IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Judicial Review No. 6 of 2012

THE STATE

v

Director, Department of Town & Country Planning,
4 Gladstone Road Government Buildings, Suva (Government Office for Western Division, Lautoka).
1st Respondent

The Secretary, Nadroga Rural Local Authority, Health Office, 
Sigatoka.
2nd Respondent

AND:

Craig & Evette De La Mare
 of the Hotel Site, Lot 14, Maui Bay Estate Baravi, Nadroga, Fiji.
Applicants

Appearances :
Applicants in Person
Ms. Chand, Office of the Attorney-General, Lautoka, for the Respondents 
Date of Ruling :  26 March 2013 

RULING

(my jurisdiction was extended by the Honourable Chief Justice pursuant to Order 59 Rule 2(l) 
to hear all matters coming to the High Court within the powers of a puisne judge up to 31 October 2013).

BACKGROUND

	1. The Maui Bay Development Estate (“Maui Bay estate”) is a large up market, low key, mixed residential “A” type and Special Use (Villa) subdivision, with ancillary services and amenities. The estate is located along the Coral Coast Tourism Zone in Nadroga (described as bal CT 2872 Maunivunise, Nadroga Lot 114). Its planning scheme details the standards and/or criteria which every proposed development must comply with to create and maintain the desired up-market residential/special use villa character of the scheme. The scheme’s planning regulations are set out in the Specific Development Guidelines for the Maui Bay Estate Development Precinct (“SDGMB”). This document was compiled by the Director of Town & Country Planning (“DTCP”). The SDGMB sets out the way the Lots in the scheme are to be used and developed and classifies areas for land use. Its provisions are designed to coordinate infrastructure and development and to maintain the character of the scheme. Ultimately, the aim is to create and maintain a lifestyle for the residents. Hence, amongst other things, the SDGMB would: 

	(i) prescribe the proper ratio of facilities to accommodation and the size of the residential lots (to range from the minimum 1000 square meters to over 4000 square metres). 
	
	(ii) seek to maximize harmony between the estate’s natural setting and the human facilities. 

	(iii) forbid the construction of budget/dormitory and backpacker type accommodation.
	
	(iv) forbid any Villa unit from operating any licensed restaurant or bar on their premises.
	
	(v) reserve the foreshore and creek for public access (e.g. the layout of building for the foreshore lots shall ensure that the foreshore is kept clear at all times. 
	
	(vi) the layout of buildings on the landward side shall be in keeping and sympathetic with the topography. 

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW 

	2. Before me is an application for leave to issue Judicial Proceedings under Order 53 of the High Court Rules 1988. The applicants (the De La Mares) are South African nationals who have purchased a lot which is marked “Hotel Site” at the Maui Bay Scheme. They have also invested in two other residential lots (namely Lots 55 and 101) on the same scheme plan. These Lots are still in the name of the developer and will be registered in the De La Mare’s names in due course as a matter of formality.

	3. Maui Beach Villa Ltd Subdivision (“MBVLS”) is also an investor in the Maui Bay Development Precinct. It owns Lot 7 on the scheme plan which is a foreshore lot. 

	4. The decision in question concerns certain approvals granted by the DTCP to rezone Lot 7 from a Residential Lot to Special Use Villa and subsequent approvals granted on 22 March 2012 to MBVLS to subdivide Lot 7 into Lots 1 and 2 DP 9979. Incidental to these approvals, the DTCP granted an easement which gave MBVLS exclusive use of the foreshore fronting Lot 7. MBVLS has since completed the subdivision and has commenced development and construction work at the site in 2012. 

	5. The De La Mares seek leave for judicial review of all building plans and outline applications of MBVLS development on Lots 1 & 2 DP 9979. They also seek a mandatory injunction to compel DTCP and NRLA to withdraw building permissions they have granted to MBVLS and that new plans be submitted strictly in line with the SDGMB and for the demolition of all building work carried out in violation of the SDGM including, but not limited to all structures built on the foreshore and the 4th bedroom.

	6. The De La Mares grievance is couched in the following tone:

	(i) the value of their hotel site has diminished. They are directly affected by MBVLS’ proposed Special Use Villa development. Not only will it put a strain on resources, it will also lead to an increase in the number of rooms offered by these residential sites to tourists. That means competition for the De La Mares’ Hotel Site. They say that their Hotel Site was intended - under the SDGMB - to be the only hotel site. 

	(ii) all development and construction work ensuing from DTCP and NRLA approvals have not complied with environmental and planning laws of Fiji and of the SDGMB.
	
	(iii) the approval has overstepped their (as well as other lot owners’) rights to the foreshore which was originally intended to be a public amenity accessible to all.
	
	(iv) MBVLS’s development work downgrades the value of their investment on the scheme by threatening to change the character of the development from low-a key up-market development, to an overcrowded and a high density one in contradiction to the SDGMB.

7. The De La Mares argue that the DTCP approval does not comply with the law and is ultra vires the powers of the DTCP. Lot 7 was a single foreshore lot comprising 2060 square meters, with a road frontage of 31.81 meters, on DP 9240. The size of the frontage means that the lot could not legally be subdivided. After the subdivision, Lot 1 has a street frontage of only 16 meters and Lot 2 - of only 15.81 meters, as per plan, CT 36183 lots 1 &2.

