IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC 0539 OF 1998

BETWEEN:

PENIONI BULU
of Lot 8 Kanace Road, Valelevu, Nasinu
- Plaintiff

AND:

THE PERMANENT SECRETARY FOR
COMMUNICATIONS, WORKS AND ENERGY
1st Defendant

AND:

THE ATTORNEY-GENERAL OF FIJI
2nd Defendant

R.K. Naidu for the Plaintiff
S. Sharma for the Defendants

Dates of Hearing and Submissions: 6th November 1998,
18th March, 13th May, 14th October 1999
Date of Judgment: 7th February 2000

JUDGMENT

The Plaintiff is the registered proprietor of all the leasehold land known as Lot 8 on D.P. 4269 having an area of 32.4 perches and situate in Kanace Road, Valelevu, Nasinu.

Mr. Bulu purchased the property in 1987 and constructed on it a substantial concrete dwelling house which is occupied by his family and himself.

A total of 10 properties form part of D.P. 4268 Valelevu and have their boundaries running from the King's Road on one side and Kanace Road on the other.

Since 1995 the Public Works Department on instructions from the Ministry of Communications, Works and Energy has been involved in a road up-grading project on King's Road between Suva and Nausori. This has resulted in the Ministry acquiring land on both sides of the King's Road and it claims it has fully compensated landowners for any land that has been acquired. The Plaintiff denies that he has been fully compensated and, as I understand, he claims that he is still owed $200.00.

However he makes no demand for this amount because he claims to have greater concerns than payment to him of that sum.

In the two affidavits which he has sworn in support of his Originating Summons now before me he states that although his property is adjacent to the King's Road, the designated access to it is from Kanace Road.

Prior to the road up-grading project the Plaintiff and a number of other residents of the neighbourhood had been using the King's Road to access their property without any approval from the Ministry.

The approved plan of the Plaintiff's property had made provision for the construction of a driveway and access from Kanace Road but the Plaintiff has not constructed any driveway.

The Public Works Department informed all landowners with properties on Kanace Road which were going to be affected by the road widening project that whilst emphasising that these residents had a designated access to the Kanace Road the Ministry was prepared to allow them to access King's Road from a service lane. The offer to construct such a lane along King's Road at no extra cost was on the condition that the residents would provide the land for the construction of the service lane as their contribution towards obtaining easy access to King's Road.

All residents except the Plaintiff agreed to provide the extra strip of land for the construction of a service lane. The Plaintiff did not agree because he wanted to retain space within his compound for the purpose of family gatherings.

The Ministry then constructed the service lane for those residents of Kanace Road who had made their land available for the construction of the lane. They now have access to the King's Road through the service lane but not directly.

In February 1998 the Plaintiff wrote to the Director of Roads requesting approval for direct access to King's Road but his request was refused because of safety reasons and because the Ministry considered that it would be unfair to residents in the same neighbourhood if the Plaintiff were to be allowed access to the service lane, or even to the King's Road when he had not provided any land for the lane.

The Defendants say that since the Plaintiff bought his land in 1987 he should have been fully aware that he would need to construct a driveway from Kanace Road and should have constructed the building on his land accordingly.

Annexed to an affidavit sworn by Raphael Warwick-Smith the Acting Principal Engineer of the 1st Defendant is a building plan approved by the Plaintiff in 1988. That plan clearly shows that the Plaintiff made provision for the construction of a driveway and carpark. The Plaintiff states that the reason why the driveway and carpark were not constructed was because it was impossible to do so. The Defendants deny this.

The Plaintiff also asserts that his user rights have been adversely affected but the Defendants say that a reasonable user of the land is still possible upon the construction of a driveway, although it may involve the Plaintiff in some expense.

According to Mr. Warwick-Smith the grant of access to the Plaintiff to King's Road would substantially impede the road up-grading project. He says the granting of the Plaintiff's application would lead to applications from numerous residents for access to King's Road. This will defeat the purpose of road widening and will cause substantial hardship to the Defendants to restructure and rebuild those parts of the King's Road that have already been completed after a great delay and the investment of substantial public funds. The Defendants therefore claim that it is in the public interest that the road up-grading project be completed as soon as possible.

Furthermore they say that it is in the public interest that direct access to King's Road should only be provided to those residents who have no other means of access to their property. Where a property is adjacent to two roads, access should be maintained through the alternative road and not through the King's Road.

I think the above resume sets out the respective positions of the parties.

Because the Plaintiff claims to be aggrieved by the actions of the 1st Defendant he has issued an Originating Summons seeking two Declarations and three Orders. The first Declaration is that the 1st Defendant's denial to the Plaintiff of direct access from his property is unlawful because it has caused the Plaintiff's land to be landlocked without access and is thus a restriction within the meaning of that word used in Section 53 of the Land Transfer Act Cap. 131.

The second Declaration is that the Plaintiff is entitled to apply to this Court to have the restriction placed by the 1st Defendant on direct access from his property to King's Road wholly discharged in accordance with the provisions of Section 53.

The first Order sought is that the restriction be wholly discharged.

The Plaintiff also seeks an interim order restraining the 1st Defendant from interfering with the Plaintiff's creation and use of a direct access from his property until the determination of this action.

Finally he asks for an Order for costs.

In his written submissions the Plaintiff alleges that the action by the 1st Defendant is contrary to Section 38 of the Constitution in that it discriminates against him. He also submits that the Defendant's action contravenes Section 40(1) of the Constitution because he has been deprived of property contrary to the law.

The Plaintiff claims that the 1st Defendant's decision discriminates against him merely because he refused to give away a front portion of his yard. He then submits that he has been deprived of the use of his property in a proper, reasonable and efficient manner.

