Development of land or construction of a building for use as a place of public worship: Approval of Minister required

Supreme Court Judgment

In the matter of Full Gospel Church of God v. The Pamplemousses-Riviere du Rempart District Council (the ‘Council’) & Anor. dated 05 October 2015, the Supreme Court has ruled that the approval of the Minister of Local Government is required in accordance with the Local Government Act before proceeding with the development of land or construction of a building for use as a place of public worship.

Full Gospel Church of God had lodged a judicial review of the decision of the Council revoking the Building and Land Use Permit (BLUP) issued to it for the construction of a “school of Bible” on land owned by the Church at Baie du Tombeau. The application for judicial review had been lodged against the Council in the presence of the Minister of Local Government and Outer Islands as Co-Respondent.

By way of background, the Full Gospel Church of God had obtained a building permit from the Council for the construction of a “school of Bible” on 1 June 2011 and it contended that construction had reached an advanced stage in March 2012 when the Council informed the Church that the building permit had been revoked. The reasons given for such revocation was that the building permit has been issued in contravention to the law prevailing then and the Minister’s approval was not sought nor obtained as was required under Section 98 (7A) of the Local Government Act 2003.

It seemed that the Council had wrongly issued the building permit to the Church and it revoked the permit in order not to perpetuate its own illegal action. The Full Gospel Church of God sought to contest such revocation. The basis advanced by the Council for the revocation was that the building was to be used as a place of worship to the extent that paragraph 1.3 of the Planning Policy Guidance issued by the Minister, and which is binding on the Council defines a place of worship as including places where religious instructions associated with the faith are carried out. The Full Gospel Church of God sought to argue that the policy guidance did not have any legal bite and therefore, the “school of Bible” was not encompassed in the place of public worship.

Judges A. F. Chui Yew Cheong and A. Hamuth took the contrary view in the light of the legal status bestowed to planning policy guidance by the Planning and Development Act 2005 and they ruled that pursuant to the law applicable at the material time (being section 98 of the Local Government Act 2003), the prior written approval of the Minister is a requirement before a building permit could be issued for the above matter The Council was therefore right in revoking the building permit which it had issued despite the fact that the Full Gospel Church of God had advanced that it had already incurred substantial expenses.

Justices Chui Yew Cheong and Hamuth concluded: “After having considered all the matters placed before us by way of affidavit evidence, we have come to the conclusion, after reviewing such decision in the light of the above-quoted statutory provisions, that the respondent had no alternative but to revoke the BLUP wrongly issued by it to the applicant, in order not to perpetuate its own illegal action in not complying with the law in the sense that the Minister’s written approval had not been sought nor obtained before issuing the BLUP in question.

“True it is that the applicant may have been misled and has on the strength of the BLUP issued by the respondent embarked on a course of action which has resulted in its allegedly incurring substantial expenses.

“However, given the nature of its claim for damages and the fact that both the stage which the construction had allegedly reached as well as the amount claimed are disputed, the applicant’s claim for damages would more properly be the subject of differently initiated proceedings before the competent court where the contradictory versions of the relevant parties may be tested in cross examination. This Court would not be in a position to determine the same on hotly contested affidavit evidence.”

 

  • Published in print edition on 9 October 2015

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