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Constitutional Court of Seychelles

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Constitutional Court of Seychelles CONSTITUTIONAL COURT OF SEYCHELLES Reportable [2020] sccc q.f6 CP 07/2019 In the matter between ASSEMBLIES OFGOD Petitioner (rep. by Mr. Anthony Derjacques) ------~And ------ ------- THE ATTORNEY GENERAL (representing the Government of Seychelles) 1st Respondent (rep. by Mr. George Thachett) THEATTORNEY GENERAL 2nd Respondent (rep. by Mr. George Thachett) CHANTAL ROSE 1st Intervener (rep by Basil Hoareau) WILLIS LESPERANCE (rep by Basil Hoareau) 211<1 Intervener 1 Neutral Citation: Assemblies of God \I Attorney General (CP07/20 19) [2020] SCCC 0(:;-622 December 2020 Before: Govinden cr, Burhan J and Dodin J Summary: Constitutional law: A declaration that the decision of the 15t and 2nd respondents, that the petitioners said project stands cancelled, contravenes Article 26 (1) of the Constitution with respect to the Petitioner etc: claim of infringement of right to freedom of conscience and religion, and right to property: whether or not the refusal to approve building plans constitutes an infringement of these rights: three preliminary objection raised by Attorney General: first two objections upheld, namely, that the petition was filed out of time without any application requesting leave to file the petition out of time; the court is not empowered to grant leave where none has-been-sought: the-second-o b-jeet-iOn,-n.amoly-that-the j3etition€f.S-.-ha\le--aI~I----_ alternative remedy injudicial review upheld. The petition is dismissed. Heard: 15th September 2020 Delivered: 22 December 2020 ORDER In the circumstances, the following order is made: (a) The first and second objections by the Attorney General are upheld. (b) The petition is dismissed (b) No order is made as to costs. 2 JUDGMENT OF COURT BURHAN J (Govinden CJ and Dodin J concurring) unsuccessful requests to Government to get tlie land exchangecnor one situated in a mixed use designated area. [2]In keeping with its goal to build a church at Baie St Anne, the Assemblies submitted building plans to the Planning Authority on 25 August 20 16. This application was rejected on 20 December 2016, on the basis that the proposed development would lead to noise pollution to the disadvantage of neighbouring properties, and that the parcel in question was earmarked solely for residential use. In the rejection letter, the Assemblies was informed that it could appeal the decision with the Minister within 30 days. [3] The Assemblies appealed this decision with the Minister of Land Use and Habitat on 18 January 2017, stipulating, inter alia, that they had operated the church in a corrugated shed for over 12 years with no formal complaint about noise pollution from the police or Environment Department. They stated that the building material they intended to use would reduce noise pollution and so noise would be controlled. They also highlighted the many other churches in Seychelles that had been granted permission to build in highly populated residential areas before, whereas the closest house to their plot was well over five meters away and the adjacent plot was separated from theirs by a wall over 1.8 meters high. Based 3 on these and other representations, they submitted that the reasons for refusal of their plans were unfair and showed that no appraisal was done of their application. [4] On 29 May 2017, the Minister dismissed the appeal. No reasons were provided for the dismissal. The refusal letter simply stated: "your appeal was considered by the Minister under the powers vested in him by the Town and Country Planning Act. The Minister consulted on the issue with persons appointed by him to inquire in the matter. However .. ... the Minister has upheld the refusal of the application. " [5] It appears that engagements followed between the Assemblies, Planning Authority and the Ministry regarding the possibility of the Assemblies submitting a new application with a sound proof design after the appeal was dismissed. This is reflected in a letter from the Planning Authority to the Assemblies dated 21 January 20]9. However, this application ~-.::~==------was-Ret-.fGl:tAGem.I.I+g-aJ:l .-t. e-~l;)l:~e£-Co.n.tul,u.e w..iI~cl:LSeL~In rlIeiener, the Planning Authority suggested that the church services were being operated illegally. Planning Authority also informed the Assemblies that it had received "many complaints" of unacceptable noise levels. The Planning Authorities put the Assemblies on terms, stating that it had 30 days within which to submit a fresh application to build a church on the plot. The letter further demanded that "all noise levels be reduced to an acceptable level" and warned that "failure to comply ... will result in immediate closure of all non-residential activities" on the parcel. [6] After this letter, the Assemblies lodged the current petition against the Ministry of Habitat, Infrastructure and Land Transport together with the Town and Country Planning