The AUF GST

 

I occasionally tune in to Klass FM for entertainment when I am driving my car from North Hill into town.  I don’t get to hear much during the short drive.  But it seems these days I mostly hear some agitator or the other spouting propaganda and drumming up anti-government sentiment, usually over the impending arrival of GST.

These radio commentators assure us that Hurricane GST will hit Anguilla on 1 July because Premier Dr Lorenzo Webster betrayed Anguillians and agreed to implement GST when during the election campaign he promised if elected to do away with the AUF’s proposed GST (the Anguilla United Front was Anguilla’s previous administration).

It was not high sea-surface temperature that caused Hurricane GST to develop.  It was the AUF administration’s signature back in 2018 to the agreement to impose GST that set off the disaster.  The present Anguilla Progressive Movement administration, appointed on 30 June 2020, is taking the blame for it.  Do they deserve the abuse they are getting on social media and the talk show programmes?

I had a word with Mr Ivan Connor, the government’s press officer.  He explained to me that it was pure propaganda.

According to the draft AUF White Paper of May 2020, GST was going to be the best thing that ever happened to Anguilla.  It would help to restore growth and achieve fiscal sustainability and poverty alleviation.  It would enable our economy to respond to and recover from the global and economic recession, the pandemic, and natural disasters.  The AUF administration committed Anguilla to the full implementation of GST effective 1 January 2023.  (The White Paper was later revised by the APM administration and the FCDO and published in March 2021.)

The propaganda was that GST would not be an additional tax.  It would replace the tourist-paid Accommodation Tax, the miniscule Environmental Levy, and the almost non-existent Communication Levy.  The claim was that this would allow GST to be introduced at a relatively low rate.

The more outrageous claim was that GST would facilitate investment, provide incentives to exporters, and make Anguilla internationally competitive.  What spin-doctor dreamed this stuff up?  Mind you, a lot of this puffery is repeated in the subsequent APM revised White Paper.  Meanwhile, we know that the sole purpose of GST is to allow the Anguilla administration to get money to continue pampering the Anguillian unemployed and unemployable.

The AUF administration’s concession to the British Government in introducing GST arose from the devastation caused by Hurricane Irma in September 2017.  The AUF administration was in a dilemma.  It was faced with a choice.  Either enforce existing tax legislation (for example, the Chief Auditor’s Report consistently over the years shows that only 40% of Anguillians pay their property tax), or introduce a new tax, preferably GST.  The AUF administration chose the second option.  In agreeing to the Medium Term Economic and Fiscal Plan (MTEFP) in June 2018, the AUF promised the FCDO they would introduce GST in Anguilla.  They preferred to impose a new tax.  If we collected the outstanding unpaid taxes, we would probably have enough money to run the government for five years without GST.  We won’t enforce this one either.  Remember the rule:  we cannot turn “innocent” Anguillians into convicted criminals.  To this day, we still have not prosecuted, so far as I know, a single Property Tax evader.

Let us not forget how GST came upon us.  To recap, after Hurricane Irma in September 2017, we fell back on British taxpayers’ generosity to meet the over-indulgencies of our excessively expensive public service (I estimate we currently employ two to do the job of one).  When the hurricane passed, the British made a gift to the AUF administration of £60 million (EC$240 million at a four to one exchange rate) for rebuilding.

We had no reserves to pay for our structural repairs ourselves.  This grant was earmarked for capital infrastructure.  In return, the AUF administration promised that we would cease to rely on the British taxpayer.  In future we would raise our own revenue to pay our own costs.  We promised we would enact the GST Act.  As the months and years of the AUF administration passed, we did not do so.

In the middle of the 2020 pandemic, and the close down of Anguilla’s economy, the AUF administration begged for and got a further EC$100 million in grant in aid.  This was intended specifically to pay civil servants for the following ten months.  It was also, we realised, intended to throw money around to help win the coming general elections.  In exchange, the AUF administration promised again on 11 June 2020 that it would either enact the GST or cut the cost of the public service.  We took the money.  We did not cut the cost of the public service.  The AUF’s tactic did not work.  It lost the elections.  But not before it had negotiated yet another EC$100 million gift from the British taxpayers to pay civil servants.  This windfall was due to be paid within days after the general elections.

