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Planning &amp Urban Management Agency v Chan Mow [2021] WSCA 15 (21 December 2021)

IN THE COURT OF APPEAL OF SAMOA
Planning & Urban Management Agency v Chan Mow & Anor [2021] WSCA 15 (21 December 2021)


Case name:
Planning & Urban Management Agency v Chan Mow & Anor


Citation:


Decision date:
21 December 2021


Parties:
PLANNING & URBAN MANAGEMENT AGENCY (Appellant) v KOMISI CHAN MOW & LUPE CHAN MOW (Respondents)


Hearing date(s):
08 December 2021


File number(s):
CA 11/20


Jurisdiction:
CIVIL


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
Honourable Chief Justice Perese
Honourable Justice Blanchard
Honourable Justice Harrison


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
The appeal is allowed. The Chan Mows’ proceedings against PUMA are struck out.

The Chan Mows are ordered to pay PUMA costs on the appeal of $5000 plus disbursements. Costs in the Supreme Court are reserved and are to be fixed in the light of this judgment.


Representation:
F.S Ainuu and V. Leilua for the Appellant
S.J Stowers for the Respondents


Catchwords:



Words and phrases:


Legislation cited:
Planning and Urban Management Act 2004 ss. 43; 43(1)(b); 43(2); 46; 46(g); 83(2); 83(3); 100; 103.


Cases cited:
Attorney General v Carter [2003] NZCA 48; [2003] 2 NZLR 160;
Bella Vista Resort Ltd v Western Bay of Plenty District Council [2007] NZCA 33, [2007] 3 NZLR 429;
Chan Mow & Anor v Planning and Urban Management Agency & Anor [2020] WSSC 101 (10 July 2020);
Cooper v Hobart [2001] 3 SCR 537;
Hotel Millenia v Attorney General and PUMA [2015] WSSC 49;
North Shore City Council v Attorney General [2012] NZSC 49, [2012] 3 NZLR 341;
The Laws of New Zealand (online loose-leaf edition, Lexis Nexis): Breach of Statutory Duty;
Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd [2004] NZCA 97, [2005] 1 NZLR 324;
X (minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 (HL).


Summary of decision:

CA11/20


IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU


BETWEEN:


PLANNING & URBAN MANAGEMENT AGENCY


Appellant


A N D:


KOMISI CHAN MOW & LUPE CHAN MOW


Respondents


Coram: Honourable Chief Justice Perese

Honourable Justice Blanchard
Honourable Justice Harrison


Hearing: 08 December 2021


Counsel: FS Ainuu and V Leilua for the Appellant
SJ Stowers for the Respondents


Judgment: 21 December 2021


JUDGMENT OF THE COURT

Introduction

  1. The question arising on this appeal from the judgment of Tuala-Warren J in the Supreme Court[1] is whether the Planning and Urban Management Agency (PUMA) owes actionable duties to exercise care when discharging its obligations under the Planning and Urban Management Act 2004 (the PUMA Act), in particular to consider, notify and determine an application for development consent and to enforce compliance with its conditions.

