Lateef v Director of Town And Country Planning, Ex Parte Digicel Fiji Ltd [2008] FJHC 378; HBJ0013.2008 (24 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO.: HBJ 13 OF 2008

IN THE MATTER of an Application by
SHIREEN LATEEF (f/n Abdul Lateef) of Suva,
Fiji, director, LILIETA NAIVELI of Suva,
Domestic Duties, WELLA PILLAY of Lautoka,
Businessman, SHAZRAN LATEEF (f/n Abdul
Lateef) of Suva and SHARAN LATEEF (f/n
Santokh Singh) of Suva

AND

IN THE MATTER of a Decision of the Director
of Town and Country Planning made on 5 December 2007

BETWEEN:

SHIREEN LATEEF, LILIETA NAIVELI, WELLA
PILLAY, SHAZRAN LATEEF AND SHARAN LATEEF
Applicants

AND:

DIRECTOR OF TOWN AND COUNTRY PLANNING
Respondent

EX-PARTE:

DIGICEL FIJI LIMITED a limited liability company
having its registered office at Suva in the Republic of Fiji
Interested Party

Mr. S. Lateef for Applicants
Ms M. Rakuita for Respondent
Mr. H. Nagin for Interested Party

Date of Ruling: 24^th September 2008

DECISION

This is an application for me to visit the properties of the applicants and the recreational space where a telecommunication tower has been erected. The core reasons for such visit are contained in paragraph 8 of the affidavit of Satya Chandra sworn on 24^th July 2008. It reads:

"THAT the Applicants note that for justice to be seen to be done the presiding Judge needs to sight the Tower and locality. The Applicants have photographs of the tower however the photographs do not portray the full picture, that is, the neighbourhood. In order to fairly ascertain the Applicants predicament in this matter, it is imperative that the presiding Judge visit and feel for himself the environment that the Tower has created in a residential area and on a land zoned for recreational purposes."

Mr. Lateef submitted that the site visit would assist the court in getting a better perspective of the proceedings and it would serve the interests of all the parties. He conceded that whether to visit or not is a matter of discretion for the court.

The application is opposed by both the respondent and the interested party. Ms Rakuita questioned the relevance of site visit as the grounds on which the substantive matter is being proceeded with are ultra vires, unreasonableness and breach of natural justice. She submitted that the grounds raised have as their basic complaint that the statutory requirements were not met. Public consultation for the applicants is the main issue.

Mr. Nagin endorsed Ms Rakuita's submissions and added further that inspection of sites is not provided for under Order 53 of the High Court Rules. If it were, Order 35 Rule 6 would have been incorporated by reference to it.

I uphold the objections raised by the respondent and the interested party. Judicial review is a special supervisory jurisdiction distinct from ordinary adversarial litigation between private parties and an appeal on merits. This distinction is further underpinned by Order 53 of the High Court Rules which sets out the specialized procedure. It provides a comprehensive code for judicial review. As the judicial review is primarily concerned with process and matters of law, and not merits or fact finding, the requirement for site inspection is virtually a superfluous exercise.

Mr. Nagin referred the court to Order 35 Rule 6 which permits an inspection of an object or site by a trial judge. It envisages a trial in the usual sense of the word with witnesses being sworn. He relied on the commentary from the white Book to support his view. The extract at paragraph 38/5/1 reads:

"Function of a View - This is not merely to enable a Judge to follow the case: the inspection is just as much part of the evidence as is the testimony of witnesses; and unless the testimony of experts or other witnesses is required, the Judge may form a conclusion based on the inspection alone, and even contrary to the evidence of the witnesses (Buckingham v. Daily News, Ltd., [1956] 2 Q.B. 534, distinguishing L.G.O. v. Lavell, [1900] UKLawRpCh 195; [1901] 1 Ch. 135).”

The specific High Court Rules which apply to judicial review have been imported by specific reference to them in Order 53 Rule 7 and rule 8. Order 35 Rule 6 is not one of them. Therefore, it would be only an extremely unusual case if at all that application for site application would succeed. In State v. Minister for Lands and Mineral Resources ex-parte Nivis Motors and Machine Ltd. - HBJ 33 of 1997 Justice Shameem had rejected an application by the applicant to call oral evidence as such evidence could be incorporated in an affidavit. In Bilo Limited & Others v. Camira Holdings Ltd. & Another - HBC 342 of 2002 I had done a site inspection to consider the appropriate set back for a structure about which there were differences as to whether it was single storey or double storey. I considered that a site visit would assist in deciding whether the structure was single or double storey. However that was not a judicial review application.

This case will primarily involve the interpretation of law and what processes the Director of Town & Country Planning Board must follow before granting consent to a scheme.

I see no need for a site inspection. The application is therefore refused.

[Jiten Singh]
JUDGE

At Suva
24^th September 2008