RULING
This application concerns a proposed town planning scheme submitted by the Suva City Council in terms of Section 18 of the Town Planning Act (Cap. 139) ('the Act') and which was provisionally approved by the Director of Town and Country Planning ('the Director'), affecting the flow of traffic through the Nabua Commercial Shopping Centre.
Principally, the scheme proposes a by-pass road which seeks to divert traffic out of the Nabua Commercial Centre thereby relieving traffic congestion currently experienced in the centre during peak hours. To facilitate this the scheme also provides
for the re-zoning and acquisition of properties along the proposed route to be followed by the by-pass road.
The scheme was public advertised in a Fiji Republic Gazette Notice dated the 21st of August 1992 which also invited written objections. The applicant, is a registered charitable, religious and educational body, and the lessee
under an Approval Notice of Lease granted by the Director of Lands in 1984, over 22 acres of land through which the proposed by-pass road will pass.
The Approval Notice consolidated three (3) separate crown leases which the applicant originally held over the lands and was specifically granted for 'Educational' purposes. Since 1953 the applicant has built and operated two (2) schools on the land namely, the D.A.V. Boys College and Swami Shradhanand Memorial Primary School with a combined roll to-day, in excess of 1,600 students.
By letter dated 6th November 1992 the applicant objected to the advertised town planning scheme on five (5) grounds. These were further expanded in a written submission dated the 4th of August 1993 provided by the applicant at a public hearing called by the Director.
Almost three (3) years later in a letter dated the 18th of June 1996 the Director dismissed, amongst others, the objections of the applicant. By letter to the Minister of Urban Development, Housing and Environment ('the Minister') dated the 30th July 1996 the applicant appealed against the Director's dismissal of its objections and the Minister replied on the 5th of December, 1996 dismissing the applicant's appeal.
On the 28th of February 1997 the applicant filed the present Motion seeking leave to apply for judicial review against the decision of the Director and the Minister on the following grounds:
"(ii)(a) That the Director of Town and Country Planning and subsequently the said Minister breached the Rules of Natural Justice in that they did not give the Applicant a fair hearing and were biased against the Applicants.
(b) That the said Director and the Minister failed to give any or any proper reasons for their decisions.
(c) That the Director and the Minister both severally and jointly abused their discretions in that:
(i) They took into consideration irrelevant matters;
(ii) They were influenced by extraneous considerations which ought not to have influenced them;
(iii) They have failed or must have failed to take into account considerations which ought to have influenced them;
(iv) They misdirected themselves in fact or in law;
(v) They acted unreasonably, arbitrarily or in bad faith;
(iv) They acted in breach of the Doctrine of Legitimate Expectation."
In summary, the applicant raises 'bias'; 'failure to give reasons' and 'abuse of discretion' in its substantive application for judicial review.
At the outset I would point out that it is quite improper to join the decisions of the Director and the Minister in the same application and seek to have them overturned on identical grounds albeit that they were both unfavourable to the applicant.
The reasons for this are obvious and includes the following: firstly the particular decisions are founded on different sections of the Act and are substantively, quite different in nature. Secondly the Minister's function in the scheme of the Act is an appellate one and his decision in terms of Section 5: "... shall be final"; and Thirdly the Act sets out a detailed procedure for the submission, notification and receipt of objections to a town planning scheme which must be followed
before the Director can arrive at any determination. In this latter regard it is significant that the applicant has not challenged either the legality
of the town planning scheme or the various procedural steps followed by the Director.
Having said that there is not the slightest doubt in my mind that the applicant has in terms of Order 53 r.5 "a sufficient interest in the matter to which the application relates". Furthermore that interest is neither indirect or remote. Indeed the proposed by-pass road, if constructed as approved, encroaches
into the applicant's leasehold by reducing 'the playing ground of the Primary School' and would result in the demolition of at least one, and possibly two, concrete dwelling presently used by the applicant as staff
quarters.
But 'sufficiency of interest' alone is not the sole or over-riding consideration in a decision whether or not to grant leave to apply for judicial review. In addition,
the decision sought to be reviewed must be 'justiciable', and the court must be satisfied from a preliminary examination of the evidential materials produced for its consideration, that
there are good and substantial grounds for granting leave.
