Keil v Minister of Natural Resources and Environment [2003] WSSC 54 (21 October 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

WILLIAM KEIL
of Vaigaga, Businessman
Plaintiff

AND

THE MINISTER OF NATURAL RESOURCES AND ENVIRONMENT
First Defendant.

AND

KYLE KEIL,
Businessman
AND
ADELE KEIL,
his wife both of Vaigaga
Second Defendants

Date of Hearing: 15 October 2003

Appearances: Mr S Leung Wai for Plaintiff
The Attorney General of Samoa by her counsel Mr A Lawson for First Defendant
Mrs R Drake for Second Defendants

Judgment Date: 21 October 2003

RESERVED JUDGMENT OF
JUSTICE CJ DOHERTY

Introduction

[1] The Plaintiff and the second defendants are not only blood relations but are occupiers (and in the case of the second defendants. owners) of adjoining land at Vaigaga. On 6 August 2003 the First Defendant consented to an application of the Second Defendants to reclaim part of the foreshore adjacent to their land. The decision of the First Defendant ("the Decision") was made pursuant to section 119(c) and section 120(c) of the Lands Surveys and Environment Act 1989 ("the Act"). The Plaintiff seeks judicial review of that decision.

[2] In his Statement of Claim the Plaintiff seeks:

1. declaratory judgments or orders that the said decision and/or determination of the First Defendant is invalid and void;

2. an Order of Certiorari to quash the said decision and/or determination of the First Defendant;

3. a Writ of Injunction to restrain the Second Defendants and their servants and agents from

a) Placing any rock, fill or material within the foreshore and coastal waters adjacent and next to the land of the Plaintiff at Vaigaga.

b) Continuing with any reclamation whatsoever of the foreshore and coastal waters adjacent and next to the land of the Plaintiff at Vaigaga;

4. the cost of these proceedings;

5. such further declaratory judgments or orders or other relief as the Court in the circumstances may deem necessary or just.

[3] In his Notice of Motion for Declaratory Judgment and/or Orders ("the application for judicial review"), the Plaintiff seeks determinations of the Court that, in respect of the Decision the First Defendant acted illegally, unreasonably, irrationally and with procedural impropriety and therefore the decision is invalid and void and should be quashed.

[4] The application for judicial review is based on the following grounds:

1. the statutory power under Section 119 of the Act is for the protection of and not for the reclamation of the foreshore;

2. the objective of Section 119 of the Act is for the protection of and not the destruction of or damaging of the foreshore;

3. the First Defendant did not, or failed to take into consideration, relevant factors such as the impact on the environment and the adverse effects on the land occupied by the Plaintiff and on the Plaintiff in the determinations to approve the reclamation;

4. the First Defendant did not, or failed to consider or accord, adequate weight to relevant considerations such as the impact on the environment and the adverse effects on the land occupied by the Plaintiff and on the Plaintiff in the determinations to approve the reclamation;

5. the decision of the First Defendant to approve the reclamation in the circumstances is unreasonable;

6. the decision of the First Defendant to approve the reclamation in the circumstances is irrational;

7. the First Defendant did not provide the reasons for the granting of the decision;

8. the First Defendant had fettered the exercise of his statutory discretion by the adoption of, or by having his determinations made subject to and/or controlled by, the Government Policy (Cabinet Directive FK(00) 14) and the conditions thereunder.

The Act

[5] The preamble of the Act states it is: "An Act to consolidate the Land Ordinance 1959 and its Amendments and also to make provision for the conservation and protection of the environment and the establishment of National Parks and other forms of protected areas and to enlarge the functions of a Department of State and for matters incidental thereto".

[6] I shall call the Department of State referred to, "the Ministry".

[7] The First Defendant is charged with the administration of the Act (section 3). Part VIII of the Act is devoted to conservation and environment. There are eight divisions under Part VIII and broadly speaking it could be said that the legislature has provided that the Ministry and its Minister should manage the conservation and protection of the environment and regulate development.

