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Cyclamen Ltd v Port Vila Municipal Council [2007] VUSC 97; Civil Case 43 of 2004 (7 December 2007)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 43 of 2004

BETWEEN:

CYCLAMEN LTD
Claimant

AND:

PORT VILA MUNICIPAL COUNCIL
Defendant

Coram: Justice C.N. Tuohy

Counsel: Claimant in person (represented by its Director Andrew Hogarth)
Mr. Hakwa for Defendant

Date of Hearing: 5, 6 and 9 November 2007
Date of Decision: 7 December 2007

RESERVED JUDGMENT

Introduction

1. This is the latest and, hopefully, the last judgment in the long-running litigation which has arisen out of the development by the Claimant of a tourist resort at First Lagoon in Port Vila.

Background

2. The history has been set out in the earlier judgments of this Court in this proceeding and in 2 earlier proceedings, CC 68 of 2001 and CC 195 of 2003. Those judgments are:

a) Judgment of Coventry J in CC 68 of 2001 dated 21 December 2001.
b) Judgment of Coventry J in CC 68 of 2001 dated 8 March 2002.
c) Judgment of Bulu J in CC 195 of 2003 dated 8 December 2003.
d) Judgment of Bulu J in this proceeding dated 2 September 2005
e) Judgment of Tuohy J in this proceeding dated 22 March 2007.

(The above list does not include other judgments given and rulings made in this proceeding by both this Court and the Court of Appeal because they concern aspects of the case that are no longer relevant).

3. The present judgment relates to the Claimant’s Amended Claim for Judicial Review filed on 31 July 2007. This seeks review of 5 "decisions" of the Council relating to the development. (Under R 17.2, "decision" includes a decision or an action).

These are:

a) A decision that the Claimant’s development permission ("the permit") granted on 8 February 2001 had lapsed in June 2003.
b) A decision that the Claimant immediately halt any further development of the Claimant’s site.
c) A decision that the Claimant be required to resubmit an application for a further building permit.
d) A decision or action of delivering a letter of 14 October 2003 which constituted on Enforcement Notice which was a nullity.
e) A decision or action to require some or all of the further information set out in the Council’s letter of 22 December 2003 to the Claimant.

The first 4 "decisions" are contained in a letter of 14 October 2003 from the Council to the Claimant. The fifth is contained in a letter of 22 December 2003 from the Council to the Claimant.

4. The primary remedies sought are set out in Paragraph 1 of the Amended Claim which seeks orders:

a) that the Council extend the permit for a further 24 months on the same terms and conditions
b) alternatively, that the Council reconsider the Claimant’s application for extension of the permit and make a new decision in accordance with the Court’s decision, within such time as the Court shall deem appropriate.

As well, the Amended Claim seeks declarations that the "decisions" referred to above are improperly based, wrong in law, ultra vires and unlawful and that they be called up and quashed.

5. The letters of 14 October and 22 December 2003 have not been fully reproduced in the various judgments referred to above. It is helpful also to see the Claimant’s agent’s letter of 21 October which responded to the letter of 14 October. All three are set out below:

14 October 2003 – Council to Claimant’s Lawyers

"Re: Cyclamen Limited/Seaside

.............................................................

In respect to the first question put by yourselves Council would state firstly that that particular question is related to the second, that is to say Council contends that your client is in difficulty in its compliance with condition 1 of the permit granted on the 8th February 2001. Council is presently considering condition 2 as it is in the process of engaging an independent engineer to visit the site development to ascertain whether or not there has been strict compliance with condition 2 of Council’s conditions as well as condition 3, 5, 6, 7 and 8.

With regard the second of your client’s concerns as put in your letter, as it is related to the first, whilst Council submits that the effective date of commencement of the 24 months approval was the 8th February 2001, Council is aware that the development commenced and continued up to the 21st December 2001, which was the date of the Court’s intervention through interim restraint. The restraint continued from the 21st December 2001 up to the 8th day of March 2002 which was when the Court delivered its judgment and all interim orders were vacated.

Thereafter, Council is aware that development has continued to date. Council is further aware that although your clients have completed the administration block and the swimming pool that the accommodation unit has yet to be completed.

