Question 2 - Compulsory Acquisition and Appeal

Mere owns a house at the corner of Grantham Road and Laucala Bay Road, she has been

approached by the Department of Town and Country Planning (DTCP) advising her that due to

the number of traffic in the area and for safety reasons the road will be widened and the footpath

at the corner will have to be widened to also protect pedestrians. This will however result in the

new planning scheme cutting into a small portion of her property. The DTCP has exhausted all

other option with regards to planning. Mere does not agree but mainly because she does not

understand. Refer to Week 7 and 8 Lecture Notes and relevant Acts.

a. Explain the process of compulsory acquisition to Mere. (5 marks)

b. The Planners advise Mere that a decision has been made without considering her objections.

Mere wants to appeal the decision and requests your advice. Highlight the issue, relevant law,

application and your concluding advice.

Lecture Note Week 7

LM216 - PLANNING AND ENVIRONMENTAL LAW

Course Outline: Week 07

Background reading:

• Ratu Mosese Banuve Tuisawau v Suva City Council and Attorney General Civil Action No. HBC0278 of 1994S. (copy on class share).

• Chapters 1, 2 and 4 of Judicial Review Applications in Fiji - Principles and Materials, IJALS USP Law of the South Pacific Series, M Ahmadu and N Nand, 2001 (Desk copy at Lower Campus Library).

APPEAL and JUDICIAL REVIEW

APPEAL

The planning process can be broken down into 3 stages:

It starts with the order creating a town planning area; from then on interim development permission on a "case by case" basis is required for any development in the town planning area before final approval of the Scheme;

Then the Local Authority starts work on the Scheme; and there is an objection process at sections 20 - 23 of the TPA (Fiji);

Then when the Scheme is finally approved, there is a "blanket" process contained in the scheme and the General Provisions with an enforcement procedure set out in section 27 of the TPA (Fiji).

There are 4 entities involved in this process, the Local Authority, the Director and the Minister, with the Town and Country Planning Advisory Committee advising the Minister on any appeal. This is intended to provide a comprehensive checks and balances process to ensure only proper decisions for planning purposes are the result.

The planning process is intended to balance the rights of private property owners and the interests of society.

The rights of appeal are an important part of that process and they are set out in section 5 of the TPA. The right to Judicial Review is available only in exceptional circumstances where the statutory process has gone badly wrong. It is not available as a de facto appeal.

The rights of appeal are available at all 3 parts of the planning process:

1.Interim Development;

2.Preparation of a Scheme; and

3.Enforcement of the provisions of a scheme.

Section 5 provides for appeal to the Minister. Section 4 provides for the appointment of the Town and Country Planning Advisory Committee to "advise the Minister on and about appeals under the provisions of section 5" (and of section 14 of the Subdivision of Land Act Cap 140).

The TPA was intended by the legislature to provide a self contained, checks and balances procedure whereby planning matters are determined by persons with the knowledge base from which good decisions can be expected.

Section 5 says this:

5-(1) There shall be a right of appeal, subject to the provisions of this section, from decisions of the Director to the Minister within twenty eight days of notification of the decision to the appellant, and the decision of the Minister on the matter at issue shall be final:

Provided that the Minister may for good cause extend the said period of twenty-eight days.

(2) The right of appeal shall be exercisable by-

(a) any applicant and any local authority dissatisfied with the grant or refusal of development permission or the conditions attached to such permission or the prohibition of the grant of such permission under the provisions of subsection (3) of section 7;

(b) any person having an interest in the land and any local authority dissatisfied with the revocation or modification of or refusal to revoke or modify development permission under the provisions of subsection (1) of section 9;

(c) any person having an interest in the land and any local authority dissatisfied with the confirmation of or refusal to confirm an order requiring discontinuance of use or an order imposing conditions on the continuance thereof or an order requiring steps to be taken for the alteration or removal of buildings or works under the provisions of subsection (1) of section 10;

(d) any objector and any local authority dissatisfied with a decision of the Director under the provisions of section 23;

(e) any objector and any local authority dissatisfied with a decision of the Director under the provisions of subsection (4) of section 27.

