IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ7J.2006S

IN THE MATTER of the Town Planning Act (Cap. 139)

AND

IN THE MATTER of the Crown Lands Act (Cap. 132)

STATE

v.

THE DIRECTOR OF TOWN AND COUNTRY PLANNING
(1st Respondent)

THE DIRECTOR OF LANDS AND SURVEYOR-GENERAL
(2nd Respondent)

WESTPAC BANKING CORPORATION LIMITED
(Applicant)

WHOLE PARADISE COMPANY LIMITED
(1st Interested Party)

SUVA CITY COUNCIL
(2nd Interested Party)

UNIVERSITY OF THE SOUTH PACIFIC
(3rd Interested Party)

PACIFIC ISLANDS FORUM SECRETARIAT
(4th Interested Party)

WALTER HOLDINGS LIMITED
(5th Interested Party)

AND

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ 8J OF 2006S

IN THE MATTER of the Town Planning Act (Cap. 139)

AND

IN THE MATTER of the Crown Lands Act (Cap. 132)

STATE

v.

THE DIRECTOR OF TOWN AND COUNTRY PLANNING
(1st Respondent)

THE DIRECTOR OF LANDS AND SURVEYOR-GENERAL
(2nd Respondent)

UNIVERSITY OF THE SOUTH PACIFIC
(Applicant)

WHOLE PARADISE COMPANY LIMITED
(1st Interest Party)

SUVA CITY COUNCIL
(2nd Interested Party)

WESTPAC BANKING CORPORATION LIMITED
(3rd Interested Party)

PACIFIC ISLANDS FORUM SECRETARIAT
(4th Interested Party)

WALTER HOLDINGS LIMITED
(5th Interested Party)

Counsel for the Applicants: Mr J Apted: Munro-Leys
Counsel for 1st & 2nd Respondents Ms Karan: Attorney-General's Chambers
Counsel for 1st Interested Party: Mr R Singh, Mr A Qetaki: Kohli & Singh
Counsel for 5th Interested Party: Mr J Apted: Munro-Leys

Date of Judgment: 24 September, 2008
Time of Judgment: 9.15a.m.

JUDGMENT

These are applications for judicial review of the decisions of the Director of Town and Country Planning in respect of re-zoning of land and against the decision of the Director of Lands to grant an Approval Notice for a lease to the First Interested Party over the land. For convenience these two claims were heard together as both Applicants are challenging the same decisions which in turn raises the same issues and involving the same parties.

Background

The Land

The two pieces of land that are affected by the Director of Town and Country Planning ("The Director") re-zoning decisions are contiguous but legally separate. They are situated at Muanikau between Ratu Sukuna Road and the University of the South Pacific south-western boundaries.

The larger of the two is described as Lot 1 SO4865 comprising an area of approximately 0.5115 ha. This piece of land lies behind the small park formerly known as Muanikau Park, but now commonly referred to as Raghwan Park, that is next to the Pacific Forum headquarters. The land consists mostly of a large natural gully that falls onto a small creek, the Nasova Creek which runs alongside the boundaries of various State Leases on Ratu Sukuna Road to the west, and the University of the South Pacific ("USP") Laucala campus to the east.

The second piece of land known as "The Park Strip" forms part of Raghwan Park. The strip was initially dedicated as part of a road, the Catalina Drive, the balance of which presently exists within the USP campus. It was never developed, and the strip remained as part of the park zoned as Civic (Recreation Reserve) under the Suva City Town Planning Scheme.

The Park Strip remained distinct from Lot 1 SO4865.

Historically Lot 1 SO4865 was part of a larger block of State land known as S757 that ran alongside Ratu Sukuna road and down along Muanikau Road to the sea. With sub-divisions of the road front portions into residential lots and subsequently built upon, the land behind correctly referred to as part of Bal. of S757 became known as Lot 1 SO4865.

The land known as part of Bal. of S757 was zoned under the Suva City Town Planning Scheme as Civic (Recreation Reserve). The Director of Lands, it is conceded, had promised the Suva City Council ("the Council") a lease over the said land, in exchange of the Council's surrender of its state lease over Vuivui Park, also in Muanikau. The Council's intention, on acquisition of the lease, was to develop a nature reserve/bush walk over parts of the property.

The Decisions Being Challenged

1. The Director of Town & Country Planning Decisions

There are 3 decisions made by the Director and challenged by the Applicants, namely:

(a) the Director's decision of 19 May 2005 purportedly made pursuant to section 19(1) of the Town Planning Act (Cap. 139) ("the Act") giving provisional approval to the re-zoning-

(i) of the land known as Lot SO4865 from Civic (Recreation Reserve) to "Residential A and Road"; and

(b) the Director's decision of 19 May 2005 purportedly made pursuant to section 24(1) and 26(2) of the Act and notified in the Fiji Government Gazette ("the Gazette") on 24 June 2005 to finally approve the re-zoning-

(i) of Lot 1 SO4865 from Civic (Recreation Reserve) to "Residential A and Road"; and

(ii) the Park Strip from Civic (Recreation Reserve) to "Road";

(c) the Director's decision made and conveyed orally to the Applicants' solicitors on 31 January 2006 refusing to exercise her powers under Section 26(1) of the Act to require the Council to re-zone the two pieces of land back to "Civic (Recreation Reserve)".

For the purpose of the judgment, the Director's decisions set out at (a) is referred to as "the Director's First Decision", and (b) as "the Director's Second Decision", and (c) as "the Director's Third Decision".

2. The Director of Land's Decision

The Applicants are also challenging the Director of Lands decision dated 31 August 2005 but notified to the Applicants on 28 December 2005, to grant the First Interested Party, Whole Paradise Company Limited, an Approval Notice for Lease over Lot 1 SO4865 ("the Approval Notice") for sub-division and residential purposes.

