State v Director of the Department of Town and Country Planning ex parte Peterson [2022] FJHC 97; HBJ06.2020 (28 January 2022)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

Judicial Review No. HBJ 06 of 2020

IN THE MATTER of DIRECTOR OF THE DEPARTMENT OF TOWN AND COUNTRY

PLANNING FOR A JUDICIAL REVIEW UNDER ORDER 53 OF THE HIGH COURT RULES

A N D

IN THE MATTER of an application by DAVID CONRAD PETERSON and RUTH ANNE

PETERSON as Trustees of the David Conrad Peterson and Ruth Anne Peterson Trust for Judicial Review

and with other relief including an Order for Certiorari of the Director of Town and Country Planning

MADE ON THE 28^th SEPTEMBER 2020 BY DIRECTOR OF TOWN & COUNTRY PLANNING

rezoning of the land comprised in Certificate of Title Number 40987 Lot 2 DP 10404 Muavunise Baravi,

Nadroga from Residential to Special Use (Tourism Villa) thereby allowing a construction of a three level

hotel being constructed on the same.

BETWEEN:

THE STATE

AND:

DIRECTOR OF THE DEPARTMENT OF TOWN AND COUNTRY PLANNING Ministry of Local

Government, having it’s registered office in 1^st Floor, Fiji Football Association House, 4 Gladstone Road,

Government Buildings, Suva, Republic of Fiji.

FIRST RESPONDENT

AND:

CHRISTINE BADIA NKANKA aka CHRISTINE SILVIE BADIA of Maui Bay Estates, Baravi,

Korolevu.

SECOND RESPONDENT

EX-PARTE:

DAVID CONRAD PETERSON and RUTH ANNE PETERSON as a Trustees of the David Conrad

Peterson and Ruth Anne Peterson Trust, both of Maui Bay Estates, Baravi, Korolevu.

APPLICANTS

Appearances Mr. R. Singh for the Applicant
Mr. J. Mainavolau for the 1^st
Mr. CB Young for the 2^nd Respondents
Date of Hearing 11 October 2021
Date of Ruling 28 January 2022

R U L I N G

INTRODUCTION

1. This is a judicial review matter. The applicant was granted leave to issue Judicial Review proceedings on 09 December 2020 by the Learned Mr. Justice Ajmeer.
   
2. Notably, Ajmeer J did not grant a stay when he granted leave.
   
3. What is before me now is an interlocutory application seeking certain injunctive orders. The application was filed .by the Petersens pursuant to Order 53 Rule 8 of the High Court Rules 1988.
   
4. The Petersens seek the following injunctive orders:
   
   1. THAT there be an order that the second Respondent be restrained from building, constructing and or developing any structure not limited to but including any fence or swimming pool on the land comprised in Certificate of Title Number 40987, Lot 2 on DP 10404 until further Order of this Honorable Court or in the Alternative an Order that the second Respondent be restrained from building, constructing and or developing any structure not limited to but including any fence or swimming pool beyond the building line restriction as demarcated on the land comprised in Certificate of Title Number 40987, Lot 2 on DP 10404 until further Order of this Honorable Court.
   2. That this Honorable Court view the land comprised in Certificate of Title number.
   3. Costs of this application on client Solicitor indemnity basis.
   4. Any other order or relief that this Honorable Court may deem just in the circumstances.
      
5. Order 53 rule 8 provides:
   

The Court may hear any interlocutory application in proceedings in an application for judicial review.

6. Mr. Singh submits that the court may grant an interlocutory injunction in judicial review proceedings pending the determination of the substantive judicial review matter. In some cases, if the urgency presented justifies it, an interlocutory injunction may even be granted before the leave application is even heard.
   
7. Mr. Singh cites the following extract from The White Book 1999 at 53/14/49 in support:
   

Interlocutory Injunctions in judicial review proceedings – An interlocutory injunctions can be obtained in judicial review proceedings pending the determination of the substantive judicial review application, or, if the urgency of the case justifies it, pending the hearing of the leave application. The approach to application for interlocutory Injunctions in judicial review proceedings is similar to that adopted in the case of applications under Order 29 or an interlocutory injunction in any ordinary action (see R V Kensington and Chelsea Royal London Borough Council, ex p. Hammell [1989] Q.B. 518; [1989] 1 ALL E.R. 1202, above).

8. I accept the above.
   

SOME BACKGROUND

9. Maui Bay is an upmarket, low key, mixed residential “A” type and Special Use (Villa) subdivision along the Coral Coast. The Petersens own a fore plre plot in Maui Bay which is Lot 16 and which is all comprised in Certificate of Title 36037. Christine Badia Nkanka owns Lot 17 in Maui Bay. Her plot is allrised in Certificate of Title 40987 on Lot 2, DP 10404. The. The Petersens and Nkanka are immediate neighbors sharing a common boundary. Their plots both face the seafront along the Maui Bay Development Scheme.
   
10. All seafront plots were initially zoned residential. However, on 29 December 2009, the DTCP generally rezoned the lands from Residential to Special Use with Sites Specific Development Guidelines (SSDG).
    
11. The SSDG sets out the guidelines for the kind of development permissible under the scheme.
    
12. The decision, which is the subject of the substantive judicial review matter, was made by the Director of Town & Country Planning (“DTCP”) on 28 September 2020. By that decision, the Director of Town & Country Planning (“DTCP”) had approved a rezoning of Nkanka’s plot from residential Special Use (Tourism Villa). This approval allowed Nkanka to construct a Villa on her property. However, the Petersens allege that a three storied hotel is being built on the land.
    