The Chan Mows’ Claim

  1. The respondents, Komisi and Lupe Chan Mow (the Chan Mows), and Niko Lee Hang are adjoining landowners in Vaoala. In August 2017 Mr Lee Hang applied to PUMA for a development consent to construct a supermarket on his property. Later that month PUMA advertised Mr Lee Hang’s application in the Samoa Observer. There were no public objections. On 15 September 2017 PUMA granted the application subject to certain conditions including provision of (1) an adequate setback from adjoining boundary lines; (2) adequate steps to remove potential heat and reflective light from iron roofing; and (3) landscaping to minimize dust, noise, and visual impact on neighbouring properties. Mr Lee Hang proceeded to construct the supermarket on his property. By January 2018 the Chan Mows were aware of the existence of the development consent. Mrs Chan Mow visited PUMA’s offices to complain about the noise being emitted from the construction works on Mr Lee Hang’s property. In May 2018 she attended another meeting at the same office with Puma representatives, her lawyer and Mr Lee Hang. In September 2018 the Chan Mows filed these proceedings.
  2. The Chan Mows’ first amended statement of claim upon which judgment was delivered pleads three causes of action. The first seeks relief against PUMA for breach of statutory duty based on allegations that:
  3. The Chan Mows’ second cause of action is in nuisance and for breach of statutory duty. It seeks relief against Mr Lee Hang alone based on allegations that development of the supermarket had subjected them to substantial and unreasonable interference in their enjoyment of their property from excessive noise, their property now suffers poor air space, light and ventilation, the structure is visually obstructive and the market value of their property has diminished. This cause of action was not the subject of PUMA’s application to strike out and does not require our consideration.
  4. The Chan Mows’ third cause of action alleged that PUMA owed them duties of care at common law to give written notice of Mr Lee Hang’s application, said to arise under s43; to consider all the relevant factors specified in s46; and to ensure Mr Lee Hang’s compliance with the conditions of consent. As a result of the Supreme Court judgment, the Chan Mows have amended their claim to withdraw the first two allegations of breach of a duty of care, leaving only the third compliance allegation remaining.
  5. In summary the first cause of action for breach of statutory duty relates to PUMA’s decision to grant the consent whereas the third relates to its failures to enforce compliance with conditions to which the consent was subject.
  6. As a result of PUMA’s alleged breaches, the Chan Mows say they have suffered loss and claim substantial general and punitive damages and indemnity costs.

Supreme Court

  1. PUMA applied to strike out the Chan Mows’ statement of claim on the ground that it was unarguable in law. Tuala-Warren J dealt first with the Chan Mows’ third cause of action for common law negligence. She was satisfied that PUMA’s decision to grant a conditional development consent was made at a discretionary, policy or planning level and was accordingly not amenable to review in a claim for negligence; and that PUMA does not owe a duty of care to any private individual in exercising this discretionary function.[4] By contrast, a duty of care can be imposed for operational functions concerning the manner in which a discretionary decision is monitored or implemented.[5] The Judge was not satisfied that the negligence claim was unarguable providing it excluded the first and second allegations relating to the Agency’s decision to grant consent. She ordered the Chan Mows to amend their statement of claim to reflect its limitation to the third allegation of negligence in performing its functions in implementing the decision.[6]The Chan Mows have not cross appealed against this order and have since filed a second amended statement of claim in compliance with its terms.
  2. Tuala-Warren J was also satisfied that the Chan Mows’ first cause of action for breach of statutory duty by PUMA in allegedly failing to give them written notice of the application and failing to properly consider the application was arguable. We record that these allegations are similar to those struck out in the Chan Mows’ common law negligence claim which were expressly based on the statutory provisions. The Judge did not undertake an analysis of the relevant principles applying to claims for breach of duty beyond her recital of sections 43 and 46 and referring to an earlier Supreme Court decision. She acknowledged that while section 100 of the PUMA Act might suggest that the statute did not give rise to a private right of action, further argument was necessary. She was of the same view about the effect of section 103 which excluded the government from liability for the financial consequences of PUMA’s acts or omissions.[7]
  3. PUMA now appeals from the Judge’s dismissal of its application to strike out the proceedings.
  4. We note that the Supreme Court judgment does not refer to events which we regard as significant for reasons to be explained later in this judgment. It appears that on 24 September 2018 the Chan Mows filed a without notice application for an interim injunction restraining Mr Lee Hang from carrying out further work in accordance with the consent until certain amenity issues were resolved. Ms Stowers initially implied that Tuala-Warren J dismissed this application before conceding that the Chan Mows elected to withdraw the application and proceed with their damages claims against PUMA and Mr Lee Hang.

