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IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILA
(Civil Jurisdiction)
Civil Case No. 68 of 2001
BETWEEN:
JURIS & REBEKAH OZOLS
(Plaintiffs)
AND:
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CYCLAMEN LIMITED
(First Defendant)
AND:
PORT VILA MUNICIPAL COUNCIL
(Second Defendant)
AND:
MINISTER OF INTERNAL AFFAIRS
(Third Defendant)
AND:
(Fourth Defendant)
AND:
ATTORNEY GL
(Fifth Defendant)
JUDGEMENT
The plaintiffs live in an
called Sea-Side. The. Their house and garden are at the edge of the Lagoon. On
the south side
are residential properties. To the north there was a vacant
plot and residential properties beyond. The first defendant bought
the
vacant plot and plans to run a tourist resort on it. The plaintiffs object
to that. The second, third and fourth
defendants have dealt with the
formalities and applications for such a venture.
The plaintiffs say the various
approvals granted e first defendant were obtained by stealth and
subterubterfuge. There
were misleading statements and an utilisation of
permissions obtained thereby to acquire further approvals. They say the
first defendant has failed to follow proper procedures, and indeed began
building works in the face of clear official instructions
to the contrary.
The three shareholders in the first defendant are Andrew and Debra Hogarth
and the former�s brother
Stuart Hogarth. Mr. and Mrs. Hogarth have been
carrying out the work for the first defendant Cyclamen Ltd.
The plaintiffs further say that
the second dant, the Port Vila Municipal Council, wrongly granted the
the
approvals to
the first defendant. In particular, they say the �zoning�
for this part of Port Vila is residential. The first defendant�s activities
are commercial. When a Physical Planning
Area is declared under the Physical
Planning Act (CAP 193) the Council must �consider the welfare of the
people in the area affected and of the people of Vanuatu generally�;
(section 2 (2) (b)) and �(c) shall ensure that persons affected by the
proposed declaration have been given adequate
notice of it, and that those
people are given an opportunity to make representations to the Council�.
The plaintiffs say if
consultation is required to decl Physical Planning Area, then whether
or not there isre is specific
provision in the Act, consultation must be required
to change it. In any event the plaintiffs say such consultation should
take
place, especially given the density of the proposals for this piece of land.
Further, they say the second, third
and fourth defendant should have
consulted with one another.
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There was complaint that a
foreshore development proposal was misleading and the applications not in
accordance with the
Foreshore Development Act. The plaintiffs also say the
building permit and plans are invalid, as being ambiguous.
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The plaintiffs seek
declarations in accordance with their arguments, particularly as far as the
validity of the applications
are concerned and also that the land remains
residential. They seek restraining orders until all applications have been
made and approvals given, or refused in accordance with the law.
The first defendants reject
this. They say there has never been an intention to mislead or operate by
stealth. They say
all the proper procedures have been followed and the
requisite approvals obtained or applied for.
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The second defes reject
the plaintiffs� submissions in so far as they affect the Council. They say
say
that when a careful
and proper examination is made of all the relevant
documents there has been no change of �use� or �zone�. All matters have
been
dealt with properly and in accordance with the law, regulation and practice.
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I have the affidavits of
Rebekah Ozolsd 14th and 28th December 2001, the
he
affidavits of Andrew Hogarth, 18th December 2001 and 14th
February 2002, Stanley John 27th February 2002, Levi Tarosa 27th
Februray( in two parts), Madeleine Tom 8th February and Sylvie
Lowen, 28th February 2002, and the second defendant�s answers to
the first defendants� Interrogatories. I have heard the oral evidence
and
cross-examination of Juris Ozols who adopted his wife�s affidavits, Douglas
Patterson, Sylvie Lowen, Andrew Hogarth,
Stanley John, Dick Abel, Chris Ioan
and Levi Tarosa.
On 21st December
2001 I issued interim orders restraining the parties from anyher
actions in respecespect of the land. An undertaking
as to damages was required
from the plaintiffs concerning any loss as a result of the Orders. Various
directions were
given for the speedy progress of the case.
The lease of the fi defendant�s land is residential. If a tourist resort is to be operated it
will hill have to be surrendered
and a new, commercial lease granted. There is no
dispute about that.
