Coram: R. Marum J. MBE
Mr. Nigel G.ison for the
plaintiff
Mr. Juris Ozols for the
defendant
JUDGMENT
<
The cause is by way of
Originating Summons by the plaintiff seeking the following declaratory
orders: -
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p;
A declaration that the defendant is not entitled to keep the said
break water in sucher orreven free flow of win th lain the
area frontinonting to g to the pthe plaintlaintiff aiff and defendant’s property.
span>
2. &nnbsp;; &nsp; &nsp; &&nbp;; &nnsp;&
p;
An injunction restraining the defendant by herself, her servants or
agents or otherwise from continuing to maintain and keep
thd bre w so as to be a nuisance to the pthe plaintlaintiff.
3.&n;"> & &nsp; &nbssp; &nbssp;
Anan>An injunction requiring the defendant to remove and ntle d breater with.an>
clasoBody stylx="teit-align: jgn: justifustify; may; margin-rgin-top: top: 1; ma1; margin-rgin-bottobottom: 1"m: 1">
Both parties do not own the
seashore where the dispute involved. The seashore is referred to customary
land and subject
to the Fore Shore Development Act.
Issue
1 & &nsp; &nbssp; &nbssp;
p;
Wasn>Was the dant’s break waters infringe against the law and
therefore should be dismantled or reor removed?
&nnbsp;; &nsp; &nsp; &&nbp;; &nnsp;& &nbp; &nbp;
Wer thuisance ance caused to the plaintiff by building the break
wall?
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The righ enjoyment by the
plaintiff will only come into consideration as of June 1997 and notd not before,
or prior to
1997 as he was no where near being affected.
The defendant was already a
long ent of the area. She built two break walls; one is at the fthe far
southern end of the
defendant’s boundary and the other to the northern part,
which is the second break wall, some distance from the plaintiff boundary,
and well within her area. The second break wall built by her brother in 1983
after starting it of in 1974-75, while she
was not there, now the cause of
this action. I accept that her brother further built the second break wall
and there
after she continued to add on more coral to it when she goes
swimming there. The break wall continued to build up as more corals
were
added on. Resulting to this build up, more sand came to be collected
naturally there through the process of in and
out flow of the sea currants
for a long time. She started to build the break wall as in (D. 2 (1)) and
(D. 2 (2)) in
1974 to 1975 with the permission of Chief Kalmet, as the
people of Erakor own the beaches there.
Law
Section 2 states: -
“2. &bsp; No persol sha undertakertake or cause or permit to be undertaken any development on the
foreshore of the coast
of any island in
span "EN-Gyle="size:pt">Vu withoutthout havi having fing first
rst
obtaiobtained the written consent of the Minister
to such development.
”
“Foreshore” under Se 1
means:
“‘Foreshore’ means the land
bmean high water mark and thnd the bed of the sea within the territorial
waters of Vanuatu
(including the ports and harbors thereof) and includes land below mean high
water mark in any lagoon having direct
access to the open sea.”
“Development” under Section 1
means:
“‘Development’ means the
carrying out of any building, engineering, mig, mining or other operations in,
on, over or under
the land, or the making of any material change in the use
of buildings or other land whether or not such land is covered by
water.”
The area where the break wall
was is within the description of the “Foreshore” in then the
Foreshore Development Act CAP 90 and was covered under the description of “development”
under Section 1 of the Act. And therefore under Section 2 permission must be
obtained.
The Foreshore Development Act
CAP 90 was Joint Regulation 31 of 1hat came into force on the the 17th
of September 1976 and by operation of Article 95 of the constitution
continue to be laws on independence and continue
after independence as now
the Foreshore Development Act CAP 90 became a law as of independences day
unless repealed. The legal status of the said Act remain in force and
applicable
in pre- and post independence. Therefore, the defendant, the
provision of the Act in 1976 was available to her to seek permission
to
build the break walls. And because she did not seek permission, what she did
was contrary to law.
On this finding, Ozols for the
defendant advances that the plaintiff has no standing under the act accept
the minister,
neither, the Act allows him to dismantle such development.
Further, the requirement of the Foreshore Development Act was not pleaded.
On this advancement in law I quite agree with him and find that only the minister has jhas jurisdiction to
enforce the provision
of the Act for criminal sanctions under section 6 of
the Act and the status of the defendant is to lay complaints only through
the ministers office. In this case, I find that the status of the plaintiff
is one of civil nature, and let alone criminal
proceeding to be initiated by
the minister on complaints to him/her, and that is for nuisance as pleaded.
In coming to these findings the
court is to endeavourer on the nuisance as pleaded.
ass="MsoBoMsoBodyText" style="text-align: justify; margin-top: 1; margin-bottom: 1">
Nuisance
In nuisance, the piff is
not the owner of the seashore that the rubbishbbish was washed up, and sediments
deposited by
tied. However, his claim is in paragraph 7 and 8, which states:
-
class="MsoBoMsoBodyText" style="text-align: justify; text-indent: -72.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom:
1">
Paragraph 7 – By reason of
constronstruction of the breakwaters decreased water circulation and increased
sedimentation
have resulted in a significant degradation of the appearance
of the lagoon immediately in front of the plaintiff’s property.
class="Mss="MsoBodyText" style="text-align: justify; text-indent: -72.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom:
1 Paragraph 8 – The resultant
degradegradation inhibits the plaintiff from full enjoyment of the land and
depreciates the
value of the land.