LOCUS

	8. The De La Mares own the largest single commercial lot in the Maui Bay Estate development, Lot 114, the Hotel Site. They are apparently not yet registered proprietors of these Lots. But this is mere formality – I gather – because title will be transferred to them in due course. As purchasers, they have an equitable estate over all the Lots which they have purchased in the estate. On top of that – they actually reside on their property in the Maui Bay subdivision. In my view, the nature of their estate – the fact of their occupation - and their expectations that the DTCP would uphold the promise of a low key residential development as set out in the SDGMB – these are sufficient cause for the De La Mares be aggrieved by the actions of the DTCP– and therefore – to give them locus under Order 53.

DELAY

	9. The Office of the Attorney-General argues that the application is out of time. The De La Mares argue that because the DTCP had not advertised the proposed relaxation of the scheme, which it was obliged to do under the law, they had no inkling of all that was happening until MBVLS started construction and development work in 2012. Since then, they have made all due inquiries and found – at the bottom of it all – that the NRLA and DTCP had granted the approvals in question to MBVLS. If all that is taken into consideration – then they have been prompt in filing the application. This argument rests ultimately on – firstly - whether or not the DTCP is obliged under law to advertise the proposed relaxation of the scheme and - secondly – whether or not the approvals and the subsequent development and construction work – actually do amount to a relaxation of the scheme. But - as these are substantive questions for the judicial review proper – I reserve the issue of delay for later. Suffice it to say that the time limit can be extended and that there is supportive case law authority that – where there is delay – the Court must first scrutinize with care the reasons for the delay before extending the time limits. 

THE LAW

	10. The principles of judicial review adopted by this Court in Fiji Public Service Association v. Civil Aviation Authority of Fiji and Attorney General of Fiji and Airports Fiji Limited (JR No. 015 of 1998L, 30 November 1998 are taken from O’Reilly v Mackman [1983] 2 AC 237, at 279 per Lord Diplock: 

... I have widened the much-cited description by Atkin LJ in Rex v. Electricity Commissioner; Ex parte London Electricity Joint Committee Company [1920] 1 KB 171, at 205 of bodies of persons subject to the supervisory jurisdiction of the High Court by prerogative remedies ... by excluding Atkin LJ’s limitation of the bodies of persons to whom the prerogative writ might issue, to ‘those having the duty to act judicially’ ... 
 
Wherever anybody of persons has authority conferred by legislation to make decisions [judicial, quasi-judicial and administrative only] it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded him by the rule of natural justice of fairness, viz, to have afforded him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made. Therefore, as a most basic principle, an application for judicial review must show on the evidence, that one or more of the common law or statutory rights or obligations of the applicant has been adversely affected by the decision complained against. 

	11. At leave stage, the threshold is low. What needs to be established is ‘an arguable case’ to be resolved only by a full hearing of the application for judicial review. A full review of the facts is unnecessary. But, a court is obliged to sufficiently pursue the material provided to determine whether an applicant raises an issue arguably involving: an error in law, a serious error in fact, a violation of natural justice or procedural fairness, or an excess of jurisdiction by the decision-maker the subject of the application.

It was once argued in State v Connors, ex parte Shah [2008] FJHC 64; HBJ47.2007 (7 April 2008) that the threshold at leave stage is ‘potential arguability’ rather than “arguable case”. 

i.e. ‘whether the materials before the court disclose matters which might, on further consideration, demonstrate an arguable case for the grant of relief claimed. It is not necessary to show an arguable case at the leave stage’, citing R. v. Director of Immigration; Ex parte Ho Ming-Sai (1993) 3 HKPLR 157.

	12. This construction was based on what Lord Diplock had said in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, at p. 644A:

If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief.

	13. But the English Court of Appeal six months earlier –in R. v. Legal Aid Board; ex parte Hughes (1992) 24 HLR 698. At pp. 702-703, Lord Donaldson MR said:

Lord Diplock may well have been right in 1981 to have said [what he did] ... However, things have moved on since then. This was an ex parte application. In such a case leave is or should now only be granted if prima facie there is already an arguable case for granting the relief claimed. This is not necessarily to be determined on 'a quick perusal of the material', although clearly any in-depth examination is inappropriate. Furthermore, a 'prima facie arguable' case is not established merely by the disclosure of 'what might on further consideration turn out to be an arguable case' (my emphasis). It is only when there is clearly an arguable case that leave should be granted ex parte. Equally, it is only when prima facie there is clearly no arguable case that leave should be refused ex parte. Usually ex parte applications fall into one or other of these categories, but not always. There is also a small 'I really need to know a bit more about it' category and in such cases the aspirate course is to adjourn the application for an inter partes hearing ... This is quite different from a substantive hearing in that the respondent need only summarise its answer sufficiently to enable the judge to decide whether there is or is not an arguable case.

	14. The difference between the two approaches is – one will grant leave only where an arguable case is clearly made out. The other - if the court at first instance thinks a Court dealing with the substantive application will think the Applicant has an arguable case. The first test is appropriate if the rationale for obtaining leave is only to weed out those cases which are obviously hopeless, in which case the court would not investigate the case in any depth at all. The second test is appropriate if it was intended that only those cases which are genuinely arguable should go to a full hearing, in which case the arguability of the case would have to be considered in a meaningful way. In Fiji, the arguable case test is applied (see Scutt J in State v Connors, ex parte Shah). 

CONCLUSION 

	15. In my view, the applicants have demonstrated an arguable case of a denial of natural justice. And accordingly, I grant leave to issue Judicial Review. 

	16. However, for the sake of clarity – I make no direction that this grant of leave shall operate as a stay or as an interim injunction against all development works at Maui Bay by MBVLS. The plaintiffs had sought an urgent interim stop work order but I am not inclined to grant this as it is clear from their submissions that they have no intention of joining MBVLS in these proceedings at any time. 

................................
Master Tuilevuka

At Lautoka
26 March 2013