13. However, whilst the Judicial Review of that 28 September 2020 decision is pending, the DTCP would grant two further approvals in 2021. It is these approvals which are the subject of this application for interim injunction.
    
14. The first of the 2021 approvals was made by the DTCP on 01 September 2021. This approval was for the construction of a pool.
    
15. The second of the 2021 approvals was made by the DTCP on 05 October 2021. This approval was for the construction of a wall along the boundary line separating the Petersens’ property from Nkanka’s property.
    
16. At this juncture, I should note two things. The first, as I have said above, is that when Ajmeer J granted leave, he did not grant a stay Order. The second is that the Petersens had tried once before to obtain an injunction to stop Nkanka from commencing construction of her three-storied structure on Lot 16. In Peterson v Nkanka [2021] FJHC 54; HBC224.2020 (29 January 2021), Mr. Justice Nanayakkara declined to grant the interlocutory injunction sought.
    
17. I am grateful for the depth of the submissions filed by both counsel.
    

THE POOL

18. The Petersen’s main grievance about the DTCP’s first approval of 01 September 2021 is that it allowed Nkanka to construct a pool past the foreshore or the building line.
    
19. The DTCP does not refute that the 01 September 2021 allows construction past the foreshore or the building line. However, he relies on section 7(4) of the Town Planning Act which he says gives him a discretion.
    
20. Mr. Singh highlights the glaring inconsistencies in the DTCP’s position. At first, by their letter of 28 September 2020, the DTCP had clearly forbidden any building over the 30 meters building line restriction along the high-water mark. Then, at some point later, the DTCP’s officers were present at a site inspection and witnessed the taking of measurements by a Mr. Wayne Downs following which the DTCP would reach the conclusion that all is good within the 30-meter building line restriction along the high-water mark. Now, the DTCP appears to be saying that, the pool is past the foreshore line but that is all right because the pool is not a structure. This, according to Mr. Singh, is a complete turn-around from the DTCP’s 28 September 2020 position.
    
21. Mr. Singh points to the affidavit filed on 08 October 2021 and the title plan marked as part of exhibit D thereof which appears to confirm that the pool is being built in violation of the building line restriction as well as the foreshore and access reserve respectively.
    
22. At this point, suffice it to say that submissions made by both counsel highlight clause 8 of the Special Development Guidelines and the definition of “structure” in the Town Planning Act in advancing their respective cases.
    

THE WALL

23. As for the DTCP’s second decision of 05 October 2021, Mr. Singh alleges that the wall is well over the approved two-meters height. In fact, there are photographs in the affidavits filed by the respondents which clearly show the wall height as being close to the ceiling of the second floor of the building which the respondents have erected on Lot 16.
    

DISCUSSION

24. Applying the principles of the American Cyanamid Co v Ethicom Ltd [1975] UKHL 1; [1975] AC 396, there are clearly some serious issues to be tried as highlighted by Mr. Singh.
    
25. However, I am of the view that, considering that the construction of these has reached such an advanced stage, there would be no purpose really in stopping construction at this stage. Different if an injunction had been sought at the initial stages of the construction, or before construction had commenced.
    
26. I follow the reasoning of Mr. Justice Jiten Singh in Lateef v Digicel Fiji Ltd [2008] FJHC 35; HBC579.2007 (7 March 2008), where, he refused an application for an injunction in a Judicial Review application.
    
27. The injunction that was being sought in that case was to restrain Digicel Fiji Limited from erecting a telecommunications tower on Flagstaff Park Reserve. The applicant had argued that the tower was affecting her residential properties and no consent had been obtained from the plaintiffs to do so. She sought an Order that the tower which was currently being erected be stopped immediately and forthwith removed.
    

Mr. Lateef submits that damages are not an adequate remedy as he feels the presence of tower so close to the plaintiff’s property devaluing their property. He says these properties have a sentimental value to the occupiers and there is also radiation hazard.

I am not too sure of these allegations. I suppose valuers could easily value the property without the presence of tower and with the presence of the tower. Difficulty in proving damages does not mean that damages are not an adequate remedy.

The balance of convenience favours the third defendant. It has built a tower. It has a licence over a small piece of land for this purpose. Further third parties that is potential clients of the Digicel might suffer if the tower is ordered to be brought down now without full hearing.

Accordingly I dismiss the application with costs summarily fixed in the sum of $300.00 for first and second defendant and a sum of $300.00 for third and fourth defendants collectively as both were represented by one counsel. This is to be paid in fourteen (14) days. I also order the plaintiff to file and serve a statement of claim in fourteen (14) days.

COMMENTS

28. I note Mr. Singh’s comments that section 7(4) does not authorize the Director of Town & Country Planning to exercise the power in the manner in which they have done so in this case.
    
29. Mr. Singh acknowledges that provision 6 of the Town Planning General Provisions allows for relaxations. However provision 7 lays down a certain consultative procedure that must be followed. Mr. Singh submits that the procedure stipulated under provision 7 was not complied with by the DTCP.
    
30. Mr. Singh also read provision 4 which he says is concerned specifically with coastal development and which he submits should be read with the general provisions. He points out that provision 4 imposes a mandatory obligation
    
31. These, and other provisions, are matters for the substantive hearing. For now, I am of the view that the balance of convenience does not favour the granting of the injunctive orders sought. The application is dismissed and parties to bear their own costs.
    

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Anare Tuilevuka

JUDGE

Lautoka