I begin my consideration of the parties' submissions by quoting Section 53(1)(a) of the Land Transfer Act:

"Where land subject to the provisions of this Act, or any estate or interest therein, is subject to any easement or restriction arising under covenant or otherwise as to the user thereof or the right of building thereon, the court may, from time to time, on the application of any person interested in the land, by order wholly or partially discharge or modify the easement or restriction upon being satisfied -

(a)	that by reason of any change in the user of any land to which the easement or the benefit of the restriction is annexed or in the character of the property or the neighbourhood or other circumstances of the ease which the court may deem material, the easement or restriction ought to be deemed to have been abandoned or to be obsolete or that the continued existence thereof would impede the reasonable user of the land subject to the easement or, as the case may be, would, unless modified, so impede such user."

The purpose of Section 53 is to enable covenants which have no practical utility to the land intended to be benefited to be removed and thus to clear the title. The first question is whether the restriction claimed by the Defendants is obsolete?

In Re Mason and the Conveyancing Act (1961) 78 W.N. (NSW) Jacobs J., interpreting an almost identical provision in the NSW Conveyancing Act, defined obsolete as meaning incapable of fulfilment or serving no present useful purpose.

The English Court of Appeal in Re Truman, Hanbury, Buxton & Co. Ltd's Application (1956) 1 Q.B. 261 held that a restriction can not be deemed obsolete so long as the object of the covenant is capable of fulfilment and affords real protection to those entitled to enforce it.

The Defendants submit that in this case the user of this land has not changed at all so as to render the restriction obsolete. Nor has the character of the property, the neighbourhood or any other circumstances materially changed to deem the access denial as obsolete.

For whatever his reasons I think it fair to say that the Plaintiff has deliberately refused to construct and use his designated access from Kanace Road. In my view with the construction of the four-lane road to allow a fast flow of traffic, it is more than ever necessary now to enforce the denial of direct access by the Plaintiff to King's Road. As such, I hold that on the facts of this case the restriction is not obsolete. Likewise, I consider it impossible to hold that the Defendants may reasonably be considered to have abandoned the restriction within the meaning of sub-paragraph (b) of Section 53. It is common ground that the Defendants have never approved the Plaintiff having access to the King's Road.

In this regard the recent decision of the Privy Council in McMorris v. Brown (1998) 3 WLR 971 is relevant. There the Board whose judgment was delivered by Lord Cooke of Thorndon held that although a proposed particular modification of a restriction might not of itself injure the persons entitled to the benefit of the restriction, harm to them might nevertheless result if similar modification were generally allowed, or if the modification were to be taken as implying an alteration in the context in which possible future applications would be considered.

Lord Cooke in upholding the submissions of the Appellant said that they were "the thin end of the wedge" argument.

I consider there is much force in the Defendants' submissions that to grant the Plaintiff the relief he seeks would quite possibly lead to further objections from other residents in the area and thus frustrate what the Defendants consider is a public need, namely the provision of a faster traffic follow between Suva and Nausori. I therefore reject the Plaintiff's first submission.

The next question is whether the Plaintiff has been deprived of his rights of property? The Plaintiff claims that he has because he says now as a result of the work of the 1st Defendant his land has become landlocked. It was said by Viscount Dilhorne giving the majority opinion of the Privy Council in Government of Malaysia v. Selangor Pilot Association (1977) 2 WLR 901 at p.907 that deprivation of property may take many forms. He said:

"A person may be deprived of his property by another acquiring it or using it but those are not the only ways by which he can be deprived."

He then continued:

"Their Lordships agree that a person may be deprived of his property by a mere negative or restrictive provision but it does not follow that such a provision which leads to deprivation also leads to compulsory acquisition or use."

The Plaintiff says he has been deprived of his property because he is stripped away from something to which he is entitled. I cannot accept this submission. If the Plaintiff has been deprived as he claims then in my judgment he is the cause of his own deprivation. It is inevitable in all road widening or freeway construction projects that landowners with property adjacent to the project will lose some of their former rights to access to a particular traffic-way. In deciding to construct such freeways Governments and statutory authorities must always take into account what they consider will be the benefit to other road users in the community at large and not merely those residents of an area whose rights will suffer some restriction.

In all the circumstances of this case I consider the Plaintiff has been unreasonable and that the Defendants' offer to construct a service lane from his property provided he would grant part of his land for such construction was reasonable. To use the language of the law concerning injunctions, in my judgment the balance of convenience clearly lies with the Defendants. I therefore reject the Plaintiff's second submission.

Finally I turn to the claim by the Plaintiff that his land has now become landlocked. There is no such term in either the Land Transfer Act or the Property Law Act in this country. There is however in the Property Law Act of New Zealand. In Cleveland v. Roberts (1993) 2 NZLR 17 the New Zealand Court of Appeal held that land was to be regarded as landlocked if it did not in a practical sense have reasonable access. In this case I do not consider the Plaintiff's land is landlocked. He has access from Kanace Road and I do not consider he could complain that he is deprived of access when the reason is that he has not constructed a driveway for the reasons he has given. In short I consider he is the author of his own misfortune.

For these reasons I refuse to make the Declarations and Orders sought in the Originating Summons which I dismiss and order the Plaintiff to pay the Defendants' costs to be taxed if not agreed.

JOHN E. BYRNE
JUDGE

Cases referred to in Judgment:

Cleveland v. Roberts (1993) 2 NZLR 17.
Government of Malaysia v. Selangor Pilot Association (1977) 2 WLR 901.
McMorris v. Brown (1998) 3 WLR 971.
Re Mason and the Conveyancing Act (1961) 78 W.N. (NSW).
Re Truman, Hanbury, Buxton & Co. Ltd's Application (1956) 1 Q.B. 261.