Parties Locus

The two Applicants are Westpac Banking Corporation ("Westpac") and the University of the South Pacific ("USP").

Westpac is the owner of a residential State lease (State Lease No. 2759) located on Ratu Sukuna Road. The residence of the Manager of Westpac is built on the said land. The lease is adjacent to Lot 1 SO4865 and is two doors away from Raghwan Park.

USP is the owner of a State lease (State Lease No. 6165) comprising Lots 1 and 2 on Plan SO1500 with an area of 172 acres and 20 perches. The Laucala campus of the USP is wholly located within the said lease. It shares its western boundary with Lot 1 SO4865 with the gully and Nasova creek lying in between.

The Respondents have not questioned the rights of the Applicants to challenge the decision of the Director and the Director of Lands. In any case, the Court had, in granting leave for them to apply for judicial review, recognised that they had rights that may have been infringed and are therefore entitled to seek protection under public law by way of judicial review.

Equally, the Pacific Islands Forum Secretariat, and Wilter Holdings Limited, as owners of lands adjacent to Lot 1 SO4865, possess similar rights and are properly enjoined as Interested Parties to this proceedings.

Reliefs Sought

The applicants seek the following relief:

1. An Order of Certiorari to remove into this Court and quash the Director of Town and Country Planning's First Decision.

2. Further, or in the alternative, a Declaration that in all the circumstances, the Director of Town and Country Planning's First Decision is invalid, void and of no effect.

3. Further, or in the alternative, an Order of Certiorari to remove into this Court and quash the Director of Town and Country Planning's Second Decision.

4 Further, or in the alternative, a Declaration that in all the circumstances, the Director of Town and Country Planning's Second Decision is invalid, void and of no effect.

5. Further, or in the alternative, a Declaration that in all the circumstances, the Director of Town and Country Planning's Third Decision is invalid, void and of no effect.

6. Further or in the alternative, an Order of Mandamus to require the Director of Town and Country Planning to require Suva City Council to alter or modify the approved Suva City town planning scheme relating to Lot 1 SO4865 and the Raghwan Park Strip back to the zoning of Civic (Recreation Reserve).

7. Further, or in the alternative, an Order of Certiorari to quash the Director of Land's Decision to grant the Approval Notice over Lot 1 SO4865.

8. Further, or in the alternative, an Order of Mandamus to require the Director of Lands to cancel the Approval Notice.

9. Further, or in the alternative, a Declaration that in all the circumstances, the Director of Lands' Decision is invalid, void and of no effect.

10. An Order that the Grant of Leave to Apply for Judicial Review shall operate as a stay upon the Director of Town Planning's First and Second Decisions, the Director of Lands' Decision and upon the Approval Notice.

As to 10 above, interim stay on all the Decisions was granted by the Court on 28 February 2006 and extended on 8 June and further extended until further Order of the Court before the Master on 9 August before the hearing on 27 November, 2007.

Grounds for the Claim

The Applicants grounds fully set out in the Notices of Application maybe briefly summarised as follows. Firstly in respect of the Director's First Decision, the claim is that the Director had abused her discretion and had erred in law. In respect of the Director's Second Decision the Applicants claim that she had:

(a) abused her discretion;

(b) erred in law;

(c) erred in fact;

(d) acted in breach of natural justice;

(e) acted in breach of the Applicant's legitimate expectation;

(f) failed to take relevant considerations into account;

(g) took irrelevant considerations into account; and

(h) reached a decision that was so unreasonable that no reasonable Director could have come to it.

In respect of the Director's Third Decision, the Applicants claim that the Director had abused her discretion and that her decision was so unreasonable that no reasonable Director could have come to it.

In respect of The Director of Land's decision, the Applicants claim that in reaching his decision, he had:

(a) abused his discretion;

(b) erred in law and fact;

(c) acted in breach of natural justice;

(d) acted in breach of the Applicant's legitimate expectation;

(e) failed to take into account relevant considerations; and

(f) reached a decision which was so unreasonable that no reasonable Director of Lands could have come to it.

Considerations

The Director's First Decision

The Director's first decision was that made on 19 May 2005 to issue provisional approval of the re-zoning of Lot 1 SO4865 from civic (recreation reserve) to residential A.

It is important to point out at the beginning that while the Director's provisional approval was made on 19 May, 2005, the Applicants were not aware of it until, upon seeing land clearing done to the vacant lot around September 2005 and then writing expressing their concern to the Director of Lands, they subsequently learnt from the Director of Lands, in his letter of 6 October, 2005, that the land in question had been rezoned residential and that a development lease had been issued to wholesale Paradise, the First Interested Party. This was subsequently confirmed by the Chief Executive Officer of the Ministry of Lands, in his letter of 7 November, 2005. Still very much perplexed, the USP in particular, made enquiries with the Suva City Council ("the Council") and the Director to ascertain whether the legal requirements had been adhered to before the decision to re-zone. In particular, the Applicants were concerned that they had neither been informed nor invited to participate in the process of consultations required under section 26(2) of the Act. The Applicants were advised that the objection notice had been published in the Gazette and the Fiji Sun newspaper and that no objections to the re-zoning intention had been received by property owners coming under the scheme. The Applicants claim that they had been totally unaware of the objection notice for the single reason that the land has been incorrectly described in the notice. Also important was the omission totally from the notice of the "Raghwan Park Strip" that was to form a component part of the proposed re-zoning.