[8] In particular, section 95 specifies that two of the principal functions of the Ministry under this part of the Act are:

"(a) to advise the Minister on all aspects of environmental management and conservation including:

(i) policies for influencing the management of natural and physical resources and ecosystems as to achieve the objectives of this Act;

(ii) the potential environmental impact of any public or private development proposal;

(iii) ways of ensuring that effective provision is made for public participation in environmental planning and policy formulation processes in order to assist decision making at the national and local level.; and

(b) to ensure and promote the conservation and protection of the natural resources in environment of Western Samoa."

[9] Section 104 gives the Minister specific additional powers to enable the Ministry to carry out its functions under Part VIII. Those powers include a power "to assess the environmental implications of any development project or proposal which involves, or will involve, the consumption of terrestrial, coastal or marine natural resources, or any change in the established use of any such resources". (Section 104(c)).

[10] Division 5 of Part VIII deals with management of the coastal environment and includes sections 119 and 120; the sections invoked by the Decision.

[11] Section 119 states:

"no person shall, except with prior consent in writing of the Minister:

(a) remove any silt, sand, gravel, cobble, boulders or coral from the foreshore, provided that such consent shall not be granted unless the Minister is of the opinion that such removal will result in the restoration or preservation of the natural configuration and features of the foreshore or the natural flow of water; or

(b) carry out any excavation, dredging, clearing, paving, grading, ploughing or other activity within the foreshore which may result in the alteration of the natural configuration of the foreshore; or

(c) place any fill or material of any type within the foreshore; or

(d) carry out the construction or erection of any structure within the foreshore."

[12] The term ''foreshore'' is relevantly defined in section 2 as: ''all that area between the mean low water mark and a line connecting those points landward and measured at right angles to a distance of 50 metres from the low water mark.''

[13] Section 120 states:

"no person shall, except with the prior consent of the Minister:

(a) remove any silt, sand, gravel, cobble, boulders or coral from the coastal waters; or

(b) carry out any excavation, dredging, clearing, paving, ploughing or other activity within the coastal waters; or

(c) place any fill or material of any type within the coastal waters; or

(d) carry out any construction or erection of any structure in, on, across or under the coastal waters.''

[14] The term "coastal waters" is defined in section 2 as: "All that area having as its inner boundary the mean low water mark, and as its water boundary, the outer limit of the territorial sea, and includes every lagoon and bed of such sea or lagoon."

[15] It is common ground that the area which was the subject of the Second Defendants' application is part of the foreshore and coastal waters.

Background and Evidence

[16] The Second Defendants allege that Cyclone Val badly affected the foundation of their house. They say their land was also seriously eroded. They determined that the only way that they could protect their property from further damage by the sea was by reclaiming the area adjacent to their house and building it up where the land sloped down to the sea. They obtained rock material to build up that part that had been eroded and in January 1999 made application for a permit to reclaim the adjourning foreshore. The Land Board approved the application. Reclamation work was halted by an injunction sought by the Plaintiff. This Court determined that the decision of the Land Board was void because the Board had no jurisdiction to grant an approval under Section 119 of the Act (see Keil v Land Board [2000] WSSC 41 (21^st December, 2000). The Second Defendants then made a further application which was consented to by the Minister on 28 March 2003. Their reclamation plans were again thwarted when the Plaintiff obtained an ex parte interim injunction preventing them from continuing the reclamation. On 1 May 2003 the Second Defendants applied to set aside that interim injunction. At or about the same time, the Plaintiff filed proceedings to judicially review the consent of the First Defendant. Discussions ensued and the parties ultimately agreed to settle the proceedings; the First Defendant would cancel the consent dated 28 March 2003 and the whole matter would be considered afresh, with both the Plaintiff and the Second Defendants permitted to file submissions and information to support them. Both did so and the Plaintiff provided a Provisional Environmental Assessment report completed by Mr James Atherton (''Mr Atherton's report'') which opined on the potential impact of the proposed reclamation on the-environment.

[17] The Decision concluded as follows:

"I have carefully reviewed the written submissions lodged on behalf of both Mr William Keil and Mr Kyle Keil and Ms Adele Keil. I have also taken into account the Provisional Environment Assessment prepared by Mr James Atherton in July 2003, relevant reports prepared by the Department on the proposed reclamation, including environmental assessments and my observations from my inspections carried out of the proposed reclamation site.