In addition Council is aware that your clients obtained licenses from the Government pertaining to the operation of the bar and your client’s restaurant.

It is Council’s considered view that the only period upon which your clients can claim they were prevented from developing in accordance with Council’s stipulated period is between December 2001 and 8th March 2002, the effective date of delivery of judgment.

It is therefore Council’s resolve that the effective date of expiry of the permit granted on the 8th February 2001 would be June 2003. In such respect your client’s permit would appear to have lapsed.

Council has now resolved the following:

1. That from the date of this letter, your client is required to immediately halt any further development of the site.
2. Your clients are required within the next 7 days to resubmit an application for the grant of a further building permit, in which application your client must detail the extend of their compliance or non-compliance with the initial plans approved by Council. The application should not cover any new development.
3. Council will be engaging the services of an independent engineer to visit the developed site to ascertain whether there has been strict compliance or otherwise on the part of your clients in accordance with the approved plans.
4. Once your client’s further application and the engineer’s report is received by Council, another meeting will be called by Council to urgently deal with your client’s application.

Thank you for your attention".

21 October 2003 – Claimant’s Agent to Council

"Re: APPLICATION FOR EXTENSION OF APPROVED BUILDING PERMIT GRANTED TO CYCLAMEN LIMITED

Following recent meeting and correspondence between the Municipality and Cyclamen Ltd, we hereby apply to have their building permit extended.

No change to the original approved plans are requested. The administration building is already completed. The extension of the building permit will allow our clients to complete the approved 18 unit, three storey accommodation block.

Please find enclosed:
1. Copy of original building permit approval
2. Copy of receipt for building permit (VT 924,615)
3. Complete form 2 (Building Permit) application
4. Copies of approved plans
5. Location and site plan
6. Cheque for VT 2,813 (VT 2,500 + VAT) from Cyclamen Ltd as payment for the renewal of a planning fee

We trust his provides you with all the information you require to process this building permit extension which we hope, given the particular circumstances of this project, your committee will be able to consider as a matter of urgency.

Please let us know immediately if you require any further details or clarification of any matter. Otherwise we look forward to hearing from you as soon as possible.

Thank you for your attention to this matter".

22 December 2003 – Council to Claimant

"Re: Application no. 116/03 – Renewal of Building Permit

This is to inform you that the Council’s Town Planning Committee was convened on Monday 22nd December 2003 to determine your application for renewal of your expired building permit.

The matter has now been deferred pending Council’s receipt within the next fourteen days or sooner from you of the following:

A. 3 STOREY, 18 UNITS

1. detailed sectional drawings
2. detailed site layout plans including therein layout and location of sewerage treatment plant showing your waste treatment layout
3. Detailed servicing plan in the nature of
a) water reticulation
b) electrical layout
4. detailed drainage layout plan
5. material specifications

B. ADMINISTRATION BLOCK

Detailed drawings of variations to the main plan initially submitted in particular:

1) extra roof coverage of the surface way
2) extensions of the kitchen
3) additional roof coverage from the laundry area
4) temporary waste treatment system currently in place
5) variation to the swimming pool area
6) variation to the car park

Council requires you to furnish it with the requested information noting the stipulated timetable given. If they are received at any time before the period of 14 days you are assured Council will meet immediately upon receipt thereof to deal with your application, whereafter you will be advised of the outcome".

6. Also important are Conditions 1 and 4 of the permit:

1. The development hereby approved shall be completed not later than 24 months from the date of the Council’s decision unless on further application to the Council this period is extended.
4. The use of the building shall be confined to Class 12 of the Use Classes defined in section 1 of the Physical Planning Act. (Boarding or guest house, or a hotel providing sleeping accommodation)

Any additional factual matters which need to be referred to will be covered at the appropriate point in the discussion which follows.