The day after coming to office on 30 June 2020, Dr Webster was faced with a dilemma.  There were no funds in the Treasury.  He must either default in paying civil servants’ salaries for June or accept the AUF-negotiated EC$100 million from the FCDO.  He chose to pay the civil servants.  You may think, as I do, that he missed the golden opportunity to send all of them home while he worked out how to permanently let half of them go as being an unproductive and unnecessary burden on Anguilla’s taxpayers.

Let us be clear.  We got the second EC$100 million by repeating the promise of the previous administration, that we would introduce GST.  Since we would not reduce our expenses of government, we would increase taxes to pay for it.  That was the promise.  On 29 July 2021, our House of Assembly passed the GST Act into force.

The new APM Administration was immediately in political trouble.  They promised the people during the 2021 election campaign that they would not agree to accept the British EC$100 million gift if it meant passing the GST Act.  But, once in office, they faltered.  They reconsidered.  They took the seemingly easy option of taking the money and agreeing in exchange to pass the GST Act into law.

The CDB had also agreed with the previous administration to make a $30 million loan conditional on passage of the GST Act.  The new administration needed this additional money to pay more salaries.  It could not turn it down. On taking the loan, it was now obligated also to the CDB to pass the GST Act into law

The FCDO did not force us to pass the GST Act.  We took their money, and the money of the CDB, on a solemn undertaking to start paying for our expensive government ourselves by imposing GST.  If we do not live up to our promises made in exchange for hard cash, then would we be anything but a bandit state?

We have no one to blame for our dire circumstances but ourselves.  The British don’t owe us anything.  We don’t pay a penny in British taxes.  Blaming the “British” for our present problems is pure xenophobia if not an appeal to racism.  Let us face it, we Anguillians always delight in blaming others for our misfortunes.  We are never to blame.  It has always been so.

What really gets to me is the pure hypocrisy of the government critics who blame Dr Webster’s administration for agreeing to the GST Act after he came to office.  Are they willing to step forward and say that he should have chosen the alternative?  Would they have supported him sending the civil servants home without pay in June 2020?  Of course not.  What he did instead was masterful.  He negotiated down the most onerous terms and conditions of the GST as agreed by the AUF administration.  He got them to agree to making the GST terms as light as he possibly could.

I hope to look at these in a later article.  I also hope to expose the mistaken, if not malicious, motives of some of his most vociferous critics.

Taxis

 

I vexed with the lack of enforcement of Anguilla’s road traffic and insurance laws.  To save a few dollars, some car rental agencies and taxi drivers cut corners and use uninsured and unlicensed vehicles to ply their trade.  And nobody does anything about it.  Yes, you heard me right:  uninsured and unlicensed vehicles are freely driving about the country, and none of them is stopped or prosecuted.  So, I heard on the radio government is going to introduce new policies, laws, and regulations to control the use of “P”, “R”, and “C” licensed vehicles as taxis.

In December, a visitor friend of mine went to his favourite car rental agency to rent a vehicle for the month he was in Anguilla.  He telephoned me to come and help.  The owner of the car rental agency offered to rent him a car with a “P” licence plate.  The visitor wanted to know from me if that was legal.

I went to the car rental company and asked to see the vehicle.  Sure enough, it had a “P” licence plate. 

First, I asked the proprietor if he had insurance to rent out such a vehicle.  He replied that he did it every day.  I asked him if he did not know it was illegal.  But it was insured, he insisted.  I tried to explain that a private vehicle insurance is cancelled if you rent it out.  It was illegal for him to rent out such a car, and it was illegal for the visitor to drive such a car on the public road.