It is important to remember that:

• the right of appeal is only available from decisions of the Director that are set out in section 5(2);

• the appeal must be lodged within 28 days from the notification of the decision to the appellant;

• that time limit can be extended by the Minister with good cause;

• the decision of the Minister on the matter at issue is intended by the legislature to be final;

• Once a Scheme is finally approved, section 5 applies only if:

a.the decision precipitates any enforcement under s. 27; or

b.the objection procedure is triggered (see eg. Provision 6 of the General Provisions)

• Section 5 does not apply to compensation claims.

The purpose of the appeal provision in section 5 of the TPA is to ensure that decisions in the planning process meet the following criteria:

• Must be for a genuine planning purpose and not for some ulterior non-planning purpose;

• Must not be so unreasonable that no reasonable planning authority would reach that decision;

• Must be related to the planning matter at issue; and

• Must not be so vague or uncertain that no sensible or ascertainable planning purpose is evident.

JUDICIAL REVIEW

Judicial review is not available against a decision of the Local Authority or the Director because the statutory procedure stipulates appeal to the Minister.

The Minister is ultimately responsible for ensuring that all decisions in the planning process meet objectives of the TPA. The Ministers function is an administrative one and Judicial Review of a decision of the Minister on an appeal is limited as a consequence of that.

Judicial review is used as a means of ensuring that the exercise of administrative or executive power is done in accordance with underlying principles of law and the procedures for its exercise. The High Court in exercising the power of review does not substitute its finding for that of the Minister, except where there is apparent or manifest injustice.

So long as the Minister acts intra vires, judicial review will not lie to question or overturn his decision.

There can be no proper legal exercise of authority where either the power is exceeded or the act done is outside the scope of the authorizing law.

Similarly where the Minister takes irrelevant matters into account or where he fails to take account of relevant matters the decision is amenable to review.

Departures from the statutory procedure that resulted in a breach of the principles of fair hearing would be amenable to review. The applicant must therefore be given access to the decision of the Director and must be given the opportunity to respond. This extends to the giving of notice on matters that might fundamentally affect the rights of the applicant.

The decision of the Minister must be free from apparent bias and it is good practice for reasons to form part of any decision. Irrationality of a decision is also a possible ground for Judicial Review.

Case study: Ratu Mosese Banuve Tuisawau v Suva City Council and Attorney General (ON Class Share).

Week 8

LP204 - PLANNING AND ENVIRONMENTAL LAW

Course Outline: Week 08

Compensation, Purchase and Compulsory Acquisition of Land

Background reading:

• TPA (Fiji): Sections 8, 9, 10, 12, 13, Part IV (sections 28 - 36) and Part V (sections 37 - 39).

• State Acquisition of Lands Act (Cap 135) Fiji.

• In re Nivis Motors and Machinery Co Ltd [2004] FJHC 27; HBJ0033J.1997S (3 November 2004) http://www.paclii.org//cgi-bin/disp.pl/fj/cases/FJHC/2004/27.html?query=Nivis%20Motors

Both of the High Court judgments in Nivis Motors (the first by Fatiaki J in 1997 and the second by Jitoko J in 2004 after the Court of Appeal reversed Fatiaki J on the grant of leave to apply for Judicial Review) are clear statements of principle and illustrate the limited scope of an application for Judicial Review. This is an important case on the topic of Review.

In Nivis Motors 2004 the Applicant failed to establish any of the following complaints, on its application for judicial review of the Minister's decision to acquire part of Nivis Motors site at Nabua roundabout:

- unfairness / denial of natural justice in not giving the applicant the opportunity to be heard;

- abuse of discretion in not taking into consideration relevant matters;

- action was arbitrary and/or unreasonable'

- exceeding jurisdiction;

- acting contrary to legitimate expectation

The judgments of Jitoko J in Nivis Motors and of Scott J in Ratu Mosese clearly illustrate the application and the scope of Judicial Review. Error in an administrative decision or process can only be attacked on review if the error is glaring.

