IN THE HIGH COURT OF FIJI WESTERN DIVISION
AT LAUTOKA

Civil Action No.192 of 2013

BETWEEN:

SATISH CHANDRA GOSAI of Melbourne, Australia, Businessman.
Plaintiff

AND :

PRIME LAND DEVELOPMENT LIMITED, a limited liability Company having its registered office at Nadi.
1st Defendant

AND :

DAVENDRA NARAYAN CHAND trading as SJS Construction of Malolo Nadi, General Building Contractor.
2ND Defendant

Appearances : Mr. Janend Sharma for the Plaintiff.
Mr. Anu Patel for the Defendant.

RULING

INTRODUCTION

[1].	If an owner of land (A) is erecting, repairing, adding to, or painting, whether in whole or in part, any building, wall, fence or other structure on his land, and the only practical way for him to approach the job, or any part of the job, is from the adjoining land of another (B), (A) may apply to this Court for an Order to authorize him to enter onto (B)'s land for that purpose. Any such application by (A) will have to be made pursuant to section 108 of the Property Law Act (Cap 132) which provides as follows:

(1)	The owner of any land may at any time apply to the court by originating summons for an order authorizing him, or any person authorized by him in writing in that behalf, to enter upon any adjoining land for the purpose of erecting, repairing, adding to or painting the whole or any part of any building, wall, fence or other structure on the applicant's land, and to do on the land so entered upon such things as may reasonably be considered necessary for any such purpose as aforesaid.

(2)	On any such application the court may make such order as it thinks fit, and any such order, or any provision thereof, may be made upon and subject to such terms and conditions as the court thinks fit."

[2].	Section 128 of the old New Zealand Property Law Act was similar in wording to section 108. In De Richaumont Co Ltd v OTW Advertising Ltd [2001] 2 NZLR 831, Mr. Justice Priestly resorted to the Hansard Report to explain the purpose of section 128: 

The new provision enables an owner of property adjoining other land to erect, repair, add to, or paint a building or other structure belonging to him which is close to the boundary-line. The idea of the provision is to get over an awkward position which sometimes occurs when buildings are very close to a boundary-line. When an owner wants to effect repairs or do some painting on such a building, he has often to go on to the adjoining land to carry out this work.

[3].	Section 108 does not require the applicant to have first sought-but-refused-entry from the adjoining landowner before he or she may apply to this Court. However, that is a choice open to any intended applicant. More often than not, it will be the logical and practical thing to do before applying to this Court. As Priestly J opines in De Richaumont.

Some neighbours are neighbourly and would allow such work to be done, but others are fussy, and in such cases the owner of the building concerned may now go to the Court and obtain the necessary permission.
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It goes without saying that the Court Order will only be required in a situation where a neighbour, for whatever reason, declines access. In such a situation the person seeking access has only three options, to do nothing, to trespass, or to seek an order........ 
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With respect, Hardie Boys J is undoubtedly correct when in Blackburn v. Gemmell he describes the section as providing "a method of dealing with the practical difficulties...". It may well be that the neighbour refusing access may be "unco-operative or hostile". But that need not necessarily be the case. The balancing exercise which [s. 108(1)] requires the Court to undertake is to consider whether the order being sought authorises entry which is "reasonably ....necessary for any such purpose..."

BACKGROUND

[4].	Mr. Satish Chandra Gosai, the plaintiff, is the registered proprietor of Certificate of Title No. 9904. 

[5].	Between May 2012 and September 2013, Gosai was accessing the adjoining land of Prime Land Development Limited ("PLDL") in order to get to CT 9904. That access was granted pursuant to an understanding between Gosai, PLDL, and one Mr. Shah (see further below), to enable Gosai, his builder and his suppliers to get to the rear of a building being erected by Gosai on CT 9904.

[6].	However, as it turned out, PLDL backtracked on its permission some two months ago. This prompted Gosai to file the Originating Summons which is before me now. The Originating Summons is filed pursuant to section 108 and to Order 7, Order 28 and Order 32 Rule (2) of the High Court Rules 1988. What Gosai seeks is an Order from this court which will give him, his builders and his suppliers to enter PLDL's land to get to Gosai's land in order to complete all construction work. 

[7].	As a preliminary point, the defendants raise issue with the form of Gosai's Originating Summons. They have also filed a summons dated 24 October 2013 under Order 18 Rule 18(1) (a) to strike out the Originating Summons as disclosing no reasonable cause of action and/or is scandalous, frivolous or vexatious and/or is otherwise an abuse of process. The defendants also argue that Gosai has failed to provide sufficient particulars to identify any cause or causes of action.. However, I am of the view that the Originating Summons in question is quite regular and will leave at that.

