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Save Guana Cay Reef Association v The Queen

[2009] UKPC 44

Court: Privy Council
Date of Judgment: 17.11.09
Ruth Jordan

The appellant association (S) appealed against a decision of the Court of Appeal of the Bahamas upholding the refusal of its application for judicial review of the respondent Government of the Bahamas' approval, in principle, of a proposed development in an area known as Guana Cay.  The proposed development had far-reaching economic, social and environmental consequences. It involved large-scale infrastructure projects, both on land and in the sea. Some of the development land was Crown and Treasury land. The agreed issues for decision concerned public consultation; the effect of the heads of agreement entered into by the government giving approval to the development; irrationality and the fettering of discretion; the judge's refusal to make orders for discovery and for the cross-examination of some of the Government's witnesses; and the submission that the judge could not be regarded as an impartial and independent tribunal because he had been appointed on a temporary basis, the Government was at the time in default in failing to review judges' salaries, he had been a senator in the governing party and the proceedings were perceived as politically sensitive.

Appeal dismissed. (1) While no doubt the consultation process could have been improved on, its imperfections did not render it inadequate. (2) While it was regrettable that the Government had proceeded with the granting of leases and licences while the Court of Appeal was still seised of the matter, its signing of the heads of agreement had not involved an excessive exercise of its official powers. (3) The decision to approve the proposed development had far-reaching consequences, was eminently one to be taken at a very high level by democratically elected representatives, and was one with which the court would be very slow to interfere. It required an overall strategic plan, and the putting into place of the heads of agreement involved no improper fettering of discretion. (4) While it was regrettable that the judge had given no reason for his refusal to make orders for discovery and cross-examination, orders for discovery and cross-examination were exceptional in judicial review proceedings and the judge's decision was well within the scope of his discretion. (5) The assertion of apparent bias was rejected.

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