You need go no further than examine your own certificate of insurance.  If it is a MAICO policy, as mine is, it is on the first page under paragraph “6. Limitations as to use”.  It clearly states that the vehicle is insured for, “Use only for social, domestic and pleasure purposes and for the Policy Holder’s business or profession.  THE POLICY DOES NOT COVER:- Use for hire or reward, rentals, racing, pacemaking, reliability trial, speed testing or use for any purpose in connection with the Motor Trade.”

The meaning is clear.  If you are found to have rented out your “P” or “C” licensed vehicle, or used it for taxiing, your insurance policy is cancelled.  You are now driving it without insurance.  That is a criminal offence under the laws of Anguilla carrying with it a hefty fine and term of imprisonment.  The tourist is committing the same offence and is liable to similar criminal sanctions.

So, you are driving an uninsured vehicle.  If you are caught renting out or using as a taxi a “P” or “C” licensed vehicle so that the insurance policy is void, the penalty used to be a fine of up to EC$1,000.00 or 3 months’ imprisonment.  It is probably more now.

And, once your insurance is void and as a result your vehicle is unregistered you and the tourist driver commit a further offence.  The fine is even greater.  It used to be up to $9,600.00 or 3 months’ imprisonment.  It is probably more now.

The rationale behind these regulations is obvious.  When you negotiate with your insurer for cover for a “P” licensed vehicle, the insurer quotes you a premium based on the promise that only you or someone you give permission to will use the vehicle.  The risk is small.  The premium is low.

If you are going to use your vehicle as a commercial vehicle with a “C” licence plate, valuable goods may be damaged.  The risk for the insurer is greater, so the premium will be greater than for a ”P” licensed vehicle.

If you are going to use the vehicle as a taxi, the risk for the insurer is even greater, so the premium is greater.  It is the same with the registration fees.

The annual fee for licensing a “P” vehicle is low.  A commercial licence costs more because you are driving it up and down the road all day long and causing more damage to the highway.  Also, you are making money from the vehicle.  So, you must pay government more money.  The registration fees are even more if it is a taxi.

It is a criminal offence punishable with fine or imprisonment for a taxi driver to use an “R” or a “P” or a “C” licensed vehicle as a taxi.  It is a criminal offence for a car rental company to rent out a “P” licensed vehicle.  And the driver can be charged with the same offence.

It is even worse.  The day a visitor is seriously injured in a rental car and has his case against the insurance company for compensation dismissed because he was driving a vehicle without the correct insurance, we will never hear the end of it.  Senators in the United States will ask questions of the US government.  Why are they not warning citizens to stay from an unregulated, bandit country such as Anguilla is?  We know how quickly that can happen.

So far as I can tell, there are dozens of unlicensed and uninsured vehicles driving about our roads with impunity.  The problem in Anguilla is not the need for more laws and regulations.  The problem is lack of enforcement of our existing laws and regulations.  Neither the police nor the government seem interested in enforcing our driving laws.

We know the reason.  We don’t want to turn innocent Anguillians into criminals.  So, we don’t enforce the existing road traffic laws.

So, tell me, how is that situation going to change by making new laws and regulations?

Wishing the VI Well

We in Anguilla have even weaker institutions meant to ensure good governance than the Virgin Islands have.  So, we are in no position to preach.  However, Virgin Islanders may find it useful to read what constitutional improvements have been suggested to discourage corruption and misgovernment in Anguilla.  Several governments have accepted these recommendations.  But Hurricane Irma in 2017, and Covid-19 subsequently, have stalled the reform process.

Political Independence from the UK:  This must be our ultimate objective if we are to have any national identity and self-respect.  Yet, immediate independence does not find favour with any significant number of Anguillians.  The likely explanation is that over the past 40 years of internal self-government, successive Anguillian governments have had difficulty in living up to acceptable standards of good governance.  They need to prove to us their adherence to rules of accountability, transparency, and integrity before we will risk our lives and property in their unsupervised, independent hands.  It would be foolhardy of us to make the mistake so many of our Caribbean brothers and sisters did and go into independence unprepared.  Some of the issues you may want to consider include the ones below.

