Made on behalf of the
Claimants
Witness: Giselle Sene
1st Statement of
Witnesses
Exhibits: GS1-GS15
In The Matter of an Application for Judicial Review
BETWEEN
(2) STEVEN HARRISON
(3) GINO BOSSINO
-and-
DEVELOPMENT AND PLANNING COMMISSION
-and-
OEM ROSIA
DEVELOPMENTS LIMITED
First Interested
Party
-and-
Second Interested Party
__________________________
I, Giselle (“Gigi”) Sene of 4B Rosia Parade Gibraltar, SAY AS FOLLOWS:-
1.
I am the Chairperson of the Committee of the South
District Association (“the SDA”) and make this Witness Statement on behalf of
all the Members of the Committee of the SDA the South District Committee
(“SDC”) and of the residents represented by the SDA.
2.
The SDA was formed largely by residents of the South
District that had formed themselves into an informal grouping in late October
early November 2005 to protest against the overdevelopment of the South
District without what we considered was proper planning, any consultation and
with complete disregard to historical and heritage considerations in relation
to the Rosia Tanks development. This followed a Government press release on the
12th October 2005 where it was announced that 900 new units were to
be built in the south district in close proximity. Now produced and shown to me
marked GS1 are true copies of the press release confirming the Governments’
announcement and copies of the press article reporting on the same.
3.
At an early meeting the SDA concluded that whilst its
concerns related to overdevelopment and bad planning in the South District
generally given the housing shortage in Gibraltar it would be wrong to object
to all developments and that it should concentrate on the Rosia Tanks site that
in the view of many of the residents would create the greatest negative impact
on the South District having regard to the historical and heritage importance
of the area. The SDA was formally constituted on 12th January 2006.
Now produced and shown to me marked GS2 is a true copy of the constitution of the SDA. On the 16th of January 2006 we
confirmed our verbal instructions to our solicitors by written resolution of
the SDC. The SDC currently consists of the following members:
James Howitt
Robert Matto Snr
Gino Bossino
Nicholas Hinton
Davina Clancy
Nicole Banda
William King
And I. We all reside in the
South District.
4.
In the period
November-December 2005 the residents were represented by and wrote to DPC
through the SDC.
5.
It is difficult to ascertain how many residents of the
South District we represent given we have only just formalised the SDA however
we have collected approximately 3000 signatures for a petition which we handed
into the DPC opposing the building on Rosia Tanks and moreover we assisted in
preparing and filing just under 500 letters of objection to the DPC. We
understand over 500 were received. A copy of the said petition is now produced
and shown to me marked GS3 and a copy of the register of objection letters is
now produced and shown to me marked GS4.
6.
I make this Witness Statement from matters within my
own knowledge which matters are true. Where matters are not within my own
direct knowledge I set out the sources for my information and belief and those
matters are true to the best of my knowledge, information and belief.
7.
I make this Witness Statement in support of the
Application for Judicial Review instituted on behalf of the SDA and the other
Claimants.
THE MATTERS FOR REVIEW
8.
The substantive Application for Judicial Review seeks
the review of 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.
11.
Now produced and shown to me marked GS5 is a true copy
of the Application for Outline Planning Permission with drawings annexed filed
by OEM at the time of the application.
12.
It is worthy of note that the application was filed on
the 12th October 2005 which was the date of a joint press conference
held between the Government and OEM announcing the project and at which
Government announced its consent to the project (“GS1”).
13.
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.
14.
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”.
15.
From the drawings annexed to the application it will
be clear that the development envisages subterranean parking and two/three
bedroom flats on a number of floors on the Rosia Tanks area.
BASIC CHRONOLOGY
16.
The Government announced this project jointly with OEM
on the 12th October 2005.
17.
On that same date the Application for Outline Planning
Permission was submitted.
18.
The actual Application for Outline Planning Permission
was published in the Gibraltar Gazette on the 27th October 2005. Now
produced and shown to me marked GS5 are true copies of the relevant adverts.
19.
The deadline for submission of public comments was the
17th November 2005.
20.
On or about the 23rd November 2005 Outline
Planning Permission is granted.
21.
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.
22.
On the same day the Chairman of the DPC signs and
issues the permit for 196 residential units. Now produced and shown to me
marked GS6 is a true copy of the Application for Outline Planning Permission
23.
Demolition permit applied for on or about the 23rd
December 2005.