The Process of Modification/Amendment of an Approved Town Planning Scheme

Section 26 of the Act sets out the procedure to be followed where the need arises to modify or alter the details of a town scheme. Section 26(2) states that the same procedures as adopted in the preparation and approval of a town planning scheme should apply. These are set out under sections 19 to 25. Under section 19(1) the Director may provisionally approve any scheme submitted to it. Section 19(2) provides as follows:

"(2) So soon as the scheme has been provisionally approved by the Director as herein provided, the local authority shall in manner prescribed by regulations, publicly notified the scheme, and shall deposit in the office of the local authority for public inspection a copy of all maps, plans and other particulars comprised in the scheme".

Section 20 gives to "every owner or occupier of the land within the area covered by the scheme", the right of objection to the scheme, and may make known to the local authority such objection and the grounds upon which it is based, within 3 months after the first notification. The 3 months objection period to amendment for a scheme has subsequently been reduced to one month by the enactment of the proviso to section 26(2) (Town Planning (Amendment) Act, 1997). The objections are forwarded to the Director (Section 21), who is obliged to consider, by hearing, of these objections (section 22). The Director may uphold or dismiss the objections (Section 23) and thereafter the Director gives his or her final approval to the scheme and the public is duly notified (section 24). All of these provisions detailed above are equally applicable to the any attempts to amend or modify a town planning scheme.

In this case, it is evident from the records provided to the Court by the Applicants, that Mr Eliki Bomani, a director of the First Interested Party, and the intending lessee to the land, had on previous occasions unsuccessfully attempted to re-zone the land from the Council, as he could legitimately pursue under section 26(1) of the Act.

The Council had maintained throughout its opposition to the proposal on the ground that it wished to maintain the land as future recreational space. For example in June 1999, after Mr Bomani's attempt at a land swap through which he would be able to lease the land, the Council responded in its letter to his Consultants of 21st June 1999, as follows:

"I wish to advise that the Council cannot accede to your proposal for the land exchange as it is our intention to develop the site as a recreation space for the local residents ... Further the open space land is dedicated is vested in Council for specific purposes and under the current By-laws and Requirements Council cannot release the land for any other use."

The swap attempt unsuccessful, Mr Bomani and his Consultants requested the Council to re-zone the land to "Residential B". The council responded in its letter of 16 December, 1999, reiterating that:

"... the Council cannot accede to your request for the rezoning of the Recreational Space (marked yellow in your attached plan) to Residential B. Furthermore the subject area (marked red in your attached plan) in currently zoned Planning Reserve on the Suva Town Planning Scheme Plan. As such you are advised that a formal rezoning application needs to be submitted to the Council for consideration ….

Also I am to reiterate that Council will not support any proposal to change the zoning of the piece of land marked "yellow" on the plan."

Mr Bomani's efforts to rezone the land continued into the next five years, but the Council stood its grounds. In July 2004, the then Minister for Local Government, Housing, Squatter Settlement and Environment, Mr Mataiasi Ragigia, wrote to the Council (letter of 14 July), proposing an amendment to the scheme under section 26(1) of the Act. The Minister was in fact supporting Mr Bomani's proposal. The Minister's direction was put before the Council's Town Planning and Sub-Division of Land Committee and after considering it together with the assessment reports of its technical staff concluded that,

"The existing recreation space in the City has been a target for potential developers in various kinds of business activities. This subject area is part of the few recreational spaces available for the community. Once these valuable assets are taken, it is very difficult to acquire land for recreational purposes. As such Council has been adamant in preserving the land for recreational purposes. Council's intention was to keep the area as a natural forest park, whereby the trees are preserved and new trees planted and kept for educational study purposes and for bush tracking.

It was therefore -

RECOMMENDED that Council be supportive of preserving the subject area for Civic "Recreation Space" in consideration of the future recreational needs of the Muanikau Community.

FURTHER RECOMMENDED that the Council's recommendation be forwarded to the DTCP for her consideration and decision."

The full Council met on 30 September, 2004 and inter alia endorsed the Town Planning and Sub-Division of Land Committee's recommendations. The decision of the Council to refuse Mr Bomani's application conveyed to the Director in a letter dated 18 October, 2004 written by Mr E Ratukalou, Director Engineering Services. In the letter, the Council also alluded to the fact that the land remained part of a land exchange proposal between the Council and the Director of Lands, by which the Council will be issued with a lease over the said land for the development of a natural reserve. On 3 January 2005, the Director wrote to the Council on the re-zoning proposal of the same land. The letter is reproduced in full for reasons that will be made clear later.

"Re: Proposed Rezoning of Part of Bal. S737 Muanikau road,
Muanikau from Civic (Recreation space) to Residential "A" & Road

Reference is made to the above application for rezoning.

Please be advised that the Director has decided to provisionally approve the rezoning of the subject land from Civic (Recreation Space) to Residential "A" & Road. Please find attached two copies of the provisionally approved amendment plan and the relevant Public Notice & Suspension Notice. Our department would be grateful if the provisional approval is advertised in one of the local newspapers as well as published in the Gazette on two consecutive Fridays. Note that any final approval of the rezoning awaits the outcome of these publications.

In addition to the advertisement in the newspaper and the Gazette, we request the Council carry out a thorough public participation exercise (PPE) during the objection period. The results of the PPE are to be assessed and forwarded together with all other comments received to the Director for her final consideration."

Two important preliminary issues are raised by the letter. First, there is no reference at all made to the Council's letter of 18 October 2004, which refused the application of rezoning. Instead the Director's 31 January 2005 letter is a direction to the Council that notwithstanding its opposition, she has gone ahead and provisionally approved the rezoning. Secondly, the Director had prepared, and conveying as attachment to her letter, copies of amendment plan to the scheme for the Council to advertise and for the purposes of the PPE. There is no record that the amendment to the plan emanated from the Council. Under the Act, the preparation of a scheme or any subsequent amendment and modification is initiated by the local authority, in this case the Suva City Council, even although such proposal may be at the instigation of the Director or the Minister.