Section 4 Physical Panning Act
(Cap 193)states �No persall carry on development in a Physical Planning
Area,Area, except
as specified in the declaration of that Physical Planning Area,
without having first received permission in writing from the
Council�.
Section 7 (1) states �Where
application is made to the Council for permission to develop, the Council
may grant permission��
or may refuse permission, and in dealing with any
such application the Council shall have regard to the plan in force and any
other material consideration.�
Stanley John in his affidavit
produced a copy of the Port Vila Physical Plan, 1987 (Annexure F). Paragraph
10.6 to 10.20
and the appendices set out the zoning That shews the land of
the plaintiffs and the first defendants designated as �Open Space�.
That
designation covers a considerable stretch alongside the lagoon where there
are residential houses.
Mr. John stated in evidence
that when plans are submitted for approval it is the Councils� practice to
follow Bye-Law
9/79. The attached colour plan (Annexure B) shews the Land in
question coloured green, zone A.
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Part 1 of th-law described
zone A as �Residential and Tourist Areas�.
It continues,
�All building in A ashall
be, following rules laid down in Parts II and Iand III detached houses used as
residences and
their buildings, or buildings for the tourist industry,�
�Hotels may be built as
detached hous not provided that they arey are of international standard.�
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�Any other type of builis
prohibited.
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�No building may be permitted
which may cause any ki nuisance such as noise, sme, smoke, smell, unpleasant
waste etc.�
�Commercialdings such as
bars, snack bars, cafes, night clubs anbs and cinemas, and generally any business
for the amusement
of the public or operating at night and likely to annoy
neighbours shall be prohibited.�
On 8th February 2001
the second defendant gave approval for a �Tourist resort� art� at Central First
Lagoon. At paragraph 4 the approval
stated �The use of the building shall be
confined to Class 12 of the Use Classes defined in Section 1 of the Physical
Planning Act No. 22 of 1986�
Class 12 is set out in section
1, the interpretation section, of the Act,
It must be noted that Retailing
hod and retailing liquor are found under different classes, nes, namely (2)
and (3).
The Council confined the
approv class 12. That was consistent with existing zone A use.
e.
Therefore for planning purposes,
and in particular the Physical Planning
Act, there was no change of use, or grant of an approval inconsistent with
current zoning.
There is tore no need for
me to decide whether or not there is an implied requirement for the cthe council
to consult
if an approval is granted which is inconsistent with the physical
plan. This also means that the Interim Orders were made on
a partly
incorrect factual basis.
In many jurisdictions, whether
or not there is a change of zone or use, planning legion requires a
varietyriety of notifications
and consultations before an approval can be given.
This will generally include the owners and occupiers of land neighbouring
the site of the proposed development. No specific provision in any law of
Vanuatu has been cited to me requiring such
notification and consultation.
The plaintiffs allege the
various vals have been obtained by stealth or subterfuge. I considensider
this in detail.
The plaintiffs say outline
permi was obtained for 12 units when the first defendants had inad in mind
36 or more units.
It was on the basis of that approved 12 that the Minister
agreed to the surrender of the residential lease with a view to the
issue of
a commercial one. Indeed the application for foreign investment approval and
the approval mention 30 � 40 units
(AnnexAJH/4, Mr. Hogarth�s affidavit of
18 December 2001).
Between outline and full
permission the number was increased from 12 to 18 and tministration
block chck changed from two
to three storeys. The plaintiffs say some of the
plans for the full permission clearly shew a two storey administration
block.
Mr. Hogarth responded that the
Investment plan was a projectior ten years, not two, the vthe validity of
any planning
approval. The first accommodation block was always the same
size. It was just that six of the original twelve units were doubles,
but
had been changed to singles, thus adding the six to bring the number from 12
to 18. He says the plaintiffs must have
been aware of 18 units when one
reads their letter to Mr. and Mrs. Malcolm of 22nd March 2001, (p
35 Affidavit Mrs. Tom).
I can find nothing untoward in
he first defendant applying for outline permission. It is a is a standard
procedure when an
investor or developer wishes to ascertain if he or she
will receive permission for the kind of development in mind before expending
time and money preparing detailed plans for full permission. Section 6 of
the Act states such permission is �subject
to the subsequent grant of
permission by the Council for those details but the grant of permission by
the Council in
respect of those details shall be required before any
development is begun.�
There is no reason in law why
the first defendants coul make a full application, which was different
from thom the outline.