Submissions

7. The Claimant’s submissions may be summarized as follows:

a) The permit was granted under s. 7 (1) of the Physical Planning Act [Cap. 193] ("the Act") on 8 July 2001 when it was uplifted by the Claimant.

b) The Claimant was granted a further development permission on 23 April 2002 "following an appeal" in terms of s. 7(2) of the Act, that appeal being the proceeding in the Supreme Court under CC 68 of 2001. Therefore the permit did not lapse by expiry of time until 23 April 2004 (or perhaps 8 March 2004, 24 months after the date of judgment in CC 68 of 2001).

c) Consequently, the Council’s "decision" that it had lapsed in June 2003 was wrong, as was its decision to require the Claimant to immediately stop work and to require the Claimant to resubmit an application for the grant of a further development permission.

d) The letter of 14 October 2003 was a purported Enforcement Notice in terms of Schedule 2 of the Act but was a nullity and bad on its face because not served in accordance with the Act and because it purported to take effect immediately rather than at the expiration of not less than 28 days as provided in Paragraph 1 (3) of Schedule 2.

e) Alternatively, if the permit has lapsed by expiry of time, the Claimant is entitled to an extension on the same terms and conditions as the original permit; and the Council was not entitled to require the information in its letter of 22 December 2003 but is required to grant an extension on the information which has so far been supplied by the Claimant.

8. The above summary is distilled from the Amended Claim itself, the "Written Submissions on Behalf of the Claimant", the "Closing Submissions on Behalf of the Claimant" and Mr. Hogarth’s oral submissions at trial. There were other subsidiary arguments relating to the application for permission for 6 additional units lodged in January 2002 and the payment of a fee for additional building work in July 2002 which will be addressed where necessary below.

9. The Council’s submissions may be summarized as follows:

a) The permission was granted on 8 February 2001 and lapsed on 8 February 2003.

b) Once a permit has lapsed by expiry of time it cannot be resurrected. An extension can only be granted under s. 7 (2) of the Act if application for extension is made before the permit has lapsed.

c) The letter of 14 October 2003 was not an Enforcement Notice under the Act. (This submission is however in direct contradiction of the Council’s written submissions dated 24 November 2004 which were attached to and specifically relied upon in its current submissions). Nevertheless, although not an Enforcement Notice under Schedule 2, the Council had the power to require the Claimant to immediately halt work, such power not arising from any specific provision but simply because the Act gives it functions in relation to developments.

d) Because the permit had irrevocably lapsed, the application for an extension made by the Claimant’s agent Mr. Patterson on 21 October 2003 must be treated as an application for a new permit under s. 7 (1). The Council was entitled to require all the information which it did and is not required to consider or grant the application until it receives it.

e) Although not part of his written submissions, Mr. Hakwa made it clear that the Council’s position was that even if the application was properly an application for extension under s. 7 (2), in the circumstances, the Council was still entitled to require all the information it has requested before considering or granting an extension.

Discussion

10. The crucial statutory provision is s. 7 of the Act the relevant parts of which are set out below:

POWERS OF THE COUNCIL TO DEAL WITH APPLICATIONS

7 (1) Where application is made to the Council for permission to develop, the Council may grant permission either unconditionally or subject to such conditions as it thinks fit, 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 considerations.

(2) Any permission granted under this section shall lapse on the expiration of twenty four months from the date of its grant, or, where permission has been granted following an appeal, the date of determination of such appeal, unless the permitted development has been completed to the satisfaction of the Council.

......................................................

(4) The Council may, on application, extend the time of permissions under sub-sections (2) and (3) at its discretion.

...........................................................

(6) The Council may grant permission to develop for a limited period only.

..............................................................

11. The duration of a development permission under the Act is fixed by the statute itself in s. 7 (2). It is therefore not legally possible, in the absence of an express statutory power to do so such as s. 7 (6), for the Council to impose a condition fixing some other period. Although condition 1 of the permit does not exactly follow the wording of s. 7 (2), it seems evident that Condition 1 was intended to give effect to s. 7 (2). This follows from the "REASONS FOR CONDITIONS" given in the permit:

a) To comply with the requirements of section 6 and 7 of (the Act)"

12. However, insofar as there is any difference between them, it is s. 7 (2) which fixes the duration of this permit not Condition 1. Likewise, the Council’s power to extend the permit arises from s. 7 (4), not because it reserved that power in Condition 1. It follows that the Council has no power to make a decision about when the permit lapses. The date of lapse is fixed by the statute and cannot be altered by a Council decision.