The public were notified of the provisionally approved amendment plan, as required under section 19(2), in the advertisement carried in the daily newspaper Fiji Sun and in the Fiji Government Gazette on 11 February, 2005. Paragraph 1 of the notice stated as follows:

"Public notice is hereby given that the Town Planning Scheme for the rezoning of Part of Bal S757, Muanikau Road, Muanikau, from civic (recreation space) to Residential "A" and Road has been prepared in terms of the Town Planning Act and has been provisionally approved by the Director of Town & Country Planning ...."

The Notice also informed the public that the amended plan and scheme was available at the Council and the Director's offices for inspection and that objections will be received by the Council for up to 1 month from the publication date. Meanwhile the Minister, acting pursuant to the powers vested in him by section 26(3) of the Act, notified the public in a Gazette notice of the suspension of part of the Suva Town Planning Scheme that stood to be affected by the rezoning. It is important nevertheless to note that the description of the land in the Minister's Gazette notice is different from the Council's notice. The schedule to the Minister's notice described the land as:

["Lot 1 SO4865, off Muanikau Road and part of the Recreation Reserve known as Muanikau Park (closed Catalina Drive)]" (emphasis added)].

The difference is not only in the description but in the fact that the Minister's notice identified two (2) separate pieces or lots of land compared to a single lot in the Council's notice.

On 4 May 2005 and after the expiry of the objection period, the Council wrote to the Director. There is no details on the contents of the letter except what the Court can deduce from the response by the Director in her letter of 29 May, 2005. The Director was critical of the attempt by the Council to reiterate its previous objections rather than seeking more reaction from the interested parties and the public through the PPE process. In particular the Director highlighted that many residences surrounding the area were leased or rented out and that effort of the Council in advertising and seeking responses from these property owners through letter box drops, may not have reached them at all. As far as the Council's concern on the provision of adequate recreational areas for the residents, the Director asserted that there were adequate "active and formed" recreational spaces available in and around the area for its residents. The Director then granted her final approval to the proposed rezoning.

The Applicants' Challenge

The Director's First Decision

The Applicants based their challenge to the Director's First Decision on the grounds firstly of abuse of discretion and second on error of law.

First, was the abuse of discretion on the part of the Director in submitting her own amended scheme to the Council? As the Court has observed above, the originator and the repository of any town planning scheme under the Act is the local authority. Every local authority is required by law (section 18(1)), to prepare a scheme in respect of all land within its town planning area. The scheme is then sent to the Director where upon provisional approval undergoes a process of public examination and scrutiny. Thereafter, the final approved scheme emerges and becomes operational. Any amendments to the scheme thereafter may only be moved by or with the assistance of the relevant local authority. This is abundantly clear from section 26(1) of the Act which states as follows:

"26.-(1) Any local authority may from time to time of its own motion, and shall if so required by the Director or by the Minister, elaborate any of the provisions of an approved scheme, enlarged the scheme, modify or alter any of the details of the scheme or substitute a new scheme for the approved scheme." (emphasis added).

The phase "and shall if so required by the Director or by the Minister" does not in any way grant or authorise the Director or the Minister to engage in the drafting and other preparatory works towards the modification or amendments to an approved scheme. These remain the responsibilities of the local authorities. At most, section 26(1) only recognises that initiatives to amend a scheme may come from the Director or the Minister. Such proposal or even a directive goes to the local authority to act upon. It is not for the offices of either the Director or the Minister to proceed further and prepare amendments to the plan or scheme.

The reason all preparatory work for amendment to a town planning scheme remains with the local authority is simple. It is the local authority that owns it. It is its planning office that oversees all the developments within its town planning area. It has a duty to ensure that all developments and changes to its city or town must be in harmony with the general objectives of the scheme, Any proposal for changes to the scheme not from the local authority therefore must in the first instance be vetted and responded to by the authority responsible. While the Director of Town & Country Planning holds the overall responsibilities under the Act, for the supervision and regulation of all town planning schemes, it is the local authority that is required by law to first prepare any amendment to be made to its town planning scheme.

In this instance it is evident that the Council had not prepared an amended plan or scheme to the office of the Director. Instead, the Director had submitted her own scheme amended plans to the Council, which she had already approved. The question is whether by submitting her own amendments, the Director had abused her discretion.

The Director's discretionary powers in the process of amendments to an existing scheme are limited to firstly, proposing to the local authority under section 26(1); changes or modification to the scheme, giving provisional approval to the scheme amendment plans as submitted by the local authority under section 19(1); hearing and deciding on objection under section 22; and giving final approval under section 24. Preparing amended plans and giving it provisional approval and submitting it to the local authority does not, in this Court's view, fall within the discretions of the Director.

In the light of the fact that Director, contrary to the requirements of the Act as determined by the Court, invented her own plans and submitted it for the purposes of sections 19 to 26 of the Act, the Court finds that she had abused her discretionary powers. Abuse of the exercise of discretionary powers of any decision-making authority makes it susceptible to judicial review. As Laws LJ stated in R v. Department of Education and Employment, ex p. Begbie [2000] 1 WLR 1115 at p. 1129,

"Abuse of power has become or is fast becoming, the root concept which governs and conditions our general principles of public law. It maybe said to be the rationale of the doctrines enshrined in Wednesbury [1984] 1 KB 223 and Padfield [1968] AC 997, of illegality as a ground of challenge, of the requirement of proportionality, and the Court's insistence on procedural fairness. It informs all three categories of legitimate expectation cases as they have been expounded by this Court in Coughlan [2001] QB 213."