24.
Hearing of Demolition permit notified to DPC members
on the 11th January 2006.
25.
Our solicitors seek further assurances from DPC with
regards demolition permit on morning of the 12th January 2006.
26.
DPC lawyers reply on the 12th January 2006
advising that no assurances will be given.
27.
12th January 2006 Heritage Trust issues
proceedings for judicial review and threaten injunction.
28.
DPC approves Demolition permit on the 12th
January 2006.
29.
Heritage Trust seek and obtain injunction on the 13th January 2006.
SUFFICIENT INTEREST
30.
The SDA represent numerous residents in the area. Many
of those residents also submitted objection letters to the Development and
Planning Commission in its consideration of the Outline Planning Application.
31.
Now produced and shown to me marked GS7 is a true copy
[sample] bundle of copies of letters of objection filed before the Development
and Planning Commission.
32.
Approximately five hundred letters of objection were
filed before the DPC within the time stipulated by the Town Planning Ordinance
(“TPO”).
33.
The SDA was formed by concerned citizens that reside
in the immediate area that will be affected by the development.
34.
We verily believe we have a sufficient interest to
bring this Application for Judicial review on behalf of the SDA and the
residents represented by it.
THE OBJECTIONS AND CONCERNS
35.
There were numerous concerns voiced by the SDA and by
residents but these mainly relate to the following issues;
(a)
Heritage
(b)
Over development/Density
(c)
Parking Facilities
(d)
Congestion
(e)
Education
(f)
Local Infrastructure
36.
A letter outlining those main concerns was delivered
on behalf of the SDA to the DPC on the 16th November 2005. Now
produced and shown to me marked GS8 is a true copy of the said letter of
objection filed in the DPC.
37.
There are other concerns in relation to;
(a)
Views
(b)
Rights of light
(c)
Other proprietary rights that other residents and
objectors have highlighted
FAIR HEARING / NATURAL JUSTICE
38.
Apart from raising the substantive objections outlined
above in our letter of 16th November 2005 was also intended to;
(1)
Request a Public Hearing; and
(2)
Request the opportunity to address the Commission in
person on our objections
39.
We made these requests in the penultimate paragraph of
our letter.
40.
On the 5th December 2005 we handed in a
petition to the DPC signed by approximately 3000 persons objecting to the Rosia
Tanks development (GS3). We wrote to the individual members of the DPC on the
22nd November 2005 requesting a hearing in public. Now produced and
shown to me marked GS9 is a true copy of the said letter of objection filed in
the DPC.
41.
On the 23rd November 2005 and on the 5th
December 2005 and on the 7th December 2005 the DPC met to consider
the project.
42.
On the 5th December 2005 members of the SDA
demonstrated outside the offices of the DPC reiterating its request to be heard
by the DPC in person.
43.
The DPC did not hear the objectors in person or decide
to convert the consideration of the application into a public hearing despite
our request.
44.
We are aware that the Applicant developers, OEM were
given an oral hearing by the DPC.
45.
As the SDA had not received a letter in reply to that
of the 16th November 2005 by the time the DPC first met to discuss
the application we wrote to the Chairman of the DPC on the 24th
November 2005 stating that;
(a)
we had filed a detailed objection on behalf of over 2,500
petitioners;
(b)
that the SDC had written to the DPC on the 22nd
November 2005 to appraise them on the large number of objections;
(c)
reiterating the requests that the consideration by DPC
of the Outline Planning Application should be held in public and that
representatives of the objectors be heard in person;
(d)
making the point that a public hearing was appropriate
in view of the number of objections and the concerns of the SDC. In view of
Governments’ clear backing for the project and its presence on DPC the
Committee was very concerned that the DPC process should be seen as independent
and impartial of Governments’ objectives;
(e)
that the SDC thought that an environmental impact
assessment should be required;
(f)
the SDC requested an urgent reply to its letter;
(g)
the SDC also requested a meeting with the Chairman in
advance of the further meeting of the DPC;
(h)
the SDC also copied its letter to the Chief Minister.
46.
On the 30th November 2005 the SDC received
a holding reply from the Secretary of the DPC.
47.
A substantive reply was received from the Chairman on
the 6th December 2005.
48.
Now produced and shown to me marked GS10 are true
copies of the letters of;
(1)
the 16th November 2005 from the SDC to the
DPC (attachments see GS8);
(2)
the 24th November 2005 from the SDC to the
Chairman, DPC;
(3)
the 6th December 2005 from the Chairman of
the DPC to the SDC.