13. Putting aside a grant following an appeal, s. 7 (2) is clear and simple. The only date which needs to be ascertained is the date of grant. Lapse will take place by operation of law 24 months from that date.

14. I am satisfied that the date of grant of the permission was 8 February 2001. The permit itself (described as "Notice of Grant of Planning Permission") says that the application was approved by the Council on conditions on 8 February 2001. A letter dated 7 February 2001 was sent to the Claimant’s agent who lodged the application stating:

"I would like to inform you that your application for a building permit .....has been APPROVED by the Lord Mayor...............on the 07th of February 2001 then will be endorsed later by the town Planning Committee of its any first meeting. The permit can be obtained from the Town Clerk’s office on payment of the relevant charges to the Municipal Treasury".

There is no suggestion that this was not received.

The permit is signed by the Town Clerk with a handwritten date beside her signature. Being illegible, it is of no assistance. But even if the handwritten date of signature is some date other than 8 February 2001, it does not change anything. The permission spoken of in s. 7 is given by the Council. That permission was granted on 8 February 2001 when the Council approved the application.

15. I can see no foundation for the Claimant’s submission that the date of the grant is the date when he chose to pay the fees and uplift the written permit. That was in June 2001 but his argument would be the same even if it was a year later. First, s. 7 does not refer to the date when the fee is paid nor the date when the permit is uplifted. It refers to the date of the grant. Secondly, it is unattractive on practical grounds that an applicant can unilaterally delay the commencement of his permission indefinitely.

16. Therefore I find that, the date of the grant was 8 February 2001 and that apart from the appeal issue, it would lapse 24 months later on 8 February 2003.

17. The Claimant has argued alternatively that permission was granted following an appeal in terms of s. 7 (2), the appeal being the litigation brought by the Ozols in CC 68 of 2001. I do not accept this submission. The Act itself contains provision for an appeal in s. 9(1) which is set out below:

POWERS OF THE MINISTER
9. (1) Where an application is made under this Act to the Council for permission to develop, and such permission is refused or is granted subject to conditions, the applicant may, if aggrieved by the decision of the Council by notice served on it within forty days from the receipt of notification of its decision, appeal to the Minister, and the Council shall forthwith transmit such notice to the Minister.

18. There is no other provision in the Act or anywhere else for an appeal by an applicant for development permission. I am satisfied, therefore that the "appeal" referred to in s. 7 (2) is the appeal provided for in s. 9 and not any other type of appeal.

19. The Claimant’s submission that the proceedings in CC 68 of 2001 were an appeal in terms of s. 7 (2) is untenable. Those proceedings could never have been described as an appeal. They were originating proceedings for a prerogative writ, the sort of proceedings which are now called an application for judicial review. There is a substantial difference between an appeal against a decision and an application for review of it. Quite different legal tests apply to each and the remedies sought are quite different. In any event, it could never be said that permission in this case was granted "following" the decision of Coventry J. The effect of his judgment was that the original permission was upheld.

20. The authority cited by Mr. Hogarth in support of his argument, (Hall & Anor v. City of Burnside & Anor [2005] SASC 343), is distinguishable. That case involved specific South Australian legislation quite different to the Act and the reasoning revolves around the wording and scheme of that legislation. None of the reasoning in the decision supports the Claimant’s argument in this case. I find therefore that its permission lapsed on 8 February 2003.

21. Chronologically, the next issue is the validity of the requirement in the letter of 14 October 2003 that the Claimant immediately halt all work. There is a specific power given to the Council in Schedule 2 of the Act (relating to enforcement) to serve a notice requiring discontinuance of works if it appears to the Council that a development has been carried out without the grant of permission or in breach of permit conditions. The Schedule includes detailed provisions relating to such enforcement notices.

22. Pursuant to Paragraph 3 of the Schedule, an enforcement notice may not take effect until at least 28 days after service. It is automatically suspended if an application is made before then for permission for the work involved. There is a right of appeal against the notice to the Magistrate’s Court and, if an appeal is lodged, the notice is suspended until it is determined.