The second ground relied upon by the Applicants is that the Director had erred in law. The allegations of error in law arise out of the Director's non-compliance with the requirements of the provisions of the Act dealing with the public notification of any amendments to a scheme and the hearing of objections to the same. The Applicants in the first instance alluded to the misdescriptions and omission in the land as contained in the public notice required under section 26(2). The Respondents concede that two public notices, the Council's notice of rezoning, and the Minister's Notice of Suspension of part of the Suva Town Planning Scheme, carried two different land descriptions.

Parties agree that the correct and full description of all the land affected by the rezoning was that carried in the schedule of the Minister's Suspension Notice stating, "Lot 1 SO4865, off Muanikau road and part of the Recreation Reserve known as the Muanikau Park (closed Catalina Road)." This notice correctly identified two separate pieces of land. This is different from the Council's Notice of rezoning which described the land affected as "rezoning of Part of Bal. S757 Muanikau Road, Muanikau from Civic (Recreation Space) to Residential 'A' and Road." While Lot 1 SO4865 is originally part of the balance of S757, the owners of the surrounding properties and land had purchased their lots from the new subdivision over S757 and they know and are familiar only with the land as identified under the sub-division. The debate of whether the land lies off Muanikau Road or Ratu Sukuna Road is inconsequential in the light of the misdescription of the land in the notice. While the Director maybe correct for the time being that the access to the land provided by an easement to Muanikau Road makes the description "off Muanikau Road" proper, the land, if the rezoning and the access provided to Ratu Sukuna Road through the Raghwan Park Strip is permitted to go through, would then be appropriately described as "off Ratu Sukuna Road." Further differences arise in the land described. Contrary to the very clear distinction of two separate lots of land contained in the Minister's notice, the Council's notice of rezoning appears to all intents and purpose, to involve only one piece of land that is intended to be converted into Residential 'A' and road.

The Court can only arrive at one conclusion. The land description as appeared in the Council's notice to rezone was both wrong and incomplete. Given this fact, it is perfectly understandable that the Applicants as well as the Second, Third, Fourth and Fifth Interested Parties were not aware that the Council's Notice of rezoning of part of Bal. S757, Muanikau Road, concerned a piece of land adjacent to or near their properties. That they had, as a result, failed to respond within the one month period, to the Council's advertisement is, the Court finds, the result of this error.

The Director argued that the Minister's Notice of Suspension should have been relied upon and in any case, the description of the affected lands was the Council's responsibility. She had only given direction to the Council to issue the notice. This is contrary to her letter to the Council dated 31 January, 2005 conveying her decision to provisionally approve the rezoning. First, the Court noted that the reference heading in her letter read:

"Re: Proposed Rezoning of Part of Bal. S757 Muanikau Road, Muanikau from Civic (Recreation Space) to Residential 'A' & Road"

It is this reference and in particular the land description that later appeared in the Council's notice to the public on 11 February, 2005. Second, the Director's specifically referred to the attachments to her letter consisting of "two copies of the provisionally approved amendment plan and the relevant Public Notice and Suspension Notice." The Court presumes that the Public Notice referred to the Council's draft, whilst the Suspension Notice was the Minister's. The Court appreciates that the Public Notice sent by the Director to the Council remained a draft which the Council was at liberty to change. The fact also remains that the Director herself in her letter of 31 January 2005 continued to refer to the land as Part of Bal. S757.

In the end, as far as the Applicants and the law is concerned, the more important of the two notices, is the Council's notice to rezone. It is to this notice that the public and any affected party or interested individual respond to, not the Minister's. It is the Council's notice that unlocks the sections 19 to 24 procedures. If in fact there is non-compliance with any of the requirements, procedural or in law, then the decision taken by the Director in her final approval of an amendment to a scheme, is likely to be void. The fact the notice was issued by the Council is immaterial. She derived her decision as a result of the Notice. If the Notice is ineffective in law then this has a direct bearing on the validity or otherwise of her decision.

It is the finding of the Court, that the incorrect of the land known as Lot 1 SO4865; and the omission of the contingent "Raghwan Park Strip" from the Council's Notice to Rezone, constituted an error in law, material to the question of whether the Director had made her decision to provisionally approve the amendment to the scheme in accordance with the law. The error effectively prevented the Applicants and other interested parties from exercising their rights of objection to the proposed rezoning. An error in law amounts to illegality as recognised under the Wednesbury doctrine. As Lord Diplock stated in Council of Civil Service Unions v. Minister for the Civil Services [1985] AC 374, at p.410:

"By "illegality" as a ground for judicial review I mean the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of the dispute, by those persons, the judges, by whom the judicial power of the state is exercisable."

In this case, it is clear from the evidence that the Director's First Decision to grant provisional approval to the rezoning of Lot 1 SO4865 and the contingent Raghwan Park Strip is tainted both with illegality and abuse of discretion. It cannot be allowed to remain. The reliefs sought by the Applicants against the First Decision that an order of Certiorari by this Court to quash the said decision as well as the alternative for a declaration that the same is invalid, void and of no effect, are hereby granted.

The Director's Second Decision

The Second Decision is the Director's decision to give final approval to the rezoning of the subject land on 19 May, 2005. This decision was conveyed to the Council in a letter dated 29 May, confirming that;

"… the Director has decided to grant Final Approval to the proposed rezoning subject to the following condition:

1. That the subject lot being Lot 1 SO4865 Muanikau Road be rezoned from Civic (Recreation Reserve) to Residential 'A' Road and that (Part of) the Civic (Recreation Reserve) to be rezoned to Road."

