Time Investments Ltd v Lautoka City Council [1979] FJSC 43; Action 2 of 1979 (7 December 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Civil Jurisdiction

Action No. 2 of 1979

BETWEEN

TIME INVESTMENTS LIMITED

PLAINTIFF

AND

LAUTOKA CITY COUNCIL
1ST DEFENDANT

AND

DIRECTOR OF TOWN AND COUNTRY PLANNING
2ND DEFENDANT

Messrs B.C Patel & Kalyan, Counsel for the Plaintiff
Mr Sweetman, Counsel for the 1st Defendant
Mr. Matawalu for the Solicitor General, Counsel for the 2nd Defendant

JUDGMENT

The plaintiff company holds a lease of re-claimed land from the Lautoka City Council on which it has erected commercial premises with on-site parking for two motor vehicles. When it first tendered plans to the city council the company was ordered to provide on-site parking for 4 vehicles but this was reduced to two on payment of $2000.00 to the city council on 5/4/78.

The plaintiff paid the $2000.00 under protest and now that the building has been erected seeks an order, by which I think it means a declaration, that the payment was unlawfully demanded and an order that the $2000.00 be refunded to the plaintiff. There are 2 defendants, Lautoka City Council and the Director of Town Planning.

The plaintiff's originating summons is supported by an affidavit sworn by Mr B.C. Patel, a director. Annexed to it are Photostats of correspondence between the plaintiff and the City Council.

The plaintiff's plans were approved in May 1977 by the Director of Town Planning. Annex F to the plaintiff's affidavit is the council's letter dated 27/7/78 explaining why $2000.00 had had to be paid to the council. It points out that the parking space is required for every 1500 sq. ft. of floor area. That ratio necessitated 4 spaces. But the council's letter says:-

"If two parking spaces cannot be provided on site (development plans showed provision for only two spaces) the Council is to make request to the applicant for monetary contribution for these two spaces."

The letter notes that the plaintiff's architects complain that the size of the building would have to be reduced to provide four parking spaces, that exception was sought in respect of two spaces and that it was agreed that a monetary contribution would be made by the plaintiff in return for the exception. On that basis the plaintiff paid the $2000.00 to the council.

It is not disputed that the aforesaid conditions were not imposed by the council but by the Director of Town Planning (defendant 2). The letter in evidence said he directed that the plaintiff pay $2000.00 to the Council in lieu of 2 on site parking spaces.

Money collected in this manner is to be used by the Council to provide public parking in the area being developed.

The Director's intentions have merit and could produce extra funds for creating public car parks, but the conditions he imposes upon developers must fall within the powers vested in him under the Town Planning Ordinance, Cap. 109.

By S.17 all land in a town must be covered by a town planning scheme. Sections 18 to 22 set out the steps to be followed in order that the scheme be approved. Once the scheme is finally approved by the Director under S.23 it is administered and enforced by the city council.

Before a town planning scheme comes into existence in an already populated area there is bound to be an existing need to erect buildings and to permit development to some extent. Similarly when a town's boundaries are extended an additional scheme has to be approved to cover the newly acquired areas. Until a planning scheme comes into existence land may be developed under the provisions of S.6. Under S.6(1) & (3) the local authority may permit development subject to the approval of the Director who can unconditionally refuse or grant permission to build or permit the creation of buildings subject to such conditions as he chooses to impose.

There is to date no approved planning scheme in regard to the land in question but one has been prepared and is going through the stages required by Sections 18 to 23. Therefore in the absence of an approved scheme development is for the time being controlled by the Director under S.6 Under S.6(4) the Director, in exercising his wide powers under subsection three, must not over-look the contents of a planning scheme which is intended to come into effect S.6(4) reads as follows:-

"(4). In dealing with applications for permission to develop land under this section ----- the Director shall have regard to the matters set out in the First Schedule to this Ordinance and to provisions proposed to be included in a scheme-------------------".

The word "scheme" obviously means a town planning scheme contemplated under Sections 17 to 23 supra. S.6 obviously intends the Director to impose upon the developer the conditions and requirements which as far as can be contemplated, will be imposed upon other developers when the scheme comes into operation.