Institutions Protecting Good Governance:  The VI already have some of these, eg, a constitutionally protected, independent Auditor General, Complaints Commissioner, DPP, Human Rights Commission, Integrity Commission, Supervisor of Elections, and Judicial and Legal Services Commission.  We in Anguilla need to be protected by additional, legally binding rules and institutions that guarantee good governance.  Once we can be satisfied on this score, we are sure to look for further political advancement.

Electoral District Boundary Commission:  Regular revision (say every ten years when the Census is taken) of the electoral boundaries must be done to achieve equal representation in the Assembly.  Such a Commission must be protected in the Constitution from political manipulation.

Voters’ Lists:  These must be cleaned up at regular intervals to remove deceased or no longer resident voters if disputes and suspicion are to be minimised.  This should be done also after every census is taken.

Public Service Commission:  The Governor’s constitutional role in keeping political parties out of the public service is beneficial.  But, in Anguilla he or she has unlimited power over members of the public service.  This is undemocratic and paternalistic.  It does not permit us to develop local responsibility for our own governance.  An independent PSC should be constitutionally protected and authorised to appoint and discipline all public servants, including police officers, nurses, and teachers.

National Security Commission:  Such a Commission should not be optional as at present but should be constitutionally protected and empowered to advise the Governor on all matters of internal and external security.  Internal security especially is our business.

Financial Services Commission:  The FSC exists at present under a mere statute.  The Constitution should give it constitutional protection and give its members security of tenure.

Appointments Commission:  Ministers should not be allowed to appoint cronies to government boards and committees.  Such appointments should be overseen by an independent, constitutionally protected panel.

Integrity Commission:  This organ is intended to promote integrity, honesty, and good faith in public life.  Among other things, it will publish and enforce a Code of Conduct for Persons in Public Life.  It will make and publish an annual Report to the Assembly so that no default by a public officer is kept secret.

Registration of interests:  Parliamentarians and senior officers must make an annual declaration of their and their families’ assets and liabilities.  Such declarations must be public.  Failure to file must result in penalties.  Concealment should result in severe punishment.  This applies to all members of the House of Assembly and to the holders of such other offices as may be prescribed by law.  It is expected that this provision will be extended to all Permanent Secretaries, Heads of Departments, and members of public boards, committees, and commissions, of whom accountability, transparency and integrity are demanded.  The sanction for Members of the Assembly should be loss of their seats.  In all cases other penalties such as fines and imprisonment should be available.

Complaints Commissioner:  Without an ombudsman-type officer available to every resident without charge, it is often futile and expensive to make a complaint against an oppressive or misbehaving member of the administration.  The role of such an office is recognised throughout the region as essential for minimising the loss of public confidence in and increasing dissatisfaction with the performance of the public service.

Police Complaints Commissioner:  At present, complaints against abusive police officers go either to the Governor or to the Commissioner of Police.  This internal process is secretive, unsatisfactory, and inappropriate.  A corrective function can be more openly and acceptably performed by an independent office.

Public Procurement Commissioner:  Despite the existing statutory provisions, public procurement remains subject to much abuse.  A constitutionally protected administrative procedure for relief, at least as a first step, is preferable to leaving it to the expensive and dilatory court system.

Public Assets:  Any dealing in Crown land, mineral, or fishing rights, and other valuable public assets must require approval by the Assembly.

Public Finance:  As a further guarantee of good governance, it is generally accepted among Anguillians that our public finances need to be better regulated.  The rules for handling public finances must be more stringently enforced than they have been in previous years.  The present rules are mainly set out in statutes.  There is no provision for enforcing these rules.  Their deliberate ignoring by the public service over past decades has caused the Chief Auditor to be critical of Anguilla’s public accounts.  We have, it appears, never in our history received a clean audit report.  We can better protect our public finances by adopting in our Constitutions most of the stringent provisions the British have been demanding.  We have been proposing that we should introduce them into any new Constitution rather than wait for them to be imposed on us.