23. The letter of 14 October 2003 is clearly invalid as an enforcement notice because it purported to come into effect immediately. Indeed Mr. Hakwa did not try to argue otherwise.

24. However he did argue that it was valid and effective on the basis that since the Council had functions under the Act, it must have an implied power to stop non complying works immediately. This submission is completely untenable. A statutory body has only the powers given to it by the statute. Here the statute does give it enforcement powers in Schedule 2. It is wants to exercise them it must do so in accordance with the statute. It is not possible to invent powers which are not in the Act as a means of avoiding limitations on the powers which are in the Act.

25. Given the invalidity of letter as an enforcement notice, there is no purpose in discussing whether or not it was properly served. It was invalid however it was served.

26. The Claimant applied for an extension under s. 7 (4) on 21 October 2003. Mr. Hakwa argued that it could not do so because the permit had already lapsed and that any application for an extension must be made before lapse. It is implicit in his submission that the Council’s requirement to resubmit an application for a further permit excluded the option of applying for an extension of the existing permit.

27. It is obvious that s. 7 (4) does not say that any application for extension must be made before lapse. Nor was Mr. Hakwa able to point to any authority from Vanuatu or elsewhere in support of his submission. I have been unable to find any Vanuatu authority on the point. There is, however, a line of authority in Victoria which is of assistance on this and related points. The Court was led to this line by Mr. Hogarth and the Court is grateful for his researches.

28. This line of authority is concerned with the application of s. 69 of the Victorian Planning and Environment Act 1987 which is set out below:

"69. Extension of time
(1) Before the permit expires or within the three months afterwards, the owner or the occupier of the land to which it applies may ask the responsible authority for an extension of time.
(2) The responsible authority may extend the time within which the use or development or any stage of it is to be started or the development or any stage of it is to be completed or within which a plan under the Subdivision Act 1988 is to be certified.
(3) If the time is extended after the permit has lapsed the extension operates from the day the permit expired".

29. While s. 69 expressly provides that an extension can be applied for after the permit has lapsed, there has been judicial discussion of the meaning of the word "lapsed" in the section. In Melbourne Grammar School v. Melbourne CC [2007] VCAT481, the Victorian Civil and Administrative Tribunal said this:

"The use of the word ‘lapsed’ in this section appears to contemplate that the permit when it has technically expired has not come to an end, rather the right obtained by a landowner under the permit has merely lapsed and can be resurrected again. The use of the word ‘lapsed’ suggests a slip or error or it could be said in a legal sense the termination of the right the landowner obtained on the granting of the permit and that this right has been terminated due to the failure or neglect of the landowner to have properly complied with the time frames of the permit.

The Act appears to therefore contemplate that a permit although said to have expired, or in other words come to an end, is not dead but has merely lapsed and can be resurrected".

In the different context of s. 96 (2) of the Land Leases Act [Cap. 163], the Vanuatu Parliament has provided that cautions which "lapse" can be "revived".

30. I see no reason why that interpretation should not also apply to s. 7 of the Act. There is nothing in the scheme of s. 7 to require the imposition of a restriction on the ability to extend a permit which is not there. Of course, this does not mean that the length of time since a permit has lapsed cannot be taken into account on an application to extend the permit.

31. I therefore reject Mr. Hakwa’s submission that an application for an extension cannot be made after the permit has lapsed. It follows that the application for extension made on 21 October 2003 must be treated as that and not as a further application under s. 7 (1) for a new permission.

32. The nature of the distinction between an original application for permission under s. 7 (1) and an application for an extension is important because it must impact upon the way in which the Council is required to deal with each. It is self-evident that what is being requested on an application for an extension is the resurrection or revival of the original permit and, if the application is granted, the original permit will once more be in force for such period as permitted. In an application for a new permit under s. 7 (1), however, the whole process starts again from the beginning without reference necessarily to what has gone before. A permission with different conditions could result.