Analysis

(1) Breach of Statutory Duty.
  1. The Chan Mows’ first cause of action for breach of statutory duty is the chronologically appropriate starting point for our analysis of PUMA’s appeal. This exercise will involve an inevitable degree of overlap with our assessment of the Chan Mows’ separate claim in common law negligence. That is because the law has progressively merged the principles applying to both causes of action where the impugned conduct is that of a public authority undertaking statutory functions. In this process the tort of breach of statutory duty has largely lost its stand-alone status. It has become subsumed in the common law tort of negligence. To the extent that the tort of breach of statutory duty has survived, the inquiries into the essential elements of both torts overlap. What is required is an evaluation of the purpose, objectives and text of the legislative framework which governs the powers and duties of the public authority and the relationship between the parties.
  2. The leading authorities illustrate the synthesis in the two approaches. In Attorney-General v Carter [8] the New Zealand Court of Appeal agreed with the House of Lords in X (minors) v Bedfordshire County Council [9] that careless performance of a statutory duty does not give rise to any liability in the absence of either a statutory right of action or a common law duty of care. The Court held that this approach:[10]
  3. This last-mentioned limitation is decisive. In Carter the plaintiffs claimed damages from the Ministry of Transport based on its alleged negligence in issuing surveying certificates for a small ship when performing its responsibilities under the Shipping and Seaman Act 1952. The claim was pleaded alternatively for breaches of a common law duty of care and of a statutory duty. The Court of Appeal was satisfied that the statute obliged the Ministry to issue certificates but not to exercise care in doing so: any question of whether a duty could be implied had to be addressed in the context of a common law claim.[11]
  4. In Carter the High Court struck out the common law but not the breach of statutory duty claim. However, the Court of Appeal was of the view that this distinction was illogical and unsustainable in law where the conduct underlying both causes of action emanated from the same statutory framework. That conclusion is particularly apposite to this case.
  5. As Mr Ainu’u for PUMA submitted, in order to establish a claim for negligent breach of a statutory duty a party must show, among other things, first, a legislative intention that breach of the obligation should be a ground of civil liability in relation to the class to which the party belongs, second, injury or damage of a kind for which the law awards damages and against which the statute was designed to give protection and, third, a causal nexus between the breach and the injury.[12]
  6. We can address this part of the appeal with those principles in mind. The preamble to the PUMA Act provides that the Agency was established to “...implement a framework for planning the use, development, management and protection of land in Samoa in the present and long-term interests of all Samoans and for related purposes.” This broad statement of intent is expanded into specified objectives, principal among which is “..to provide for the fair, orderly, economic and sustainable use, development and management of land”.[13] There are extensive provisions relating to the process for considering and granting development consents[14]. The Agency is directed to take into account a range of 19 specified factors including the public interest when determining an application.[15]The interests of adjoining owners are not listed.
  7. The Chan Mows’ claims for breach of statutory duty divide into two categories. The first constitutes two related breaches of the s43 notice provisions in the consenting process. One was the Agency’s alleged failure to give written notice of the application to them as adjoining owners.[16] The other was its alleged failure to require Mr Lee Hang as applicant to give them such notice.[17] The terms of s43(1)(b)(i) oblige PUMA to give notice to adjoining owners “...unless in its opinion such persons would not be detrimentally affected by the granting of the development consent ”. Section 43(2) empowers the Agency to request the applicant to give these notices.
  8. The second category is the Agency’s alleged breach of its statutory duty particularized as its failures , first, to consider the potential environmental effects of the development and to obtain an environmental impact report (s46(f)) and, second, to consider the potential social and economic effects on adjoining owners including the Chan Mows (s46 (g)).
  9. The Chan Mows’ pleading makes it clear that these alleged failures amount to negligence by PUMA or carelessness in discharging both categories of duties. However, neither the Judge nor Ms Stowers who supports the judgment have identified any provision in the PUMA Act which obliges the Agency to exercise reasonable care when deciding whether to notify the Chan Mows of the application or when evaluating the relevant factors. The statute does not impose any particular standard of performance on PUMA.