In this latter regard having carefully considered the affidavit of Jai Narayan Jokhan and the submissions of the applicant's counsel, I am far from satisfied that there exists any material which remotely supports the
ground of pre-determination or 'bias' alleged against either the Director or the Minister nor is such a conclusion an inevitable or irresistible result of considering the materials produced.
As for the 'failure to furnish reasons' by either the Director or the Minister it is noteworthy that none was expressly sought by the applicant nor is there a statutory requirement under the Act to provide the same, but in any event, the Director's letter of 18th June 1996 dismissing the applicant's objections contains several 'justifications' for his decision. Furthermore, Approval Conditions 2 and 4 appear to specifically address the special concerns of the applicant.
Needless to say, the applicant's appeal letter to the Minister addressed 'seriatim' the Director's various 'justifications' which quite plainly, from the applicant's point of view, were his 'reasons' for disallowing its objection. In so far as the Director's decision is concerned there is no valid basis in my view for saying that he gave no reasons for his decision. On the contrary, I
am satisfied that reasons were given.
The Minister's decision, however, as conveyed in his letter of 5th December 1996, is wholly devoid of any reasons(s) and might be amenable to judicial review on that ground alone. I say 'might be' advisedly, because although the Fiji Court of Appeal recently observed in Pacific Transport Co. Ltd. v. Mohammed Jalil Khan and T.C.B. Civil Appeal No. 21 of 1996 (unreported) at p.14 (that):
"In Fiji, ..., there is no general requirement for a tribunal to give reasons in the absence of a statutory requirement",
nevertheless the Court of Appeal cited a passage from the judgment of Lord Upjohn in the leading case of Padfield v. Minister of Agriculture, Fisheries and Food [1968] UKHL 1; (1968) A.C. 997 in which his lordship said at pp.1061-62:
"... a decision of a Minister stands on quite a different basis: he is a public officer charged by Parliament with the discharge
of a public discretion affecting Her Majesty's subjects; if he does not give any reasons for his decision it may be, if circumstances
warrant it, that a court may be at liberty to come to the conclusion that he had no good reasons for reaching that conclusion and
order a prerogative writ to issue accordingly."
In the present case however, the Minister although not conceding "... any duty (or obligation) to give any reasons to the applicant" for dismissing its appeal, has nevertheless, sworn an affidavit deposing that he had "properly considered all the grounds raised by the applicant ..." in its appeal letter of 30th July 1996.
In particular the Minister deposed to allowing an appeal by another appellant which effectively eliminated 'a further 8 metres of encroachment from the applicant's land' (see: approval condition 5) and, to attending a meeting with representatives of the applicant where he was appraised of the contents of a Consultant's report
commissioned by the applicant after the Director's decision but before his own decision was reached.
Finally the Minister deposed:
"that the state has the right to acquire land in any locality for a public purpose as is the case here by virtue of the Crown Acquisition of Lands Act Cap. 195"
and
"... further, the Nabua By-Pass is a critical part of the upgrading project for the Kings Road which has already begun and (is)
part of the Fiji Road Upgrading Project as approved by Cabinet on 30th October 1990 to alleviate the escalating traffic problems
on this road, furthermore the applicant can be assured that proper safeguards will be put in place to protect students and that compensation
will be provided for any loss of use caused by the encroachment of the road."
In light of the above (which is not denied or disputed), I find that there is also no basis for the applicant's complaint that the Minister had 'abused his discretion' in dismissing the applicant's appeal and although no reasons were originally given for the Minister's decision, he has subsequently done so, in his affidavit filed in these proceedings.
Counsel for the applicant also raised the 'Doctrine of legitimate expectation' in its grounds for seeking judicial review and this is expanded upon in the affidavit of Jai Narayan Jokhan where he deposes:
"(d) That when the Director of Lands first granted the said leases to APS for educational purposes in 1953, APS had a legitimate
expectation that it would continue with the existing and future developments unhindered of that purpose, without any interference
from the Government by way of an encroachment as currently envisaged, into the Applicant's property."
I cannot agree with the claim in the context of this case. In the first place the land comprised within the applicant's Approval Notice is expressly made "subject to survey" and as yet has not been surveyed; Secondly, in planning matters and in the compulsory acquisition of lands for public purposes the 'public interest' is the over-riding factor and individual hardship must necessarily give way.
