Hassan v Suva City Council [2013] FJHC 51; HBC9.2012 (15 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

No. HBC 9 of 2012

IN THE MATTER of an application by

ALI HASSAN for
APPLICATION FOR LEAVE TO APPLY FOR A JUDICIAL REVIEW
under Order 53 Rule 3(2) of the High Court Rules of Fiji.

AND

IN THE MATTER
of failure on the part of the first and/or second Respondents to issue building Permit to enable the applicant to commence construction works.

BETWEEN:

ALI HASSAN, Businessman of Suva
APPLICANT

AND:

SUVA CITY COUNCIL
[a duly incorporated body duly constituted under Local Government Act Cap. 125]
1ST RESPONDENT

AND:

DIRECTOR OF TOWN AND COUNTRY PLANNING
2ND RESPONDENT

AND:

THE ATTORNEY GENERAL OF FIJI
3RD RESPONDENT

COUNSELS : Mr Maharaj V for the Applicant
Mr Lajendra N for the 1st Respondent
Ms Naidu K for the 2nd & 3rd Respondents

JUDGEMENT
BACKGROUND

1. Application for leave to apply for a Judicial Review was granted by the Court on 3rd July 2012 by consent of the 1st, 2nd and 3rd Respondents and the said Order was sealed on 27th July 2012.
   

It was further Ordered:

(i) The Respondents to file and serve an affidavit in opposition to the Applicant's affidavit within 21 days from the date of service of summons on the Respondents;

(ii) The Applicant has the liberty to file and serve any affidavit in response to the Respondent's affidavit within 7 days from the date of filing of the Affidavits by the Respondents.

2. Reliefs sought by the Applicant – Judicial Review
   
   • (a) An Order of Mandamus directed to first Respondent and/or Second Respondent or both to compel them to issue a building permit to enable the applicant to commence construction works in accordance with the plans and specifications duly approved by the first Respondent on 18th day of June 2010;
     
   • (b) A Declaration that the delay caused by the first Respondent in issuing the building permit is unreasonable, tantamount to procrastination and tainted with bad faith on the part of the Respondents;
     
   • (c) A Declaration that the first Respondent is in breach of its Statutory duty in its failure to issue a building permit after having approved the application by the Applicant of the proposed commercial development;
   • (d) A Declaration that the Respondents are now estopped from denying a building permit to the Applicant;
     
   • (e) An Order that the Respondents to pay damages to the Applicant suffered by the applicant on account of the delay;
     
   • (f) An Order that validity of the approval granted by the Respondents which is due to expire on 18th June 2012 be extended for further 2 years or until further order of this Court;
     
   • (g) Costs an Order that the Respondents do pay cost of these proceedings to the Applicant on an indemnity basis;
     
   • (h) Such further and other relief.
     
3. Now I consider the Affidavits filed by the Applicant in support of the leave to apply for the Judicial review, and the Affidavit filed in opposition by the 1st Respondent:
   
   • (a) The Applicant is the registered owner of the Property situated at 336 Waimanu Road as described in the Certificate of Title Number 4996 Lot on DP 3857 (Annexure "A");
     
   • (b) The Applicant was operating a taxi business consisting of 40 taxis under the name "Sanyo Cabs" from the said property;
     
   • (c) In 2009 the Applicant decided to develop this property by building a commercial building as office and shopping outlets;
     
   • (d) In late 2009, he submitted the building plan for approval to the 1st Respondent and having made some amendments to the Plan as required by the 1st Respondent. Permission was granted to the Applicant for Development on 18th June 2010 (Annexure "B") subject to Applicant agreeing to comply with certain conditions. (This averment was admitted by the 1st Respondent);
     
   • (e) The Applicant averred that he was informed the proposed commercial development was approved by the 2nd Respondent on 28th June 2010 (Annexure "C") subject to 10 conditions and the Applicant endorsed and accepted the said conditions on the same day. The 1st Respondent admitted the averment and stated that acceptance was subject to 10 conditions stated therein;
     
