Eustace Hobson v The Development Control and Planning Board

• Jurisdiction: Saint Kitts and Nevis
• Judge: Gill, J
• Judgment Date: 16 December 2025
• Judgment citation (vLex): [2025] ECSC J0613-1
• Year: 2025
• Docket Number: SKBHCV2021/0085
• Court: High Court (Saint Kitts and Nevis)

Between

Eustace Hobson

Claimant

and

DDM Properties Limited

1 ^st Defendant/1 ^st Ancillary Claimant

Ternion St. Kitts Limited

2 ^nd Defendant/1 ^st Ancillary Defendant

Rodney Flemming

3 ^rd Defendant/2 ^nd Ancillary Claimant

and

The Development Control and Planning Board

2 ^nd Ancillary Defendant

The Minister With Responsibility For Sustainable Development

3 ^rd Ancillary Defendant

The Attorney General of St. Kitts and Nevis

4 ^th Ancillary Defendant

[2025] ECSC J0613-1

SKBHCV2021/0085

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Damian Kelsick KC with him Hadya Dolphin for the Claimant

E. Anthony Ross KC with him Midge Morton, Nadia Chiesa and Errol Williams for the 1 ^st and 3 ^rd Defendants/1 ^st and 2 ^nd Ancillary Claimants

Christiane Prowell and Derriann P. Charles for the 2 ^nd Defendant/1 ^st Ancillary Defendant

Simone Bullen-Thompson and Sasha Lloyd for the 2 ^nd, 3 ^rd and 4 ^th Ancillary Defendants

Gill, J

1 A landowner alleges that the construction of a resort resulted in major trespass to his property. He seeks redress from the court.

2 On May 7, 2021, the claimant Eustace Hobson (“Hobson”) filed a claim form and statement of claim in trespass alleging four instances of trespass on his property situate at Trinity Palmetto Point in the island of St. Christopher. The property in issue consists of two contiguous parcels of land referred to in the proceedings as the “Lamp Shade Lot” and the “L-Shaped Lot”. The claim was brought against the following three defendants:

• i. DDM Properties Limited (“DDM”) – a company incorporated under the Laws of St. Christopher and Nevis and the owner and possessor of land neighbouring and abutting Hobson's property;

• ii. Ternion St. Kitts Limited (“Ternion”) – a company incorporated under the Laws of St. Christopher and Nevis, a well-known construction/contractor business; and

• iii. Rodney Flemming (“Flemming”) – a person who operates a well-known construction/contractor/landscaping/plant nursery business as RBM Nursery and Landscaping Services in Nevis.

3 On June 4, 2021, Ternion filed its defence. Ternion is involved in only one of the alleged trespasses, which it denied.

4 DDM and Flemming, represented by the same Counsel, filed their defence on June 7, 2021.

5 On October 28, 2021, Hobson obtained an interim injunction which prohibited DDM and Flemming from accessing DDM's property, halting its coastal and marine works. The application for the injunction alleged a further trespass, that is, occurring after the filing of the original claim.

6 Therefore, on May 4, 2022, Hobson filed an amended claim to include the additional alleged trespass.

7 Hobson claimed the following:

• “1) General damages in a sum to be determined by this Honourable Court for trespass and resultant damage caused by the Defendants' trespass on the Claimant's property (except General Damages related to the coastal trespass).

• 2) General Damages in a sum to be determined by this Honourable Court for the cost to have an independent professional prepare a report to determine the damage caused by the 1 ^st and 3 ^rd Defendants' coastal trespass on the Claimant's property and the estimated cost of rectification of same.

• 3) An Order that General Damages related to the coastal trespass be assessed by this Honourable Court after the said report of an independent professional is filed with this Honourable Court.

• 4) Aggravated damages in a sum to be determined by this Honourable Court.

• 5) Special Damages in the sum of EC$31,093.58 paid to James R. Buchanan for a survey report to determine the extent of the trespass.

• 6) Interest continuing at the commercial overdraft rate of interest in St. Kitts and Nevis of 10% per annum from April 4, 2019 to the date of judgment in this claim on all General Damages, Aggravated Damages and Special Damages.

• 7) Court fees on issue and Cost of service on issue, in the total sum of EC$354.00.

• 8) Prescribed Costs.”

8 On September 15, 2022, DDM and Flemming filed a defence to the amended claim and made an ancillary claim against Ternion and the Development Control and Planning Board, the Minister with Responsibility for Sustainable Development and the Attorney General of St Kitts and Nevis (“the Government defendants”), claiming indemnity for any liability arising from the allegations of trespass made by Hobson.

9 On December 21, 2022, the Government defendants' filed a defence to the ancillary claim.

10 On January 4, 2023, DDM and Flemming filed a reply to defence to the ancillary claim.

11 On May 4, 2024, the interim injunction was discharged. Hobson consented to the discharge of the injunction on terms agreed with DDM.