The duty is on the Council to consider that full
application and grant or refuse it or grant it with terms or modifications.
This they did. There is reference in the full plans to a bar and restaurant
and conference centre. The approval was limited
to Class 12 �Boarding or
guest house, or an hotel providing sleeping accommodation�.
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Were the plans submitted for
the full application misleading? To the exthat the administration blon block
is shewn in
cross-section as two storey it was misleading (p 106, affidavit
of Madeline Tom). One of the floor plans of the administration
block is
misleading, (p 108). It shews two floors. The accommodation block is shewn
as 12 units (p 107). That was misleading,
concerning the numbers of units,
but not its overall size. The rest of the plans are consistent with a three
story administration
block and an 18 unit accommodation block, in particular
pages 116 and 117 shew the three storey administration block. The fee,
based
on floor area, is consistent with a three storey accommodation block.
It would appear the first
defendant submitted the plans for the outline permissp. 61-63) along
with with those for the
full permission. A fresh �sectional view� plan and a
fresh �aerial view� should have been submitted and the original
accommodation block floor plan omitted, or marked as redundant.
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The second defes, faced
with this state of affairs, should have sought clarification. Much of the
he
confusion and assertions
as to what was granted has stemmed from this.
The question must therefore be
asked, what did the Council grant approval foris the position so
co confused that the
approval granted is fundamentally flawed. The first
defendants have issued a summons in this regard for a declaration. The
second defendant�s counsel argued that it must have been three a storey
administration block and 18 units. The first
defendants agree with this. The
plaintiffs oppose this.
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Mr. John�s evi, letters
and notes upon precisely what was granted are ambivalent,. He has clearly
rly
found himself trying
to reconcile the differences when subject to pressures
in opposite directions. I make an assessment independent of his evidence.
The application fee was clearly
calculated on the basis of a three storey accommodation block. The sewerage
system plan
envisages 45 � 50 persons, (p.93 Madeline Tom). Nothing has been
adduced in evidence to suggest that the height or positioning
of a three
storey accommodation block is inconsistent with any laws or bye-laws e.g.
Part II, No. 9/97.
In practical terms there is
little difference whether the accommodation block is for 12 units or 18. The
overall size
is the same, the number of people on site at any time is
unlikely to vary by more than a few, the sewerage system is sufficient,
and
the difference in detriment, if any, to neighbouring properties is small.
It should be noted that page 3 of the Hogarth�s Business Plan, dated 26 June 2000 referred to a stage one
with twel twelve
rooms, six being 36 square metres and six being 72 square
metres. It is these latter that Mr. Hogarth said were changed to
twelve
single units bringing the total up from 12 to 18.
The administration block is now
larger than the original proposal. It contains space bar, restaurant
etc etc which would
need further approvals to be operated as such. However,
there is no evidence before me to say that the height, size or positioning
of the block exceeds the limits stipulated in any law or bye-law for this
zone of land. Given the fact that a perusal
of the Council�s files would
shew pages 106-8 were the same as the outline plans, that page 109-120
clearly contemplated
a three story block, particularly pages 111-113, and
115-116 and 119, I find the Council gave approval for a three storey
administration block and 18 units accommodation block.
The piff seeks a
declaration that the building permit and plans are invalid by reason of
of
their ambiguity and otherwise.
There are certainly gaps in the proposals
that were approved, for example sound proofing and outer wall cladding.
I consider the evidence of Ioan
and Abel and the plans themselves. I find that overall there is sufficient
detail and
clarity for the permit to be valid. The lack of some details does
not invalidate the whole. However, there is such a lack on
significant
features, e.g. any sound proofing requirements and the colour and material
of outer wall cladding, that further
building permit approval should be
obtained from the Council before such parts of the work are commenced.
