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State v Minister of Lands and Mineral Resources, ex parte Basir Khan [2014] FJHC 684; HBJ07.2012 (19 September 2014)

In the High Court of Fiji at Suva
Civil Jurisdiction
Judicial Review No. 7 of 2012


The State


vs


  1. Minister of Lands and Mineral Resources
  2. Director of Lands
  3. Minister of Local Government, Urban Development, Housing and Environment
  4. Commissioner,Northern
  5. i-Taukei Land Trust Board
  6. Director of Town and Country Planning
  7. Labasa Town Council

Ex-Parte:


Bashir Khan and Faizal R.Khan
on their own behalf and as trustees of Vanualevu Muslim League


Appearances : Mr S. Valenitabua for the applicant
The respondents absent and unrepresented
Date of hearing: 5th June,2013


JUDGMENT


  1. This is an application for leave to apply for judicial review by the applicants, in terms of Or 53,r 3(2),on their own behalf and as trustees of the Vanualevu Muslim League,(VML).The first applicant is its President. The second,its Secretary.
  2. The first respondent had granted VML,approval for a drainage reserve or easement over Lot 1 on Plan No.M 2605, to discharge storm water to the Labasa river.VML is the owner of State Lease No. 17786,Lot 13 and 13A in Plan No.M1644, which lies behind Lot 1 on Plan No. 2605.The applicants allege that the respondents have withdrawn the approval and issued a lease to Centre Point Hotel Management Ltd over Lots 1 and 2 on Plan No. M2605, without authority and without consulting the applicants, Labasa residents and ratepayers and/or calling for expressions of interest. The zoning of Jaycees Park has been altered from open space to Special Use (Tourism).It is further alleged that the respondents have not issued a Completion Certificate to VML, in respect of its building at 13 and 13A Jaduram Street, Labasa, despite representations made by engineers that the building is structurally sound.
  3. The applicants challenge the following decisions of the respondents, viz,
    1. The withdrawal of the approval granted for a drainage reserve or easement to VML on 27th February, 2012.
    2. The issue of a lease of Lots 1 and 2 on Plan No. M2605 to Centre Point Hotel Management Ltd.
    1. Preparing,provisionally approving and suspending an amendment to the approved Town of Labasa Planning Scheme, altering the zoning of Lot 1 (Part of) & Lot 2 M 2605, the Jaycees Park from open space to Special use (Tourism),without any authority.
    1. In not issuing a Completion Certificate to VML.

The applicants move for a stay of these decisions.


