The New Building Society (NBS) has mounted a legal challenge against the city’s metered parking by-laws, which it says are illegal and a judge has since ordered Minister of Communities Ronald Bulkan to show why his decision to approve the by-laws should not be quashed.
According to court papers seen by Stabroek News, Justice Brassington Reynolds ordered “that an order or rule nisi certiorari be issued directed to Minister of Communities to show cause why a writ of certiorari should not be issued to quash his approval and/or decision to approve the Parking Meter By-Laws made under the Municipal and District Councils Act, Chapter 28:01 made on or about the 23rd day of January, 2017 in that the said approval or decision to approve was of no legal effect and was made unlawfully and in breach of statute.”
The order was granted on Wednesday after Senior Counsel Ashton Chase filed a motion on behalf of NBS challenging the legality of Bulkan’s approval. A hearing on the matter is set for February 20 at the High Court.
The challenge rests on whether the procedure for the approval of the by-laws, as stipulated in the Act, was followed. NBS has argued that by failing to gazette its intention to apply for Bulkan’s permission, City Hall acted outside the law.
On January 23, Bulkan signed the by-laws, which had been approved at the December 13, 2016 statutory meeting of the Council.
This approval followed a 14-day period when the by-laws were made available for review by the public.
In an affidavit drawn in support of the motion, Anil Kishun, Chief Executive Officer of NBS, notes that he was advised by Chase and believes that the approval granted is unlawful “in that it was done in breach of the Municipal and District Councils Act” and is therefore “null and void and of no legal effect.”
He supports this argument by stating that his legal counsel has advised him that the notice of intention to apply for the approval of the minister of any by-law made under the Act must be published in the official gazette not less than fourteen days before the application is so made.
According to Kishun, this was not done and therefore the provisions of Section 305 of the Act were not followed and the minister’s approval was granted unlawfully, unreasonably, without or in excess of jurisdiction and in breach of the statute.
While Stabroek News was unable to locate any mention of the city’s intention in the Official Gazettes published within the necessary timeframe, specifically those of December of 24, December 31, January 3, 7 and 9, City Hall on December 24, 2016, via a statement to media, signaled its intention to officially apply to the Minister of Communities for confirmation of the Georgetown Metered Parking by-laws. The statement indicated that the by-laws would be made available for public inspection for a period of 14 days commencing from Wednesday, December 28, 2016 to Monday, January 10, 2017.
Section 305 (2) of the Act states that at least 14 days before the application for approval of the by-laws is made notice of the intention to apply for confirmation shall be published.
This action is one of several filed on behalf of NBS against the implementation of the controversial metered parking project being implemented by the city administration in collaboration with Smart City Solutions.
In each application NBS argues that the implementation of metered parking has severely affected the entity resulting in great loss and hardship.
“The approval of the by-laws has put into operation a Parking Meter System which restrains and prevents our employees and customers from gaining access to our establishment without incurring large fees which is in some cases prohibitive or being guilty of a criminal offence which attracts a prison term upon summary conviction,” Kishun said in his affidavit before noting that prior to the by-laws parking was available to employees and customers and the physical facility for it was made available at the sole expense of NBS.
