LIONNET IS UNREASONABLE SAYS CHIEF JUSTICE

CJ declares land use plan “invalid”. Many people in Seychelles didn’t know that their land had effectively been rendered worthless.

On January 12, Chief Justice Mathilda Twomey issued a writ certiorari quashing a decision of the Minister of Land Use and Housing, Christian Lionnet, which restricted the Talma family to developing only 0.31% of their plot of land in Anse Lazio. But Mrs Twomey’s ruling also has far reaching implications for the country’s landowners, many of whom weren’t aware of a sweeping set of land use guidelines which were introduced by stealth in 2013.

It’s one of the country’s longest running legal battles. For the past 20 or so years, Alwyn Talma and his daughter, Elke, have been fighting for their right to develop the 64-acre plot of land they own at Anse Lazio. But despite having obtained favourable rulings from the Constitutional Court and the Court of Appeal, the authorities have continued to contrive to frustrate their efforts, at times using stealth and at others more blatant delaying tactics. On January 12, the Talma family was once again vindicated when they won a civil action they had filed in front of the Supreme Court in August 2014. Indeed, in a piquantly worded ruling, Chief Justice (CJ) Mathlida Twomey ordered that they be allowed to build a 25-room hotel on their plot of land and that the ministry of Land Use and Housing (MLUH) pay them the sum of SCR350 000 in “exemplary damages”. More importantly, in her judgment the CJ declared “as invalid” the ministry’s Land Use Planning Guidelines, an obscure document which, as Ms Talma stated in her petition, “purports to categorise and zone land in areas to be developed, partially developed and not to be developed at all”.

The unreasonable and corrupt Lionnet

 The latter point is particularly significant given that many Seychellois were never even made aware of the existence of the Land Use Planning Guidelines, a document which was penned by Florian Rock, a “land use planning consultant”, and surreptitiously gazetted in April 2013 (astoundingly, the plan is nowhere to found on the website of the MLUH). In consequence, many owners and indeed buyers were unaware that the plots they had sold and bought at market prices had been rendered virtually worthless by these guidelines, especially if the land in question fell in the “not to be developed at all” category. In addition, this ruling will doubtless come as a blow to the MLUH, exposing as it does some of the more occult practices employed by the ministry. CJ Twomey was particularly scathing in her remarks relating to the complete lack of consultations preceding the gazetting of the Baie Ste Anne Land Use Development Plan in April 2013:

“Notice of the Praslin Baie Sainte Anne Development Plan was indeed published. However, no plan was effectively available for public inspection. If it was, it was hidden in an inaccessible glass cabinet or some dusty shelf. At the very least as the Petitioner [Ed’s note, Elke Talma] was in negotiation with the Respondent [MLUH] it was incumbent on him to at least seek the views of the Petitioner whose land was clearly affected by the Plan. It does not wash with this court that the Petitioner’s land was not specifically targeted. Why was this plan when it was of national interest or at least when it concerned landowners of Praslin rushed through without so much as a national consultation? The property rights of Praslinois were to be affected. Did it not matter that they were consulted or even properly informed? And why was it and continues to be the case that this exercise was not extended to all Seychelles. Why was this particular area a priority?”

The Praslin Baie Sainte Anne Development Plan unilaterally declared the Talmas land as a “very low residential and tourism” zone, even though the MLUH was at the time in discussions with the family. This categorisation would effectively have killed the hotel project they were fighting so hard to develop Indeed, a few months before it  was gazetted, on November 15, 2012, to be precise, Mr Talma had received a letter from Vivianne Dubel, the director for sector development at the Seychelles Investment Board (SIB), informing him that he would only be allowed to develop a tiny sliver of his 64-acre plot. “It should be noted that given your proposal, a 4 000sqm area has been taken out of your parcel and classified as low density residential/ tourism industry. Further to the above, kindly note that within this area, you would be able to implement a tourism project of up to 20% plot coverage, which corresponds to an 800sqm footprint and/or covered area(s)”.

What this basically meant was that the Talmas would only be allowed to develop 0.31% of their own land, a stipulation which rendered their project all but irrelevant and which the CJ described as “not only arbitrary but also preposterous”. As if this wasn’t egregious enough, it’s important to bear in mind that, at this juncture, the Talmas had already been vindicated by both the Constitutional Court and Court of Appeal. As Mrs Twomey summarised in her ruling the former had found, on September 2010, that, “the Petitioner’s property right had been breached by the fact that the restriction on her property right was done not according to law but according to departmental policy which had not been formulated in accordance with the relevant laws. The restriction on her property right was in the circumstances both unconstitutional and illegal”.

But rather than heed the court’s unequivocal message, the MLUH upped the ante instead. Worse, the ministry failed to produce the relevant documentation in front of CJ Twomey despite the fact that she had issued an order to this very effect. “The manner in which this plan was prepared in the middle of negotiations with the Petitioner and after court cases decided and actions taken to enforce this court decision leaves a distinct impression that the creation of the Plan was not made in good faith and in the national interest but rather by stealth and other motives. I am left in no doubt after having reviewed the administrative files (with the knowledge that not all the files were submitted to the court after being so ordered) and the court cases linked to this review that the Minister has indeed been unreasonable in his decision”, Mrs Twomey observed in her ruling.

Ms Talma’s lawyer, Anthony Derjacques, is in no doubt as to the significance of CJ Twomey’s order. “You could write a book about this case. Many people in Seychelles didn’t know that their land had effectively been rendered worthless [by the Land Use Planning Guidelines]. There were no consultations or debates about the plan. But the Chief Justice has declared it illegal and described the Minister, Christian Lionnet, as ‘unreasonable’. If government implements this plan with respect to a plot of land you own, you must know that it is acting illegally. The plan is not legally enforceable. In establishing laws, even subsidiary laws, government must discuss them first with the population. This ruling concerns all landowners and potential buyers as it effectively serves to restore the proper market value of land in Seychelles”, he explained to TODAY.

The ministry has 30 days to appeal the judgment as from the date of the ruling. It will be very fascinating to see what course of action the authorities opt for next given that the Minister’s decision to restrict the Talma family to a minuscule portion of their plot was described by Mrs Twomey as “neither legal, reasonable, fair, rational or proportionate”. On top of allowing the Talmas to construct a 25-room hotel on their plot of land and the payment of SCR350 000 in exemplary damages, CJ Twomey also ordered the MLUH to foot the costs of the lawsuit. For the past 20 years, Elywn Talma and his daughter have been fighting for the right to develop a piece of land which is legally theirs. For how much longer will the authorities try to frustrate this right and expect the Seychellois taxpayer to foot the bill for their actions?

Source:Today inn Seychelles