On the basis of the whole material before me and the written submissions lodged by both the Applicants and Mr William Keil and having considered the environmental impact of the proposed reclamation, I hereby grant the Applicants' application for reclamation of land at Vaigaga pursuant to sub-sections 119(c)."

Locus Standi

[18] As a preliminary matter the Second Defendant's raised the issue of standing of the Plaintiff's to bring this application for judicial review. The Second Defendant's opposition is founded on the basis that the Plaintiff has been unable to establish any legal right that may be affected by the First Defendant's decision and because there was no infringement of any legal right. As a consequence the Plaintiff has no status to seek declarations (see Gregory & Anr v London Borough of Cambden [1966] 2 All ER 196).

[19] The Plaintiff in his affidavit states:

"23. That the reclamation will reach the jetty in the middle of the land I occupy and will block the access to the sea of the land and interfere with my view of the sea.

24. That the reclamation will interfere with my and my children's enjoyment and use of the land.

25. That the resulting damage and interference with my and my children's use and enjoyment of the land will be irreparable and permanent."

[20] This, the Second Defendants say, is no more than enjoyment of an amenity.

[21] That view is clearly not sustainable in relation to the blocking of access to the sea. The evidence is clear that the Plaintiff currently enjoys occupation of the land (and has done so for approximately 10 years) and that land has had access to the sea to north and west of the property occupied. Any blocking of that access by a reclamation could give rise to an action in nuisance. There is no evidence as to the legal nature of the occupation. The Plaintiff deposes the land is occupied by him and owned by his children. The law is clear that a person enjoying exclusive possession may found an action in nuisance. Therefore, an occupier enjoying exclusive possession does have a legal right. In Hunter & Others v Canary Wharf Limited; Hunter & Others v London Dockyard Corporation [1997] AC 655, the House of Lords was clearly of the view that a person who was de facto in exclusive possession had a right to sue in nuisance regardless of whether there were others who also had a claim to possession.

[22] In any event, I am not certain that in applications for judicial review the remedy sought should necessarily determine who has standing. The modem trend in judicial review of administrative decisions is that a person having sufficient interest in the outcome of the exercise of a statutory discretion, has standing. For example, in New Zealand where judicial review is governed by the Judicature (Amendment) Act 1972 which imposes no requirements as to standing, it has been held that a person who has a reasonably arguable claim that some private right of his has been affected or he has suffered some special damage because of a purported exercise of a statutory power, will have standing (see Consumers Co-operative Society v Palmerston North City Counsel [1984] 1 NZLR 1).

[23] This is also an unusual case where the exercise of the statutory power has been overlaid by the agreement to specifically allow the Plaintiff to participate in an agreed process. That certainly gives him a status beyond that of a mere aggrieved neighbour.

[24] In my view the Plaintiff has the standing necessary to seek the orders he does.

Judicial Review

[25] This Court has already expressly recognised the principles or grounds of judicial review as those set out by Lord Diplock in Council for Civil Service Unions v Minister for Civil Service [1985] AC 374 as "illegality", "irrationality" and "procedural impropriety" (see Keil (supra) at p4). Counsel argued this case in those terms.

Illegality

[26] The plaintiff contends the scheme and objective of the Act is to conserve and protect the environment. He accepts there must be a balancing of the competing interests of conservation and development, but contends that development is restricted by the Act to those developments which will be of benefit to the Samoan nation as a whole and specifically that reclamations for private residential purposes are outside the scope of the Act.

[27] Lord Diplock in Council for Civil Services [supra] referred to illegality in terms of judicial review as follows:

".....the decision maker must understand correctly the law that regulates his decision making power and must give effect to it."

