Lateef v Director of Town & Country Planning, Ex parte Digicel Fiji Ltd [2009] FJHC 147; HBJ 13.2008 (20 January 2009)

IN THE HIGH COURT OF
FIJI ISLAND AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO.: HBJ 13 OF 2008

BETWEEN:

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

AND:

DIRECTOR OF TOWN & 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 Hearing: 3^rd October 2008
Date of Judgment: 20^th January 2009

JUDGMENT

[1] The applicants own residential properties in Albert Lee Place close to Flagstaff Park Reserve, Suva. I am not told how big the park is. Inside the park is a water storage reserve and the rest is meant for recreational activity. Digicel Fiji Limited (Digicel) has built a telephone tower 25 meters high inside park reserve and not too far from the residences of the applicants. The Digicel transmitter site covers 156 square meters.

[2] The applicants say that the structure is an illegal structure and that they were given no opportunity to be heard or express their views on the proposed structure. They allege that the Director of Town & Country Planning, whose prior consent is required for any development within a municipality, did not call for objections as required by law.

[3] The grounds upon which the applicants bring this application are set out in the affidavit of Lilieta Naiveli sworn on 26^th March 2008 at paragraph 17 as follows:

"(a) Ultra-Vires: The Respondent exceeded his powers and made an error of law by consenting to the development plan of the mobile based station to be located within an area zoned for recreational purposes;

(b) Unreasonableness: The Respondent was unreasonable in consenting to the development permission for the erection of a mobile based station close to residential areas and without undertaking public consultations on the social and economic effect of such structure within the vicinity of the subject area;

(c) Natural Justice (Opportunity to be heard): The Respondent breached the rules of natural justice in not affording the Applicants and other affected residents in the area an opportunity to be heard before consenting to the development plan by Digicel to erect the mobile based station in an area zoned for recreational purposes."

[4] I have before me the affidavits sworn by following persons:

(a) Lilieta Naiveli sworn on 26^th March 2008

(b) Maraia Ubitau, the Director of Town & Country Planning sworn on 12^th May 2008;

(c) Mathew Pritchard, Roll Out Manager of Digicel sworn on 11^th July 2008.

[5] There were other affidavits filed in respect of motion for site inspection. Parties also filed their submissions which were followed by oral submissions.

[6] The tower in issue is within the town planning scheme for the City of Suva. Once a town planning scheme has been approved, then the permission of the local authority is required for any development to be carried out on any land within the town planning area. The local authority ensures that the requirements of scheme are observed. It is the statutory duty of the local authority to ensure that pursuant to Section 25 of the Town Planning Act which provides:

"When a scheme has been finally approved by the Director as aforesaid it shall be the duty of the local authority to observe and to enforce the observance of the requirements of the scheme in respect of all development of any descriptions thereafter undertaken within the area to which the scheme applies, whether by the local authority or by any person, and, save with the consent in writing of the Director, the local authority shall not thereafter undertake or permit any alteration or modification of any existing buildings or works if such modification or alteration would tend to prevent or delay their being brought into conformity with the requirements of the approved scheme."

[7] There is no dispute that the provisions of Town Planning Act General Provisions 1999 apply in considering the issues raised in this judicial review.

[8] The respondent has submitted that the interested party applied to the Suva City Council for approval to erect the tower under Section 25 of the Act. Since the application related to a tower over nine (9) meters in height, the Suva City Council had to obtain the consent of the Director before it could permit the interested party to develop. The Director gave consent to the Council to permit the interested party to build the tower. Permission was then given by the Council to the interested party. The Director submits that it has the authority to grant such consents.

[9] Mr. Lateef submitted that the area in question is a recreation space and part of a civic zone. As such he submitted that such space could only be used for outdoor public or private recreational purposes and it would include any structures necessary for the enjoyment of this use, and not for other purposes. He added that the erection of a telecommunication tower is a deviation from the zone scheme and therefore it is a relaxation of the scheme. Therefore provision 6 and 7 of the General Provisions 1999 apply which provide that a Local Authority subject to the approval of the Director can consent to relaxation of any requirements laid down in General Provisions.

[10] Provision 7 provides for advertisements in the Gazette and a newspaper of any proposed relaxation. Provision 6 and 7 provide as follows:

"Provision 6: Relaxations from General Provisions

(1) The Local Authority may, subject to the approval of the Director, consent to a relaxation of any of the requirements laid down in these General Provisions and so long as the use or development is in accordance with the terms of such consent no offence against these provisions shall be deemed to be committed by such use or development.

(2) Such consent, which shall be in writing, may be granted only when it is considered that the proposed development in respect of which the relaxation is sought would not conflict with the overall principles of the Scheme.

(3) Any such consent may be for a limited period named therein and subject to such conditions or restrictions as to use or otherwise as the Director and the Local Authority may think fit."

Provision 7: Notification of Relaxations

Where the Local Authority with the consent of the Director proposes to exercise the discretionary power vested in it under Provision 6 of these General Provisions:

(a) It shall publicly notify at the applicant's expense, its intention so to do by an advertisement published in Fiji Islands Government Gazette and in two issues of a paper circulating in the district at an interval of not less than seven days.