Consent to the surrender of the
lease of this land with a view of creating a new Commercial Tourism lease
title was given
by the Minister on 31st October 2000.
The Minister has not issued a
new lease. He is awaiting the reof the Environment Unit cont concerning the
impact of the
proposed foreshore reclamation and the outcome of these
proceedings, (Affidavit of Levi Tarosa dated 27 February, paragraph
8 and
9). Mr. Patterson, on behalf of the first defendants has sought a
negotiators certificate in respect of the land
it is proposed to reclaim.
The first defendants have yet to conclude their foreshore reclamation
application.
It is a matter for the various
authorities to make their ion concerning the reclamation. It is for the
Ministenister of
Lands in the light of this judgment and the reclamation decision
to decide whether or not to grant a negotiators certificate
and what, if
any, new lease or leases.
Complaintmade by the
plaintiffs that the Minister�s consent to surrender was obtained on the
the
misleading basis of
a 12 unit development. He can now make his decision
based on an 18 unit development of the same overall accommodation size
and
an enlarged administrative block and in the knowledge of the first
defendants� long term proposals. If the first
defendant were to propose
another block or any other expansion, then all the requisite authorities
will need to be obtained.
It would certainly have
dispelled fears of deception had the medium and long term plans of the first
defendants been made
known when application was made to surrender the lease.
I need not decide whether that invalidates the Minister�s decision
given the
course of events.
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Having reviewed all the
evidence I cannot find it has been shewn that thet defendants embarked
upon a course of deception
and misleading actions to obtain what they
wanted. However, in many ways much of the misunderstanding in this case
might
have been avoided with better handling of affairs e.g. approaching
neighbouring land owners to inform them what is happening
(this might not be
done on the basis it gives people time to protest, in the long run it is
effective), ensuring clear
and unequivocal plans were submitted, ensuring
that if plans are changed and expanded everyone involved is made aware. They
must also ensure that no building work continues until all the requisites
are complied with. I particularly refer to
Levi Tarosa�s letter of 9th
October 2001.
The position of the plaintiffs
and first defendants has not been assisted by the confusing answers
emanating from the
second defendants concerning what plans have been
approved. A large measure of the friction in this case stems from that.
In making my findings herein I
have not taken any regard of the evidence of Sylvie Lowen. It emerged in the
evidence that
Mr. and Mrs. Ozols are not in fact the owners of the
neighbouring land, but occupiers. That fact has not changed my approach
to
this case.
Accordingly I refuse the
declaration and orders sought by the plaintiffs. I makeclaration in
accordanordance with the
terms of paragraph 1 of the first defendants� summons of
15 February. I remove the interim Orders made on 21st December
2001.
Having read this judgment I
invited submissions on cost indicated to the parties that I was
considering maki making no
order as to costs given my findings generally and
specifically in relation to the conduct of each party. The plaintiffs were
content with this, the first defendants argued that costs should follow the
event, there was delay and any short comings
of the first defendants were
not such that would change the usual rule of costs following the event. The
second defendants
also sought costs against the plaintiffs, especially as
the Interim Orders were made on a partly incorrect factual basis. They
argued that there was no real reason why the second defendants should have
been brought into the proceedings.
I find that the second
defendants shpay their own costs. Whilst I found there was no need for
for
the Court to decide
the question of consultation, the confusion about what
permissions had been granted was a major source of the friction in this
case. The Council must also consider whether it is a wise practice to allow
an applicant for planning approval to transport
the documents from
department to department. Efficiency is always a laudable aim. In this case
the application was lodged
on 1st February. It had been around
all departments and approved by the 8th February.
It is a difficult decision as
o whether the first defendant should pay its own costs or t or the plaintiffs
should do so.
I have referred to what might have been better practice and
handling of matters by the first defendants. However, as a matter
of law
they have followed the prescribed procedures and sought the required
permissions as far as matters germane to
this judgment are concerned. In
those circumstances costs should follow the event and I order the plaintiffs
to pay the
first defendants costs. I have considered the question of costs
between the plaintiffs and second defendants and the first
and second
defendants. I make no order in those regards
Dated at Port Vila this 8th
day of March 2002.
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R.J. COVENTRY
Judge
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