The Director stated that there were in 1977 some general provisions, Ex. 1, which were included in town planning schemes. Clause 28 of Ex. 1 requires car parking spaces to be provided on a developed site at the rate of one car space per 1500 ft.² of floor space. There is a provise to clause 28 which allows the council, with the Director's approval, to reduce the ratio if satisfactory off site parking is available. Clause 28 does not enable any charge or fee to be imposed in return for a reduction of that ratio.

The plaintiff argues that since clause 28 of the 1977 scheme, Ex. 1, does not permit the imposition of any fee then the Director's requirement that the plaintiff pay $1000.00 for each parking space exemption is not lawful.

In reply the defence point out that under S.6 it is not only the provisions of an existing scheme which the Director has to in mind but also the provisions of a contemplated scheme which has not yet come into existence. S. 6(4) enacts that the Director is granting development permits and imposing conditions, "shall have regard to provisions proposed to be included in a scheme." The Director had been contemplating alterations to the existing 1977 provisions contained in Ex. 1 and one such alteration was to charge for a reduction in the ratio of on-site parking spaces. He produced the intended provisions in a booklet Ex. 3, which at p.2 describes itself as "City of Lautoka Town Planning Scheme; General Provisions". Ex. 3 is an amended reprint of Ex. 1 and para 25 of Ex. 3 like para 28 of Ex. 1 requires a developer to provide one parking space for every 140 sq.m. of floor space. Paras 26 & 27 of Ex. 3 are intended to allow the council to exempt a developer from this requirement with the Director's approval and to impose a charge for that exemption. The money so collected shall be used to provide public parking. The defence argue that in 1977 there was a contemplated provision to provide such conditional exemption on payment of a fee and therefore the condition had been lawfully imposed on the plaintiff in 1977.

The provisions of Ex. 3 have not yet passed through the phases contained in Sections 17 to 23 (supra) so as to make it a finally approved scheme. However, it has just been published and now amounts to a proposed scheme within the meaning of S. 6(4). To this the plaintiff agrees but submits that in 1977 Ex. 3 could not be regarded under S. 6(4) as a proposed scheme because in 1977 it had not been published. The plaintiff argues that until the public are made aware of the contemplated provisions one cannot say they have been proposed. Under S's. 17 to 23 the public have the right to query and object to any provisions which are proposed. Until the scheme is published the public are not aware of what the Director is contemplating and accordingly its requirements cannot have been proposed to the public. In 1977 the alternative of a levy in lieu of on the site parking was just an idea in the mind of the Director, according to the plaintiff, and as such could not be regarded as a "provision proposed to be introduced into a scheme."

The Director stated in evidence that since 1969 fees have been charged for such exemptions and that in 1977 his department had begun drafting amendments including provision for an "exemption fee" of this kind. In drafting legislation and regulations there can be many variations of a proposal before it is finally be placed before the legislature or the public. Until the requirement is published for public approbation I fail to see how it can be regarded as a proposed provision. Surely a proposal has to be communicated to those for whom it is intended. In 1977 Ex. 3 was no more than an idea in the mind of the Director or at any rate no further than the initial drafting stages. Therefore, in my view, the exemption provision was not at that stage something proposed to be introduced into a town planning scheme under S.6 (4).

Consequently any attempt in 1977 to exempt a developer from providing on-site parking by paying a fee would be unlawful as being outside the then existing town planning provisions in 1977 and 1978 which are contained in Ex. 1.

The defence argue that S.6(3) gives the Director exceptionally wide powers which includes power to impose any conditions and he is therefore enabled to introduce conditional exemptions as to the provisions of on-site parking spaces. However, I would say that S.6(3) is qualified by S.6(4). Since there were in 1977 published conditions as contained in Ex. 1 which he had created under S.6(3) then surely the Director was bound by his then existing conditions until such time as fresh provisions have been properly proposed to the public.

If I am wrong in that finding I now consider the plaintiff's further contention that in any event it is illegal to accept a fee for exemption from providing parking on site. Although S.6(3) gives the Director very wide powers in the imposition of conditions once he has published them and commenced to act upon them he is likely to be bound by them in that he must treat all persons in the same manner. Although he can impose stringent conditions they must be reasonable. It is well established that unreasonable conditions will be adjudged ultra vires the powers of the Director.