(b) Every Owner or Occupier of property within the area covered by a Scheme shall have a right of objection to the proposed exemption, and may, by notice in writing addressed to the Local Authority, give notice of such objection and the grounds thereof at any time within 30 days after the first public notification of the Local Authority's intention.

(c) Before arriving at a decision, the Local Authority shall take into account any objections submitted to it and may afford objectors the right to be heard at a special meeting of the Local Authority to be called for the purpose. Provided that where the relaxation of the requirements of these General Provisions is of such a minor nature as to appear to cause no inconvenience or detriment to owners of the affected land the Local Authority and the Director may dispense with the requirements of sub-clauses (a), (b) and (c) provided that the Local Authority shall seek the comments of owners of properties likely to be affected by the relaxations."

[l1] It is not in dispute that the tower is 25 meters in height. As such Schedule G to provisions 9 becomes relevant. The schedule under the heading "Public Utilities" provides:

"Government or the Local Authority public utility services structures i.e. water, electricity, drainage, sewerage and telecommunications, not greater than 9.0 meters in height have Permitted Development rights in all zones; all ether such service developments are 'Conditional Developments' and requires the prior approval of the Director."

[l2] The above provision is confined to public utilities belonging to the state or a local authority. It does not extend to such utilities belonging to individuals or corporations. Further a structure over 9.0 meters in height needs to have the prior approval of the Director. The respondent submitted that a structure of 9 meters or less is a permitted development; a structure over 9.0 meters is a conditional development which needs the respondent's approval. That is what the second respondent did.

[l3] The issue is does the Director have absolute discretion to grant approvals for erection of a tower over 9.0 meters.

[14] The General Provisions lay down certain standards to which anyone carrying out development in a town planning scheme must comply. The provisions themselves are quite detailed to enable orderly development of a municipality. The respondent's submission that its decision cannot be challenged renders Provision 6 otiose. Provision 6 and Provision 7 provide an owner or an occupier of property an opportunity to express, if they wish, objections within 30 days specifying the grounds of objection. The applicants here assert that the tower is an eyesore; that it affects the value of their property. Provision 7 gives the applicants the opportunity to he heard even if the local authority is not in agreement with their objection.

[15] This is particularly so when the applicants had erected their residences well before the tower carne into existence. The respondents in their affidavits say that the presence of the tower poses no physical danger to the residences of the applicants. One cannot deny the visual impact of such a structure especially if it is close by. There is the question of aesthetics involved.

[16] I agree with Mr. Lateef that the departure from the regulated 9 meters to 25 meters height of the tower is a substantial departure and therefore it is a relaxation of the requirements laid down in the provisions. The applications therefore had the right to express objections and the local authority had to consider those objections.

[17] On 3^rd January 2008 the Suva City Council had by a letter asked Digicel to remove the unauthorized structure. Mathew Pritchard in the affidavit sworn on 11^th July 2008 deposed that the matter was regularized on 7^th February 2008. A completion certificate was issued on 25^th August 2008.

Judicial Review out of time:

[18] The interested party submits that no relief should be granted as the Director's decision was made on 5^th December 2008. The judicial review it submits should have been filed by 7^th March 2008 but in this case it was not filed till 31^st March 2008.

[19] Order 53 Rule 4 provides that if the court considers there has been an undue delay in making the application the court may refuse to grant leave or any relief sought in the application if, in the opinion of the court, the granting of relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

[20] Digicel in its affidavit sworn on its behalf by Mathew Pritchard on 11^th July 2008 states that it would be prejudiced as it has completed the tower at a cost of $146,294.63 and it has spent over $20 million to develop its network.

[21] The court here is concerned with only one tower not the entire Digicel network.

[22] The applicants in the affidavit dated 26^th March 2008 and sworn by Lilieta Naiveli depose that they were not aware of approval granted by the Director so they applied for an injunction by way of civil proceedings which was rejected on the technicality that the matter was public law. The ruling in the earlier matter was delivered on 7^th March 2008 which was the last day when judicial review application ought to have been filed.

[23] The applicants therefore had to go back to the start which they did and filed the application by 31^st March 2008. There is nothing to suggest that Digicel began to construct the tower after 7^th March and completed it by 31^st March. Therefore that delay caused it no prejudice nor is this delay in the circumstances of this case undue delay.

[24] Large corporations which intend to carry out work of this magnitude and especially all over the country need to tread with caution and comply with Fiji's statutory provisions and not having built a tower then try to regularize the project as Digicel did here.

[25] For reasons aforesaid 1 am of the view that the applicants had the statutory right to be heard. Accordingly I declare that the applicants had the right to be heard and have the right to express objections to the proposed tower. I also grant a certiorari to remove into this court and quash the decision of the director.

[26] Cost fixed at $1000.00

[Jiten Singh]
JUDGE

At Suva
20^th January 2009