UNDISPUTED FACTS

[8].	Gosai's Lot is zoned "Commercial C". Provision 9 Schedule B of the Town Planning Scheme applies to Gosai's land and prescribes the minimum front, side, and rear yard setbacks. The parties agree that Commercial "C" Lots are permitted to load and off-load goods in a front-service lane to which they (Lots) front. Schedule F paragraph 21 is the relevant planning law. And Namaka Lane is in fact such a front service lane in the busy commercial area of Namaka in Nadi town. PLDL actually has three lots which are arranged consecutively along a row of commercial lots. 

[9].	Gosai's CT 9904 fronts on Namaka Lane. PLDL's lots front on a different street, the name of which is unclear to me at this time. Although fronting on different streets, Gosai's and PLDL's lots share a common rear lot line.

[10].	At present, Gosai and PLDL are both erecting a commercial building on their respective properties. From photographs exhibited in the affidavits, it is clear that both parties will, if unhindered, complete construction in a matter of months. Both are eager to complete at the earliest in order to start letting out and earn rental income from their office and retail space.

[11].	Gosai began construction on 07 May, 2012. He has completed 3 storeys and was to begin work on the 4th when access was denied him. The building is estimated to be worth over FJD$3 million dollars after it is completed. 

[12].	PLDL started construction in April 2013.
 
[13].	It appears that shortly after he began construction, Gosai sought an audience with a Mr. Vijay Kumar, the Managing Director of PLDL, for permission to enter PLDL's land. They did eventually enter into an informal arrangement. A Mr. Shah, the Financial Controller of ATS, the tenant of PLDL was also part of the discussion.

[14].	Pursuant to their arrangement, Gosai was then allowed access to the rear of Gosai's building vide PLDL's land. This arrangement worked well for some 18 months. And during that time, Gosai had managed to erect a three storey building. 

[15].	However, things changed on 14 September 2013 when access was denied to Gosai. Following this, Gosai and his lawyers tried to seek an audience with the defendants to attempt a resolution, but to no avail. Chand is the contractor contracted by PLDL in July 2013 to construct PLDL's commercial building.

[16].	On 01 October 2013, Mr. Sharma issued a Notice to Chand. The said Notice alleged that the defendants' actions were detrimental to Gosai and to request dialogue. But, this was only met with a retaliatory threat by Chand. Since then, Gosai has not been able to have building materials delivered. This is hindering the completion of his building. He sets out in detail the list of works to be carried out on his building and for which access through PLDL's property is necessary.

WHY THE DEFENDANTS RENEGED ON THE ARRAGEMENT?

[17].	The decision to renege was made amidst allegations that a certain vehicle delivering building materials for Gosai had damaged the profile of PLDL's building. Chand had to spend $1,500.00 to realign the building line.

[18].	Gosai says the allegations are not fair because other businesses in the vicinity were, at the same time, also using PLDL's lot to access their own premises and anyone of them could have caused the alleged damage.

[19].	From where I sit, the free access that Gosai enjoyed from PLDL between May 2012 to September 2013 was, but a bare license. Such a license conferred no proprietary or contractual interest on Gosai (see Clerk & Lindsell on Torts 15th Ed at para 22-35 and Housing Authority v Khan [1994] FJHC 58; Hbc0090d.94s (10 June 1994). Hence, whatever bare parol license Gosai had was revocable at the whims of PLDL, and was in fact so revoked when Gosai was denied access on 14 September 2013. In that light, it can hardly be said that PLDL was bound by any form of estoppel, as argued by Mr. Sharma.

DISCUSSION

[20].	A section 108 Order is rather intrusive because it gives authority to a landowner to enter the adjoining land of another. But for the sanction of the Order, any such entry would amount to a trespass as it would offend the inviolability of the property rights of the adjoining landowner. Because of this, such Orders are not granted lightly. They are granted, strictly, only for purposes prescribed by Parliament therein section 108 and only if it is reasonably necessary in the circumstances of the case. This means a section 108 Order is made only as a last resort if there is no alternative practical way of doing the work.

[21].	In De Richaumont, the Court said:

"In my view, a correct interpretative analysis of [s. 108] requires the Court, as its starting point, to regard the [Respondent's] property rights as inviolate. The Court must recognize that the [Applicant] is only entitled to an order if it is for the purpose specified by Parliament. There is the further requirement that the order is reasonably necessary in the circumstances of the case."" (my emphasis)

[22].	I propose that the sentence underlined above should not be read literally. In my view, the Court is not saying that, an applicant has a right to a section 108 Order once it is satisfied that the purpose for which the Order is sought is in accordance with those set out in section 108 (see further below). I say this because, after all, the remedy is still a discretionary remedy as Mr. Justice Inoke spelled out in Hardip Narayan & Sons v Kellapan [2009] FJHC 137, HBC028.S (02 July 2009).

