The application for surrender of the residential lease was made on the basis
of that outline permission. Apparently it
was granted on that basis. I
cannot say whether it would have made any difference to that consent if the
permission sought
referred to 36 units.
e application for full plan planning permission and a building permit contained
a copy of the outline approval and the full
plans. It is difficult on a
prima facie assessment to ascertain to what extent if at all the outline
permission and the
consent to lease surrender influenced the full planning
approval. The Lands Department observations (AJH/12) and particularly
Physical Planning Unit approval (AJH/16) suggest they might have done.
The Physical Planning Act would appear to contemplate a Council declaring
Physical Planning Areas. Within those areas development of the kind
contemplated
by the plan could be undertaken if it was of the kind specified
in the Plan. If it was not, permission of the Council is required.
Before an
Area can be declared, public consultation is required. The Act itself is “
To provide for controlling the development
of Land.”
The simple question is whether consultation, wide or naor narrow, is required
before a decision is made for a permission
inconsistent with the plan.
Section 7 deals with such applications. There is no reference to
consultation. This is not
a matter of interpreting a statutory ambiguity.
On the other hand it might be argued it is against the purpose of the Act
and there is little point to a plan if a person
can purchase a lease one day
in a residential area, and the next find without consultation he is
surrounded by commercial
development. Is the real purpose of the Act to give
the Council control of development or to give it such control after
consultation ?
Theresome questions which are eare easy to state but not so easy to
distinguish in practice.
First, should the use of a piece of land remain residential or become
commercial. That is a question which affects neighbouring
owners ands sets
precedents for the area.
Second, a separate question is, is, if commercial development is allowed, what
actual building and development should
be permitted on the land.
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There is a third possibility, which is a is a blend of the first two, namely
where a change from residential to commercial
is permitted but only if the
development is limited in specified ways.
Whatever is the positiorseas, and what ever might ight be argued to be fair,
it is for the Court to apply the law.
A
foreshore development cation was made and grantedanted. It clearly did not
comply with the Act (the Foreshore Development Act Cap 90). A second was
made. There is a difficulty in that a non- existent official should display
the application publicly
for 14 days. (section 3 (2)). This statute is clear
that there should be advertisement and consideration of representations
(section 4).
As the evidence currently stands I do not knew wnew when the activities on the
foreshore took place, whether after the
first ‘invalid’ permission but
before the second application was made, or when. It is clear on the evidence
that there
is currently no foreshore consent in existence. On 25th
May 2001 Chief Tenene informed the first defendant of his peoples’ objection
to the development. Having visited the site
there might be concern as to how
far out the development goes. It has clearly started, and there is already
some loss
of mangrove and not a great deal remaining.
There is the centuestion. If interim injunctjunctions are issued the project
is delayed, ultimate operating profits lost
and perhaps interest paid or
lost on money to be used. However, if the building continues the plaintiffs,
if they succed
in the main action, are faced with a fait accompli. They
could argue no court would consider ordering the demolition of the
buildings.
1. Leave is granted for for the plaintiffs to amend again, if required, their
Originating Summons to state precisely
the grounds of their case. This must
be done by 3p.m. on 28th December, together with full supporting
affidavits.