   • (f) The Applicant also stated that out of the conditions laid, condition 9 was fulfilled by him and relocated his taxi business to another site;
     
   • (g) The Applicant also stated he had complied with or agreed to comply with all remaining 9 conditions over a period of time and in terms of condition (3), agreement was signed inter alia undertaking was given that the Applicant will demolish the portion of the building on the front service lane of Waimanu Road. This agreement was signed on 29th March 2012 and registered with the Registrar of Deeds on 29th March 2012 (Annexure "D");
     
   • (h) Applicant stated prior to signing of the agreement, 1st Respondent assured that upon signing of the agreement, Applicant would have complied with all the conditions laid down by the Respondents stipulated in Annexure "C";
     
   • (i) It was further stated by the Applicant the 1st Respondent's assurance was documented in a memorandum dated 12th September 2011 by the Acting City Planner to the Legal Department of the Respondent (Annexure "E"). However, I am not considering this Annexure marked "E" as a document to prove as an assurance given the Applicant. (Annexure "E" was an internal document among Departments of the 1st Respondent);
     
   • (j) The 1st Respondent had written to the 2nd Respondent on 11th April 2012 (Annexure "F") requesting to expedite the consideration of Applicant's Traffic Management Plan, and confirmed that Department of National Roads had no objection to the proposal. However, the 1st Respondent had denied this position in his affidavit in opposition and stated on 27th of April 2012 received response from the 2nd Respondent stating that Traffic Management Plan submitted was incomplete on the basis that condition had not been complied with (marked As Annexure "A" to the 1st Respondent's affidavit in opposition);
     
   • (k) It was pleaded by the Applicant that due to the delay of issuing the building permit the Applicant's solicitors had written to the Respondents letters dated 9th May 2012 (Annexure "G") and 25th May 2012 (Annexure "H") putting the Respondents on notice that if no response is received by the due date the Applicant will seek judicial review claiming damages. And to date the said letter remains unresponded. The 1st Respondent denied this and stated that to the letter dated 9th May 2012 was responded, on 10th May 2012 Annexure "B" to the Affidavit in Response by the 1st Respondent. It is also stated the letter dated 25th May 2012 by MC Lawyers was responded on the same day. It was also stated by the 1st Respondent, the letter dated 29th May 2012 (Annexure "C") to the Affidavit was not responded by the Applicant to date. The counsel for the Applicant stated the response was given to the Applicant and not to his Solicitors. Whether the replies were sent to the Solicitors or the Applicant is not a serious issue to be considered;
     
   • (l) The Applicant also stated that he had incurred considerable expenses in order to comply with some of the conditions laid by the Respondents and had legitimate expectations that the Respondents would promptly issue a building permit following the compliance and by Annexures "I" and "J" detailed the expenditure incurred in order to comply with some of the conditions imposed by the Respondents;
     
   • (m) In anticipation of the proposed development, the Applicant had advertised the proposed project calling for expressions of interests.
     
4. In light of the averments and the documents annexed to the affidavit, Applicant initially applied for leave for Judicial Review and the Orders stated on paragraph 2 of this Judgment by Notice filed on 18th June 2012. When the case was mentioned on 3rd July 2012 leave was granted on agreement by the counsel appeared for the Respondents.
   
5. Having granted leave by the Court, directions were issued to file affidavit of the Parties on a time table and the case was fixed for hearing on 11th October 2012.
   
6. Accordingly, 1st Respondent filed its affidavit on 23/7/2013 on the due date and 2nd and 3rd Defendant's failed to file their affidavits on the due date and was filed on 10th August 2012. The Applicant was directed to file its affidavit in response within 7 days from the service of the affidavits of the Respondent. The response to the affidavit of the 1st Respondent was filed by the Plaintiff on 30/7/2013, as directed by Court.
   
