Lautoka City Council v Singh [2010] FJHC 106; HBC212.2008L (7 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Case No. HBC 212 of 2008L

BETWEEN:

LAUTOKA CITY COUNCIL
Plaintiff

AND:

SURUJ DEO SINGH of 50 Sandalwood Street, Lautoka, Fiji, Businessman.
1st Defendant

AND:

SAVITA DEVI SINGH of 48 Sandalwood Street, Lautoka, Fiji, engaged in Domestic Duties and Landowner.
2nd Defendant

Counsels Appearing: Mr. Vipul Mishra for the Plaintiff
Kevueli Tunidau Lawyers for the Defendants
Date of Judgement: Wednesday 07th April 2010

JUDGEMENT

INTRODUCTION

1. Lautoka City Council ("LCC") filed a Statement of Claim on 13th October, 2008. It alleges that the Defendants had been using their residential lots for commercial/industrial purposes contrary to their residential zoning by the Director of Town and Country Planning.

2. The first Defendant, Mr. Suruj Deo Singh ("Mr. Singh"), is the registered lessee over State/Crown lease described as Lot 42, DP5515 situated at Sandalwood Street at Lautoka, Fiji within the boundary of Lautoka City. The Second Defendant ("Mrs. Singh") is the registered lessee over State/Crown land described as Lot 43, DP 5515 situated at 48 Sandalwood Street at Lautoka, Fiji - also within the boundary of Lautoka City.

3. Mr. and Mrs. Singh do not dispute that the properties are zoned "residential". Nor do they dispute that from 1995 to 2008, they were using their properties to store and handle construction materials including sand and gravel for sale. They also do not dispute that such use was contrary to LCC’s Town Planning Scheme and the Town Planning Act. In fact, Mr. and Mrs. Singh have not filed any defence in this case. They had engaged Kevueli Tunidau Lawyers initially as counsel. The case was then heard on formal proof.

4. On the date of formal proof, the Defendants appeared in Court. Mr. Mishra gave them a complete set of all his client’s documents and the hearing proceeded as if it were a trial proper with opportunity to the Singhs’ to cross-examine the Plaintiffs witness and thereafter to present their case. As it turned out, and as I have stated above, the Singhs did not challenge any of the allegations against them.

EVIDENCE OF PLAINTIFFS SOLE WITNESS

5. Mr. Shalendra Dass, the Acting Director of Building Services for Lautoka City Council, gave evidence for the Plaintiff. He tendered nine (9) photographs of the Defendants’ properties which he himself had taken.

6. The photos clearly show the extent to which the Defendants were putting their properties to a commercial use. They show such things as – for example: a loader, a tip truck and some gravel and fine sand on Lot 42; a huge Hino truck parked by the road that runs alongside; a concrete retaining wall along the front boundary which had never been approved by LCC; a tip truck with its tray up-lifted on Lot 43 and a derelict Kato Excavator on Lot 42. A stockpile of gravel and a pile of sand beside it is seen on Lot 43. I note there is no grass on either of the Lots. What I see in the photos remind me of a road-construction site.

7. Various Notices sent to the Defendants between 13th September 1995 to 07th April 2008 were tendered by Dass. Despite these Notices, the Singhs continued to put their residential properties to commercial use.

THE STATEMENT OF CLAIM

8. Paragraphs 5 to 14 of the Statement of Claim plead as follows:

5. "Since 1995 the First Defendant has been using Lot 42 and premises situated thereon for the purpose of storage of and handling of and sale of construction materials consisting inter alia of sand and gravel which constitutes a commercial/industrial activity contrary to the Plaintiffs Town Planning Scheme general provisions and the Town Planning Act"

6. The Plaintiff gave notices dated 13th of September, 1995, 23rd July, 1997, 23rd October, 2003 and 7th day of April, 2008 requiring him to dis-continue the use of the said premises and land for the purpose of commercial and/or industrial activity.

7. On the 15th of May, 1998 the First Defendant was fined $300.00 with the penalty for default being six months imprisonment and costs of $212.00 in respect of his unauthorised usage of the said property.

8. The second Defendant is the wife of the First Defendant. Her Lot No. 43 is also used for the same purpose of storage, handling and sale of construction materials such as sand and gravel which is a commercial and/or industrial activity.

9. The second defendant is either part of the same business or allows and/or acquiesces in the use of her lot for industrial/commercial activity by the First Defendant.

10. The Plaintiff gave notice to the Second Defendant dated the 7th day of April, 2008 requiring to discontinue the use of her Lot and land for the purpose of commercial and/or industrial activity.

11. Despite notices the Defendants persist and continue in their unauthorised usage of their said lots for commercial and/or industrial purposes.

12. The Defendants have also contravened the Local Government Act and/or the provisions of the Public Health Act and/or the Planning Act 18.

13. Ratepayers in the area have made against the Defendants and their unauthorised developments and/or activities in the area which inhibits their enjoyment of the area which is zoned residential.

14. The Plaintiff claims interest under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, Cap 27 of the Laws of Fiji.

FINAL INJUNCTION

9. The Defendants did put their residential property to commercial use for at least some thirteen years or so. During that time, from 1995 to 2008, LCC served Notices on them. However, the Singhs remained unmoved throughout and instead, persisted in flouting the Local Government Act, the Public Health Act and the Planning Act.

10. In such a situation, the High Court has often been called upon to exercise its reserve power[1] to enforce the applicable statute(s) and/or regulation(s) through the granting of an injunction or a declaration against a recalcitrant Defendant.

