A sewage lift station was built eleven feet from a family home in Jolly Harbour in 2025 — without a development permit, without an Environmental Impact Assessment, without notification of the adjacent owner, and on land registered against a covenant restricting it to “single residential purposes only”.

The Authority charged by Parliament with regulating that development now says, on oath, that it required none of those things — because they were already authorised by a development plan it admits it cannot find.

The judicial review brought by freeholder Cyprian Kowalczyk puts the Development Control Authority (DCA) under scrutiny over a pattern, the claim says, of regulatory deference to the developer that has left the statute book on the shelf.

The station was built by Caribbean Developments (Antigua) Limited (CDAL) on a neighbouring residential parcel. A parallel private claim is on foot against CDAL and the adjacent owners on whose land it was erected.

From seventy-five feet to eleven

The original Harbour Island scheme, registered in 2006, placed the nearest sewage lift station to Mr Kowalczyk’s home approximately seventy-five feet away, with the neighbouring parcel acting as a residential buffer.

The High Court, in the parallel claim, has accepted there are “serious issues to be tried”, including whether the new station is “inconsistent with residential use restrictions” and whether there is “actionable interference” with the freeholder’s use and enjoyment of his property.

An inquiry turned around

Mr Kowalczyk asked the DCA, relying on the public-inspection provisions of the Act, to disclose what permits and approvals had been issued for the sewage works on neighbouring parcels. A formal urgent intervention letter was hand-delivered in October 2025, the day after construction began.

What he received was a covering letter referring to a “boat lift station” and enclosing a DCA Inspection Report which the regulator’s own affidavit now admits contains “imprecisions”. Instead of answering his question, the Report turned the inquiry around: it suggested that his residence, not the new sewage station, had been built too close to a property boundary.

The DCA’s affidavit accepts that this finding was made without ever asking him for the building plans the DCA itself had stamped four years earlier — describing that, on oath, as “not best practice”. The Report did not identify which setback rule the residence was said to breach; on Mr Kowalczyk’s case, no such published rule exists.

The Report had been sent first to the developer. Two days before he received it, it had already been exhibited against him in the High Court, in opposition to his injunction application.

“I am fully ready to retract”

The DCA’s Acting Chief Town and Country Planner telephoned Mr Kowalczyk in December 2025. According to his sworn evidence, the officer told him “I am fully ready to retract that letter” and confirmed that, regarding the construction, “they haven’t submitted anything.” Days later the same officer attended the site and stated that a stop order would issue.

A verbal stop was given. Seventeen days later the DCA authorised the works to resume; the connection was completed two days before the High Court closed for the Christmas vacation. The DCA’s affidavit characterises those statements as “provisional and exploratory”.

A defence built on a missing document

The DCA’s pleaded position is that the new station was a “repositioning of a component of the pre-approved wastewater infrastructure” governed by a section 10 development plan, and therefore did not require a permit, an EIA or section 22 notification. Its affidavit then admits:

“the original development plan governing the Jolly Harbour development could not be located within the records of the Defendant.”

The wider Jolly Harbour development was, the affidavit says, “commenced in or around the 1990s” — pre-dating the 2003 Act under which a section 10 plan can only have been made.

A regulator that used to have a system

In a 2012 letter on DCA letterhead — copied to the Prime Minister’s Office, the Attorney General’s Chambers and the Minister — the regulator stated that any new development plans “would have to go through a full approval process” and that the DCA had the “prerogative to ask the developer to submit an Environmental Impact Statement”. The DCA in 2012 described itself as a regulator with a numbered application register, a defined approval process and discretionary EIA powers.

None of those features now operates for the development at issue. No application was made; no plan can be located; no record was taken at three undocumented site visits; no reasoning is on paper; no formal stop or enforcement notice was issued. A parallel system of developer “pre-approval” — which the Act does not authorise — runs alongside the statutory regime. Mr Kowalczyk paid CDAL $2,760 in 2022 for a “CDAL Building Permit”; for the 2025 sewage station, no permit was sought from the DCA at all.

The sworn evidence is also internally inconsistent. The DCA says there is “no scenario” in which one application would be “formally compared with an unrelated site”. Yet the memorandum exhibited to the same affidavit defends the new station by reference to other Harbour Island lift stations “positioned approximately eleven (11) feet from adjacent parcel boundaries”. For a contemporaneous CDAL project — the proposed North Beach Resort — the DCA confirmed an EIA was required. No reason has been given for the difference of treatment.

The human cost

The freeholder’s wife has sworn her own affidavit: a large sewage vacuum truck was parked directly in front of the family home over the Christmas holidays, diesel engine running continuously, with diesel exhaust and sewage gas filling the house. The family could not ventilate. The children were home from school. Days later, all three experienced what they describe as toxic gas inside their sealed home; neighbours attended and have since sworn their own affidavits. A consultant dermatologist’s letter records a diagnosis of atopic dermatitis in the daughter and identifies hydrogen sulphide as a recognised trigger. Video of the station’s hatch left open during routine servicing, and of overflows at other Jolly Harbour stations, is before the Court.

What the order seeks

Mr Kowalczyk’s case is that the construction was rushed to present the Court with a hard-to-reverse fait accompli — a tactic the English courts have for over a century treated as build-at-your-own-risk, not a defence.

Following Padfield, the judicial review seeks declarations that the DCA failed to discharge its duties under sections 17, 22 and 23 of the Act; certiorari quashing the setback finding; and mandamus directing the DCA to consider and determine, according to law, whether the new station required a permit, an EIA and adjacent-owner notification. Damages are sought for misfeasance in public office, breach of statutory duty, and the consequential loss flowing from the deployment of the Inspection Report against him.

The Physical Planning Act 2003 has been in force throughout. The statute has not changed. What has changed, on Mr Kowalczyk’s case, is the regulator’s willingness to apply it.

The matter is now before the High Court.