Neither rules nor watchdog institutions will by themselves guarantee that integrity, accountability, and transparency will descend like a warm blanket on our public life.  But their absence from our Constitution, the highest legal instrument and supreme statement of our expected norms and mores of public life, makes it easier for those who with impunity use public office to enrich themselves and their friends to the cost of the public purse is no longer acceptable.  We must set out in a clear and binding statement the parameters of the behaviour we expect of those we place in office to rule over us.  And, when those rules are broken, we must be certain that we are able to take corrective action, protected by the Constitution against victimisation.  We would encourage the Virgin Islands to join us in this constitutional reform effort if they can expect to see any improvement in standards of public life.  Without these constitutional reforms, direct rule by the British government will be no help at all.  With these reforms, direct rule will be unnecessary and pointless.

Reflection from Anguilla

 

A country’s Constitution is the highest legislative instrument available to the elderly and others in the struggle to achieve “the ideal of a free human being, free from fear and poverty.”  We rely on our Constitution to ensure that a legal framework is created that enables each individual to enjoy their economic, social, and cultural rights, as well as their civil and political rights.  Each domestic law is subject to the Constitution.  It is one of the duties of a Judge to declare that a law passed by the House of Assembly contravenes the Constitution, and must be declared invalid, null, and void.  If the Constitution does not hold true to this aim, then no legal progress is safe, and unscrupulous politicians can corrupt the system for the benefit of themselves, their families, and their friends, and for the destruction and exploitation of persons they do not like.

It is generally accepted in Anguilla that over the past 40 years of internal self-government, successive Anguillian administrations have had difficulty in living up to acceptable standards of good governance.  The feeling here is that the political directorate of Anguilla will need to prove their ability to adhere to rules of accountability, transparency and integrity, before the majority of Anguillians will agree to risk their lives and property in their unsupervised hands in an independent state.  A first step in this direction would be to introduce into any new colonial-type Constitution a number of institutions that, if adhered to, will tend to guarantee good governance.  Once this is satisfactorily established over a period of time, Anguillians will be prepared to contemplate further political advancement.

The recent Constitutional and Electoral Commission of 2007, and the subsequent Committee of 2017, recommended several essential checks and balances that are missing from our present Constitution, and that must be successfully implemented before Anguillians are ready to discuss political independence.  Chief among these are certain watch dog institutions.  Both the Government of Anguilla and the Opposition have accepted these recommendations.  Some of the more important ones are the Integrity Commission, the Register of Interests, the Freedom of Information Commissioner, the Ombudsman, the Human Rights Commissioner, the safeguarding of Public Assets, and the protection of Public Finance.

First is the inclusion of an Integrity Commission in the proposed new colonial-style Constitution.  The function of the Integrity Commission will be to promote integrity, honesty, and good faith in public life.  It will publish a Code of Conduct for Persons in Public Life and investigate any alleged failure to abide by the Code.

A Minister will automatically vacate his or her office if the Integrity Commission determines that he or she has breached the Code of Conduct for Persons in Public Life, subject of course to a right to appeal to the High Court.[1]

A Minister who has not disclosed to the Integrity Commission that either he or she, or a partnership or company in which he or she is a member or director, is a party to any contract with the Government will not be qualified to be elected to the Assembly.[2]

The seat of an elected member of the Assembly will become vacant if he or she fails to file their Declaration of Interests as required by section 98 of the Constitution.[3]

If an elected member is convicted by a court of law in any country of an offence of dishonesty or immorality, they must immediately cease to perform their functions as a member of the Assembly, and, subject to their right of appeal, their seat in the Assembly shall become vacant at the expiration of a period of thirty (30) days.[4]

Each elected member of the Assembly must declare to the Integrity Commission such prescribed interests, assets, income, and liabilities.  These will be entered in a public Register of Interests and published on the government website.  Such declaration must be renewed at least every twelve (12) months.[5]

The Speaker and other members of the parliament will no longer be at liberty to fix their own salaries and allowances.  They are to be paid such remuneration as is prescribed in an Act of Parliament.  Parliament may not consider any measure to increase their remuneration unless recommended by the Integrity Commission.[6]

Most importantly, the Integrity Commission must make an annual Report to the House, which is to be published on the government website.[7]

Perhaps the second most important watchdog institution is the creation of a public Register of Interests to be binding on all politicians.[8]  Any public officer to whom the law applies will be obliged to declare his or her interests, assets, income, and liabilities on an annual basis.  The penalties for lying or concealing are not in the Constitution, but will be set out in an Act, and are expected to include fines and imprisonment.

