Woodward v Director of the Department of Town and Country Planning [2015] FJHC 721; Judicial Review 11.2013 (29 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Judicial Review No. 11 of 2013

BETWEEN:

EDWARD CHARLES WOODWARD
APPLICANT

AND:

DIRECTOR OF THE DEPARTMENT OF TOWN AND COUNTRY PLANNING
RESPONDENT

BEFORE : Hon. Justice Kamal Kumar

COUNSEL : Ms M. Chan for the Applicant
Ms S. Levaci for the Respondent

DATE OF HEARING: 29 April 2014
DATE OF RULING: 29 September 2015

RULING
(Application for Leave for Judicial Review)

1.0 INTRODUCTION

1.1 On 3rd December 2013, the Applicant applied for Leave pursuant to Order 53 Rule 3(2) of the High Court Rules for Judicial Review of the decision of the Respondent conveyed to the Applicant's surveyor by letter dated 4th September 2013 of the Respondent's decisions made on 27th August 2013 to not to approve scheme plan for balance area of Certificate of Title No. 5679 on grounds that Applicant does not have any legal right to the piece of land subject to the scheme plan.

1.2 Applicant is seeking following reliefs:-

"a. An Order of CERTIORARI to remove into this Court and quash the DTCP's decision in rejecting the scheme plan SL 10281 Naveria part of- of the Applicant as proprietor of Certificate of Title No. 5679 (part of);

b. An Order of MANDAMUS to require the DTCP to reconsider the refusal of the scheme plan and issue approval of the scheme plan;

c. Further, a DECLARATION that in all the circumstances, the DTCP decision is invalid, void and of no effect;

d. Further, a DECLARATION that the DTCP is bound by the Land Transfer Act section 39 as to the indefeasibility of his title, and a DECLARATION that the Applicant retains his Certificate of Title No. 5679;

e. An Order that the Grant of Leave to Apply for Judicial Review shall operate as a stay upon the DTCP's decision of refusal of the scheme plan until this matter has been determined;

f. If it is determined that the Applicant is out of time, for leave for extension of time to file for Judicial Review;

g. Costs of this action."

1.3. Application was set down for hearing on 6th February 2014.

1.2 On 18th April 2013 Respondent filed Notice of Opposition.

1.3 Following Affidavits were filed on behalf of the parties:-

Applicant

(i) Affidavit of Edward Charles Woodward in support of Application sworn on 03rd December 2013 ("Woodward's 1st Affidavit");

(ii) Affidavit of Edward Charles Woodward sworn on 3 March 2014 ("Woodward's 2nd Affidavit").

Respondent

(i) Affidavit of Losana Rokotuibau sworn on 18th February 2014 ("Rokotuibau's Affidavit").

(ii) Supporting Answering Affidavit of David Chang sworn on 18th February 2014 ("Chang's Affidavit").

1.4 Both parties filed Submissions with authorities.

1.5 On 29th April 2014,being date of hearing Counsel for the parties informed the Court that they do not wish to add anything to the Affidavits and Submissions filed in Court.

2.0 BACKGROUND FACTS

2.1 On 24 August 2012,the Department of Town and Country Planning received an application from the Applicant's surveyor Cadastrals Solutions, a subdivision application for the residual of land for CT 5679.

2.2 On 12 September 2012, Department of Town and Country Planning forwarded a letter to acknowledge receipt of the application.

2.3 On 8 October 2012 and 18 January 2013, the Respondent wrote to Savusavu Town Council and the Ministry of Lands and Mineral Resources seeking their response to the application.

2.4 On 2 November 2012, the Savusavu Town Council responded to aforesaid letter.

2.5 On 27 August 2013, Director of Town and Country Planning wrote to Applicant's Surveyor and stated that the application has been refused.

2.6 Applicant contends that the Director of Town and Country Planning's decision vide letter dated 27 August 2013, was received by Applicant's lawyer on 4thSeptember 2013.

3.0 LAW

3.1 Order 53 Rules (1) to (3) (e) of the High Court Rules provide:-

"1.(i) An application for an order of mandamus, prohibition or certiorari shall be made by way of an application for judicial review in accordance with the provision of this Order.