[28] As this Court said in Keil (supra at page 6) in adopting a passage from Judicial Review of Administrative Action (1995) 5^th edition, de Smith, Woolf and Jowell at paragraph 6-001

"An administrative decision is flawed if it is illegal. A decision is illegal if:

1. It contravenes or exceeds the terms of the power which authorises the making of the decision; or

2. It pursues an objective other than for which the power to make the decision was conferred."

[29] Analysis shows that in enacting the Act and in particular Part VIII, Parliament gave to the Minister the power to manage the foreshore and coastal waters resource in a way which allowed him to make decisions on competing interests. The Plaintiff claims the only that private interests authorised by Act are those that focus on the wider Samoan good otherwise "any private individual can apply to reclaim the foreshore for his own private benefit at the expense and cost to the environment and members of the public in general because of the possible adverse impact on the environment." That claim is untenable. A plain reading of the Act (taken as a whole) discloses nothing which prohibits the Minister from assessing the interests of private persons for private purposes so long as those persons attain his prior consent in writing where their interests might impact upon the foreshore or coastal waters. This analysis is supported by the express function of the Ministry to advise on the public and private interests set out in section 95. There is no reason to construe sections 119 and 120 to introduce the suggested limitation, by necessary implication or otherwise.

[30] It follows that it is within the powers of the Minister as given to him by Parliament to assess and if he thinks fit, grant consent to an application by a private individual to place any fill or material of any type within the foreshore or within coastal waters for the purpose of protection of their private residence.

[31] The application by the Second Defendants is clearly within that category. A thrust of the Plaintiff's case is that the Second Defendants proposed reclamation is merely to enhance their amenity by providing more land for them to enjoy (as a lawn and barbeque area) rather than protection of their house. It is worth noting that the information as to the reasons for the application that was before the First Defendant was set out in the submissions of the Second Defendants as follows:

"15. The reasons for the Applicants wanting to carry out this reclamation is that during Cyclone Val fierce waves bashed the foundation of their house as their land tends to slope down to the sea. The Applicant's land was seriously eroded and the only way to protect their property is by reclaiming this area and building it up. In order to avoid any further erosion or damage to their land and property the Applicants obtained some rocks to build up the part that had been eroded and they then sought a permit to reclaim beyond that area however this was stopped in 1999 by the Respondent's injunction.

16. The Applicants are extremely anxious that if they are unable to reclaim the area sought then their land and property will continue to be affected by adverse weather conditions. The respondent's land and access to the sea will not be affected by the Applicants' reclamation"

Alienation of Land

[32] The Plaintiff submits that the Decision amounts to an alienation of land by the First Defendant. He contends approving the reclamation implies that the First Defendant will then lease the reclaimed land to the Second Defendants. This, the Plaintiff says, is unlawful as the only power to alienate (which includes leasing Government land) is vested in the Land Board and not the First Defendant.

[33] This argument is flawed. No part of the Decision could be construed as alienation. Paragraph (c) of the conditions refers to the necessity for the Second Defendants to, at their expense, prepare a survey plan of the reclaimed site within a certain time. The decision, however, gives no right of occupation per se and that is a matter which will have to be faced by the Second Defendants in some other forum. Under Article 104(1) of the Constitution and Section 2 of the Act, the land reclaimed would remain public land and by virtue of Article 101(4), is "land vested in Samoa being land that is free from customary title and from any estate in fee simple". Whilst the land would be available for disposal, it is the Land Board, not the Minister, which has the power to alienate Government land.

[34] The use of the words "the grant of my consent to the applicants is subject to Government policy (Cabinet Director FK(00)14) and the following conditions:..." is unfortunate in its construction, as the contents of the policy directive are redundant in terms of the process undertaken for the Second Defendants' application. There is no evidence that the Land Board had any influence in the decision and the procedure adopted leads one to the contrary view.

Irrationality

[35] Lord Diplock in Council for Civil Service Unions (supra) described irrationality in the context of a judicial review as applying:

"To a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

[36] The Plaintiff submits that the Decision is irrational in that despite the circumstances put forward by the Plaintiff in his submission, the First Defendant consented to the reclamation. This is a submission that in assessing the application and in coming to the Decision, the First Defendant has ignored the submissions and other information proffered by the Plaintiff, those matters being so overwhelmingly compelling that to make a .decision contrary to the Plaintiff's position is something that no sensible Minister could have done.