  1. The reliefs sought by the applicants are as follows:
  2. The grounds upon which the reliefs are sought are as follows:
    1. The respondents exceeded or did not properly exercise their jurisdiction, under the Town and Country Planning Act, the Local Government Act, the State Lands Act, the I-Taukei Lands Trust Act and their respective regulations and made errors of law in not properly construing and applying these laws.
    2. The respondents acted unreasonably and/or irrationally and/or arbitrarily.
    1. The respondents acted unfairly and in breach of the rules of natural justice as they did not give the applicants and the Labasa residents and ratepayers, a fair hearing.
    1. The respondents acted unreasonably and/or irrationally and/or arbitrarily, in withholding the issuance of Certificate of Completion.
    2. The respondents abused their discretion in:-
      • (i) taking into consideration irrelevant matters namely:-
        • The pending court case against the developer and Mr Vinesh Dayal.
        • The project would be revenue generating.
        • The Jaycees Park was not properly maintained nor used very much.
        • The drainage reserve or easement should be a Tourism issue.
        • Labasa Town Council would save on yearly rental.
        • The “Look North Policy”.
        • The business risk taken by Mr Vinesh Dayal.
      • (ii) failing to take into consideration relevant matters namely:-
        • The proposal was not consistent with the operative Approved Labasa Town Planning Scheme(2007) and policy directions.
        • The approved scheme clearly zoned the site as open space.
        • The Jaycees Park is for public use, as part of Labasa Town Council’s services to its people.
        • The drainage reserve or easement granted to VML is necessary “for the inspection chamber..and the voluminous roof water discharge”, which must not be discharged into the road, and as the roof water piping is laid at an angle sloping to the river bank.
        • The applicants have nowhere else to conveniently discharge the roof water discharge to avoid reversal surge of water causing flooding.
        • The proposal by Centre Point Hotel Management Limited would aggravate traffic congestion in Labasa.
        • The Labasa residents had petitioned against the previous proposal by Matasawa Investment Limied and/or Hotel North Pole.
      1. The respondents have acted in breach of the legitimate expectations of the applicants.
  3. The first applicant, in his affidavit in support, states that :
    1. VML’s property has a 3 storey building erected at a cost of 3.8 million dollars.
    2. Lot 1 on Plan M2605 is Crown or State land, while Lot 2 on M2605 is native or I-Taukei land. The first respondent is custodian of Lot 1.The fifth respondent is custodian of Lot2.
    3. VML had dug a drain on Lot 1 on M2605 from its land to the Labasa River.
    4. The first respondent advised the Divisional Surveyor, Northern to withdraw the approval granted on 27th February, 2012,to VML for a drainage easement or reserve, on the grounds of the pending court case against the developer and registered lessee of that land, Mr Vinesh Dayal.
    5. Matasawa Investment Limited and/or Hotel North Pole gave the Office of the Commissioner Northern its proposal to develop Lots 1 & 2 on Plan No. M2605, in August 2010.
    6. Centrepoint Hotel Management Ltd holds a “purported” lease over Lots 1 and 2 on M2605.The lease was wrongly and illegally granted by the i-Taukei Land Trust Board on 20th July, 2011.
    7. The third respondent prepared an amendment to the approved Town of Labasa Planning Scheme, which will purportedly alter the zoning of Lot 1 (Part of) & Lot 2 M2605 Jaycees Park from Open Space to Special use (Tourism).
    8. The seventh respondent has purportedly provisionally approved Town of Labasa Planning Scheme altering the zoning of Lot 1 (Part of) & Lot 2 M2605 Jaycees Park.
    9. The third respondent suspended the Labasa Town Planning Scheme,as it relates to Lot 1 & Lot 2 M2605(part)Labasa Town.:
  4. Semi Senikuraciri, in an affidavit in reply on behalf of the fifth respondent states:
    1. The iTLTB is the administrator of all native land leased in Fiji.
    2. Native Lot 1 & 2 on Plan M2605 was a crown reverted lease by virtue of the Native Lands (Amendment) Act,2002. Lot 1 had reverted to Native Lease, while Lot 2 had always been I Taukei Land.
    1. The Agreement for Lease had been granted to Centrepoint Hotel Management Ltd based on information provided by the Ministry of Lands.
    1. The fifth respondents’ role in this matter was limited to the granting of the Agreement for Lease, pursuant to the lessee application and it meeting the formal requirements for a lease .
    2. The applicant had only applied for drainage easement late last year, in a bid to stall the development on the lot, which would in no way impede any water outlets.
    3. It cannot comment on the withdrawal by Divisional Surveyor Northern. The fifth respondent did not advise the Divisional Surveyor Northern, to withdraw the approval.
    4. The fifth respondent’s actions with regard to this matter is not in any way illegal, irrational nor was there procedural impropriety.
    5. Culverts would be put to improvise the drainage system in the area. The applicants had been informed that there will be a proper suitable alternative system for the water outlet. The lessees have approved plans of a proper drainage system which would properly dispose of the rainwater A copy of the approved plan where the lessee would build a proper drainage system for the proper disposal of rain water, is attached.
    6. The applicants are not prejudiced in any way, as the disposing rain water is being accommodated via an approved 2 metre drainage easement and this rain water will be directed to the river.
    7. The lease on the subject land to the Labasa Town Council had expired. No new lease had been issued at the time of the application for the land.
    8. It is lawful for the fifth respondent to issue licences and leases over any land outside native reserve.
    1. Before a new lease was issued to the Labasa Town Council, the land was released to the fifth respondent.
    1. The orders sought by the applicants would be prejudicial to the respondents and the lessees, as the proposed development by the lessees does not in any way hinder or affect the applicants, as the drainage system will not be improperly dealt with in any way.
    2. The applicant has a part of his building encroaching on the land.
    3. The Agreement for Lease does not prejudice the rights of any party. The lessee is working in partnership with the landowning unit of the land. There are no objections from the Jaycees Play Center nor the ratepayers of Labasa Town. Signatures of the majority members of the Labasa Ratepayers Association, who supported the proposed development on the land and a letter from the Labasa Jaycees Play Centre Kindergarten consenting to the relocation of the kindergarten, are attached.
    4. A new Play centre was subsequently built for the children at Labasa Jaycees Play Centre Kindergarten. The lessee had spent a total of $22,000 on the new Kindergarten.
    5. The proposed development will bring about the much needed employment and contribute towards the social and economic prosperity of Labasa town.
    6. A Memorandum of Understanding had been signed between the lessee, the President of Jaycees Club, the President of Labasa (Jaycees) Play Centre and the Manager of Bethel Primary School. The Memorandum of Understanding is attached.
    7. There is an approved plan accommodating drainage access as attached.
    8. The applicants have no mandate to speak for the residents of Labasa. There is no opposition by the residents of Labasa, as to the granting of the lease to the lessee.
    9. The fifth respondents acted within its powers of the I-Taukei Land Trust Act Cap 134.
  5. Jitendra Prasa, in the affidavit in opposition filed on behalf of the sixth respondent states:
    1. The drain and/or temporary easement made by VML is illegal and without approval from the relevant authorities.
    2. VML has instituted proceedings in the High Court Civil Action No. 32 of 2011, in Labasa seeking declaratory orders that the decision of the Ministry of Local Government, Urban Development, Housing and Environment for approval and surrender and release of lease no. 6068, being Lots 1 and 2 on plan no. M 2605 to the I Taukei Land Trust Board is unlawful and ultra vires.
    1. The application for judicial review has been more than reasonably delayed.
    1. He has been informed by the management of North Pole Hotel that they had completed the stage one development of the land formely known as Jaycees Park and have re-allocated the kindergarten school situated on the land.
    2. The applicants do not have locus standi to apply for judicial review. The applicants have failed to establish how their sufficient interest have been abused, as a result of the decision by the respondents.
  6. The first, second, third, fourth and sixth respondents oppose the grant of leave on the following grounds:
    1. The applicants do not have an arguable case.
    2. The first and second respondents acted within their powers, in arriving at the decisions challenged and took into account all relevant facts and circumstances, in withdrawing the approval granted to Vanualevu Muslim League for drainage reserve or easement over Lot 1 on Plan 2605.
    3. The first and second respondents complied with the State Lands Ac, (Cap 132) by giving withdrawal of the notice of approval granted to VML.
    4. The respondents had not made an error in law and had exercised their discretion fairly.
    5. The application for judicial review is frivolous and vexatious and should be struck out.
    6. The first, second, third, fourth and sixth respondents have not breached the legitimate expectation of the applicant at any stage of their decision.
  7. The determination
10.1 On 27thFebruary,2012,the first respondent granted VML approval for a drainage reserve or easement over Lot 1 on Plan No.M 2605,to discharge storm water to the Labasa river.