11. In Stafford Borough Council –v- Elkenford Ltd [1977] 2 ALL ER, such a power was held to apply even if the local authority responsible for enforcing the statute(s)/regulations has not exhausted the remedies provided by the statute.

12. Accordingly, I have no hesitation in granting a final injunction against the Defendants in this case, as prayed for in the Statement of Claim.

DAMAGES

13. The question I ask though is - as a Local Authority merely carrying out its statutory functions – is the LCC entitled also to common law type damages? What damages has it suffered as a result of the Defendants’ breach (es) of the provisions of the Local Government Act and/or the provisions of the Public Health Act and/or the Planning Act 18 and the Lautoka City Council’s Town Planning Scheme.

14. Mr. Mishra has furnished the Court with a copy of an extract from Halsbury’s Laws of England – 4th Edition, Volume 12 (paragraph 1138) on the General Principles of the Measure of Damages in Tort.

15. But can the Defendants’ breaches properly be classified as a "tort", let alone, against the LCC such as to entitle the latter to common-law type damages?

16. In his submissions, Mr. Mishra states as follows:

"The normal principles as to damages is restitution in integrum that as far as money can do it the injured party is to be put back in the same position he would have been if he had not sustained the wrong. The present cause of action or offence of breach of statute or nuisance. In nuisance foreseeablity is the sole test of whether the damages are recoverable"

17. The Statement of Claim however does not properly plead "nuisance". In fact, nowhere in the Claim does the word "nuisance" appear. Paragraph 13 (see below) however may be read as pleading it:

"Rate payers in the area have made complaints against the Defendants and their unauthorised developments and/or activities in the area which inhibits their enjoyment of the area which is zoned residential"

18. Furthermore, the submission that breach of statute is a sustainable cause of action against the Singhs, is devoid of any merit as to warrant any further comment.

19. Mr. Mishra submits that damages are justified because the Defendants were engaged in commercial activity of a massive scale in their residential properties. By that, he appears to argue that any award of damages to LCC would be justifiable on the basis of the nuisance caused or that must have been suffered by "rate payers in the area.

20. I cannot agree with that submission.

21. A public nuisance is an act "which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects"(as per Romer LJ in A-G v PYA Quarries [1958] EWCA Civ 1; [1957] 1 All ER 894).

22. In England, it is primarily a crime, prosecuted by the Attorney-General. It is only actionable as a tort if the claimant has suffered damages over and above other members of the public.

23. The learned authors Luntz & Hambly: Torts – Cases & Commentary – 3rd Edition, Butterworths, 1992 – define public nuisance as follows in the Australian context at page 805:

"Public nuisance is a crime at common law. It consists in an unlawful act, or omission to discharge a legal duty, thereby endangering the lives, safety, health, property of comfort of the public or obstructing them in the exercise of their rights...The act may be rendered unlawful, or the legal duty imposed, by statute or at common law"

24. In Nadi Town Council v Gosai [2009] FJHC 169; HBC054.2008L (20 August 2009), Mr. Justice Inoke observed as follows:

[25] The Nadi Town Council has a duty imposed on it by law to ensure that the zoning laws are complied with and that nuisance does not result from breaches of those laws. ......[Section] 25 of the Town Planning Act charges the Council with the responsibility of ensuring that the town planning scheme is adhered to. The section 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 description 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."

[26] Even Counsel for the Defendants submitted that section 54 of the Public Health Act imposes a duty on the Council to inspect property and ensure abatement of nuisances.

[27] In this situation, the question of adequacy of damages does not arise in my view, simply because of the fact that the duty to act is imposed by law. The need to act is for the benefit of the public. Damages are clearly not an adequate remedy or even a remedy to be considered.

[28] As I have said above, the giving of an undertaking to damages by the Council is totally unnecessary. The Council’s obligation to act should not be restricted or prevented simply because it did not give an undertaking or that its undertaking is inadequate. Counsel for the Plaintiff also submitted that his client is immune from a claim for damages for complying with its obligations under the Town Planning Act by virtue of s 29(2)(h) (my emphasis).

CONCLUSIONS

The principles which I extract from all the above authorities and which I apply to the case before me are as follows:

(i) the LCC has a statutory duty to ensure that the zoning laws are complied with, that nuisance does not result from breaches of those laws, and that the town planning scheme is adhered to.

(ii) if there is a public nuisance on any property, the LCC also has a statutory duty to ensure abatement of that nuisance.

(iii) in this case, the LCC, in pursuit of its statutory duty to ensure compliance with zoning and planning statutes, and also to ensure abatement of nuisance under the Public Health Act, and obviously in light of the Defendants long history of indifference to the provisions of these statutes, has, rather than pursue remedies available under the provisions of those statutes, filed a Writ and a Statement of Claim seeking a permanent injunction against the Defendants. LCC also seeks damages.

(iv) if the nuisance caused by the Defendants on their properties had caused a rate payer in the area to suffer any particular damage, then that particular rate payer has a right of action to sue for damages for nuisance.

(v) without prejudice to its duties under (i) and (ii) above, in my view, neither the common law nor any of the provisions of the above statutes support giving LCC locus to claim for damages for the nuisance suffered by the rate payers generally in the area.

(vi) even if I am wrong on (v) above, I would still not award damages as no evidence has been led on that.

(vii) I believe though that the LCC should be entitled to its costs in having to resort to seeking an injunction.

ORDERS

(i) Permanent injunction against the Defendants as prayed.

(ii) Costs to the Lautoka City Council on an indemnity basis to be taxed if not agreed.

Anare Tuilevuka
MASTER

7th of April 2010.
At Lautoka.

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^[1] See Stafford Borough Council –v- Elkenford Ltd [1977] 2 ALL ER.