Pto building the break
wall the plaintiff would not offer any evidence of comparison ason as to sediment
and rubbish before
1964 and before 1974 to 1997 when the plaintiff moved
into that house or residential area, even the evidence of what the plaintiff
experience in 1980 is very light for any consideration. I accept the
defendant evidence that within that area it was
mangrove area and also was
muddy area. In 1967 to 1968 she was teaching in Tongoa, and when she came
back in 1968 she
found out that all the mangroves were cut and the place was
left bare. Furthermore, most of the mud there were dug out and
removed.
ecause of this, she want wanted to protect the land along the seashore from
erosion. And by photo No.2 as ex. D
2, she started that development as far
as 1975. And by that photo the break wall to the northern part, which is now
the
concern of this action, was already progress out to the sea creating
what is seen to be a lagoon on high tides. However, the
plaintiff claims
that it is this break walls that has restricted the natural free flow of the
circulation of the sea
currant and thus increase sedimentation in his area
and thus significantly degradation of the appearance of the lagoon in front
of his property.
p class="MsoBoMsoBodyText" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The plaintiff called t
evidence to explain the cause of build up of rubbisubbish and sediment in the
plaintiff area. Counsel
for the defendant advances that the witness Sarah
McCartney is not an expert in Marine Hydrology, that is expert in the
studies of the distribution, conservation, use of the water of the earth and
its Atmore sphere. On this advancement, I accept
that she is not an expert
in the field of Marine Hydrology, that is more of her studies will be
concentrated on environmental
impacts on certain development, which may be
of environmental concern to others or the community at large, or the
development
itself. And I accept that she cannot give such expert opinion on
the movement of the sea and the effect that it will have on
the water of the
earth. Nevertheless, her studies as appear in her Vitae would indicate to me
that she would have some
knowledge and understanding to environmental
disturbance or environmental impacts that can occur, which she can give
expert opinion concerning with issues that affect the environment. In this
case the court is dealing with a break wall where
the plaintiff is saying
that the break wall has slow down the flow of current and thus sea debris
and other rubbish are
collecting there, and if the sea wall was not built
there, the rubbish will continue to drift out to the ocean. I find that
there is some value to accept Sarah’s opinion and recommendations that: “the
wall in question serves no purpose, that it be removed in order to allow the
natural coastal process to own without
any unnecessary obstacle” … and
further that: “whilst the removal of the wall will not totally remedy the
existing shoreline issues, it should cease to contribute to sedimentation
and decrease water circulation in the area.” I am satisfied that the
break wall has restricted tidal flow and cause to collect sea debris and
other rubbish on the
sea shore in front of the plaintiff shoreline and build
up of sediment due to a brace wall built by the defendant, restricting
it
such flow out. Such rubbish can be seen in photos No. 8, 9 and 10 of the
bundle of photos from the plaintiff’s as
tendered photos. On this finding,
counsel for the defendant advances that the plaintiff must prove that the
defendant
has caused nuisance to him. As so far the plaintiff only prove the
existence of the break wall and has not proven any nuisance
committed by the
defendant.
Nuisance can take three forms;
is wheperty of the neighbour proj projects over to the other neighbours
property; or secondly
when physical damage is done to a man’s land; and
thirdly causing, from outside a man’s land, an interference with the
enjoyments of a man’s land.
The plaintiff is not the owner
of the beach, but only enjoys the see front for swimming and also the sea
fronts adds on
to the value of his property. And therefore this type of
nuisance will fall under the third category of nuisance.
The plaintiff, because the
naturehe location of his residence, would immediately enjoy the sthe sea
view including the
beach environment similar to what also the defendant is
now enjoying, and that is going swimming. There is a presumption that,
when
the plaintiff paid for the land, he will also enjoy the beaches and water
adjacent to his land.
I find the defendant has
not actually caused any direct nuisance to the plaintiff. Nevertheletheless, the
break wall that
the defendant built has cause a direct interference to the
plaintiff enjoyment of the seashore by restricting some of the out
going
rubbish and other sea weeds, making the sea front of his land unpleasant. In
coming to this finding, I hereby declare
that the defendant is not entitle
to keep the said break waters in such manner as to prevent the free flow of
water in
the lagoon in the area fronting the plaintiff and the defendant’s
property. Secondly the defendant, her servants or agents
or otherwise from
continuing to maintain and keep the said break waters so as to be a nuisance
to the plaintiff.
As to injunctive orders to
dismantle the said breakwaters, I amassisted very much in law alaw as to the
jurisdiction of
the court. As the defendant’s counsel advances, which I
agree, that there is no power vested in the minister to order dismantles
of
the break wall. This will also apply to the court power, which I find I do
not have. The only cause that is available
is for the defendant to comply
with the finding of this court, which means that she has to dismantle the
break wall herself
starting as of this date of judgment or by criminal
sanction, so long as the break wall continues to remain there from the
date
of this judgment. And therefore, I make no orders for dismantle.
<
Damages
In damages, the type of
nuisance is interference of enjoyment only only of swimming in a property, which
is not his, and
even in value there is no evidence of value at all on
whether the value of his property has depreciated, and the plaintiff
cannot
benefit. And the best remedy is injunctive orders only which was granted
already, and let alone claim for damages
to the beach and sea front to the
right full owner of the beach to claim unless, there is a carried over of
interference
by way of nuisance to the plaintiff enjoyment of his land,
which I find as non. I therefore, do not allow any damages to be
awarded.
Dated at Port Vila, 4th
day of February 2002.
R. MARUM MBE
JUDGE
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