10.2 The approval addressed to the first applicant, President of VML,was in these terms:

Re: Application for Drainage Reserve

Reference is made to your application dated 18th October 2011, regarding the above subject.


I am pleased to advise that approval is now granted for the Drainage Reserve to be put in place in order to discharge the storm water from your property to the Labasa River. We will immediately proceed with the application to the Director of Town and Country Planning for approval. (emphasis added)


10.3 The grievance of the applicants is that this approval was withdrawn and a lease was granted to Centre Point Hotel Management Ltd of the land .

10.4 The fifth respondent, its affidavit in reply states that:

10.5 . At the hearing, Mr Valenitabua, counsel for the plaintiff said that the applicants had been informed that alternative draining arrangements will be provided to VML.

10.6 The application before me is for leave to apply for judicial review. At this stage, there are three issues that need to be considered.

10.7 I would refer to the judgment of Calanchini AP in Proline Boating Co Ltd v Director of Lands,(Misc. Action 39 A of 2011) stated at pg 9:

The first matter to be determined is whether the Applicant has a sufficient interest in the matter to which the application relates. This is required under Order 53 Rule 3 (5). The second issue is the question of delay..The third matter is whether the Applicant has established on the affidavit material before the Court that it has an arguable case to obtain leave to apply for judicial review.(emphasis added)


10.8 I am satisfied that the applicants have sufficient interest to bring this application, as regards the decision to withdraw the approval granted to VML, for the drainage reserve over the land. The application is within time.

10.9 The issue then, to be decided is whether the applicants have an arguable case. On this point, Calanchini AP in Proline Boating Co Ltd v Director of Lands,(supra) said:

At the outset it should be stated that the requirement of an arguable case is a low threshold. ....


The applicant need only establish that his application is not frivolous nor vexatious in the sense that it is not a hopeless case. .(emphasis added)


10.10 That takes me to the speech of Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd, [1981] UKHL 2; [1981] 2 All ER 93 at page 106 where his Lordship referred to the limited nature of the requirement to demonstrate an arguable case as follows:

The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. 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.


10.11 I would also refer to the following passage from the judgment of the Court of Appeal in Maisamoa v. Chief Executive Officer for Health,(Civil Appeal No. ABU 0080/2007):

All that needs to be demonstrated at the leave stage is that there is an arguable case. In State v Connors, ex parte Shah [2008] FJHC 64 Scutt J correctly veserved about the process at the leave stage:


At this stage a full review of the facts is unnecessary. Nonetheless, a court is obliged to sufficiently pursue the materiavide to determine whether aher 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.(emphasis added)


10.12 In my view, the decision to withdraw the drainage approval over the land presents an arguable case.

10.13 I grant the applicants leave to apply for judicial review, in respect of the withdrawal of the approval granted to VML on 27th February, 2012, for drainage reserve or easement over Lot 1 on Plan No. 2605 and grant a stay of that decision.

10.14 The applicants also seek judicial review in respect of the approval and grant of a lease to Centrepoint Hotel Management Ltd and the zoning of the land.

10.15 In my view, VML have no rights over the land. VML had only been granted a drainage and easement over the land. The letter of approval of 27 February,2012,did not specify the type of drain.It states that the drainage reserve was " to be put in place". But VML dug a drain on the land, as stated in its affidavit in support. The sixth respondent, in its affidavit in opposition, states that the drain and/or temporary easement made by VML is illegal and without approval from the relevant authorities.

10.16 In my judgment, VML does not have "sufficient interest " in respect of the grant of a lease of the land or its zoning. The application for leave is declined.

10.17 The remaining issue is the application for judicial review of the decision of the respondents not to issue Vanualevu Muslim League with a Completion Certificate, in respect of its building at Lots 13 and 13A Jaduram Street, Labasa, However, sufficient facts have not been put forward in support, except to state that representations have been made by its engineers that building is "structurally sound". This matter was not urged at the hearing. The application is declined.
  1. Orders

19th September, 2014


A.L.B.Brito-Mutunayagam
Judge

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