(ii) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the court may grant the declaration or injunction claimed if it considers that having regard to:-

1. the nature of the matters in respect of which relief may be granted by way of an order of nandamus, prohibition or certiorari;
   
2. the nature of the persons and bodies against whom relief may be granted by way of such an order, and
   

100. all the circumstances of the case, it would be just and convenient for the declaration for injunction to be granted on an application for judicial review.
     

2. On an application for judicial review any relief mentioned in rule 1(1) or (2) may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter.

3. a) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule;

b) An application for leave must be commenced by originating motion and must be supported by affidavit stating the facts relied on;

c) Order 8 rules 2,3 and 5 shall apply to applications under this Order;

d) Without prejudice to its powers under Order 20,rule 8,the Court hearing an application for leave may allow the relief sought and the grounds thereof to be amended, whether by specifying different or additional grounds or relief or otherwise, on such terms, if any, as it thinks fit;

e) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates."

3.2 The test for Application for Leave for Judicial Review was stated by her Ladyship Justice Scutt (as she then was) in Nair v. Permanent Secretary for Education &OrsJudicial Review No.2 of 2008 as follows:-

"• Does the applicant have sufficient interest in the application;

• Is the decision susceptible to judicial review – that is, is it of a private or public nature;

• Is the decision non-reviewable;

• Are alternative remedies available to the applicant and, if so, have they been pursued by the applicant;

• Does the material available disclose an arguable case favouring the grant of the relief sought, or what might, on further consideration, be an arguable case."

3.3 Even though her Ladyship identified above factors, they are in no way exhaustive of the matters the Court can take into consideration.

3.4 In Matalulu v Director of Public Prosecutions [2003] FJSC2; 2003 LRC 7.2 (17 April 2003) full Supreme Courtin relation to factors to be taken into account, stated as follows:-

"The judge considering the grant of leave to issue judicial review proceedings has a discretion, once a sufficient interest is shown by the applicant. That discretion has to be informed by the evident purpose of Ord 53. It is not an occasion for a trial of issues in the proposed proceedings. The judge is entitled to have regard to a variety of factors relevant to the purpose of the rule. These include:

(2) whether the application discloses arguable grounds for r based upon facts supportedorted by affidavit;

(3) whether the application serves any useful purpose;

(4) whether there is an obvious alternative remedy, such as administrative review or appeal on the merits, which has not been exhausted by the applicant and

(5) whether a restrictive approach to the grant of leave is warranted because the decision is one which is amenable to only limited judicial review."

3.5 Respondent submitted following grounds of opposition:-

(i) Applicant has no standing;

(ii) Applicant has failed to exhaust the alternative remedies;

(iii) Applicant has delayed filing of Application;

(iv) Applicant has no arguable case.

3.6 It is well settled and is rightly conceded by counsel for the parties that even though the High Court Rules have been amended for Leave Application to be determined inter-parte the Court can determine the Leave Application on the basis of documents filed without need for oral hearing.

Whether Applicant has Standing
3.7 For Application to have standing to seek leave to apply for judicial review he/she must have sufficient interest in the decision made.

3.8 The decision subject to the proceeding is the refusal by Director of Town and Country Planning ("DTCP") to approve scheme plan submitted by Applicant's Surveyor directly relates to the Applicant.

3.9 Therefore there is no doubt and it goes without saying that Applicant has sufficient interest in the decision made by the DTCP.

Whether Applicant has alternative remedy available and if so, should he have exhausted that remedy

3.10 I am of the view that it is prudent that I decide the issue in respect to alternative remedy on the basis that if I find in favour of the Respondent then there will no need to consider other issues such as arguable case and delay.

3.11 It is well established that before Court can grant leave for judicial review the Court needs to first determine if the Applicant has exhausted the avenues of appeal or review available to him, unless the Applicant can show some exceptional circumstances in that the Statutory appeal/review is inadequate, or statutory appeal will be futile.