At page 8 of the judgment of Jitoko J in Nivis Motors 2004 (Class Share doc 3), His Honour cites a passage from a New Zealand decision of Casey J in Raceway Motors Ltd v Canterbury Planning Authority [1978] 2 NZLR 605 at 612:

"It must be accepted, of course, that virtually every planning decision is likely to cause individual hardship to somebody, and in the great majority of cases this cannot in any sense be a special factor to weigh against the planning advantages. It would seem that, before it can be regarded as a matter relevant to public interest, an applicant's hardship should be such that he is likely to suffer significant economic consequences differentiating him from the general public, the question being one of fact and degree."

_________________________________________________________

With that background in mind, the TPA (Fiji) provides for payment of compensation and for land to be acquired (by agreement or compulsorily) for planning purposes.

Compensation before final approval of a Scheme

Sections 7, 8, 9, 10, 12 and 13 of the TPA (Fiji) provide for Interim Development control.

After the Minister makes an Order creating a "Town Planning Area", permission is required for development within that area under section 7. If that permission is refused or if it is granted subject to conditions that make the land "incapable of reasonably beneficial use" then any person with an interest in the land is entitled to compensation from the local authority.

The words "incapable of reasonably beneficial use" are a pre-condition for a compensation claim under section 8.

Sections 9(3), 10(4) and (5) of the TPA provide for compensation to be payable under section 8 but Sections 9(4) and 10(6) expressly adopt the threshold "incapable of reasonably beneficial use".

Power to acquire land before final approval of Scheme

Section 12(1) is expressly limited to a local authority that is a town council and the power to acquire land under section 12 is not available to a rural sanitary authority under the provisions of the Public Health Act.

If a Town Council, before a scheme has been finally approved, is satisfied that it is expedient "for any purpose which appears to it to be necessary in the interests of the proper planning of that area" it may purchase by private treaty the interest of any person in such land. If agreement cannot be reached for sale by private treaty at a "reasonable price" (see subsection 3), the Minister may acquire all or any of it under the provisions of the State Acquisition of Lands Act (and the Town Council shall pay all the costs). If the compulsory acquisition process is used, the State Acquisition of Lands Act process applies.

Section 13 provisions are supplementary to section 12.

Part IV (sections 28 - 36) - Compensation for injurious affection and claims for increase in value.

This part of the TPA applies once the Director signifies final approval of a scheme under section 24.

Section 29 limits the general right to compensation set out in section 28.

• No compensation is payable for work done after the material date (see s. 2) unless it has been done with a permit; and
• No compensation is payable for the impact of any of the long list of specified provisions of a scheme.

Again, the right to compensation is (similar to the provision in section 8) not very generous.

Prima facie the local authority is under section 31, entitled to claim 75% of any betterment resulting from the provisions of any scheme providing it makes a claim within 12 months after the date upon which the provision came into operation.

The procedure for making a claim for compensation or for betterment is set out in section 32. Section 33 provides a localized charging mechanism where works to be executed as part of a scheme as an alternative to the claim for betterment under section 32.

Section 34 of the Act provides for questions arising on:

a).a claimant's right to recover compensation;

b).local authorities right to recover betterment;

c).the amount thereof.

To be referred to and determined summarily by the Court.

The Court is the High Court at first instance.

Section 35 of the Act authorizes the local authority to give notice to a claimant, within 1 month after the date of any award of compensation that the local authority intends to abandon or modify the scheme.

Part V - Purchase and Compulsory Acquisition of land

Section 37 authorizes a Town council (cf local authority) to acquire land "for the purposes of the provisions of the Scheme. Section 37(2) in a case where the owner does not agree to sell, subsection (2) provides that the town council shall refer the matter to the Minister and that reference triggers section 94, Local Government Act.

Section 94 of the Local Government Act (Cap 125) triggers the State Acquisition of Lands Act (Cap 135).

State Acquisition of Lands Act (Cap 135) Fiji.

This Act set out the process for compulsory acquisition of land by the State for any public purpose, expressly including town and country planning (section 2: "public purposes").