The obligation to declare interests and assets, etc, will apply immediately to all members of the House of Assembly, and subsequently to the holders of all other offices as may be prescribed.  It is expected that this provision will be extended to all Permanent Secretaries, Heads of Departments, and members of public boards, committees, and commissions, of whom accountability, transparency and integrity are demanded.

The law will set out the sanctions for failure to comply.  Failure of a Member of the Assembly to declare their interests annually results in automatic loss of their seat.[9]

At present in Anguilla, all information held by any government department is confidential, and members of the public have no right to see, for example, what information, however prejudicial and biased it might be, is held on him or her in any government file.  This will be changed when the Freedom of Information Commissioner is appointed.[10]  This is the officer who enforces the proposed Freedom of Information Act. 

This provision will give to all members of the public a right, within reason, of access to all information held by public authorities.

The Freedom of Information Commissioner will receive complaints and will investigate, decide on, and report on compliance by public authorities.

At present, whenever a member of the public is treated arbitrarily or unfairly by a public servant, or is discriminated against or is victimised, there is no clear procedure for making a complaint.  This will be changed with the constitutional appointment of a Complaints Commissioner, otherwise known as the Ombudsman.[11]

This officer will have the power to investigate all complaints against the conduct of a public officer and to make recommendations and publish reports on his or her findings.  It will be a great saving to members of the public if they can get relief from prejudicial conduct by the administration without being obliged to take a complaint to court.

At present, an Anguillian can complain to the High Court whenever one of his or her civil or human rights is infringed by government.  This is a very time consuming and expensive process.  The new Constitution makes provision for a Human Rights Commissioner to be appointed to protect a citizen’s rights when they allege they have been breached.[12]

The powers and duties of the Human Rights Commissioner will be set out in a law, and will include various matters such as promoting conciliation with respect to disputes; issuing guidance for dealing with complaints; and preparing Reports to the House of Assembly.  All Reports are to be published.

The Human Rights Commissioner does not have the power to bring a lawsuit on behalf of a citizen, but Commonwealth experience has shown that usually an adverse Report by the Commissioner will be sufficient to get compliance.  If government does not act on the Commissioner’s Report, a private lawsuit may be necessary, but a court will be greatly influenced by the Report and will be able to inflict heavy penalties.

A frequent cause of public complaint surrounds the abuse by government or a minister of Public Assets.  At present there is no remedy available to the citizen when there is corruption in dealing with some asset of government.  This will be changed under the new Constitution.  In future, any dealing in government lands in excess of one acre will require approval by the Assembly.  The protection applies not only to Crown land, but also to any mineral, or fishing, or other public asset.

At present, there are several Acts of parliament that try to protect the Public Finance.  It is generally felt that these statutory provisions are frequently ignored, and there is no remedy available to a publicly minded citizen to enforce them.  The deliberate ignoring of the public finance rules by governments over the past decades has caused the Chief Auditor to be critical of Anguilla’s public accounts.[13]  We have never in the history of Anguilla’s public accounts received a clean audit report.  The new Constitution will enforce fiscal responsibility by placing in the Constitution the various rules that have up to now been found only in pieces of toothless common legislation.  At present, there is no way for a publicly minded citizen to enforce the finance laws and regulations.  The new Constitution will correct this weakness by placing the statutory rules in the Constitution.  Our Constitutions are made by the British Privy Council, not by our local House of Assembly.  This will mean that in future the public finance rules cannot be watered down by politicians passing an amendment to a local statute, and any member of the public will be able to enforce the rules by a court action when there is evidence the rules are being breached.