7. The matter was taken up for hearing on 12th October 2012 and as a preliminary issue, the Applicant's counsel submitted the affidavit filed by the 2nd and 3rd Respondents on 10th August 2012 should be excluded from the proceedings and I have excluded the affidavit filed by the 2nd and 3rd Respondents from the proceedings. However, the counsel for the 2nd and 3rd Respondents was permitted to make submissions.
   
8. I would firstly consider as to whether the Applicant is entitled to an Order of Mandamus:
   
   • (a) if decided in favour of the Applicant is entitled to the other reliefs prayed for;
     
   • (b) if the issue of an Order of Mandanus is decided in favour of the 1st and 2nd Respondents, the Applicant is not entitled for some of the reliefs prayed for.
     
9. To arrive at the conclusions, I have taken into account the affidavits filed by the Applicant, the 1st Respondent and the written and oral submissions made by the Parties:
   
   • (a) Suva City Council admitted 4th paragraph of the affidavit of the Applicant which states that:
     

"In late 2009, I submitted to the Suva City Council (first Respondent) a building plan for approval and after some amendments to the plan as required by the Respondents my application for development permission was finally granted to me on 15th June 2010 subject to my agreeing to comply with certain conditions".

(b) The documents marked "B" and "C" to the Affidavit of the Applicant are not blanket approvals, the approval was in principle subject to certain conditions. The Annexure marked "C" Title is "Re: Proposed Commercial Development on Lot 58 DP 3857, CT 4996 corner of Extension and Waimanu Road, Suva" by this letter in my view indicates the approval was for "Proposal for Development..." Proposal for a Development Project will vary in the process of implementing and proposal is not definite. Subsequent approvals are necessary when issues arise during the process. The Respondents would have imposed subsequent conditions even if the development proposal was approved without conditions. Issuing of the building permit is a matter which entirely in the hands of the Respondents. They should act in a manner taking into consideration the public policy and statutory framework, which empowers the Respondents to look after the interest of the general public;

(c) The Counsel for the Plaintiff stressed on the point that they were not informed that a report on the traffic management should be forwarded. What did the Condition No. 7 states in the letter dated 28th June 2010 (Annexure marked "C" to the Affidavit of the Applicant).

Condition No. 7:

"That a Traffic Management Plan to be submitted with the detail building application for Council and DTCP's (Director Town and Country Planning) approval".

In my view, this clause cannot be interpreted in isolation as only the Traffic Management Plan is necessary. It says together with the detailed building application. Traffic Management Plan with detailed building application has to be taken into consideration together. Detailed building plan should give particulars with regard to Traffic Management Connected to the Building Plan. The argument by the counsel that calling for report is unreasonable is not acceptable and it fails;

(d) The Applicant in his Affidavit stated (Annexure "E") memorandum dated 12th September 2011 from the Acting City Planner to the Legal Department of the 1st Respondent was an assurance given to the Plaintiff by the 1st Respondent upon signing the agreement he would have complied with all the conditions. The second paragraph of the letter stated that:

"The property owners have complied with all the council requirements".

which was partly true. But the 7th condition is not for the council approval only. Traffic Management Plan clearly should be approved by the council and the Director of Town and Country Planning.

(e) By this internal memorandum, what the City Planner informed the Legal Department was that the Applicant complied with the council requirements but not the requirement for joint approval by the council (1st Respondent) and the Director of Town and Country Planning (2nd Respondent). By tendering this letter as an Annexure to the Affidavit, the Plaintiff had attempted to mislead this court on the following matters:

• (i) The letter was not any direct assurance given to the Plaintiff and by the said letter instructions were given to the Legal Department and the Applicant cannot rely on this document and averred that there was an assurance given to him by the 1st Respondent;
  
• (ii) By tendering this letter, the Applicant had attempted to obtain the Orders sought by showing that after fulfilling all the conditions, his approval for building permit was withheld by the 1st Respondent, which was factually incorrect. The Applicant counsels' argument that Applicant had fulfilled all the conditions fails. I hold that Applicant had not come to this court with clean hands and further attempted to mislead this court by misrepresenting the facts in the memorandum in his Affidavit.
  