3.12 In R v Secretary of State for the Home Department, ex parte Swati [1986] All ER 717 his Lordship Sir John Donaldson, MR at pages 723 and 724:

"... it is well established that, in giving or refusing leave to apply for judicial review, account must be taken of alternative remedies available to the Application. This aspect was considered by this court very recently in R v Chief Constable of the Merseyside Police, ex p Calveley [1986] 1 All ER 257, [1986] 2 WLR 144 and it was held that the jurisdiction would not be exercised where there was an alternative remedy by way of appeal, save in exceptional circumstances. By definition, exceptional circumstances defy definition, but where Parliament provides an appeal procedures, judicial review will have no place unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided." (p 723 j to 724 a, b)

3.13 In Reg v. Panel on Take-Overs and Mergers ex parte Guiness PLC (1990) 1 Q.B. 146 Lord Donaldson M.R. stated as follows:-

"It is not the practice of the court to entertain an application for judicial review unless and until all avenues of appeal have been exhausted, at least in so far as the alleged cause for complaint could thereby be remedied. The rationale for this self-imposed fetter upon the exercise of the court's jurisdiction is twofold. First, the point usually arises in the context of statutory schemes and if Parliament directly or indirectly has provided for an appeals procedure, it is not for the court to usurp the functions of the appellate body. Second, the public interest normally dictates that if the judicial review jurisdiction is to be exercised, it should be exercised very speedily and, given the constraints imposed by limited judicial resources, this necessarily involves limiting the number of cases in which leave to apply should be given" (p.177)

3.14 On 21st October 2013, Applicant by his Surveyor wrote to the Attorney General, the then Acting Minister for Local Government and Minister for Lands and Mineral Resources in relation to the refusal (Annexure EW 8 of Woodward 1st Affidavit).

3.15 Even though the letter does not state it is an appeal, the content of the letter is in the form of an appeal and is so deemed for all intent and purposes.

3.16 It is not disputed that Applicant had not received any responses to said letter dated 21 October 2013.

3.17 The Application was filed on 11 December 2013.

3.18 Respondent submits that by failing to wait for Minister's response the Applicant has failed to exhaust the alternative remedies available to him under Subdivision of Land Act Cap 140.

3.19 Applicant at paragraph 6 of his Submission states as follows:-

"If the Respondent contends that the Applicant must first appeal to the Minister, he has done that - annexure EW8 and EW9, which are not responded to. The Respondent does not even send an acknowledgement of receipt. How much longer is the Applicant meant to wait to exhaust all the avenues?"

3.20 Section 2 of the Subdivision of Land Act Cap 140 ("SOLA") provides as follows:-

"2. The provision of this Act shall apply only to the part or whole of any such area or areas as the Minister may from time to time by order in the Gazette define and specifically describe therein, and shall apply to all land in any area or areas so defined and described except-

(a) Crown land which is not the subject of a registered lease;

(b) land included within the boundaries of any city or town to which the Local Government Act (Cap. 125) applies; and

(c) land included in any native reserve constituted under the Native Land Trust Act. (Cap. 134)"

3.21 Since there is no by-law dealing with subdivision of the land in the town of Savusavu, section 2(b) of the Subdivision of Land Act does not apply. Only by laws dealing with subdivision of landare land within boundaries of Lautoka and Suva.

3.22 Section 5 of the SOLA provides:-

"5. (1) Any person who desires to subdivide land in a manner which requires the approval of the Director as provided in section 4 shall submit in duplicate an application in writing to the Director.

(2) Such application shall be accompanied in each instance by a proposal plan or diagram in quadruplicate drawn on stout white paper in such manner and to such scale as may be prescribed.

(3) Such proposal plan or diagram shall show-

(a) the particulars of the instrument of title under which the land is held;

(b) the situation and boundaries of the land and of the lots immediately adjoining the land;

(c) the position and width of all roads, streets, lanes or pathways abutting on the land and the position of all streams, water-courses, water-holes, sewers and drains, if any, in the immediate vicinity;

(d) the manner in and the purposes for which it is intended to subdivide the land and the areas and dimensions of all the lots;

(e) the position and width of roads, streets, lanes or pathways to be made over and through the land;

(f) the intended position of the surface drains and the direction of flow or discharge thereof;

(g) and, if so required by the Director, the levels of the present surface of the ground above some known datum sufficient to determine the intended level and rate or rates of inclination of the intended roads, streets, lanes or pathways and the levels and inclinations of the existing roads, streets, lanes or pathways with which it is intended that such roads, streets, lanes or pathways shall be connected;

(h) the position of all existing buildings erected on the land or within ten feet of the boundaries of the land proposed to be subdivided.