Whether a condition is unreasonable depends on what the Director is trying to achieve within the scope of the Ordinance. The Director says that one is his intentions is to obtain funds for the city council to build public car parks but the Ordinance does not vest him with any such power. The existence of suitable public car parks eases congestion on the roads in busy areas as does on-site parking. It is reasonable to expect a developer to provide on-site parking when vehicles are so numerous as to clog the flow of traffic if parked indiscriminately outside buildings. Such a requirement does not prevent or hinder the development of a site although it is suggested by the defence that it restricts the available building area. Anyway the plaintiff does not contend that a requirement of four on site spaces is unreasonable but complains that permission to opt out of the condition on payment of a fee is unreasonable.

In "Administrative Law", 4th Edn., by Wade, the learned author quotes numerous judicial statements on what amounts to reasonableness in relations to the imposition of conditions and restrictions by statutory authorities. On p.347 and 348 he states,

"Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it posses those bounds it acts ultra vires."

He points out that the courts "must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended."

The standard of reasonableness required of an authority is not to be measured by reference to the views of the average man in the street. "It is the standard indicated by a true construction of the Act which distinguishes between what the authority may or may not be authorised to do." I continue to quote from the above text book at p.350 & 351. "A local planning authority may grant permission ‘subject to such conditions as they think fit’ and the Court is disposed to construe such conditions benevolently. But it has been repeatedly held that such conditions are invalid unless they fairly and reasonably relate to the permitted development." For example in Mixnam's Properties Ltd v Chertsey Urban District Council, 1965 A.C 735, the House of Lords considered conditions imposed on caravan site developers by an authority who had power to allow development “subject to such condition as the authority may think necessary or desirable to impose." The authority insisted that the developers should agree "site rents" wit the authority, that caravan dwellers should have security of tenure; that premiums should not be charged for a caravan space, and no restriction on commercial and political activity." The conditions were directed to the benefit of the tenants and not to controlling the use of the land and they were not necessary for good control of the site and were held to be ultra vires. In Hall v Shoreham Urban District Council 1964, 1 W.L.R. 240, permission was given to develop a site on condition that the landowners make a strip of road along their frontage and give the public access to it. The object of the planners in thus having the existing road widened was laudable but the condition was held to be unreasonable as an attempt to place upon the developers an expense which should be borne by the council. In R v Tynemouth Rural District, [1896] UKLawRpKQB 130; 1896, 2, Q.B. 219, the council granted permission to build provided the landowner provided and paid for sewers outside his property. The condition was held to be unreasonable.

It is apparent that any conditions imposed upon a developer must be directly connected with the land he is developing and must form part of the basis on which permission to build is granted. Any condition which requires him to do anything elsewhere than on his land is not a requirement in the development of his own land. No one had contended that it is unreasonable to have said to the plaintiff you can build on this site provided you create 4 on-site parking spaces. They would be for the plaintiff's own use and benefit whilst preventing those resorting to his premises from parking on the road outside and causing inconvenience to the public. But following the reasoning of the above authorities it would be unreasonable to require the plaintiff to build several off site parking spaces as one of the conditions for developing his land; such a condition could have nothing to do with the development of the plaintiff's land and could not be for the use and benefit of those resorting to the building. Nevertheless development of the area as a whole will necessitate the provision of public car parks. However, their financing is the concern and burden of the public and not that of a few private developers. It is permissible to lawfully provide that the requirement of four on-site spaces will be restricted to two spaces if he spaces if he pays for the cost of two public spaces? In my view it is not permissible because it seems to be another way of saying you are permitted to build provided you create 4 on-site spaces or create two on-site spaces and pay $2000.00 towards a public car park. In fact the provision in question indicates that the plaintiff developer may purchase exemption from providing any on-site parking suggests that there is no need for it. It seems that the plaintiff was required to provide 4 on-site parking spaces which are not essential to the reasonable development of his land or the area in general but he will be excused from doing the unnecessary if he contributes to the cost of providing public car parks is the responsibility of the planners and the cost of building them falls upon the city council. The planning provision in question is an attempt to make private developers responsible for providing the council in the ordinary way. To that extent the provision is unreasonable in placing a much enhanced portion of the council's public expenditure upon a comparatively few private developers.