It is pertinent to note at the outset that upon the finding by the Court that the provisional approval notice was invalid and void, and ordered quashed then it stands to reason that there is no provisional decision to advance to the next stage, and in the circumstances there is nothing preventing the Court from quashing the Second Decision as unlawful. However, even if the Court were to accept that the provisional approval had been properly made, notwithstanding the shortcomings highlighted, the Applicants contend that the final approval could not in any case be legally sustained. The grounds, relied upon by the Applicants, are that the Director in reaching the decision had:

(a) abused her discretion;

(b) erred in fact and law;

(c) acted in breach of natural justice;

(d) acted in breach of the Applicants' legitimate expectation;

(e) failed to take relevant considerations into account;

(f) took irrelevant considerations into account; and

(g) reached a decision which was so unreasonable that no reasonable Director of Town and Country Planning could have come to it.

On abuse of discretion and error in law, the Applicants reiterate their argument on the First Decision that is, that because of the failure of the Notice to carry accurate description of the land involved in the rezoning exercise, the opportunity for the Applicants to exercise their rights as property owners and interested parties to voice their opinion as provided to them by section 20 of the Act, was denied to them. For the Director to proceed regardless and dealt with her own amendments to the scheme, without the legal requirements being first complied with was, according to the Applicants, a serious error in law and also amounted to abuse of discretion.

By the same token, the Applicants argue that given the fact already established that the land had not been described correctly in the Notice, and which resulted in their not being aware that the attempted rezone affected them, they had been denied their common law natural justice right to be heard. This right of objection is protected by law under section 20 of the Act. Counsel for the Applicants interestingly points to the developments in the protection of the rights of property owners in planning cases, in other jurisdictions where for example, in England, such protection is elevated to almost similar status as primary or basic human rights. In R (Alconbury) Ltd v. Environment Secretary [2003] 2 AC 295, the decision making processes of the Secretary of State for Environment, in planning and use of land were deemed by the Court to be susceptible to judicial review and the other issue is whether they can be challenged as incompatible with the requirements of the European Convention for the Protection of Human Rights. Lord Slynn of Hadley emphasised that while the Minister makes a planning decision which may be of national, environmental, social or political significance, he is required to have regard to the fact that, (at p. 319):

"One of the commonest administrative mechanisms is to give a minister power to make or confirm an order after hearing objections to it. The procedure for hearing of objections is subject to the rules of natural justice in so far as they require a fair hearing and fair procedure generally."

If not, the decision is reviewable by judicial review. He added at p.320:

"It has long been established that if the Secretary of State misinterprets the legislation under which her purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the Court may set his decision aside. Even if he fails to follow necessary procedural steps - failing to give notice of a hearing or to allow the opportunity for evidence to be called or cross-examined, or for representations to be made or to take any steps which fairness and natural justice requires - the Court may interfere."

The House of Lords further agreed with the proposition that disputes concern determination of "civil rights", including property rights in planning decisions taken by the Secretary of State were not incompatible with Article 6(1), provided they were subject to judicial review process. Article 6(1) provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

The objectors in the case challenged the Secretary of State's powers to determine land use change by giving directions under the law, requiring applications for planning permission to be referred to him instead of being dealt with by the local planning authorities. The objectors contended that the determination by the Secretary of State of the applications was contrary to the right to have civil rights and obligations determined by an independent and impartial tribunal guaranteed under Article 6(1). This is especially so given that the Minister had himself advocated the change to the scheme and was known to support it as a matter of policy. The Court stated that in the end what is required by the Court is that there should be sufficient review of the legality of the decisions and the procedures followed.

The Court agrees that as a result of the error in the Notice, the Applicants and other interested parties were not able to exercise their rights of objection under Section 20. It was an error grounded in failure in law and fact to meet the procedural requirements necessary before the Director can grant final approval under Section 24(1), to any 24 amendments to a scheme. The Applicants being deprived of their rights to object, the Court finds, constitutes a breach of natural justice. Natural justice is fairness and as Lord Mustill stated in R v. Secretary of State for Home Department exp. Doody [1994] AC 531 at p.560:

"Fairness will very often require that the person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both."

The Court further finds that it was also a breach of the Applicants' legitimate expectation firstly as "owner and occupier of land within the area covered by a scheme", to be notified of any amendments to the scheme as well as the opportunity to express their views on the same. This legitimate expectation arise according to the Applicants and which this Court is in agreement with, not out of any assertion of a right to a benefit, but their interests as recognised in law and protected under section 20. The Court recognised this stating in R v. Devon County Council exp. Baker [1995] 1 All ER 73, per Simon Baker LJ at pp88, 89.

"Perhaps more conventionally the concept of expectation is used to refer to the claimant's interest in some ultimate benefit which he hopes to retain (or some would argue, attain). Here, therefore, it is the interest itself rather than the benefit that is the substance of the expectation. In other words the expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness; the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision."

On whether the Director had failed to take relevant considerations into account, the Applicants contend that she should have recognised the fact that the notice was defective in firstly not correctly describing the subject land and second, in omitting altogether from the notice, the Raghwan Park Strip. Further, the apparent failure of the PPE to receive any respond from owners and occupiers of land within the scheme was possibly due to them not being aware by not receiving the notice to rezone, a factor which the Director herself conceded and highlighted in her letter to the Council of 29 May, 2005. There was also the existing claim by the Council itself to the land which was already on the records as the subject of a land swap proposal with the Director of Lands.