(4) Every such application shall also be accompanied by-

(a) a statement in writing of the provisions which have been or will be made for the construction and maintenance of any road, street, lane or pathway or of any drain shown on the proposal plan or diagram and of the provisions which have been or will be made for the supply of water to the area and for the disposal of refuse, waste-water and night-soil; and

(b) all such other or additional documents, statements, information, plans or diagrams or whatsoever description as the Director may require."

Section 14 of SOLA provides as follows:-

"14. When the Director has refused to approve an application under this Act or has approved an application in part or subject to conditions, the Director shall forthwith communicate his decision together with the reasons therefor to the applicant who may, within twenty-eight days after the receipt of such communication, appeal to the Minister whose decision shall be final:

Provided that the Minister may-

(a) for good cause extend the said period of twenty-eight days; and

(b) seek and obtain the advice of the Advisory Committee on such appeals or on any other matters under this Act."

3.23 Subdivide is defined in s3 of SOLA as follows:-

"subdivide" means dividing a parcel of land for sale, conveyance, transfer, lease, sublease, mortgage, agreement, partition or other dealing or by procuring the issue of a certificate of title under the Land Transfer Act in respect of any portion of land, or by parting with the possession of any part thereof or by depositing a plan of subdivision with the Registrar of Titles under the last-mentioned Act; and the corresponding noun shall be construed accordingly."

3.24 In this instant the application by the Applicant through his Surveyor for approval of scheme plan to enable him to obtain Title over balance portion of Certificate of Title 5679 as alleged fall within the definition of subdivision for purposes of SOLA.

3.25 It is apparent that legislation provided mechanism for Applicant to challenge the DTCP's decision to refuse the approval of the scheme plan as submitted.

3.26 In this instance, even though Applicant did write to the Acting Minister responsible for Local Government and Mineral Resources they filed application for leave to Apply for Judicial Review without waiting for Minister's decision.

I find the action of the Applicant in filing the Application premature at this stage. Given the complexity of the matter I am of the view the Applicant should have waited for longer and pursued his appeal with then Minister.

3.27 Since the Minister's decision in respect to refusal of the scheme plan by DTCP is final this Court cannot deal with the application without Applicant first exhausting his remedy of appeal to the Minister unless and until there are exceptional circumstances.

3.28 The Applicant has written to the Minister on 21 October 2013 and had not received any response within two and half months which time I do not consider as unreasonable given the complex nature of the subject matter. The Applicant has not shown any exceptional circumstance which justifies this Court dealing with this Application for Leave for Judicial Review without the Applicant first exhausting his remedies under section 14(b) of the SOLA.

3.29 I take note that Applicant had twenty-eight (28) days from receipt of DTCP's decision to appeal to the Minister. Applicant contends that DTCP's decision was received by Applicant's lawyer on 4thSeptember 2013, and if his contention is correct then the appeal to the Minister was within the prescribed time.

3.30 In view of the above finding I do not think it is appropriate for this Court to deal with the issue as to whether Applicant has an arguable case or not.

4.0 Conclusion

4.1 I find that Applicant's Application for Leave for Judicial Review is premature on the basis of my reasons stated at paragraph 3.11 to 3.29 of this Ruling.

4.2 I therefore have no alternative but to dismiss the Application.

4.3 In respect to costs I have taken into consideration that parties filed Affidavits and Submissions and the nature of the matter.

4.4 I make following Orders:-

(i) Applicant's Application for Leave to Apply for Judicial Review filed on 3 December 2013 is dismissed and struck out;

(ii) Each party bear its own costs of the Application.

K. Kumar
Judge

At Suva
29 September 2015

Ms Chan Law for the Applicant
Office of the Attorney-General of Fiji for the Respondent