In my view the requirement can scarcely be consistent with genuine deliberate long range planning. Town planners visualise future needs arising from the creation and expansion of shopping, commerce and industrialisation in given areas. They anticipate future road widths, the type and density of traffic, the direction in which it will flow and ways of avoiding congestion. The Director’s evidence indicates that the provision of on-site parking is related to traffic congestion. It is pointless having wide roads if they are flanked by buildings and if those using them reduce their utility by continually parking motor vehicles outside the buildings. The problem can be met to some extent by providing convenient public parking areas and by on-site parking. If the planners know that every building will have on-site parking and how many spaces will be available on each site they will know the number and size of the public car parks that will be required in the future. However, if developers can, at their option, provide much less than the necessary number of spaces the planners will not know how many on-site parking spaces will be in existence and will not be able to properly estimate the space needed for public parking.

Conditions imposed upon developers by planners must be related to estimated or calculated requirements of surrounding land owners and developers and the public. If the planned ratio is one car space per 1500sq. ft. of floor space presumably that is a logical estimate of future requirements. If that ratio can be halved or reduced to less than half it becomes apparent that on-site parking is not required at the said ratio.

A further objection to the provision is that it is left to the discretion of the Director to decide whether a developer will be exempt from providing on-site parking and if so to what extent. However, the law will insist that the Director treat all developers alike; and once a developer has bought himself out of the condition the Director is obliged to make the same concession to other developers. The condition thus ceases to be a necessary requirement and is revealed as a device to extract money from developers by excusing them from providing unnecessary on-site parking on payment of a fee to be used for public purposes. In my opinion the provision allowing exemption on payment of a fee is unreasonable and therefore ultra vires.

The defence argue that the plaintiff was not bound to pay $2000/. He had an option to create 4 spaces or to create only 2 spaces and pay $2000. They argue that having opted to pay the $2000 and having provided only 2 spaces instead of four he cannot now reclaim his $2000. They say he cannot enjoy the privilege he had purchased and then claim back his money.

One appreciates that the plaintiff could have challenged the regularity of the option before commencing to build. If he though the "option" offered was unlawful then in acting on it he was, according to the defence, no better than the defendants. They contend that if the condition is ultra vires then he has entered into and completed an illegal contract and he cannot recover what he paid as a party to it.

I do not think that the defence contention can be upheld because as I see it the plaintiff did not have an option in the legally accepted sense of that word. Stroud's Judicial Dictionary defines an option as a right acquired by contract to accept or reject a present offer within a certain period of time. In the instant case I am of the opinion that no contract exists or existed between the plaintiff and the defendants. The plaintiff was not agreeing to develop his land; no consideration moves from either defendant to the plaintiff on condition that he develops his land. There is no contract that he should, in return for any consideration from either defendant, develop in accordance with established statutory laws of the country. The Director granted permission to build subject to a requirement that the plaintiff provided four on-site parking spaces; the requirement permits the plaintiff to buy himself out of all or part of that obligation. There is no offer from the Director which the plaintiff can accept or reject under the terms of any contract. In my view there was no contract and there can be no ground for contending that the plaintiff is "in paridelictor" with the defendants or that any analogous state of affairs exists.

It is the Director's duty to decide how many on site parking spaces were needed on the plaintiff's site. Apparently he has decided that two spaces will be reasonable having regard to the public parking spaces the council will be able to provide. How the council will acquire the necessary finance to provide public parking is not the concern of the plaintiff in the development of his plot of land any more than it is the concern of any other ratepayer. The plaintiff cannot be under any contractual obligation to pay for any public parking spaces. To require him to do so was, in my view, so unreasonable as to be ultra vires the Minister's powers.

I find that if the 1977 scheme Ex. 1 applies, and I think it does, it makes no provision for any payments by the plaintiff in lieu of providing on-site parking and the demand for $2000 was unlawful.

If the 1979 scheme, Ex. 3, can be said to have constituted in 1977 provisions proposed to be included in a scheme then the provision allowing a developer to buy out of a requirement to provide on-site parking is ultra vires.

Although the summons asks for an order that the council and or Director had no such power I think the plaintiff was asking for a declaration to that effect and I declare accordingly.

It is Ordered that the Lautoka City Council refund to the plaintiff the sum of $2000 paid on 5th April, 1978.

The defendants will pay the plaintiff's costs.

(J.T. WILLIAMS)
JUDGE

LAUTOKA,
7th December, 1979