In Raceway Motors Ltd. v. Canterbury Regional Planning Authority (1978) 2 N.Z.L.R. 605, Casey J. said at p.612:
"It must be accepted, of course, that virtually every planning decision is likely to cause individual hardship to somebody, and
in the great majority of cases this cannot in any sense be a special factor to weigh against the planning advantages. It would seem
that, before it can be regarded as a matter relevant to public interest, an applicant's hardship should be such that he is likely
to suffer significant economic consequences differentiating him from the general public, the question being one of fact and degree."
In this case there is no suggestion that the applicant has incurred any unusual expenditure in carrying out its proposed expansion
plans for a multi-purpose hall and a technical training college which are still at the 'fund-raising stage' only, but in any event, finalisation of the by-pass issue would be in the applicant's interest to know in the event that it should
proceed with its expansion plans.
Furthermore I cannot accept that the mere grant of a lease over unsurveyed property for a specific purpose can raise any 'legitimate expectation' in the lessee that the land area will not be reduced as a result of a town planning scheme which entails the compulsory acquisition
of part of that leasehold. It might be that there may exist a 'legitimate expectation' that the declared purpose of the lease will not be altered during its term but that is not the situation under consideration.
In rejecting an argument based on 'legitimate expectation' in AMP v. Waitemata Planning Authority (1982) 2 N.Z.L.R. 448 where planning permission was granted for a building which had the effect of impairing the applicant's previously unobstructed harbour
view, Chilwell J. said at p.463:
"There is no independent principle that past relationships or inter party transactions can give rise to legitimate expectations
which should not be disappointed. Those expectations must be associated with the administration or purported administration of the
Act and the consequences which flow from that. It is those consequences which can have planning significance in terms of public interest
... The public interest element lies in the consequences of the administration or purported administration of the Act not the consequences
of the owner's privately arranged expectations being frustrated."
(See also: the observations of the Fiji Court of Appeal on this aspect of the Pacific Transport case (op.cit) at pp.9, 10 & 11 especially.)
The applicant in its appeal also dismissed the Director's 'acceptable costs' justification as being "... not really a valid argument when compared with the serious planning flaw of locating this road in this area ..." Again I cannot agree.
In Sovmots Investment Ltd. v. Secretary of State for the Environment (1976) 1 ALL E.R. 178 Forbes J. in holding that 'costs' can be a relevant factor in considering planning applications said at p.187:
"Of course planning is concerned with land use, but the Minister charged with the overall duty of considering applications for
planning permission and the confirmation of planning proposals for particular areas must, it seems to me, be entitled to bear in
mind the likelihood of the proposed development being carried into effect. ... It seems to me that the Minister has a duty to consider
cost ... The provision of (public roads in towns) after all involves the proposed deployment not only of the ratepayer's but also
the taxpayer's money and it seems to me that the Secretary of State is entitled to take these matters into account in suitable cases
and that therefore cost can be relevant ... Of course it follows that the weight to be given to cost, if it is a relevant factor,
is also a matter for the Minister and not one in respect of which any court is entitled to substitute an opinion."
Finally State Counsel also relied upon the express wording of Section 5 of the Act to the effect that the Minister's decision on an appeal from the decision of the Director: "shall be final". If by this submission counsel meant that the Minister's decision is not amenable to judicial review then I would have to disagree. In R. v. Medical Appeal Tribunal ex-parte Gilmore (1957) 1 Q.B. 575 the Court of Appeal (U.K.) in considering a statutory provision which stated "any decision of a claim or question ... shall be final" and in rejecting a similar argument:
"held: ... those words meant only that the decision specified could not be the subject of appeal or reference; they did not suffice to
prohibit applications for certiorari, whether on the ground of error on the face of the record or excess or lack of jurisdiction.
A long line of authority shows that the remedy by certiorari is not to be taken away save by clear and express words of an Act of
Parliament."
Having said that however, I am not satisfied from the materials placed before me, that this is an appropriate case to grant leave
to the applicant to apply for judicial review. Leave is accordingly refused and the application is dismissed.
D.V. Fatiaki
JUDGE
At Suva,
27th May, 1997.
Hbj0004d.97s
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