[23].	In Hardip Narayan's case, the applicant was the owner of a supermarket building. One of the walls of the said building was incomplete. And the said wall had actually encroached onto the respondent's adjoining lot. The applicant filed a section 108 originating summons in this court to allow him access to the defendant's land to complete the wall. He also applied under section 109 for a Vesting Order to vest in him that part of the defendant's over which he had encroached. In considering the application for access and vesting Orders before him, Inoke J, guided by De Richaumont (supra), said as follows at paragraphs 24 to 28:

[24] I have a wide discretion to make appropriate orders, a discretion which I must exercise judicially. What criteria do I use to decide whether the order that is sought is reasonably necessary in the circumstances of this case?

[25] Firstly, it is obvious that there must be no other practical way of doing the work unless access is granted. That is, "practical" in the engineering sense and from an economic point of view. Clearly, this case is one of those. There is no physical separation between the two adjoining properties. It is not possible to carry out the works without trespassing on to the Respondent's land and airspace.

[26] Secondly, I need to consider whether the rights of the Respondent land owner is sufficiently protected and if there is damage to his land and other property that he can be compensated. Although I take note of and agree with Priestley J in De Richaumont Co Ltd (supra at p. 836, para. 19) that the section does not authorize me to order payment of compensation. That is a matter that has to be pursued in another action should the parties fail to agree on the amount of compensation.

[27] Thirdly, I think the parties conduct is relevant. As noted above, neighbours can be "fussy", "uncooperative" and even "hostile". I think the Respondent in this case falls within those categories.

[28] Fourthly, I must ensure that the order that I make does not give rise to further disputation having regard to the history of the relationship between the parties. The relationship had been cordial but has become strained because of what the Respondent calls betrayal of his trust in that his property has been damaged without appropriate compensation.

[24].	But I would add a fifth category to the above, and that is, that the work being carried out by the landowner, for which entry to the adjoining land is being sought, must have all the requisite regulatory and planning approvals in place, before a section 108 Order can even be considered.

[25].	If the adjoining landowner's property rights over his land are inviolate as Priestly J emphasises in De Richaumont, then Inoke J's comment about the remedy (and the jurisdiction) being a discretionary one, does make perfect sense.

[26].	Hence, whereas a remedy for an infringed legal right must be awarded with no discretion to the judge, a judge exercising a section 108 discretionary jurisdiction, for good reason, may still refuse access, even if the applicant's purpose for seeking access seems perfectly in accordance with those set out in section 108. Again, after all, a section 108 Order is meant to be a last-resort, available only when there is no other practical way of doing the work.

[27].	When the case is viewed against the above light, Inoke J's insistence that the rights of the adjoining landowner must be sufficiently protected and that he "can be compensated" in case of damage to his property, also makes perfect sense. However, this then begs the question, whether the basis of any compensation, or indeed the "liability", is to be in torts or on restitution? But these questions have not arisen here yet.

APPLYING THE LAW

[28].	Is the order sought by Gosai reasonably necessary in the circumstances of this case? The answer to this depends on a variety of factors which I consider below.

Is there any other practical way of doing the work?

[29].	To answer this question, I must consider two things. First, whether the purpose for which entry to the adjoining land is sought amounts to "work" under section 108 and, secondly, whether there is another practical way of doing that "work" without having to enter the adjoining land?

[30].	Both counsel agree that the purpose for which Gosai seeks entry to PLDL's land qualifies under section 108. However, as to whether or not there is any other practical way of doing the work without having to enter PLDL's land, they are in so much disagreement.

[31].	Gosai argues that the only practical way of getting building material to the rear of his building is through PLDL's lot. Namaka Lane is an extremely busy one-way thoroughfare and there is no suitable access to the rear of his commercial building for heavy deliveries from Namaka Lane. 

[32].	Gosai exhibits various photographs to make his point. One of these shows a huge delivery truck, apparently loaded with building material, positioned awkwardly right across the entire width of that portion of Namaka Lane into which his driveway opens. There is enough of the driveway-opening visible in the photos. And from what I see of it, the driveway starts at street-ground level (obviously as all driveways do) but slopes downward rather sharply towards the basement of the building where the parking area is. The photos also show the limited height clearance. The large delivery truck is positioned as if it is about to reverse down Gosai's driveway. But, from what I see, clearly the truck would not have been able to negotiate the limited height clearance. 

[33].	Apart from the height clearance problem, Gosai argues that offloading building materials at the basement parking area is not practical as he would then have to take all the material up the lift to the first floor and then out to the back of the building. In addition, he says the basement car park is not built to withstand some of the heavy equipment and materials involved.