33. Section 7 (4), the source of the power to extend, could not have been briefer. Notable features of it are that there is no power in it for the Council to grant an extension on conditions. All it can do it grant or refuse an extension of the original permit. Nor is there any guidance in the section as to how the Council should exercise the discretion which s. 7 (4) gives to it.

34. That latter feature is shared by s. 69 (2) of the Victorian Act (set out above). The proper approach to be taken by a Council having the unfettered discretion to extend contained in s. 69 (2) has been discussed at length in the decision of Ashby J in the Supreme Court of Victoria in Kantor & Ors v. Murrindindi Shire Concil & Anor (1997) 18 AATR 285. The question of what considerations may be taken into account obviously has a very great bearing on what information the Council may require which is the real stumbling block in this case.

35. In considering which considerations are relevant and which irrelevant on an application to extend time, Ashby J began by accepting that the proper approach is as set out in the following passage from the judgment of Mason J. in Minister for Aboriginal Affairs & Anor v. Peko-Wallsend Ltd & Ors (1985 – 86) 162 CLR 24, 39:

"If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider –

are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard".

36. His Honour then analyzed a number of decisions of the administrative tribunal which is charged with reviewing decisions on applications for extensions and reviewed the subject-matter, scope and purpose of the Victorian Planning Act which is vastly more complex than Vanuatu’s Act as is to be expected given the differences in scale of developments.

37. He went on to say:

"I consider that, where a request to extend time is made, a responsible authority should treat the applicant as being obliged to advance some reason or material in support of the grant of an extension. An extension should not be granted simply because a request to extend has been made. The Act, after all, contemplates the imposition of an expiry date – whether by the permit or the operation of the legislation itself. True it is that the legislation also contemplates the making of a request to extend. But the exercise of the discretion to extend reverses the outcome which the permit or the legislation would otherwise require".

38. He then set out a number of matters which may rightly be considered on an application for an extension. These matters have been summarized in later cases as follows:

(i) Whether there has been a change of planning policy;
(ii) Whether the land owner is seeking to ‘warehouse’ the permit i.e. keep it alive for reasons relating to land value without an intention to start the development;
(iii) Any intervening circumstances as bearing upon grant or refusal;
(iv) The total elapse of time between the permit issuing and the request for extension;
(v) Whether the time limit originally imposed was adequate;
(vi) The economic burden imposed on the landowner by the permit; and
(vii) The probability of a permit issuing should a fresh application be made.

His Honour made it clear, however, that close attention must be paid to the particular facts of the case and that the considerations set out above were not necessarily the only matters which might be considered relevant.

39. In New Zealand, some similar considerations are identified in the relevant legislation itself. The consent authority is required to take into account on an application for extension of a resource consent:

"(i) whether substantial progress or effort has been, and continues to be, made towards giving effect to the consent; and
(ii) whether the applicant has obtained approval from persons who may be adversely affected by the granting of an extension; and
(iii)the effect of the extension on the policies and objectives of any plan or proposed plan"
(s. 125 Resource Management Act 1991 (NZ)).

The first of these has also been recognized in Victoria additionally to the Kantor considerations: Juric v. Banyule C.C [2002] VCAT 396.

40. Of course the considerations listed by Ashby J. were also identified in the specific context of the Victorian legislation. While they provide very useful assistance, it is necessary to make allowance for any differences in the subject-matter, scope and purpose of the Vanuatu Act.

41. The salient feature of the Physical Planning Act is its brevity. The long title of the Act is simply "To provide for controlling the development of land".

"Development" means the carrying out of building or other operations in, on, over or under the land or the making of any material change in the use of buildings or land, or the subdivision of any land;

Neither provides any real guidance.

42. Section 4 states:

DEVELOPMENT IN A PHYSICAL PLANNING AREA
4. No person shall carry on development in a Physical Planning Area, except as specified in the declaration of that Physical Planning Area, without having first received permission in writing from the Council.

This section is linked to s. 2 which states:

PHYSICAL PLANNING AREAS

2. (1) A Council may declare any area within its jurisdiction to be a Physical Planning Area.

(2) In making such a declaration a Council -

(a) shall have due and proper regard for the rules of custom;

(b) shall consider the welfare both of the people in the area affected and of the people of Vanuatu generally;

(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.

