IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 258 OF 2003

Between:

EILEEN RODENBURG-CHUTE
Plaintiff

and

1.	ILAITIA BOILA
2.	SUVA CITY COUNCIL
Defendants

Mr. R. Naidu for the Plaintiff
Mr. N. Nawaikula for the 1st Defendant
Ms. T. Waqanika for the 2nd Defendant

Date of judgment: 15 July 2005

JUDGMENT

This is an application by the plaintiff by way of originating summons seeking orders as follows:-

(a)	An order requiring the first defendant to immediately demolish or correct the encroaching building to conform to the governing building regulations.

(b)	A declaration that the second defendant was negligent in the conduct of its statutory duty and its duty of care to the plaintiff in attending to the enquiry and complaints lodged by the plaintiff pertaining to the first defendant’s action and or inaction.

(c)	General damages

(d)	Special damages

Facts surrounding the case

The facts are that the Plaintiff and the First Defendant (the ‘D1’) are both registered proprietors of land on Princes Road, Tamavua that lie beside each other. There is a driveway namely an easement No. 22890 which runs from the main road (Princes Road) right down to the Plaintiff’s land (CT 6477 Lot 10 on DP 1056). The easement links the First Defendant’s property and the Plaintiff’s property with the main road (Princes Road). The easement first runs in front and past the First Defendant’s property then past the Plaintiff’s property. An old two storey cottage is sitting on the edge of the driveway (easement) and on the boundary, between the First Defendant’s property and the Plaintiff’s property. This old cottage is encroaching on to the Plaintiff’s boundary by about 2 feet and close to the easement driveway. The Plaintiff lodged her complaint with the Second Defendant (the ‘D2’). The Second Defendant’s officers inspected the site and informed the First Defendant to remove the portion of the building encroaching on to the Plaintiff’s property. The First Defendant did remove part of the building namely the roof of the old cottage. Other part of the building is still encroaching the Plaintiff’s boundary as claimed by the Plaintiff. 

Issues

The issues for my determination (as stated in the first defendant’s submission) are as follows:

(i)	What is the legal requirement for the distance between the Plaintiffs boundary and the cottage?

(ii)	What is the legal requirement for the distance between the road easement and the cottage?

(iii)	Has the 1st Defendant contravened those legal requirements?

(iv)	Does the Plaintiff have any locus to bring this action against the 1st Defendant?

I have before me for my consideration the written submissions from counsel representing the parties.

Plaintiff’s submission

It is the plaintiff’s contention, inter alia, that in its original form the cottage was used as maid’s quarters for 279 Princes Road, however, the building does not appear in any of the relevant Certificates of Title and as such it could have been built illegally.

Consequently as a result of the original subdivision of the original property into the present three properties of 277, 279 and 281 Princes Road part of D1’s property, namely, the cottage is encroaching on to the plaintiff’s boundary by about 2 feet. This is confirmed by a recent survey by the plaintiff’s surveyor Messrs. Pro-Survis.

The D1 has failed to respond to plaintiff’s requests to solve the problem although he stated that he intends to regularize the cottage in accordance with the law.

The plaintiff seeks an order that D1 demolish or correct the encroaching building to conform to the governing building regulations and survey plans.

As against the D2, the plaintiff contends, that the Suva City Council is charged with the responsibility of ensuring that all development works such as that undertaken by D1 is undertaken lawfully in compliance with the Town Planning laws and considering the plaintiff’s rights to the enjoyment of its property and the surrounding locality.

The plaintiff alleges that D2 was negligent in carrying out its duties although D2 had issued notice to D1` demanding to pull down and remove the illegal structure encroaching onto the plaintiff’s property after being notified of the encroachment problem by the plaintiff. But D2 has not done enough; it should have prosecuted D1.

Plaintiff’s counsel submits that D2 has been negligent in the conduct of its statutory duty of care to the plaintiff in attending to the enquiry and complaints lodged by the plaintiff in respect of the encroachment issue.

The first defendant’s submission

Counsel agrees that, although the cottage has been in existence for over 50 years, it has been ‘done up and beautifully painted’ and that it has a self-contained maid’s quarters.

The defendant denies that the cottage is encroaching on to the plaintiff’s boundary as ‘this has since been regularized in accordance with the requirements of the second defendant’. He further says that the posts have now been removed.

Counsel submits that since the subject-matter of the complaint, namely, encroachment by about 2 feet has been removed, the only remaining issue and that is uncertain, is what in fact is the legal requirement for the distance between the cottage and the plaintiff’s boundary.

Counsel further submits that Schedule B ‘site’ Dimensional requirements under the Town Planning Act General Provision refers to 6 metre. But that only applies to structures built after a Scheme plan has been approved. The General Provision itself (vide Provision 4(3)) recognizes that existing building prior to the scheme may not conform to those requirements and are exempted.

It is further submitted that the encroachment part of the cottage on the plaintiff’s boundary has now been removed.

It is submitted that the legal distance of the cottage from the easement is also uncertain. He says that D2 in its letter of 18 September 2003 says it should be 6 metres but in the second letter of 1 October 2003 it says that it should be 9 metres.

Finally counsel contends that it is D2 which has the locus standi to bring this action and not the plaintiff under the Local Government Act. It is D2 which is empowered to enforce building regulations.

The second defendant’s submission

The Suva City Council (the ‘D2’) did find there was encroachment and it gave notice to D1 to pull down the structure (the cottage). D1 was given time to do so but he did not comply. The plaintiff was informed of the position.

After D2 was informed of the requirements, site inspection by D2’s officers showed that D1 still had not complied with the notice and that default is continuing.