Authority, the respondent, represented in these proceedings by the Attorney General, seeking to enforce their religious and property rights.The petition was filed on 19 April 2019. The Petition [7] 1n the petition, the Assemblies alleged that their right to property under Article 26(1) and its right to freedom of conscience under Article 21(l) had been contravened by the respondent. In particular, that the respondent's refusal to approve the building plans it had 4 submitted on August 2016 and dismissal of their appeal on 27 May 2017 prevent them from: (i) peacefully enjoying its property in an appropriate, dedicated and official church and church premises; (ii) developing its property and pursuing the build project; (W) providing its congregation with a properly built area for peaceful worship, contravening their right to manifest, propagate, worship, teach, practice and observe their religion. [8] The Assemblies also complained that the respondent's acts and decision were discriminatory because other denominations had been granted permission to construct their lm1·ch~S"illhi-glrlY1Yuputate·d-aTea:s:-T-trey:cited.,amongst-others;-a-mut)e-sgae-Beeu-Fend~---• Lane at Mont Fleuri, Mahe; the Baha'I Community Centre at Anse Boileau; the Roman Catholic Church at lie Perseverance, Mahe.In the Assemblies' view, the respondent's decision was discriminatory because they conducted activities and services in the same manner as some of these denominations. [9] In addition, the Assemblies alleged that the respondent's decision was arbitrary, irrational, harmful and had no legal basis.This is no doubt a complaint properly made in judicial review proceedings, and not in petitions of this kind. The Assemblies prayed for the following orders: "(a) A declaration that the decision of thefirst and second Respondentsthat the petitioner's said project stands cancelled, contravenes Article 26(1) of the Constitution with respect to the Petitioner; (b) A declaration that the decision of thefirst and second respondents, as stated on 20 December 2016, with respect to cancelling the said project and withholding permission, contravenes Article 26(1) and 21(1) of the Constitution, with respect to the said Petitioner; (c) An Order compelling thefirst and second Respondentsto consider and consent and consent and allow the Petitionerto develop the said project; 5 (d) Any Order that may meet thejustice of this case; (e) An Order of special damages in the sum of SRSOO000 and costs to the Petitioner." [10] On behalf of the respondent, the Attorney General filed a defence to the petition raising three objections and responding to the merits. The Preliminary Objections [11] In the first objection, the Attorney General submitted that the petition was barred by prescription as set out in Rule 4 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules and the Petitioner had not sought leave of the court for filing the petition out of time. fl2J---In the second-preliminary object-tcn-,tfie-AttorneyGeneral-submits that-the-Assemblies bavec-------- not availed adequate means of redress available under law. In this regard, it stated that the refusals of both the planning application and the appeal were lawful and justified, and became final, and that the Petitioner has not challenged these in any forums within statutory time limits. In essence, the Attorney General's view is that the Assemblies was supposed to file judicial review proceedings to unsettle the refusal of its appeal. [13] In the third objection, the Attorney General averred that there is no violation or likely contravention of any of the Petitioner's constitutional rights and that no prima facie case of breach has been established. Regarding the merits [14] The Attorney General agreed with the Petitioner's version regarding the background resulting in the petition. However, in respect of the refusal of the application and appeal, the Attorney General submits that the refusal was justified. The Attorney General also alleges that the Petitioner is guilty of noise pollution and has continuously contravened an enforcement notice issued by the Planning Authority. [15] The Attorney General denies the claim of breach of the Petitioner's right to property and freedom of conscience. According to the Attorney General, the Petitioner's right to develop 6 or enjoy its property and to exercise its freedom of conscience in accordance with the law, in a suitable place is well established, but it has to do so in a manner that does not infringe the rights of others.Further, the Attorney General has denied that the refusal was discriminatory, irrational or arbitrary. The refusal of the planning application was taken after wide consultations in the area, and with various authorities. Accordingly, the Attorney General has requested that the petition be dismissed. [16] This court by its order dated 26th November 2019, permitted two persons residents of Praslin Chantal Rose and Willis Lesperance to intervene in this application.
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