It is possible that the Director may not have been aware of the legal defects of the notice and instead assumed that the land descriptions in it were similar or the same as that contained in the schedule to the Minister's Suspension Notice. This of itself would have been excusable if it were not for the fact that the Director may only proceed to grant final approval after satisfying herself that all the legal requirements have been complied with. The Director would have had before her both the Objection Notice and the Suspension Notice, as well as the result of the PPE. The fact that the PPE alone did not produce any objection, apart from the Council's, and that land descriptions in the two notices differed, should have triggered off warning signals making the Director cautious in proceeding further. She did not for example, go back to the Council to have the result of the PPE confirmed. Instead, she ignored them, proceeding to grant final approval while dismissing the Council's objections as not in conformity with the procedural requirements of the sections 20 and 21. As to the Council's own objections which according to Director were "raised as comments" these, the Courts agrees with the Applicants, should have been relevant considerations to be taken into account by the Director. They constituted proper and relevant matters raised by an interested party in its capacity of the owner of the scheme and/or property owner within the scheme. In the Court's considered opinion, all of these give credence to the Applicants submission that the Director had not, before granting final approval to the rezoning of Lot 1 SO4865 and the Raghwan Park Strip, taken relevant considerations into account.

All in all the Court is satisfied that the Director's Second Decision made on 19 May 2005 pursuant to section 24(1) and 26(2) of the Act to grant final approval of the rezoning of Lot 1 SO4865 and the Raghwan Park Strip is invalid void and of no effect. The reliefs sought by the Applicants against the Second Decision are hereby granted.

The Director's Third Decision

This refers to the Director's decision made and conveyed orally to the Applicants' solicitors on 31 January 2006 refusing to exercise her powers under S26(1) of the Act to require the Council to rezone Lot 1 SO4865 and the Raghwan Park Strip from "Residential A and Road" and "Road" respectively back to "Civic (Recreation Reserve)".

The Applicants challenge the validity of the Director's decision on the ground that it was an abuse of discretion; it was unreasonable; and that she had failed to take relevant considerations into account. These relevant considerations are the following:

"(i) at the time of the decision, she had been made aware of the deficiencies in the objection notice, of the Council's failure to carry out a PPE and the fact that Applicants and the other neighbouring property owners and occupiers had objections but had not made them because they had not received fair notice of the rezoning when proposed;

(ii) the process under section 26(1) would have allowed these deficiencies to be resolved and the interests of other stakeholders to be considered within the context of the Town Planning Act without need for the expense and delay of litigation."

The Court accepts as fact that the Applicants were never at any time seized of the planned rezoning of the land because they were oblivious to it as a result of the defective notice. Having learnt of it later, in fact much later, well after the Director's final approval notified in the Gazette on 24 June 2005, the Applicants informed her that the legal procedures leading up to the grant of final approval had not been complied with and recommended that in the circumstances, that she exercised her powers to require the Council to rezone the two pieces of land back to "Civil (Recreation Reserve)".

The question for the Court is whether the Director was satisfied and genuinely believed all the requirements of the Act had been properly complied with during as well as after the meeting with, and representation made to her, by the Applicants. From the submissions by Respondent's Counsel as well as from her own affidavit, the Court concedes that the Director may have been under a genuine, albeit mistaken, belief that there has been full compliance with the law before final approval to the rezoning was made. Notwithstanding this, the fact remains that the Director had refused to take what the Court deems as relevant consideration into account which, if she had done so, would have resulted in her reaching a different decision.

The request for the Director to act under section 26(1) to reverse her decision in fact represented the only alternative remedy that remained available to the Applicants. The Director's refusal cleared the way for this judicial review. This in effect amounts to an application to seek review of a decision refusing to reconsider an earlier decision on the ground that it was flawed and therefore invalid.

In the end the Court is satisfied that the Director in reaching his Third Decision had not taken relevant matters into consideration and in so doing had acted unreasonably and abused her discretion. The Court as a result holds the said decision invalid void and of no effect. The reliefs sought by the Applicants against the Director's Third Decision are therefore hereby granted.

Director of Land's Decision

The Fourth Decision challenged is the Director of Land's decision of 31 August 2005 to grant Whole Paradise Company Limited, the First Interested Party, an Approval Notice for Lease over Lot 1 SO4865 for a development lease for residential purposes. This in turn resulted in the Director of Lands purported cancellation of Westpac's TAW which it had enjoyed over part of the same land.

The Applicants' ground for challenge are abuse of discretion, error in law, failure to take relevant considerations into account. In respect of the cancellation of TAW, Westpac contended that the Director of Lands had erred in fact and in law in terminating the TAW with effect from 1993, that he had acted in breach of the natural justice by not allowing Westpac the opportunity to be heard prior to issuing the approval notice; that he had acted in breach of its legitimate expectation to be consulted over and would have first option to lease land it already was occupying. In any case, in both situations, the Appellants argue that he had reached a decision which was unreasonable that no reasonable Director of Lands could have come to it.

The grounds advanced by the Applicants for the Court to quash the Director of Land's decision are, Counsel contend, quite separate from that which arise as a consequence of the quashing of the Director of Town and Country Planning's First and Second Decisions. It is of course the correct position that since the Director of Town and Country Planning's First and Second decisions have now been found by this Court to be invalid and void and ordered quashed, that the Director of Land's decision should automatically follow and likewise quashed. To allow the Approval Notice issued to Whole Paradise Company Limited to remain would constitute recognition and approval for a lease for a purpose which is not permitted by law. On this basis alone the Court stands to quash the Director of Land's decision.

There are however separate and additional grounds that the Applicants are arguing in support of their application for the Director of Land's decision to be impugned. The grounds of abuse of discretion and error of law together with failure to take relevant considerations into account are matters that logically arise from the Court's determination of the Director of Town and Country Planning's First and Second Decisions above. The Court finds that they equally apply in this instance. The relief sought by the Applicants against the decision of the Director of Lands is hereby granted.