(3) In declaring an area to be a Physical Planning Area, the Council may in its absolute discretion decide that one or more of the types of development specified in Schedule I shall not require permission for development, and it shall specify those types of development in the declaration.

(4) All declarations shall be published in the Gazette.

43. The Act contemplates in those sections that it is at this stage that persons affected by the proposed "zoning" of an area have the right to be heard about it. Significantly, the Act does not require an applicant for development permission to notify anybody about it and no one has the right to make representations to the Council. The same applies to any appeal to the Minister under s. 9.

44. There was no evidence before the Court that there had been a declaration of a Physical Planning Area under s. 4 in relation to the area containing the Claimant’s land. But no-one disputed that the Claimant required permission from the Council to develop.

45. The sworn statement of Madeleine Tom states that "the zoning plan of (the Council) indicated that the proposed site for development is Zone A and terms (sic) as "Residential and Tourist Areas". This zoning was established by Bye-Law 9/79 of the Council made prior to Independence under Joint Regulations. It seems to be common ground that this is "the plan in force" in terms of s. 7 and Coventry J.’s judgment of 8 March 2002 in CC 68 of 2001 proceeded on that basis. He held that the Claimant’s development is a use allowed in Zone A which allows Class 12 uses. It is in conformity with the plan in force. Coventry J. held, in effect, that there was no requirement in those circumstances for the Council to consult with persons affected. With respect, I agree with him.

46. Apart from the requirement in s. 7 (1) that the Council shall have regard to the plan in force "and any other material considerations", there is little else in the Act from which the Court can extract guidance as to how the discretion under s. 7 (4) should be exercised. In general terms, it can be said that the Act itself places no specific restrictions on development. It does not even prohibit development which is not in accordance with the plan in force – it merely directs the Council to have regard to that plan. It gives no rights to others to be either notified or heard in respect of a specific application. While the discretion under s. 7 (4) is in terms unfettered, it must be exercised in the context of an Act which places very little restriction on development.

47. It is also pertinent that the Act contains a self-contained code for enforcement in Schedule 2 discussed above. A notable feature of that code is that there is a time limit for enforcement action of one year from when the development work is carried out.

48. I agree with Ashby J that an applicant for an extension needs first to advance a reason for the extension. This should not be treated as a high hurdle. There could be a number of reasons why a development has not been completed. The delay caused by the interim orders in CC 68 of 2001 would itself be a good reason in this case although there may be several others e.g. the difficulty in completing such a large development in 2 years in the Vanuatu context. The reason for the need for an extension must also be one of the primary considerations in deciding whether to grant one.

49. I consider the following other factors may properly be taken into account by the Council in considering an application for extension:

• whether there has been any change in the plan in force for the land in respect of which the permit has been granted. If there has been, that would be a factor which might cause the Council to require a new application under s. 7 (1). Conversely if there has been no change, that would be a factor in favour of granting an extension

• the length of time (if any) between the lapse of the permit and the making of the application for extension. This consideration needs to be looked at in light of any explanation for the delay and taking into account whether the delay has had any practical effects

• whether substantial progress or effort has been and continues to be made, towards giving effect to the permission. This consideration, included in the New Zealand legislation, takes into account the "warehousing" concern expressed by Ashby J in Kantor. It also enables consideration to be given to the extent of work and expenditure already committed by the developer which is both relevant and important: Juric v. Banyule C.C (supra)
(There is another twist to this aspect in this case: if an extension is not granted, both parties might be left with a development which is non-conforming with Class 12, because the administration block has been completed but not the sleeping accommodation).

50. As the case law discussed above shows, these factors are not exclusive but they are likely to be applicable considerations in all cases. There may be other proper considerations on the facts of individual cases.

51. There are some other factors mentioned in this case which, in light of the scheme of the Act, are clearly not proper considerations. First, an application for an extension should not be used as a de facto enforcement process in respect of work already done. The Act contains its own process for enforcement in Schedule 2. It requires a notice to be given specifying what the alleged breach is and giving time for compliance, it provides a right of appeal and, in particular, it has a one year time limit from completion of the development work. These specific statutory rights and limitations would be circumvented if the Council could use an extension application to scrutinize work already done. Its powers to do that are under Schedule 2.