49.
On the 6th December 2005 the Government
issued a press release saying that it had considered some of the objections
raised and had spoken to the developers and agreement had been reached to
reduce the development by two storeys to eight presumably reducing the number of flats.
50.
At no stage did the SDA meet the DPC or Government to
discuss these matters.
51.
On the 8th December 2005 the press reported
that the DPC had granted Outline Planning Permission on the Rosia Tanks
development.
52.
Now produced and shown to me marked GS11 is a true
copy of the said press release of the Government dated the 6th
December 2005.
53.
We were concerned that this would restrict the
discretion or usurp the function of the DPC when the Planning Application was
considered.
54.
This is the reason why we requested a public hearing
and to be able to make our representations in person to the DPC. Both requests
were rejected.
55.
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 ensured that there could be no
accusation of lack of impartiality or independence.
56.
The SDA is aware that the developers were given the
opportunity to make representations in person before the DPC. This was denied
to the residents and objectors.
57.
Apart from that the decision made by DPC on or about
the 7th December 2005 seemed to rubberstamp the announcement made a
couple of days earlier by Government that agreement had been reached to lower
the number of storeys by two.
58.
Whether or not this was indeed the case it seemed as
if DPC was simply following the decision of
Government in relation to the proposed development.
59.
In those circumstances we consider that there was a
failure to hear the objectors and residents;
(a)
by DPC in that it entirely refused to hear the
objectors in person;
(b)
by Government in that it improperly or insufficiently
considered the objections of residents which were communicated to it before it
issued its press release of the 6th December 2005.
PREVIOUS PRACTICE
60.
We are aware that the DPC has granted objectors an
oral hearing in other applications before it in the past.
61.
The reasons given by the Chairman of the DPC in his
letter of the 6th December 2005 for not hearing the objectors in
public was that it would be unprecedented. I am not sure if there are any
precedents for a public hearing but certainly there are numerous precedents for
objectors to be heard. In fact one of our members Ana Maria Ghio who is also
currently chairperson of the Rosia Dale Housing
Association informs me and I verily believe that she appeared before the DPC
upon request on behalf of the Rosia Dale Housing Association in an unrelated matter
and so we have within the SDA people who would not agree with the DPC Chairman.
62.
We verily believe it would have been fair to do so on
this occasion given the nature of objectors and strength of feeling and the
greater public interest in the Rosia Tanks.
DISCLOSURE
63.
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.
64.
I now produce a true bundle of copies of
correspondence passing between our solicitors and the DPC’s solicitors between
20th December 2005 and 16th January 2005 marked GS12.
65.
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
our solicitors will be making the appropriate
application for interim disclosure as part of this action.
PURPOSE OF FAIR HEARING
66.
The SDA and the objectors wanted to be heard for the
reasons expressed above and to have an opportunity to set out its
objections/views on the various issues that are set out below in greater
detail;
(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
67.
I 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. Given the fact that
they have been closed and in MOD control until very recently we are concerned
that the DPC members had very limited knowledge of the Heritage importance of
the Rosia Tanks.
HERITAGE VALUE
68.
I have seen the Witness Statement of Joseph Ballantine
filed in the Heritage Trust Action and would respectfully adopt the contents of
these in relation to heritage value. The concerns in the Heritage Trust Witness
Statements are also concerns that the SDA hold.
69.
We will also rely on the Witness Statement of Lionel
Culatto (filed in support of this action) a local conservation expert dated the
19th January 2006 who clearly has specialist knowledge about the
importance of the Rosia Tanks.
INCONSISTENCY WITH PREVIOUS PLANNING POLICY
70.
The SDA finds the decision to be contradictory and inconsistent with
previous rulings of the DPC and these are clearly laid out in the
Witness Statement of Joseph Ballantine filed in the Heritage Trust Action and
we would respectfully adopt the contents of those though we repeat parts
thereof equally applicable to our claim
and expand where we feel appropriate;
(1)
the 1991 Development Plan made under the Town Planning Ordinance
(“TPO”);
(2)
previous decisions and policy of the DPC;
(3)
the plans for the specific area announced by Government in 2001;
(4)
the objectives of Government in considering a future use for the
Victualling Yard as made clear by the Chief Minister at the House of Assembly
in December 2005,
(5)
the Government’s stated objective to seek World Heritage Status for
Gibraltar and the relevant UNESCO guidelines as recommended by that
organisation.