What, you may ask does all this have to do with the struggle for the full realization of the Rights of Older Persons?  As the Inter American Convention on Protecting the Rights of Older Persons puts it, “Bearing in mind that, pursuant to the Universal Declaration of Human Rights and the American Convention on Human Rights, the ideal of a free human being, free from fear and poverty, can only be achieved if conditions are created that enable each individual to enjoy their economic, social, and cultural rights, as well as their civil and political rights.”

No Convention that “Reaffirms that all human rights and fundamental freedoms are universal, indivisible, interdependent, and interrelated, as well as the obligation to eliminate all forms of discrimination, in particular, discrimination for reasons of age” is legally enforceable under Anguillian law.  If the rights of the elderly are to be truly enforced, it will be necessary to act under either a domestic law or under the Constitution.  With the inclusion in the Constitution of the various watchdog institutions designed to introduce and enforce accountability, integrity, and transparency, the elderly, and their representatives, will for the first time have a dependable, inexpensive, and binding assurance that their complaints will no longer be made up against a stone wall.  These watchdogs can bite.

A presentation by Retired Justice Don Mitchell CBE at a Webinar organised by the University of St Martin and Sint Maarten on Saturday 26 February 2022 on the topic: “Seniors’ Rights in St Martin, Sint Maarten, and Anguilla.”

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[1]      Section 37 of the draft new Constitution.

[2]      Section 55.

[3]      Section 57.

[4]      Section 55(1)(d).

[5]      Section 98.

[6]      Section 125.

[7]      Section 97(6).

[8]      Section 98.

[9]      Section 98(5).

[10]     Section 108.

[11]     Section 105.

[12]     Section 104.

[13]     Eg, http://www.gov.ai/documents/hoa/Government%20of%20Anguilla%202013%20Accounts.pdf

Non-roads

If you are subdividing a Parcel of land, you may find you are presented with a plan that includes a road that is not a road. If you read my last post, you know what I mean: https://donmitchellcbeqc.blogspot.com/2022/02/roads-in-anguilla.html

The surveyor's plan that we are going to look at is not chosen because there is anything special about it. I suspect that there are hundreds of similar ones approved by the Land Development Control Committee (LDCC) and also approved by the Chief Surveyor and filed in the Survey Department. I pick it only because it involves a parcel of land in my neighbourhood, and I am familiar with it. It reveals what I consider to be an outrageous state of affairs. Let us now look at it.



This is part of a plan for the sub-division of Parcel 6 owned at the time by a Mrs Richardson of St Thomas. Parcel 6 lies to the north of my Parcels 293 and 294. It shows a right of way painted red to the west, north, and east of my Parcels. Sometime in the late 1980s, I gave this right of way to the Parcels to the east of my property so they would have access over my land to the North Hill Main Road that lies to the west.

I contacted her in St Thomas at the time I was preparing to register the right of way to the Parcels to my east. She agreed that we should register a joint right of way along our boundaries. She told me who her lawyer was. I prepared the mutual Grant of Easement forms. I sent them to her lawyer for approval and for Mrs Richardson to sign them and return them to me for registration. Months passed. Nothing came back. I repeatedly contacted the lawyer. There was no explanation why the forms were not forthcoming. I did not want to contact her behind the back of her lawyer.

I felt I could not wait any longer to register a right of way for the benefit of the Parcels to the east. I registered the forms. I hoped that in due course Mrs Richardson’s forms would turn up. At that time, the Survey Department required all rights of way be a minimum of 10 ft wide. That is why the right of way to the west and east of my lands is 10 ft wide while that to the north is only 5 ft wide. My 5 ft were supposed to be supplemented by the same amount of land from Mrs Richardson to make it 10 ft wide. Her forms never turned up and were never registered. Consequently, she never got the right of access I was offering her from the public road in the west to her Parcel in the east.

Knowing that a five-foot roadway was inadequate for the use of the owners to the east, I erected my fence around my property about 12 feet back from my boundary line on the north. There is physically plenty of room for a car to pass around my existing fence. That is the roadway I use to enter my yard from the north.