[37] However there are difficulties with that proposition. First, there is no evidence the Plaintiff's position was ignored and the Decision states that the matters put forward on behalf of the Plaintiff were taken into account. Secondly, the Decision states that the First Defendant also considered other matters; the submissions of the Second Defendants and reports prepared by the Ministry. In my view it could not be termed an irrational decision if, as happened in this case, the First Defendant weighed the competing interests of the Plaintiff and Second Defendants and decided that the interests of protection of property of the Second Defendants outweighed those of the Plaintiff.

[38] This leads on to an ancillary ground of irrationality i.e. "unreasonableness". The Plaintiff alleges that Mr Atherton's report, which recommended the reclamation not be consented to for environmental reasons, and which referred to reports by the Government's consultant which in turn referred to the land in question being within an erosion hazard zone and a flood hazard zone, was not given sufficient weight. The Plaintiff submits the First Defendant did not give sufficient weight to either the specific effects on the Plaintiff, or the effects the proposed reclamation may have on the natural character of the area, the natural configuration of the foreshore or, likelihood of erosion and sea flooding to neighbouring properties. The Plaintiff says the effect of the decision is that it is likely to lead to substantial and irreparable harm to the land he occupies. The effects of the Decision are, therefore, unduly oppressive as the Plaintiffs access to the sea will be blocked or at least interfered with.

[39] All parties were prepared to adopt both the statement in Webster v Board [1987] NZCA 80; [1987] 2 NZLR 129 where Cook P stated (at page 137):

"An unreasonable decision in the ordinary sense is one outside the limits of reason."

and the observations of Lord Cook (as he became) in R v Chief Constable of Sussex Ex Parte International Traders Ferry Limited [1999] 2 AC 481, when referring to the House of Lords decision in Secretary of State for Education and Science v Tyneside Metropolitan Borough Council [1977] AC 101:

"The simple test used throughout was whether the decision in question was one which a reasonable authority could reach."

[40] Using those tests, it would be difficult in this case to see that a decision by the First Defendant who, having receiving an application for protection the property of a person adjacent to the foreshore and coastal waters, called specifically for submissions from affected parties, considered their submissions and supporting material, inspected the property and then made a decision in favour of the applicant, was unreasonable. Again, it is a question of competing interests. The clear effect of the Decision is that First Defendant took the view that the interests of the Second Defendants should prevail. There has been no suggestion that the First Defendant failed to take into account any of the information put before him. There is no evidence that the First Defendant was faced with information which was implacably or overwhelmingly opposed to the decision he made. He had the full environmental information provided by both the Plaintiff and the Second Defendants which he took into account when making his decision. The Decision also reveals he took into account "relevant reports prepared by the [Ministry] on the reclamation". Whilst the Plaintiff may not like the consequences of the Decision, in my view it cannot be said that the First Defendant's decision was "outside the limits of reason" and was properly 'one which a reasonable [Minister] could reach".

Procedural Impropriety

[41] Lord Diplock in Council of Civil Service Unions [supra] said:

"I have described the third head as ''procedural impropriety'' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."

Fettering of Discretion

[42] This is the first of the matters raised by the Plaintiff under the head of procedural impropriety; by stating the consent is subject to Government Policy (Cabinet Directive FK (00)14), the First Defendant allowed his discretion to be fettered by a fixed practice or policy and this meant he failed to exercise his statutory discretion pursuant to section 119 (and by implication section 120).

[43] The Plaintiff submits that despite the ruling of this Court in Keil (supra), nothing has changed and that the continued use of Cabinet Directive FK (00) 14 shows that the First Defendant has abrogated his responsibilities.

[44] Counsel for the First Defendant referred to the observations of Lord Reid in British Oxygen v Ministry of Technology [1973] All ER 165 170:

"There are two general grounds on which the exercise of an unqualified discretion can be attacked. It must not be exercised in bad faith, and it must not be so unreasonably exercised to show that there cannot have been any real or genuine exercise of the discretion. Apart from that, the Minister thinks that policy or good administration requires the operation of some limiting rule, I find nothing to stop him."