  10. This claim must fail for a number of other reasons. First, the legislative intention to be derived from the purpose, objectives and text of the PUMA Act appears to negate any private right of action. The statute plainly requires the Agency to make its decisions in the public interest”...in the present and long term interests of all Samoans”, not a particular class or classes of Samoan society. The purpose of the notice provisions is to allow an opportunity to be heard for those who may be most closely affected by the proposed development and who thus may be in a position to provide additional information to the decision maker on its merits. Their views may be particularly relevant to the nature and extent of conditions to be attached to a consent. The purpose of the notice provisions is not to protect the property rights of adjoining owners. The statute does not provide a regime for compensating members of that limited class for any quantifiable loss or damage suffered as a result of a consented development.
  11. Second, Ms Stowers does not challenge Tuala-Warren J’s distinction between decisions made by a public authority in exercising its statutory powers of a policy or discretionary nature on the one hand and operational steps taken in performing or implementing policy decisions on the other.[18] In the analogous context of a claim for breach of a common law duty of care, the New Zealand Court of Appeal, following Commonwealth authority, has expressly held that a planning authority does not owe an actionable duty of care when performing its consenting responsibilities.[19] A planning authority is exercising a quasi -judicial function involving a degree of judgment when determining whether an application is for the benefit of the public at large.[20]
  12. Tuala-Warren J drew and applied this distinction when considering the Chan Mows’ negligence claim. But the same principles must logically apply to the claim for breach of statutory duty. The decisions exercised by PUMA under both sections 43 and 46 including the notification decisions were of a policy or discretionary nature. The Agency was required to make decisions about the scope of any notifications outside the mandatory public notice requirement. In particular it retained a discretion on whether specific notice should be served on adjoining owners. The s46 factors are, on analysis, all of the type to be expected for consideration by a body exercising a planning consent function. And the Chan Mows’ express allegation that PUMA was obliged to consider the social and economic effects on them as adjoining owners is an unsustainable gloss on the plain words of s46 (g). That duty has no such limitation on its scope. The particular duty was to consider the social and economic effects on the community, not a small section of its members.
  13. Third, the Chan Mows’ pleaded claim for breach of statutory duty omits any reference to the critical element of causation. There is no pleaded nexus between the alleged breaches and a necessary precondition of liability. Ms Stowers conceded in argument that in order to succeed at trial on this cause of action the Chan Mows would have to prove that but for the alleged breaches PUMA would have exercised its statutory discretion to dismiss the consent application. She further conceded that this process would require the Supreme Court to conduct a full inquiry as if it were PUMA or an appellate body considering the application afresh by reference to all the relevant statutory provisions governing an application for development consent. We cannot see any policy rationale within the text of the PUMA Act for assuming that the legislature intended this result.
  14. The Chan Mows’ pleaded claim seeks support from s83(2) and (3) of the PUMA Act which entitle both the Agency and “an interested person” to bring proceedings in the Supreme Court for an order to remedy or restrain a breach of its provisions. Breaches are defined as an actual or threatened contravention or failure to comply with the Act. This provision does not advance the Chan Mows’ case that the statute bestows a private right of action for damages against PUMA. It simply confirms that interested persons can take enforcement steps against the consent holder. It does not address the separate question of whether a right of action exists against the separate entity constituted by the Agency.
  15. It appears that much of the hearing in the Supreme Court, like the argument on the appeal to this Court, focused on the applicability of s100, which provides that the PUMA Act is binding on all public authorities but otherwise does not bind the Government, and s 103 which expressly excludes the Government from liability “... for any damage or loss resulting from an act, omission or default by... the Agency ... in the exercise of a function or power under this Act...” Determination of this issue is not relevant to the issues truly arising on this appeal. But we would note that exclusion of the Government’s vicarious liability for any loss occasioned by PUMA’s activities does not appear to have any bearing on whether the Agency itself is liable in damages on a third party claim.
  16. We are not satisfied that the PUMA Act gives rise to any private law rights of action in the Chan Mows’ favour. It follows that the Chan Mows’ claim for breach of statutory duty is unarguable and must be struck out.