There finally remains the Director of Lands decision to cancel the TAW held by Westpac. The TAW was granted in 1958 over a portion of Lot 1 SO485 and immediately adjacent to the Westpac lease. Its area is 2 roods. Westpac had maintained gardens and lawn over the portion of the land and, according to the affidavit of Bernadette Wakeham, the Bank's Operations Manager, the land had actually been fenced in to form part of the Chief Manager's compound. The TAW was cancelled by the Director of Lands in 1993, which Westpac claims it was unaware of. It continued to occupy the land to the present and believed that it continued to pay rent until 31 December, 2005.

The Westpac TAW or "Garden land" as it is referred to by the Applicant, being part of Lot 1 SAO483, is included in the rezoning decisions of the Director of the Town and Country Planning and consequently part of the land in the Approval Notice granted to Whole Paradise Limited Company, by the Director of Lands. It was not aware of all these until it heard from Eliki Bomani, of Whole Paradise Limited Company. It unsuccessfully applied in December, 2005 to the Director of Lands for a formal lease over the former TAW land.

Westpac argued that the Director of Lands, in cancelling its TAW in 1993, had acted in breach of their right to natural justice in leasing the land without first advising them of the proposal and in breach of their legitimate expectation that they would have been consulted. It relied on Mohammed v. Director of Lands & Surveyor-General FCA, ABU0084.2001S, in which the Fiji Court of Appeal, in a judicial review brought by a tenant at will against the decision of the Director of Lands to cancel his TAW in favour of a lease to another tenant, held that the appellant had a right to procedural fairness and a legitimate expectation that he would be dealt with fairly. The Court said that the Director was under a duty to allow the sitting tenant opportunity to make representation, when it decided to lease the TAW to a new tenant for another purpose.

It is clear from the evidence that the TAW granted to Westpac in 1958 over portion of Lot 1 SO4865 was a tenancy at will determinable at the pleasure of either parties. Condition 4 of the TAW stated that the contract "shall not operate to create a tenancy". At common law "Anything which amounts to a demand of possession, although not expressed in precise and formal language is sufficient to indicate the determination of the landlord's will." (Halsburys Laws of England Vol. 27; 4th Ed para 172). In this instance, there is a condition in the contract that in addition, requires 30 days notice. The Director had purportedly complied with this requirement, in its letter of 22 September 1993.

Apart from the claim by Westpac that it never received the termination notice the Court finds that the 22 September 1993 letter of notice of termination was legally defective. It referred to the cancellation of Westpac's TAW over "Crown Land Behind CL 2159 instead of "CL 2759". The land description was clearly wrong and amended on the file copy. It however, was not conveyed to Westpac. The fact that Westpac were occupants of two (2) TAWS adds support to the Court's finding.

As to Westpac's submission on breach of its legitimate expectation to being consulted relying on Mohammed's case, the distinction must be made of the situation where the landlord was terminating a TAW in favour of issuance of another tenancy to a new occupier as the case in Mohammed's, to that of the right of the landlord to terminate a TAW per se, which is still recognised under common law. In this case the Director of Lands would have been perfectly entitled, at any time, to determine Westpac's TAW in accordance with the terms of its 1958 contract. It need not state reasons of the termination, but if with the intention of issuing a new lease to another occupier, then it is required to grant the right of representation to Westpac.

In the end, the Director of Land's determination of Westpac's TAW, over land comprising part of Lot 1 SO4865, purported conveyed in its letter of 22 September 1993, is legally defective for reasons already explained. The TAW remains in existence and its conditions continue to apply, including rental payments, subject to the Court's observations made above.

Orders and Declaration

1. An Order of Certiorari to remove into this Court and quash the Director of Town and Country Planning decision of 19 May 2005 to give provisional approval to the re-zoning of Lot 1 SO4865 off Muanikau Road, Suva from Civic (Recreation Reserve) to "Residential A and Road", and part of Raghwan Park known as "the Raghwan Park Strip" from Civic (Recreation Reserve) to "Road";

2. An Order of Certiorari to remove into this Court and quash the Director of Town and Country Planning decision of 19 May 2005 but notified in the Fiji Government Gazette of 24 June, 2005 to approve finally to re-zoning of Lot S04865 from Civic (Recreation Reserve) to "Residential A and Road" and Part of Raghwan Park known as "the Raghwan Park Strip" from Civic (Recreation Reserve) to "Road";

3. A Declaration that the Director of Town and Country Planning decision made and conveyed orally to the Applicants' solicitors on 31 January, 2006 refusing to exercise her powers under section 26(1) of the Town Planning Act (Cap. 139), to require the Suva City Council to re-zone Lot 1 SO4865 and the Raghwan Park Strip from "Residential A and Road" and "Road" respectively back to "Civic (Recreation Reserve)", was unreasonable and abuse of discretion and is invalid and of no legal effect.

4. An Order of Mandamus for the Director of Town and Country Planning to require the Suva City Council to amend the Suva City town planning scheme relating to Lot 1 SO4865 and the Raghwan Park Strip back to Civic (Recreation Reserve);

5. An Order of Certiorari to remove into this Court and quash the Director of Lands decision dated 31 August 2005 to grant to the First interested Party, Whole Paradise Company Limited, an Approval Notice for Lease over Lot 1 SO4865;

6. An Order of Mandamus to require the Director of Lands to cancel the Approval Notice for Lease on Lot 1 SO4865 to Whole Paradise Company Limited.

7. A Declaration that the Westpac TAW over land comprising part of Lot 1 SO4865 remains in existence, subject to payment of arrears of rent.

Costs of $1500.00 is summarily assessed and awarded to each Applicant against each of the First Respondent and First Interested Party.

F. Jitoko
JUDGE

At Suva
Wednesday, 24th September 2008