[45] The affidavit filed on behalf of the First Defendant in reply, annexes Cabinet Directive FK (00)14. The Directive includes statements that the application must be forwarded to the Secretary of the Land Board Committee and that any reports and recommendations are to be forwarded to the Committee for its consideration for approval of reclamations. If the latter practice is continuing it is clearly unlawful in view of the decision of this Court in Keil (supra). However, the evidence in this case is to the contrary in that the Decision makes it clear that the Minister is the one who has assessed that which needs to be assessed.

[46] Analysis of the Decision shows that the relevant parts of Cabinet Directive FK (00) 14 were imposed as conditions consequential upon the grant of the consent. This is the main point made by the First Defendant, namely that those parts of Cabinet Directive FK (00) 14 applied as the result of the consent were designed to assist with the administration of matters incidental to the reclamation of land. In this case, it was adopted by the First Defendant to regulate what would happen as a result of the reclamation and the Decision; not as the basis for the Decision itself.

[47] I agree and that determines the matter.

Reasons for the Decision

[48] The Plaintiff relies on de Smith, Woolf and Jowell's Judicial Review of Administrative Action (supra) at paragraph 9.047 which states:

"A failure to provide reasons may give grounds for challenging an administrative decision on the grounds that it amounts to procedural impropriety...."

[49] The learned authors cite authority where a "judicialised" tribunal was found to be under a duty to give reasons for its decision (see R v Civil Service Appeal Board ex parte Cunningham [1991] All ER 310). They also say at paragraph 9.056:

"Where an applicant seeks to impugn a decision of an administrative authority other than by claiming non compliance with the duty to give reasons - for example by challenging the legality or rationality of the decision - failure by that authority to offer any answer to the allegations may justify an inference that its reasons were bad in law or that it exercised its powers unlawfully."

[50] In my view, the Plaintiff's arguments fail under this head because the First Defendant is not a "judicialised" tribunal. Any argument that by adopting the agreed process of assessing the application placed the First Defendant in a quasi-judicial position must also fail. A process where each party has the opportunity to present his/her/its case does not in itself turn an administrative function into a judicial one. The process adopted was merely one designed to give each of the Plaintiff and the Second Defendants the opportunity to again put their respective points of view forward for consideration by the First Defendant in the exercise of his statutory discretion. The proposition may be different if by agreement the parties determine that the decision making body is to give a reasoned decision. That is not the case here. Nor can a failure by the First Defendant to give reasons after the consent, despite requests, lead to the inference that he exercised his powers unlawfully, when the Decision expressly states the consent was made after consideration of "the environmental impact of the reclamation". That phrase may not be "reasons" but can certainly be construed as a "rationale".

[51] The First Defendant's decision is an administrative one. There is no requirement in the Act that the reasons be given. Despite the authority cited by the Plaintiff, I know of no common law authority that would require reasons to be given for a decision such as the one made by the First Defendant. Nor is this a case where by virtue of the empowering legislation the Minister may be required to give reasons (see as an example T Flexman Ltd v Franklin County Council [1979] 2 NZLR 690, where the empowering legislation required certain mandatory considerations to be taken into account and as reasons were not given an appeal or reviewing court could not know that all necessary considerations had been taken into account.)

[52] In passing, I think the argument of counsel for the First Defendant that the Decision does contain written reasons, fails. There are certainly words which recount the information the First Defendant took into account. A reasonable inference could also be drawn that the underlying rationale was "environmental impact", but analysis of the Decision discloses no transparency of reasoning which is necessary to satisfy any requirement to "give reasons".

Outcome

[53] The Plaintiff has failed on all of his grounds and the application for judicial review is dismissed.

Costs

[54] I am advised by Counsel for the First Defendant that this is not a matter where there are wider public policy or public interest issues that ought to influence the question of costs. In that case, costs for a failed motion such as this would ordinarily follow the event and I see no reason to decide otherwise.

[55] Costs are awarded against the Plaintiff in favour of both the First and Second Defendants. Should counsel be unable to agree on quantum, the Court will deal with them on memoranda to be filed within 10 working days of the date of this judgment.

JUSTICE DOHERTY