(2) Breach of Duty of Care.

  1. The Chan Mows remaining common law cause of action against PUMA is of a breach of a duty of care to ensure Mr Lee Hang’s compliance with the conditions attaching to the consent decision. Tuala-Warren J held that the Agency’s functions in this respect were arguably of an operational nature which might attract liability at common law. Trial would be necessary to establish, first, whether PUMA did in fact have a monitoring role, second, whether monitoring is of an operational nature which might attract liability, and, third, whether s103 applied to exclude liability.
  2. We disagree with this conclusion. The Judge’s focus on the label of a monitoring function and whether it constitutes operational conduct by the Agency is a distraction. Sections 80 to 86, which the Judge recited in full, provide PUMA with comprehensive powers of enforcement including the s83 power to apply to the Supreme Court for orders enforcing conditions attaching to development consents. This is a power of the type normally vested in consenting authorities which are established to act in the public interest. It may only give rise to liability to individual members of the public if the elements of a duty of care are made out.
  3. The orthodox approach to determining whether a duty of care exists in a novel case is to focus on the nature of the relationship between the parties by reference to the degree of proximity and foreseeability of harm before addressing any policy factors which might tend to negate the imposition of an actionable duty. However, these factors provide a framework rather than a strict methodology and the ultimate touchstone is whether the duty contended for is fair, just and reasonable.[21] The Court is required to consider factors which are of a residual nature or external to the parties’ relationship; the Courts are concerned with the effect of recognizing a duty on other legal duties and society in general.[22] The potential risk of indeterminate liability is particularly apposite where a Court is determining the liability of a public body performing a statutory role.
  4. If the Supreme Court had adopted that approach here, it would have led inevitably to an order striking out the Chan Mows’ negligence claim. The PUMA Act is said to be the source of the parties’ relationship. The inquiry into whether there was the necessary degree of proximity must be guided by its provisions. As with the Chan Mows’ claim for breach of statutory duty, the question of whether a public authority owes a duty of care when performing its functions is determined by reviewing its enabling legislation. This was the approach adopted in North Shore City Council v Attorney General.[23] The
    New Zealand Supreme Court emphasized that proximity in this context is a term used to describe a relationship of such a nature where one party is obliged to be mindful of, or take into specific account, another’s legitimate interests in conducting its business or, in the case of a public authority when performing its statutory duties.[24] The Supreme Court found that the Building Industry Authority, a body established under the Building Act 1991 to supervise the regulatory system for building work, did not owe duties of care to local authorities and individual house owners when reviewing the formers’ compliance with building standards for moisture control set by the Building Code. The majority was satisfied that the legislative provisions did not create the requisite degree of proximity between the Authority and the claimants necessary to impose a duty of care.
  5. We have already undertaken that exercise in relation to PUMA’s consenting responsibilities when considering the conceptually analogous claims by the Chan Mows for breach of statutory duty. The enforcement provisions also fall into a discrete category. Just as with its consenting function, the Agency must perform its enforcement responsibilities under the PUMA Act in the public interest, not for the benefit of any group or class. The two functions are symmetrical. The Supreme Court is empowered to act if satisfied that a consent holder has committed or is likely to commit a breach of a condition of consent. It does not require satisfaction that a particular individual or group has suffered loss or damage as a result.
  6. The express extension of this enforcement right under s83 to an interested person such as the Chan Mows is directly relevant. It recognizes that adjoining owners may have an interest greater than the rest of the community in ensuring compliance with consent conditions. Conditions are often imposed to limit the effects of a consented development on those who are most adversely affected by virtue of their physical proximity to the activity. They are entitled to act where, for example, they believe the Agency has not taken appropriate steps to enforce compliance and the interference with their enjoyment of the land is more extreme than for the public at large. The statute expressly reserves to them a public law right of redress to obtain restraining orders in the event that the Court finds the consent holder is in breach. The vesting of these rights of enforcement concurrently in a public authority and a member or members of the public within an identifiable class negates any suggestion of a sufficient degree of proximity to impose a private common law duty of care owed to an individual to enforce compliance with consent conditions. The remedy to be provided is one of enforcement, not compensation.
  7. The Chan Mows exercised that statutory right here, many months after learning of the existence of the consent. As noted, in September 2018 they filed a without notice application for an interim injunction to restrain Mr Lee Hang from carrying out further work on the development until he complied with consent conditions relating to what were described as amenity issues. The Chan Mows elected to discontinue that claim. They chose instead to seek damages from the PUMA and Mr Lee Hang. However, their right to seek relief remains if they are still dissatisfied with Mr Lee Hang’s performance.
  8. The Chan Mows’ claim would have failed for policy reasons even if they had crossed the proximity threshold. The New Zealand appellate courts have repeatedly emphasized the risks of indeterminate liability in this context. We consider the approach to indeterminate liability taken by the New Zealand Courts is applicable in Samoa. The public has a legitimate interest in ensuring that public bodies are “...free to perform their role without the chilling effect of undue vulnerability to actions for negligence.”[25] Imposition of a common law duty of care would be apt to “...to distract [a planning authority] from a dispassionate performance of [its] duties.”[26] PUMA should not have to be constantly vigilant to the risk of third party claims when deciding whether or not to exercise its enforcement powers. Also a small public authority like PUMA has finite resources, dictating a limitation on its ability to allocate those resources when needs possibly arise.
  9. For these reasons the Chan Mows’ negligence claim against PUMA must be struck out also.

