– M&CC seeks legal advice on way forward
Minister of Communities Ronald Bulkan acted unlawfully in his approval of the Parking Meter by-laws.
This is the ruling that Justice Nareshwar Harnanan handed down on Friday, pointing out that it was not done in compliance with provisions of the Municipal and District Councils Act, Chapter 28:01.
Justice Harnanan had presided over a challenge by the New Building Society Limited (NBS) mounted against the city’s metered parking by-laws which it contended was illegal.
Attorney-at-Law Ms. Pauline Chase represented the New Building Society Limited (NBS), the Applicant. The Minister of Communities, Ronald Bulkan, the respondent was represented by the Attorney General’s Chambers.
Attorney-at-Law Mr. Roger Yearwood represented the Town Clerk on whom the proceedings were ordered to be served. Attorney-at-Law Mr. Stephen Fraser represented Smart City Solutions (SCS) who upon application were permitted to submit legal arguments as an interested party.
Justice Brassington Reynolds, had on February 8, ordered that an order or rule nisi certiorari be issued to the Minister of Communities to show cause why a writ of certiorari should not be issued to quash his approval and/or decision to approve the Parking Meter by-laws made under the Municipal and District Councils Act, Chapter 28:01 made on or about January 23, 2017 in that the said approval or decision to approve was of no legal effect and was made unlawfully and in breach of the statue.
The order would have resulted in a temporary halt to all activities related to the project.
NBS had argued that the decision of the Minister of Communities to approve the by-laws was unlawful since Notice of the M&CC’s intention to apply for approval of the by-laws was not published prior to the Minister’s approval in accordance with the Municipal and District Councils Act.
Minister Bulkan had signed the by-laws on January 23, 2017 after they were approved on December 13, 2016 at a statutory meeting held by the Council.
Justice Harnanan who took over the matter earlier this year after a procedural change of Bail Court Judge, on Friday ruled in favour of NBS granting the company costs in the sum of $150,000.
On December 24, 2016 via a press statement, City Hall signaled its intention of applying to the Minister of Communities for confirmation of the parking meter by-laws.
The Court however ruled that this press statement did not satisfy the provisions of the Municipal and District Councils Act. The Act requires that a Notice be published; not a press statement. The Court also found that the articles which appeared as a result of the press statement, and upon which the Minister of Communities and Town Clerk relied, treated parking meters as a foregone conclusion and did not inform the public that they had an opportunity to object to the by-laws.
The Court ruled that the decision of the Minister to approve the by-laws by vitiated and the order nisi be made absolute.
From the outset, Chief Executive Officer of NBS, Anil Kishun said he believed that the approval was null and void and of no legal effect since it was done in violation of the Municipal and District Councils Act.
In support of this contention, Kishun said that he was advised by his lawyer that the notice of intention to apply for the Minister’s approval for any by-laws made under the Act must be published in accordance with the Act not less than 14 days before the application is made.
Kishun further contended that this was not done and therefore the provisions of Section 305 of the Act were not followed.
The NBS brought the action as an aggrieved party, since parking meters were placed in front of its North Road and Avenue of the Republic, Georgetown location. It is the company’s belief that such a move is disadvantageous and adversely affects and destroys the system and investment it has made in the new location. More importantly, the financial institution also contended that its housing mortgage business, which is the core of its operation, with in excess of 10,000 mortgagors, will be adversely affected.
The company believes that the installation of parking meters will result in monthly loan repayments being delayed and this does not augur well for the profitability of its business. The company says it stands to lose since built-up arrears will become burdensome for the liquidity of its operations.
The M&CC through representation by Attorney-at-law Roger Yearwood on the other hand claimed that the NBS has unlawfully encroached on a public place within the control of the M&CC.
Additionally, the City Council contended that it has the authority to erect and maintain parking meters and regulate the parking of vehicles.
The M&CC says that NBS’s argument lacks merit and as a responsible corporate citizen, as it purports to be; it should have looked at the way it constructed its building.
M&CC had argued that it is not responsible or can be saddled with catering for the parking of NBS employees and customers.
After delivery of the judgment of the Court, neither the Minister of Communities nor the Town Clerk, through their respective Attorneys-at-Law signaled their intention in Court to appeal.
The M&CC has since issued a press statement noting the decision of the Court and notifying that they are consulting with their Attorneys-at-Law on the way forward.
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