10. It was submitted by the counsel in the 2nd Affidavit of the Applicant filed on 18th June 2012, para 7 stated that by letter dated 11th April 2012 (Annexure "F" to the 1st Affidavit) Department of National Roads informed no objection to the Plan as originally submitted by the engineer of the Applicant. This was a letter sent by the Suva City Council to the Director of Town and Country Planning which shows that, the 1st Respondent was acting in good faith by forwarding whatever the assistance to make a decision by the Director Town and Country Planning, and as such the allegation of the unreasonableness of the Respondents fail.
    
11. The attention of the court was drawn by the Applicant to Public Health Act Cap III subsidiary legislation Section 12(1) (2) and (3):
    

Sub section (3):

"(3) Approval shall not be considered as granted unless building permit has been issued according to regulation 14:

(a) Unless the council within sixty days from the receipt of any such application accompanied by plans elevation sections.............;

(b) Any such approval shall be deemed to have been lapsed unless the building therein referred to is commenced within 6 months from the date of such approval.

The Applicant's counsel submitted that the 1st Respondent confirmed that all requirements met (memorandum dated 12/9/2011) and building permit would have been issued within 60 days. As I stated in para (b) above, this letter is not accepted by this court as a proof all requirements being met. As such the Applicant had not substantiated that he should have been issued with the building permit within 60 days.

I further state even if the said Memorandum dated 12/9/2011 is accepted, the Applicant cannot succeed on his argument for the following reasons:

(a) Section 4(1) of the Town (Building) Regulation in pursuant to the Public Health Act Cap III states:

"Every person about to erect a building or to add or alter or repair an existing building shall before commencing so to do make application in the form in the First Schedule and shall file in duplicate with the Council for its approval the plans, elevations, sections and specifications of such building or buildings, additions or alterations. The applicant or his agent shall sign such plans, elevations, sections and specifications."

This section empowers the First Respondent to issue building permits in respect of any submissions plans for erecting adding altering or repairing of an existing building.

(b) Section 14(2) of the Regulation pursuant to the Public Health Act Cap III states:

"The permit may be issued subject to conditions necessitated by these Regulations and having bearing on the application. If such conditions are accepted at the time of issue of the permit the said conditions shall be considered part of the plans and specifications."

(c) It is also stated in Section 7(3) of the Town and Country Planning Act Cap 139 states:

"The Local Authority shall not grant or refuse permission under this section without the prior consent of the Director and the Director may approve such grant or refuse either unconditionally or subject to conditions and may prohibit such grant or refusal."

As such the position of the Applicant, that the permit should be issued within 60 days cannot be claimed as of right since it's being subject to the above provisions.

12. Considering all the affidavits filed by both parties and the documentary evidence furnished, I conclude that the Applicant failed to established that he had met requirements of the condition 7 of the letter dated 28th June 2010 and annexed to the Applicant's affidavit marked "C":
    
13. The second Respondent's letter dated 27th April 2012 Annexed "A: to the Affidavit of the 1st Defendant stated:
    

"...........After careful consideration of the submitted documents, the Director has deemed the submission of the TMP (Traffic Management Plan) as incomplete. The Applicant has not submitted the supporting report for the TMB.

Council is hereby requested to advise the applicant to submit a TMP Report and the Terms of Reference (TOR) shall be drawn up by council's engineering section in consultation with the Department of National Roads.

Further considering of this application awaits the submissions of the above information".

The Applicant had stated in his 2nd affidavit that the additional requirement requiring his engineer to submit a supporting report with the Traffic Management Plan is an unreasonable request, and it is an afterthought on the part of either the First and or Second respondent or both in an attempt to justify its own failure or negligence to issue building permit in a timely manner for which, the First Respondent has accepted a building permit fee in the sum of $1499.50 on 24th December 2010".