[34].	In addition, Gosai argues that the truck, as the photos show, was a public nuisance along Namaka Lane.

[35].	The defendants argue that Gosai's land is zoned commercial "C". Off-street loading is permissible in a front service lane along the commercial frontage in Commercial "C" zones. This is provided in Schedule F paragraph 21 of the Town Planning General Provisions. Namaka Lane is such a front service lane. 

[36].	As to the absence of access to the rear of Gosai's building, the defendants say that Gosai should have allowed a 6 meter set back from the rear boundary of his property. This is required by law. And his building methodology should have been tailored accordingly. The defendant submits that the plaintiff has reasonable access to his property from Namaka Lane and could use smaller delivery vehicles to access the basement of his property and/or by scheduling his deliveries to times and days of the week when Namaka Lane is not so busy.

[37].	Mr. Patel argues that the plaintiff has failed to provide this Court the building plans for his building, let alone, whether it is approved by the Director of Town and Country Planning and/or the Nadi Town Council. Nor, Mr. Patel argues, has he provided proof of relaxation of plot ratio of 1.1 and the rear yard clearance of 6 meters.

[38].	The point made above cannot be overemphasized. As stated (paragraph [7] above), CT 9904 is zoned "Commercial C". Provision 9 Schedule B of the Town Planning Scheme applies to Gosai's land and prescribes the minimum front, side, and rear yard setbacks. If, as Mr. Patel argues, no relaxation was ever granted, then Gosai would be in breach of the relevant planning regulations. Is it proper for this court to grant an Order to authorize entry for the completion of work that might, after all, be in breach of the appropriate planning laws?

[39].	 Kumar further deposes that he is personally aware that 19 buildings were constructed in the subdivisional lots of CT 7134 and all have provided the rear yard clearance of 6 meters except two lots which have access through the side road. 

Whether the rights of the Respondent are sufficiently protected? If there is damage to his land and other property – can he be compensated?

[40].	Like Gosai, PLDL is also erecting a commercial building on his own land. The defendants argue that this Court should also consider the prejudice and the inconvenience that would be caused to PLDL. While that is a genuine concern in itself, the costs to the defendant must be considered in this context. Mr. Patel submits that on a balance of prejudice, the effect of granting a section 108 access to the plaintiff puts the defendants more at risk than it would Gosai. 

[41].	He argues that, not only would it delay the completion of the 1st defendant's own construction works on his own land, which, in turn, will entail loss of income and increased costs of construction, but there is also the risk of structural disturbance and inconvenience with heavy vehicles passing through.

The parties conduct.

[42].	In his submissions, Mr. Sharma hints at a suggestion that the principles of estoppel should be applied in the circumstances of this case in favour of the plaintiff. He emphasises that the plaintiff had relied on Kumar's earlier agreement to access his land and Kumar's reneging on the agreement is causing his client to suffer.

[43].	The defendant has not acted unreasonably at all towards the plaintiff. After all, he did allow free access to the plaintiff over a period of some 18 months or so during which time Gosai was able to complete three stories out of the four. The issues in this case only began when PLDL started building a commercial block on his own land – which they are perfectly entitled to do.

[44].	My view, as discussed above (see para [21]), is that what the defendants gave Gosai was a bare license, which gave Gosai no special interest in PLDL's land, and which was revocable at the defendants' whims, but which, in any event, the defendants did revoke for good reason considering the hindrance that was being caused.

[45].	The particular discretionary jurisdiction in this case is not to be confused with any equitable jurisdiction involving the application of equitable doctrines.

Likelihood of further disputation between the parties.

[46].	I am of the view that if I were to grant full access to the plaintiff to allow his delivery vehicles to enter the defendant's land, there is likelihood of further disputes between the parties because the defendants are proceeding with their construction to near- completion after which they plan to build a car park in the space concerned whereas the plaintiff estimates a 4- month completion time through his counsel in court. 

[47].	On the other hand, if some control were placed on the plaintiff's access, some compromise could be reached. But then again, I am conscious of the point argued by Mr. Patel, which I think is a valid argument, that prima facie, the plaintiff's building breaches the planning laws applicable for Commercial C lots in Namaka. And that without evidence otherwise, or that these have been relaxed, this court should not grant access.

ORDERS

[48].	I am not inclined to grant the Order sought because:

(i)	It is not clear to me yet whether or not Gosai has obtained a relaxation in terms of the relevant planning laws.

(ii)	The argument that there is an alternative way of doing the work without accessing the defendant's land is more convincing to me in light of all the evidence placed before me.

Accordingly, I strike out the Originating Summons with costs to the defendants in the sum of $1,500 (one thousand five hundred dollars).

……………………………
Anare Tuilevuka
JUDGE
29 November 2013