52. Secondly, in a case like this one, where the original permit granted was in conformity with the plan in force, the Council ought not to take into account representations from neighbors or other persons claiming to be affected. If there is no right for those persons to be consulted in relation to the original application, there can be no such right on an application for extension.

53. Obviously, one can imagine many other potential matters which are clearly irrelevant to an application for extension. In every case, it will be necessary for the Council to decide the relevance or otherwise of a particular matter in light of the scheme and purpose of the Act.

54. Having set out those matters, it is necessary to return to the remedies sought by the Claimant. First there is the issue of the information sought in the Council’s letter of 22 December 2003. It seems evident that that information was sought on the basis that the Council could treat the application as equivalent to an original application under s. 7 (1). For the reasons outlined above, that is not so. It is purely a question of whether to extend the duration of the existing permit which was granted on the basis of specific plans. On an extension, the Council cannot require changes in the plans.

55. There is a difference, though, between changed plans and more detailed plans. I cannot see any reason why in considering the application for an extension the Council cannot request details not amounting to changes to the work to be carried out pursuant to the original plans but which describe that work in more detail. The Council may consider in light of experience that such detail is necessary in order to properly monitor the work in future.

56. Nor can it use the application in order to grant or refuse consent to variations made in the building of the already completed administration block. There are issues as to whether these variations have already been informally permitted and how far they come within the 10% allowance in Schedule 1 Para 2. Those issues are not directly before this Court. They are matters of enforcement.

57. On the face of it, the information in section A of the letter of 22 December 2003 may relate to a relevant consideration while that in section B may relate to an irrelevant consideration. However, I do not consider that the Court should take over the functions of the Council under the Act. It is for the Council to decide what material information it requires for a proper consideration of the application for extension, now that it has the guidance which this judgment provides. It is then for the Council in the light of this judgment to make its decision on the application for an extension.

58. I do not, therefore, propose to make the fifth declaration sought. Nor do I propose to make an order granting the extension which would usurp even more the function of the Council. I intend to make formal declarations where appropriate and otherwise to adjourn the proceeding to allow the parties to advance the application for extension in the light of this judgment. Leave will be reserved to both parties to further apply to the Court if either considers it necessary to do so.

59. To summarize, the Court’s decision in respect of each of the remedies sought by the Claimant is:

• the Court declines to make an order that the Council extend the permit
• the Court declines to make an order that the Council "reconsider" the Claimant’s application for extension of the permit and make a new decision within a particular time
• the Court declines to make a declaration relating to a decision of the Council as to when the permit had lapsed because the Council could not make any such decision.
• The Court declares that the action of the Council by its letter of 14 October 2003 requiring the Claimant to immediately stop work was ultra vires and unlawful
• The Court declares that the action of the Council by its letter of 14 October 2003 requiring the Claimant to resubmit an application for the grant of a new permit covering the existing development was wrong in law.
• The Court declines to make any declaration in relation to the service of the letter of 14 October 2003 because the letter was not a valid enforcement notice.
• The Court declines to make any declaration relating to the information requested in the Council’s letter of 22 December 2003.

60. I turn to the question of costs. Although I have granted only two of the various remedies sought by the Claimant, nevertheless the Claimant has been successful in relation to several of the underlying issues. I am also conscious that there has been a large amount of largely misdirected interlocutory skirmishing in this proceeding, the costs implications of which have not been addressed before me. Added to that uncertainty is the fact that for some part of the litigation, the Claimant has had paid legal representation but for the latter part not. Finally the proceeding may not yet be complete in that the application for extension remains to be considered in light of this judgment.

61. In all those circumstances, I consider that it is premature for the Court to make a decision about costs. However, without prejudging the issue, it is even at this stage evident that allowing costs to lie where they fall may be a just outcome. Leave is reserved to either party to apply for costs once it is clear that the litigation is in fact completed.

Dated at Port Vila, this 7th day of December, 2007

BY THE COURT

C.N. TUOHY
Judge