Silly Creek Estate and Marina Company Ltd v Attorney General of Turks and Caicos Islands (Turks and Caicos Islands)

A commercial settlement or Crown lease made in the Crown’s capacity as landowner is a private-law transaction. It is not a planning decision and cannot itself grant development permission, authorise construction, or bind statutory decision-makers.

Permission to subdivide land under the Physical Planning Ordinance 1998 s 29(c) permits only division into parcels. It does not determine later applications for outline or detailed permission. A statutory planning discretion cannot lawfully be fettered. The documents created neither a legitimate expectation of permission nor a constitutional property right to a favourable planning outcome.

Silly Creek Estate and Marina Company Ltd claimed damages from the Attorney General for alleged breaches of a 2006 Settlement Agreement and a 99-year Silly Cay Lease. The company contended that the documents themselves granted development permission, or alternatively created a legitimate expectation and constitutional property right that its proposed residential development would be permitted.

The Chief Justice dismissed the claim. The Court of Appeal allowed the company’s appeal, held that the Governor had approved the proposed type of development, and remitted the question of compensation. The Privy Council considered the legal effect of the documents, the statutory planning discretion, and the company’s constitutional claims.

1. Appeal allowed. The Settlement Agreement and Silly Cay Lease were commercial transactions made by the Crown as landowner. They were not decisions under the statutory planning code, grants of development permission under the Physical Planning Ordinance 1998, or determinations by the Governor under the National Parks Ordinance 1975.
2. The December 1994 permission was permission to subdivide under s 29(c) of the Physical Planning Ordinance 1998. It permitted division into parcels or lots. It did not authorise construction or predetermine a later application for outline or detailed development permission. The 1994 application was fully determined and no relevant application remained outstanding in 2006.
3. The Governor’s statutory discretion could not lawfully be fettered by the agreements. It remained exercisable, subject to statutory constraints, when a relevant application was made. The Board applied the principles in Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500, Cudgen Rutile (No. 2) Pty Ltd v Chalk [1975] AC 520, and related authorities.
4. The Board assumed, without deciding, that s 4(1)(a) of the National Parks Ordinance 1975 extended to permission to subdivide. The discretion was tightly constrained by public recreational enjoyment and the paramount requirement that development be kept to the minimum consistent with reasonable public access and enjoyment. Private residential development of the proposed kind was extremely unlikely to satisfy those requirements. If clause 1 purported to grant such permission, it was void, and the Settlement Agreement itself would also be void because it could not be severed by a blue-pencil exercise.
5. The Court of Appeal was entitled to entertain the pleaded constitutional claim. The Attorney General had addressed it and suffered no prejudice, and constitutional redress was not an exclusive procedure.
6. The agreements created no legitimate expectation. Any representation capable of doing so had to be clear, unambiguous and devoid of relevant qualification. The documents preserved the need for future statutory approvals and could not lawfully bind the planning authorities. Even if an expectation had arisen, departure from it would have been reasonable and proportionate in the public interest.
7. The applicable property protection was found in the 2006 Constitution, since the alleged rights arose in 2006. Neither the agreements nor clause 1 created a protected possession or a constitutional right to a favourable planning decision. Lawful statutory control of land use remained permissible.
8. The Board could discern no private-law breach. The damages issue was remitted to the Supreme Court for determination.

• Privy Council: Appeal from the Court of Appeal of the Turks and Caicos Islands allowed.
• Court of Appeal of the Turks and Caicos Islands: Order dated 5 February 2019 allowed the company’s appeal from the Chief Justice, entertained the constitutional property claim, and remitted compensation issues.
• Supreme Court of the Turks and Caicos Islands: The Chief Justice dismissed the company’s claim for damages.