12 The trial took place over five days — November 18, 19 and 20, and December 13 and 16, 2024. This was preceded by a visit to the locus in quo on November 15, 2024. The court heard from several witnesses.

13 At the end of the trial, the court ordered written post-trial submissions and the parties were at liberty to file reply submissions. The various parties filed submissions on February 7, 10, 12 and 21, 2025.

14 The court heard closing arguments on March 14, 2025.

The Alleged Trespasses

15 It was settled between the court and counsel for the parties that the alleged trespasses would be referred to as follows:

• ▪ Trespass #1 (T1) — excavation of soil from the north-east section of Hobson's property, removal of guinep trees, depositing of soil excavated from the swimming pool area of DDM's property, equipment, a container and construction materials placed on Hobson's property without his consent

• ▪ Trespass #2 (T2) – excavating soil at the west end of the property, removal of coconut, manchineel and guinep trees and cutting a road (approximately 15 feet wide) through the property (obviously to serve as an access road to DDM's property)

• ▪ Trespass #3 (T3) – construction of part of a soakaway/sewage system for DDM on Hobson's property, and pipes leading from DDM's property directed unto Hobson's property

• ▪ Trespass #4 (T4) – the construction of concrete/stone steps encroaching on the property

• ▪ Trespass #5 (T5) – coastal and marine works, including the creation of a temporary road.

Claimant not pursuing Alleged Trespasses 3, 4, and 5 (T3, T4 and T5) – Claimant pursuing Alleged Trespasses 1 and 2 only (T1 and T2)

16 In relation to T3 and T4, in Hobson's post-trial submissions, it is stated:

“As set out in paragraph 18(c) of the Amended Statement of Claim, the concrete steps have been removed. The other two items are of minimal importance or impact, particularly as the evidence has established that the soakaway/sewage system is not operational.”

In relation to T5, (referred to as Trespass #4 in Hobson's submissions), it is stated:

“With respect to Trespass No. 4 [T5 as agreed], in answer to the Court in the course of cross-examination, Mr. Buchanan, being referred to the plan at TB2/50 confirmed that the newly constructed road along the seaward boundary of the L-Shaped Lot did not encroach on that lot.”

17 DDM and Flemming make a case for costs against Hobson for abandonment of the claims in respect of T3, T4 and T5. They submit that costs must be awarded against Hobson for abandoning these claims after causing DDM and Flemming to incur significant costs defending these claims, including through the trial. In closing arguments, learned King's Counsel for DDM and Flemming asserted that these claims could have been abandoned before. Learned King's Counsel for Hobson retorted that this looks good on paper but is devoid of practicality, and pointed out that there were no offers to settle pursuant to Part 35 of the CPR.

18 In relation to T5, the Government defendants submit the following:

“ The 1 ^st and 3 ^rd Defendants assert that they sought indemnification from the Government Defendants (the 2 ^nd – 4 ^th Ancillary Defendants) only in relation to the coastal trespass [T5]. This is not one of the trespasses in relation to which the Claimant seeks damages. Since the Claimant seeks no damages in relation to the coastal trespass, contribution and/or indemnity by the 2 ^nd – 4 ^th Ancillary Defendants no longer arise. The 1 ^st and 3 ^rd Defendants claim against the 2 ^nd – 4 ^th Ancillary Defendants ought to be dismissed.”

Issues

19 The claimant has abandoned alleged Trespasses 3, 4 and 5, so that these claims must be dismissed. The court is left to determine the issues relating to alleged Trespasses 1 and 2. Further, the ancillary claim against the Government ancillary defendants is rendered nugatory since the ancillary claim against them was in respect of alleged T5 only.

20 In relation to T1 and T2, the court must determine:

• 1) Whether any of the defendants trespassed on the claimant's property;

• 2) If so, the quantum of damages to be awarded to the claimant.

Trespass #1 – T1

The evidence

21 Hobson stated that on or about April 4, 2019, he visited his property and observed that renovations were being carried out on DDM's property. At the north-east section of his L-Shaped property, adjacent to DDM's property, he observed that sections of the soil and earth had been excavated (approximately 120 cubic yards), guinep trees had been removed, soil excavated from the swimming pool area of DDM's property had been deposited, and equipment, a container and construction materials had been placed there.

22 While there, on the said April 4, 2019, Hobson stated that David Fletcher (Fletcher”), a director of DDM introduced himself and Matt Hooley (“Hooley”), a director and contractor of Ternion to him. His evidence is that he expressed extreme displeasure at the unauthorised use of his property by them and the damage and excavation to it. He then stated, “Mr. Fletcher admitted to and acknowledged the Ternion Phase Trespass and promised that it would be restored to its original and natural state. His explanation to me was that they had...