Result

  1. The appeal is allowed. The Chan Mows’ proceedings against PUMA are struck out.
  2. The Chan Mows are ordered to pay PUMA costs on the appeal of $5000 plus disbursements. Costs in the Supreme Court are reserved and are to be fixed in the light of this judgment.

HONOURABLE CHIEF JUSTICE PERESE
HONOURABLE JUSTICE BLANCHARD
HONOURABLE JUSTICE HARRISON

[1] Chan Mow & Anor v Planning and Urban Management Agency & Anor [2020] WSSC 101 (10 July 2020).
[2] Section 43 of the PUMA Act.
[3] Section 46 of the PUMA Act.
[4] At para 16.
[5] At paras 17 onwards.
[6] At para 27.
[7] At paras 36 & 37.
[8] Attorney- General v Carter [2003] NZCA 48; [2003] 2 NZLR 160 at [41]- [43].
[9] X (minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 (HL) at 730-732.
[10] Carter, at n8 above, at [43].
[11] Carter, at n8 above, at [44].
[12] The Laws of New Zealand (online loose-leaf edition, Lexis Nexis): Breach of Statutory Duty at [87].
[13] Section 8.
[14] Sections 34 onwards.
[15] Section 46.
[16] S 43(1) (b) of the PUMA Act.
[17] S 43 (2) of the PUMA Act.
[18] At para 12 ( the second of the two para 12s) applying Hotel Millenia v Attorney General and PUMA [2015] WSSC 49 at [18].
[19] Bella Vista Resort Ltd v Western Bay of Plenty District Council [2007] NZCA 33, [2007] 3 NZLR 429 at [15], [46]–[48].

[20] At [15], and [80]-[84].
[21] North Shore City Council v Attorney General [2012] NZSC 49, [2012] 3 NZLR 341 at [147] – [161].
[22] Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd [2004] NZCA 97, [2005] 1 NZLR 324 at [58].
[23]North Shore City Council at [170]-[186].
[24] North Shore City Council at [153], citing Cooper v Hobart [2001] 3 SCR 537.
[25] Attorney General v Carter , above at n8,at [35]
[26] Bella Vista, above at n9, at [68]

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