This payment was made even before signing of the agreement with the council on 27/10/2011. The Applicant had failed to meet the requirements of Condition 7 of the Annexure "C" to the First Affidavit of the Applicant and by merely paying the building permit fees to the council, the Applicant cannot deviate from the conditions and the Applicant cannot take up the position that the request for supporting report with the Traffic Management was unreasonable.

I conclude such a report is necessary.

14. Having considered the above, I find that the Applicant had not established a case that he had complied with the Condition No. 7 of the Annexure marked "C" to the Affidavit dated 15th day of June 2012 filed on 18th June 2012.
    
15. I agree with the submissions made by the counsel for the Respondents and conclude that:
    
    • (a) No formal decision being taken by the 1st and or 2nd Respondents file an action for Judicial Review as such application is premature;
      
    • (b) Having dealt extensively with the facts and find that Annexure dated 28th June 2010 marked "C" is not a final decision to grant building permit;
      
    • (c) For the reasons stated in the preceding paragraph's the Annexure dated 12th September 2011 marked "E" is not an assurance given to the Plaintiff that all the conditions being met by him.
      

LAW

16. It is evident that there is no final decision reached by the 1st and 2nd Respondents for the Judicial Review. Lord Diplock was quoted in the case of State v. Cornor Ex parte Shah (2008) FJHC 64 on page 26:
    

"Whenever anybody of persons has authority conferred by legislation to make decision [judicial, quasi-judicial and administrative only] it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded him by the rule of natural justice of fairness. Therefore, as a most basic principle, an application for judicial review must show on the evidence, that one or more of the common law or statutory rights or obligations of the applicant has been adversely affected by the decision complained against."

In light of the above case, I conclude the application of the Applicant for Judicial Review failed to establish by evidence, that one or more of the common law or statutory rights or obligation of the Applicant has been adversely affected by the decision made and no further decision being made in this case.

17. To establish locus standi to obtain a Writ of Mandamus, it is well accepted norm that Applicant had to show a legal right to the performance of the duty is that he had to have a substantial personal interest in performance. However, in this case the Applicant failed to establish a legal right. In fact Applicant had not complied with all conditions imposed by the Respondents and as such I hold the Applicant had not establish legal right to the performance of the Respondents. (Case Ref. Cf Ex parte Napier [1852] EngR 638; 1852 18. Q. B. 692. In R. V. Inland Revenue Commissioner re Nathan (1884) 12Q.B.D. 461).
    
18. In the case of In re. Hardayal Singh [1977] FJSC 148 Justice K. A Stewart at page 4 para 2 states:
    

"Mandamus does not lie against a public officer as a matter of course. The Courts are relevant to direct a writ of Mandamus against an executive officer of a government unless some specific act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the interference by the judicial department with the management of the executive department of the government. The Court will not intervene to compel action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory."

In this case as detailed in the preceding paragraphs the Respondents have not omitted any action and the Applicant had not complied with the said Condition 7 stipulated by the 1st and 2nd Respondents. They are in the process of considering the issuance of Building permit where the Applicant had to comply with conditions. In the circumstance, the court cannot exercise its discretionary power to issue a Mandamus. In addition I hold that this Application is premature.

19. In conclusion, I make the following Orders on the reliefs sought by the Applicant:
    
    • (i) an Order for Mandamus is refused;
      
    • (ii) in light of Order (i), the reliefs claimed by the Applicant under para (b), (c) and (d) are refused;
      
    • (iii) hold that there is no basis to claim relief under para (e) of the Application for the delay by the 1st and 2nd Respondents;
      
    • (iv) the 1st and 2nd Respondents are Ordered to extend the validity of the conditional approval granted by letter dated 28th June 2012 up to 28th June 2014, and within such period Applicant should comply with all the conditions imposed by the 1st and 2nd Respondents.
      
    • (v) parties should bear their own costs.
      

Dated at Suva this 15th Day of February, 2013.

.............................
[ C. KOTIGALAGE ]
JUDGE