71.
I now set out below under the appropriate headings further material in
relation to each of these matters;
(1)
The 1991 Development Plan
The SDA
considers insufficient regard was had by DPC to the Development Plan as
required by law or in fact. Now produced and shown to me marked GS13 is a true
copy of an extract of the relevant parts.
The SDA
believes there has to be a strong reason to depart from the Development Plan
and that it creates a presumption in favour of adherence of the plan.
The 1991
Development Plan marks the Rosia Tanks/Rosia Site as one on which residential
development is not contemplated. The development plan has a statutory
basis as a standard for guidance for the DPC. It has, as yet, not been replaced
and we are advised by our solicitors and verily believe that the Town Planning
Ordinance provides for consultation prior to changes in a planning scheme and
the failure to carry out that consultation is in breach of the legitimate
expectation of those effected including our members and residents of the area
who have an interest.
(2)
The Government’s Plan for the Area Published in 2001
Now produced and shown to me
marked GS14 is a true copy of an extract of the Tender Conditions issued by
Government on the 20th November 2001 in which it made clear its
plans for the area together with the Architectural Plans prepared by Government
on which these plans were based.
The conditions for tender
annexed as part of GS14 make clear that:
(a) The development site tendered on that occasion comprised three areas of land commonly known as the area surrounding Grand Magazine, Victualling Yard and Rosia Mole. It was stated therein that the development area of Victualling Yard could be extended at that stage to include the area of the MOD underground system [Rosia Tanks] for car parking use by direct negotiation with the Ministry of Defence. This both recognises that at that point the Government saw the Rosia Tanks as an integral part of that heritage area and that it recognised that its future use needed to be for sensitive purposes. It also confirms that the Rosia Tanks were being used by MOD at the time and were not part of Government property.
(b)
The conditions of tender go on to say “the areas are of
high local historical and heritage value and include some of the most important
construction of this nature in Gibraltar. The areas are combined with a
seafront which is particularly scenic with high natural cliffs juxtaposed with
military fortifications. Views towards these from the sea and towards the sea
from land should represent a major attraction of the site. It is surrounded by
neighbourhood which due to the availability of land has been the location of
major housing developments over recent decades, and has now become one of
Gibraltar’s major residential centres. The site therefore offers a unique
combination of historic appeal to tourists and visitors and a large immediate
catchment area for local, commercial and recreational activity”.
“The
redevelopment should focus on the premise that the area is over developed as a
residential area and under developed as a local and touristic asset. Tenderers
should therefore explore possible ways of redeveloping Victualling Yard and
Rosia Mole so as to reverse the situation and offer amenities to tourists and
locals alike whilst respecting and using the existing heritage as a basis for
redevelopment”.
We understand that the Heritage Trust was specifically consulted by Government on its plans before it made these public and gave its consent to the 2001 development proposals which it considered sensitive given that the heritage assets and their integrity would be preserved.
The SDA understand that Government can change its policy but given the policy published in 2001 is so different and the site has such heritage importance the SDA feels that before such departure there should have been some consultation with those affected by that departure and that the consultation should have been full, fair, comprehensive and transparent.
(3)
Previous Development and Planning Decisions
In accordance with the recognition, of the importance of the area, the DPC has to our knowledge been very careful about not encroaching on that heritage value by taking adverse policy decisions when considering other matters previously.
The SDA is aware of a number of decisions taken by the planning authorities in respect of the Rosia Cottages where the DPC has deliberated extensively to ensure that the heritage of the site has been protected over matters as minor as the shape, size and character of individual windows. Now produced and shown to me marked GS15 is a true copy of a Ruling of the Development Appeals Tribunal of the 27th October 2005 on the Rosia Cottages and the previous decisions of the DPC and statements and arguments put forward by the DPC and the Town Planner that led to that final ruling.
The DPC appears to have failed to take into account:
(1) the decision and previous statements of the DPC in the applications of the owners of 1, 2, 3 and 4 Rosia Cottages (collectively called “the Cottages”) dated 24th April 2003 (Decision CP 1219ABCD) where the DPC expressed the view that the area in which the Site and the said cottages are located are of historical and heritage importance and that the character of said cottages were worthy of conservation and protection;