants’
claim was premised on (1) the long history
of collaboration and consultation
between the parties and (2) an admission by Dr Thomas that, at the last meeting,
an agreement was
arrived at in principle to continue to dialogue if it was
necessary to clarify issues with respect to applications for planning permission
to retain existing advertisements and adve r- tising structures which had been
submitted since August 2003.
[59] In Council of Civil Service Unions, the House of Lords noted that legitimate expectation may arise either from an express promise on behalf of a public authori- ty or from the existence of a regular practice which the claimant can reasonably expect to continue.62 The evidence of Dr Thomas can best be described as a quali-
fied promise, of course there being no statutory requirement for consultation
it was clearly within the purview of the Ministry and
its representatives
whether fur- ther consultation was necessary.
[60] Though the last document seen by the Association was
intituled draft document, the applicants through the Association were given
an
opportunity to give its views. From the evidence, it is clear that these views
were at variance and naturally the Association,
in seeking to protect the
interest of its members would have liked a compromise position. However, having
failed to point to any
source of such a right I find that the consultations
undertaken did not create any legit i- mate expectation either of further
consultations
or a final policy which would be based on compromise.
5. Disposition
[61] It is therefore ordered that the applicants be granted the
following relief:
62 [1985] AC 374, 401.
Dated this 24th day of April
2012.
David A Myers
Judge of the High Court (Ag)
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