Made on behalf of the
Claimants
Witness: G Bossino & S
Harrison
1st Statement of
Witnesses
Exhibits: C1-2
Dated 19th
January 2006
In The Matter of an Application for Judicial Review
BETWEEN
(3) GINO BOSSINO
-and-
DEVELOPMENT AND PLANNING COMMISSION
-and-
OEM ROSIA
DEVELOPMENTS LIMITED
First Interested
Party
-and-
Second Interested Party
__________________________
We the Claimants (2) Steven Harrison and (3) Gino Bossino of 1 and 4 Rosia Cottages respectively, SAY AS FOLLOWS:-
1.
We are leaseholders/or joint leaseholders owners of 1
and 4 Rosia Cottages and are quite independently members and Committee member
of the South District Association (“the SDA”) and we make this Witness
Statement on our behalf in support of the Claimants request for Judicial Review
in this action.
2.
We make this Witness Statement from matters within my
own knowledge which matters are true. Where matters are not within my own
direct knowledge we set out the sources for my information and belief and those
matters are true to the best of our knowledge, information and belief.
3.
We make this Witness Statement in support of the
Application for Judicial Review instituted on behalf of the Claimants who have
supported the SDA and are members thereof.
4.
The SDA were formed as a result of concerns expressed
by residents in the South District in relation to a proposed development on the
Rosia Tanks. To varying degrees the Claimants became members and supported the
SDA in its endeavours to lobby support and oppose the proposed demolition and
building on Rosia Tanks. In the period November-December 2005 the residents
including the Claimants were represented by and wrote to DPC through the SDA
and its committee the South District Committee (“SDC”). We rely and adopt the
detailed explanation contained in the Witness statement filed in this action by
the Chairperson of the SDA Gigi Sene (“the SDA Witness Statement”) explaining
the SDA its origins work and involvement.
5.
Now produced and shown to me marked C1 is a true copy
of a lease between The Governor His Excellency Admiral Sir Hugo White Governor
of Gibraltar on behalf of Her Majesty the Queen and Steven and Monica Harrison
the former being one of the Claimants dated the 10th February 1997
(“the Lease”) granting a lease for 99 years to the lessees in relation to
number 1 Rosia Cottages. The leases in relation to Rosia Cottages 4 is in
almost identical format save for dates, consideration paid and terms (which
leases are collectively hereinafter referred to as “the Leases”).
6. The plan attached to the Leases shows the location of the Cottages and the proximity to the proposed development site Rosia Tanks (“Rosia Tanks”) the subject matter of these proceedings can be clearly seen. In essence our boundary wall (“the Wall”) is common and shared by all the Cottages and Rosia Tanks. The said plan that is now dated does not show that all the Cottages have used with appropriate permissions the Wall as a structural Wall that supports a substantial part or our Homes. In fact the Wall provides support and shelter to our Homes without which part of our Homes would collapse and or destroyed.
7.
The four cottages adjoining the Rosia Tanks were built in 1904/05 as
Married Artisans Quarters and are considered of important heritage value,
together with the surrounding area i.e. Victaulling Yard, Rosia Bay and Parsons
Lodge. This has been manifested by the DPC when they have considered
applications for works affecting the external fabric of the cottages.When we
bought the cottage we knew we were moving into a heritage area and this would
carry some responsibility in maintaining the character and townscape of the
area. Also any developments would be closely scrutinise by the DPC to ensure
the sensitivity of the surroundings is maintained like it has done for the cottages.
THE MATTERS FOR REVIEW
8.
The substantive Application for Judicial Review seeks
the review of the decision (“the Decision”) of the Development and Planning
Commission (“DPC”) taken on or about the 23rd November 2005,
ratified on or about the 7th December 2005 and announced on or about
the 8th December 2005 granting Outline Planning Permission for a
residential development at a site commonly known as “The Rosia Tanks” to a
developer by the name of OEM Rosia Developments Limited (“OEM”).
9.
Given the similarity of issues raised and the fact
that the decisions under review are the same as those raised in SCA Misc 2 of
2006 (“the Heritage Trust Action”) we would respectfully ask that this action
be heard with the Heritage Trust Action.
THE PROPOSED DEVELOPMENT
10.
The proposed development is a residential development
on the site commonly known as the Rosia Tanks. To avoid unnecessary duplication
in these proceedings we rely and adopt the detailed explanation contained in
the SDA Witness Statement explaining the development under the same heading.
11.
It is worthy of noting however that the application
for Outline Planning Permission makes clear that the development amounts to a
development of nearly 21,000 square metres on a site area of 3,300 square
metres involving the development consists of one residential block of two
floors of parking and nine storeys numbering about one hundred and ninety-six
flats. It entails the “part demolition of the present tanks and adjacent
housing. Construction of new residential estate for affordable housing”.
12.
From the drawings annexed to the application exhibited
to the SDA Witness Statement it will be clear that the development envisages
subterranean parking and two/three bedroom flats on a number of floors on the
Rosia Tank inevitably touching on the Wall.
BASIC CHRONOLOGY
13.
The Government announced this project jointly with OEM
on the 12th October 2005.