Many years later, at the height of the Anguilla land boom bubble in about 2008, I got a telephone call. Mrs Richardson was outside my northern fence. She was showing a prospective purchaser one of the lots that Parcel 6 had been divided into. I went outside to say hello. I was meeting her in person for the first time. Her surveyor was also there, as was the prospective purchaser. I then saw the plan for the first time and learned that Mrs Richardson had subdivided her land. I can only describe my reaction to this subdivision plan as shock and horror. What does it show?

First, you will notice that the plan includes “Lot #6” which is called a “Road”. You will see that it goes the full length of what used to be Parcel 6 and even swings around to the west, and then appears to end abruptly. I am not quarrelling with it. It does me no harm. But I did feel sorry for Mrs Richardson. This road is not a road at all! Those of you who are lawyers or surveyors or who have read the previous article understand that. For those of you that are unclear, let me explain.

First, up to when I last checked the alleged 25 ft road remained private land owned by Mrs Richardson. She had not been invited by government to make it a public road by way of a grant by gift or by sale. She had not given it to the government for public use. She had not signed a transfer to the Crown. It was still registered in her name, though apparently reserved for a public road in time. Despite the label, it was not a public road.

Second, if it was meant to be a road, ie, a public road, it was, in my opinion, not properly done. It did not take the future owner of any of these proposed lots to the nearest public road. Even if Mrs Richardson had made a grant to the Crown, it did not connect her land to any other public road. It did not incorporate the private road over my land. Just as I had no right to pass on the imaginary 25 ft road called “Lot # 6”, so she had no right to pass on the 10 ft right of way on my land. She could prevent me from trespassing on her Lot # 6. I could prevent her from accessing my private driveway. We had no rights over each other’s land. This was a road that was not a road and that went nowhere.

We all applaud what appears to be the effort by the LDCC to increase the road network around the island. But it should be done the right way. If what we are doing is to sneak parcels of land out of the hands of unsuspecting landowners to create public roads, that is not right. In my view that would border on an illegal confiscation of private property contrary to the Constitution of Anguilla.

What the surveyor should have done would by now be obvious to you. Mrs Richardson, or her lawyer, or her surveyor, should have contacted me and all other bordering landowners. They should have told us of her plan to sub-divide Parcel 6 with either an attached common right of way or a public road. They should have explained to us that the LDCC was insisting that the planned sub-division of Parcel 6 must include a 25 ft access road to the nearest public main road. They should have pointed out to us that we had already made provision both on the register and on the ground for a right of way. They should have asked us to contribute our provision over our lands (in my case approximately 12 ft as her surveyor would have noticed) to a common access road or right of way. There is no reason to believe that we would have had any objection. My neighbour and the landowners to the east would have got the use of a 25 ft road and would have lost nothing extra.

Mrs Richardson would have lost only about a third of an acre and not two thirds as she did. She told me she was selling one of the one-acre lots for US$150,000.00. I am no good at mathematics, but I calculate that with the loss of one third of an acre she suffered a completely unnecessary loss of about US$50,000.00 worth of land at the time.

And, she still had not got access from the main road to her land! If she tried to sell one of the new lots to a prospective purchaser who was properly advised, he or she would be told that the land had no access to a public road. No properly advised person would risk purchasing this land without a registered right of all the way to the main road.

It should be a function of the Survey Department to ensure that all landowners bordering a survey plan have consented to or have no objection to any proposed survey plan. Surveyors should be obliged to notify all neighbouring landowners and to help negotiate all relevant rights and easements. No survey should be accepted for lodging unless all relevant neighbouring landowners have signed a consent form indicating they do not have any objection, and have signed any necessary grant of easement.

Tell me if you can why my neighbour was made to proceed in this way.

As far as I am concerned this survey and its approval was a complete fiasco. And it is a fiasco that is, so far as I am aware, regularly repeated in both the LDCC and the Lands and Survey Department.

This is a revised version of an article I first published on 14 December 2007. I republish it because the problems described continue to appear. https://corruptionfreeanguilla.blogspot.com/2007/12/non-roads.html