The Suva City Council submits that there was no failure on its part to attend to the plaintiff’s complaints and enquiries. No charges were laid against the D1 because he gave the assurance that he would comply with their notice. The D1 had only removed the top portion of the cottage but the remaining encroachment is still there.

Consideration of the issues

In the light of the affidavit evidence before me, it is not quite clear, because of the passage of time since the action commenced, whether the encroachment of 2 feet has actually been removed or not. There is mention in the evidence that the building posts are still there and if that is so then they should be removed by the first defendant immediately.

There is one other aspect of the matter which is of some concern and it is this that the cottage is still there for it is alleged that its existence is not in conformity with the ‘building regulations’.

The impression that I get is that this structure is illegal and ought to be demolished. The Suva City Council (D2) did say that a notice was given to demolish the structure but despite promise to do so, the D1 has not done so and because of this undertaking the D2 did not take legal action against D1.

As far as the demolition of the cottage is concerned, D1 raises the point that under the law he is not required to do this as this structure has been there for 50 years and the law in force is only recent and hence it does not apply to the cottage requiring that it be demolished. 

What is the legal position in this regard? It is for the Suva City Council to decide and then act on it in accordance with the law.

I am satisfied on the evidence before me that the Suva City Council has acted on the complaints of the plaintiff as stated hereabove although rather belatedly to the extent it has but not fully by having the issue resolved amicably or by prosecuting the first defendant.

As far as the encroachment of 2 feet is concerned, the plaintiff is justified in bringing this action against the first defendant for in law the encroachment is or was illegal.

But for the removal or demolition of the cottage to conform to statutory requirements, it is for the Suva City Council to take heed and commence appropriate action. This the Council has not fully resolved or done. It should consider this aspect without undue delay.

It is the plaintiff’s claim that D2 was negligent in the conduct of its statutory duty and its duty of care to the plaintiff in attending to the inquiry and complaints lodged by the plaintiff.

On this aspect of the complaint the position is this. The Suva City Council is the Local Authority empowered under the Local Government Act to supervise or to be in charge of Suva City. The area in question (Tamavua) is under the Suva City Council.

The Town Planning Act Cap. 139, Part III outlines the powers of Local Authority.

Section 27(2) & (3) reads as follows:

“(2) Before taking any action under this section the Local Authority shall serve a notice on the owner and on the occupier of the building … 

(3) The date stated in a notice served under this section as the date on or after which the intended exercise of the power therein mentioned is intended to be begun shall not be less than three months when any building is affected …”

Submission by D2 shows that it has complied with the above provisions which I accept.

Duty of care

The plaintiff has raised the issue whether the Suva City Council (D2) owed the plaintiff a duty of care to her as a reasonable authority in the circumstances and hence potentially liable in damages if it failed to take action against Boila (D1).

This question has been answered by the House of Lords in Stovin v Wise, Norforlk County Council (Third Party) (2 July 1996 The Times Law Reports p.33) wherein it is stated:

“A statutory power granted to a public body did not give rise to a common law duty of care, where none already existed, nor did it put the public body under any legal duty to make any reasonable decisions, and a failure to act under that power could not make the public body liable to a member of the public who might sustain damage.

The answer to the question whether a statutory duty gave rise to a private cause of action was a matter of construction of the particular statute and depended on the policy of the statute.”

However, under the Town Planning Act referred to hereabove D2 has certain powers, inter alia, like the serving of notice for the removal of the alleged unlawful structure (the cottage) in the present case.

Although the plaintiff had complained of inaction on the part of D2, I have found that they did take steps pursuant to the statutory powers vested in them.

Because of its statutory powers or duties D2’s liability might be restricted although ‘it is clear law that, in the absence of express statutory authority, a public body was, in principle, liable for torts in the same way as a private person’ [Mersey Docks and Harbour Board Trust v Gibbs (1866) LR 1 HL 93].

In the case before me as I have already stated certain powers are vested in D2. Does that give rise to a private cause of action as the plaintiff has done?

In Stovin (supra) it is said that it is a question of construction. (R v Deputy Governor of Parkhurst Prison, Ex parte Hagua (The Times July 25, 1991; [1992] 1 A.C. 58). It goes on to State that:

“It required an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for breach.”

Therefore, taking into consideration the abovementioned principles, I find that the D2 having complied with the provisions of the Town Planning Act, it is not liable under the its statutory duty to the plaintiff. 

To conclude, therefore the Council is not negligent in the conduct of its statutory duty and that it does not owe any duty of care to the plaintiff.

The only duty, that the Council performs, is to ensure that the First Defendant does comply with the building requirements in so far as it is applicable to him in all the circumstances of this case, and if he fails, then he should be liable under the Act and for which appropriate action should be taken by the second defendant for non-compliance.

As far as the plaintiff’s claim for damages is concerned, D2 is not liable and also the evidence is insufficient to entitle her to such a claim.

Conclusions

For these reasons after considering the submission from all counsel representing their respective parties and bearing in mind the statutory requirements as far as the Suva City Council (D2) is concerned it is ordered as follows:

(a)	That Ilaitia Boila (the first defendant) completely remove the 2 feet (approximately) encroachment on the plaintiff’s land forthwith if he has not already done so.

(b)	That the Suva City Council (the second defendant) take immediate steps to commence legal action against Ilaitia Boila as far as the removal or demolition of the ‘cottage’ herein is concerned provided that the law allows them in their considered view to take such action.

(c)	The sum of $350.00 is awarded as costs against the first defendant to be paid within 14 days.

(d)	Liberty is reserved to parties generally to apply.

D. Pathik
Judge

At Suva
15 July 2005