Suva City Council v Park Albert Development Company [2005] FJHC 56; HBC0254J.2004S (18 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0254J OF 2004S

BETWEEN:

SUVA CITY COUNCIL
a body corporate duly constituted
under the Local Government Act, Cap 125.
PLAINTIFF

AND:

PARK ALBERT DEVELOPMENT COMPANY,
a limited liability company having its
registered office at Lot 17, Bulei Road,
Laucala Beach Estate, Suva.
DEFENDANT

Counsel for the Plaintiff: Ms. T. Waqanika: Legal Officer, S.C.C.
No Appearance for the Defendant:

Date of Judgment: 18 March, 2005
Time of Judgment: 9.30 a.m.

JUDGMENT

The Defendant owns all of the land described as Lot 4 on D.P. 1056 under the Certificate of Title No. 68888 and located at 285 Prince’s Road,, Tamavua, in Suva. It has an area of 1r. 15.5p. The land is zoned “Residential A” and on it is erected a dwelling-house. The Plaintiff is the local authority responsible for the supervision and enforcement of the Towns (Building) Regulations, made by the Central Board of Health with the approval of the Minister responsible for public health, pursuant to section 39 of the Public Health Act (Cap. 111) (“the Act”). No building of whatever nature including the curtilage of a house as well as any extension thereto, may be done without the approval of the local authority.

In September 2003, the Plaintiff’s building surveyor reported that the Defendants were carrying out illegal extensions to the rear of the dwelling-house. The building surveyor had on 31 July 2003 served on the Defendant notice of the illegal works but had not been responded to by the Defendant.

In June 2004, upon further inspection of the property, the Plaintiff’s building surveyor found that the illegal extension and new structure detected in September, 2003 was in fact a swimming pool. A “Stop Work” Notice was served on the Defendant but according to the Plaintiff, it continued regardless.

The Defendant in the meantime in March 2004 had lodged with the Plaintiff an application for a carport to be located in front of the dwelling-house. This was refused and the reason clearly explained to the Defendant in the Plaintiff’s letter of 2 April, 2004. It said:

“The site is zoned Residential ‘A’. The proposal does not comply with the front yard requirement of 9m as the proposed carport encroaches onto the front yard by 5.4 mts. A site inspection has also revealed that the building on the adjoining lots are well set back and the proposed structure will protrude on the established building line. Also the carport provision can be made on site at the rear of the building.”

According to the Plaintiff’s latest inspection report, the construction of the carport has gone ahead.

By way of Originating Summons, the Plaintiff seeks the following:

“ 1. AN ORDER that the Defendant and/or its servants and/or its employees and/or its contractors or any of them to remove, pull down and/or demolish the illegally constructed carport situated at Lot 4 DP 1056, Certificate of Title No. 6888 of 285 Princes Road, Tamavua, Suva within 3 days from the date of service of this Order;

2. AN ORDER that the Defendant and/or its servants and/or its employees and/or its contractors or any of them to remove, pull down and/or demolish the illegally constructed swimming pool situated on Lot 4 DP 1056 Certificate of Title No. 6888 of 285 Prince’s Road, Tamavua Suva within 3 days from the date of service of This Order”
   

The Plaintiff in addition asks the Court for an Order restraining the Defendant from leasing or renting out or selling the property.

All the documents had been served on the Defendant at Lot 17 Bulei Road, Laucala Beach Estate, the registered office of the Company. For whatever reasons, the Defendant has failed to respond.

The provisions of the Act and specifically Regulation 4 of the Towns (Building) Regulations clearly state that any person wishing to erect a building or add to or alter an existing building must apply and obtain approval from the Council or Local Authority concerned. In this instance, both the construction of the carport and the swimming pool are alleged by the Plaintiff to be extensions or addition to the existing dwelling-house and require therefore its approval. The Court agrees. Both the new structures are, from the evidence before the Court, properly termed as extensions.

The permit required of the Council or local authority is intended to promote growth of a town or city in an orderly and regulated fashion while at the same time ensuring the safety health and security of its populace. In the case of the construction of the swimming pool in this instance, for example, its plan and specifications should have been lodged to be censored first by the Plaintiff’s engineers, before the building, town planning and health sections are consulted. Only after the plan is approved should be Defendant then begin the construction. Yet despite the “Stop Work” Notice served on it, the Defendant proceeded to build regardless.

In the case of the carport, the reason for the rejection of the Defendant plan could not be any clearer. It is a requirement of the law in Residential “A” zone that the front yard be set back by at least 9m from the road. To approve the Defendant’s plan would result in an access of only 3.6m from the road and therefore if approved would not in conformity with the applicable General Provisions for the Suva City Council Town Planning Scheme under the Town Planning Act. Again the Defendant in defiant of the decision to the contrary, of the Plaintiff, went ahead and built the carport.

The Defendant is clearly in breach of the law. It is all the more serious given that the Defendant Company is linked to one of the biggest construction companies in the country, which is more than familiar with the building regulations and by-laws within the city of Suva.

There will be an Order for the dismantling and/or demolition of both the carport and the swimming pool constructed on Lot 4 DP 1056 C.T. 6888 within 7 days from the date of service of the Order. In addition, the Defendant is restrained from renting or leasing out or selling the said property until further Orders of the Court.

I award costs of $450.00 to the Plaintiff to be paid within 7 days.

F. Jitoko
JUDGE

At Suva
18 March 2005