14.
On that same date the Application for Outline Planning
Permission was submitted.
15.
The actual Application for Outline Planning Permission
was published in the Gibraltar Gazette on the 27th October 2005.
Exhibit me marked GS6 of the SDA Witness Statement.
16.
The deadline for submission of public comments was the
17th November 2005.
17.
On about the 23rd November 2005 Outline
Planning Permission is granted.
18.
On the 20th December 2005 our solicitors
put the DPC on notice that we may be seeking judicial review of the Decision
and seek assurances that no demolition permit will be issued.
19.
On the same day the Chairman of the DPC signs and issues
the permit for 196 residential units.
20.
Demolition permit applied for on or about the 23rd
December 2005.
21.
Hearing of Demolition permit notified to DPC members
on the 11th January 2006.
22.
Our solicitors seek further assurances from DPC with
regards demolition permit on morning of the 12th January 2006.
23.
DPC lawyers reply on the 12th January 2006
advising that no assurances will be given.
24.
12th January 2006 Heritage Trust issues
proceedings for judicial review and threaten injunction.
25.
DPC approves Demolition permit 12TH January
2006.
26.
Heritage Trust seek and obtain injunction 13th
January 2006.
SUFFICIENT INTEREST
27.
As leaseholders under the Leases sharing the Wall with
the Rosia Tanks we verily believe we have a sufficient interest to bring this
Application for Judicial Review. Additionally and in any event as residents in
the area who in the case of Claimant 2 and 4 filed personal objections and
collectively through the SDA filed objections before the DPC within the time
stipulated by the Town Planning Ordinance (“TPO”) we verily believe we have a
sufficient interest to bring this Application for Judicial Review.
THE OBJECTIONS AND CONCERNS
28.
To avoid unnecessary duplication in these proceedings
we rely and adopt the detailed explanation contained in the SDA Witness
Statement explaining the development under the same heading. The SDA letter
outlining those main concerns delivered on behalf of the SDA to the DPC on the
16th November 2005 exhibited to the SDA Witness Statement echo’s our
own objections and concerns.
29.
As lessees
under the Leases in addition to those concerns we also have concerns in
relation to possible infringement of terms of the Leases ;
(a)
Rights to light
(b)
Rights to air
(c)
Rights of shelter
(d)
Rights to support
These rights are expressly
contained and mentioned in the Leases in the Second and Third Schedule.
As can be seen from the
Lease C1 the Second Schedule includes at paragraph 2 the following:
“All rights of shelter and support and all other easements rights and
benefits of a similar nature now enjoyed or intended to be enjoyed by the
Premises including the right of light to all existing windows.”
At paragraph 4:
“The benefit of any covenant entered into by the owners or lessees of
adjoining premises with the Lessor so far as such covenants are intended to
benefit the Premises or the Lessee and so far as the benefit thereof can in law
accrue to the Premises or the Lessee.”
At paragraph 2 of the Third
schedule:
“All rights of light air shelter support and other easements and rights
(but without prejudice to those expressly granted to the Lessee by this Lease)
now and in the future belonging to or enjoyed by the Premises from and over any
adjoining or neighbouring land or building.”
Moreover paragraph 4 of that
Schedule provided:
“Subject to three months prior written notice to the Lessee the right to
build against or tie into or take support from any walls of the Premises PROVIDED THAT there shall be no
diminution in any existing right of the Lessee to light or air or in the
stability of the Premises and PROVIDED
THAT the Lessor shall make good any loss or damage resulting from its
exercise of this right.”
Given
our concerns in the case of Claimants 2 and 3 wrote to the DPC expressing the
same. Now produced and shown to me marked C2 is a true copy
of a the exchange of correspondence between Claimant 1 and the DPC and Claimant
3 and the DPC including its Chairman between the 24th October 2005
and the 15th December 2005.
FAIR HEARING / NATURAL JUSTICE
30.
Here again to avoid unnecessary duplication in these
proceedings we rely and adopt the detailed explanation contained in the SDA
Witness Statement explaining the failure of the DPC to employ fair procedures
or to afford a fair hearing to us as objectors.
31.
We should mention we first heard about the proposed
development on Newswatch on the 12th October 2005.
32.
It is worth noting that quite apart from the request
of all the Claimants through the SDA letter of 16th November 2005
requesting a Public Hearing and an opportunity to address the Commission in
person on our objections Claimant 4 expressly requested such a hearing in his
letter to the DPC dated the 16th November 2005.
33.
The salient points raised in our correspondence common
and relevant to all 2 Claimants are:
(i) No
notice was provided by the Lessor under the terms of the Leases;
(ii) No notice was provided
by OEM to the Claimants as required under section 21 of the Town Planning
Ordinance;
(iii) No opportunity was
given or afforded to the Claimants to make representations to the DPC despite
the DPC being informed in writing of the very serious concerns that the
Claimants had ranging from Heritage and Social concerns to propriety rights
including structural and safety concerns whilst every opportunity was afforded
to OEM;
34.
In reality it was only in a letter of the 15th
December 2005 from the DPC Chairman to Claimant 1 that any of the substantial
issues raised in the said correspondence were addressed and even then the
Claimants will submit unsatisfactorily. This letter was 23 days after the
Decision was taken.
35.
It is worth noting that in that letter the Chairman
recognises that the first proper communication in writing from the Town Planner
was not until the 6th December 2005 that is 13 days after the
Decision was taken and even then it only purported to deal with the procedural
question of whether the applicant had complied with the terms of Section 21 (or
was required to) of the TPO.
36.
In the case of Claimant 3 no reply has been received
to his letter of 16th November 2005.
37.
At no stage did the DPC or Government offer to discuss
these matters with us prior to making the Decision or in fact subsequently to
that.
38.
On the 8th December 2005 the press reported
that the DPC had granted Outline Planning Permission on the Rosia Tanks
development.
39.
We consider that the Government presented a fait
accompli on the 12th October 2005 at its press conference with the
developers. The pace of the planning process and the chronology seems to bear
this out. This we suggest is why there has been a complete failure to adhere to
fair procedures or to the terms of the TPO. Additionally the DPC seemed to
merely endorse the GOG’s decision on 6th December 2005 and its
consideration of public comments.
40.
We were concerned that this would restrict the
discretion or usurp the function of the DPC when the Planning Application was
considered.
41.
This is the reason why we requested a public hearing
through the SDA and in the case of Claimant 3 independently was to be able to
make our representations in person to the DPC. The requests were rejected or
ignored.
42.
In our view the DPC did not undertake a process that
was obviously impartial or independent of Government. In our respectful view
the DPC needed to follow a procedure that very deliberately ensured that there
could be no accusation of lack of impartiality or independence.
PREVIOUS PRACTICE
43.
We are aware that the DPC has granted objectors an
oral hearing in other applications before it in the past.
44.
We verily believe it would have been fair to do so on
this occasion given the nature of our objectors and strength of feeling and the
greater public interest in the Rosia Tanks.
DISCLOSURE
45.
On the 20th December 2005 our solicitors,
Cruz & Co, wrote to the Secretary of the DPC requesting;
(1)
copies of the minutes of all commission meetings;
(2)
the Outline Planning Permission; and
(3)
the reasons for the DPC decision.
46.
The correspondence passing between my solicitors and
the DPC’s solicitors between 20th December 2005 and 16th
January 2005 is contained as exhibit GS12 to the SDA Witness Statement.
47.
It is in the interests of a fair and proper
determination of the Application for Judicial Review that the minutes of all
Commission meetings at which this project was discussed should be disclosed and
my solicitors will be making the appropriate application for interim disclosure
as part of this action.
PURPOSE OF FAIR HEARING
48.
We wanted to be heard for the reasons expressed above
and to have an opportunity to set out our objections/views on the various
issues that are set out in our correspondence and in the SDA Witness Statement
which we adopt including;
(a)
Heritage value
(b)
Consistency with Previous Planning Policy
(c)
Consistency with Previous Government Policy
(d)
Traffic related issues
(e)
Infrastructure and related issues
(f)
Architecture and density issues
(g)
Education
49.
We
verily believe that if we had been given a proper and fair hearing the DPC
would have been able to take a more considered view of this matter and this
could have influenced the outcome.
50.
In
relation to all our concerns we will seek to rely on the evidence contained in
the Witness Statement of Joseph Ballantine filed in the Heritage Trust Action
the SDA Witness Statement and the Witness Statement of Lionel Culatto (filed in
support of this action).
51.
It is worth
emphasising however that in relation to previous decisions the Cottage owners
have submitted no less that 3 independent applications for planning permission
to build west facing dormer windows that would have allowed us to enjoy our
loft space but that on each and every application the DPC has refused to grant
permission on the basis that the Cottages are worthy of conservation and
protection because of their location adjacent to the Victualling Yard, Parsons
Lodge and the Rosia Tanks and given their contribution to “the historical townscape of the area.”
52. It seems ironic on the point of absurd to us that to ensure that the heritage of the area is protected the introduction of minor alterations such as dormer Windows are blocked by the DPC whilst a ten-storey building appears to have no negative impact on the townscape.
53. Apart from these matters the Claimants is advised by its solicitors and verily believes that the DPC in making its decision has not followed the procedures contained in the Town Planning Ordinance and Town Planning (General Procedures) Regulations and moreover wrongly decided/received advice that an Environmental Impact Assessment (“EIA”) was unnecessary.
Here again to avoid unnecessary duplication in these proceedings we rely and adopt the detailed explanation contained in the SDA Witness Statement.
54.
In all the circumstances we respectfully request that
this Honourable Court do grant the relief requested in the Application for
Judicial Review and permission to proceed with this application as set out in
the Claim Form filed on our behalf by my solicitors.
STATEMENT OF TRUTH
We believe that the facts stated in this Witness Statement are true.
…………………………
Steven Harrison Gino Bossino
Dated this 19th day of January 2006
This Witness Statement is filed by Cruz & Co. of Suites 19 & 21, Watergardens 3, Gibraltar. Solicitors for the Claimants.