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Beverley v Commissioner of Lands [2007] SBHC 50; HCSI-CC 348 of 2006 (10 April 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 348 of 2006

John H. H. Beverley

v.

The Commissioner of Lands and Pamela Lorraine Kimberley

(Palmer CJ.)

Date of Hearing: 2nd April 2007
Date of Judgment: 10th April 2007

A. Radclyffe for the Plaintiff/Applicant
No appearance by the first Defendant/ Respondent
No appearance by the second Defendant/ Respondent

Palmer CJ.: The plaintiff/applicant, John Beverley ("Beverley") is the registered owner of the fixed-term estates in parcel numbers 191-014-6 and 191-014-7 ("the adjoining property"). The second defendant/respondent, Pamela Kimberley ("Kimberley") is the holder of the fixed-term estate property in parcel number 191-014-126 ("the property").

Beverley says that the provisions of the grant instrument over the property provided inter alia;

(i) that nothing shall be done or permitted which may be or become a nuisance or annoyance to or cause damage or interfere with the peace and comfort of the owners and occupiers of adjoining and other lands in the neighbourhood;

(ii) that the property shall be used only for residential purposes;

(iii) that the Grantee shall not use or permit to be used the land or any part thereof, of the dwelling house or accessory outbuildings to be erected thereon, for any trade, business occupation or calling whatsoever ...;

(iv) that the Grantee shall ensure that no breach of the Liquor Act takes place on the property; and

(v) that the Grantee shall not erect any other dwelling house other than the existing premises except where the written consent of the Grantor is obtained.

He says that Kimberley had breached those provisions as a result of having converted the dwelling house on the land into a restaurant or club which offers meals and alcoholic drinks to the public. Since this has started, the amount of traffic using the road has greatly increased and there have been cases of people under the influence of alcohol disturbing the peace and quiet of the area.

Beverley says that an objection had been lodged with the Honiara Liquor Licensing Board to a liquor licence being granted to Kimberley on the grounds amongst others, that Lengakiki is a residential area but that he has had no response regarding his objections.

He has also written to the Honiara Town and Country Planning Board about the development on Kimberley’s land with no response. In addition his solicitor had also written to the Commissioner of Lands objecting to the change of land use but also with no response.

As a consequence he has come to Court for relief by way of prerogative writs to compel the Commissioner of Lands to carry out his duty by enforcing the restrictive covenants, obligations and liabilities that attach to the property. Beverley says that he is a man with sufficient interest in this action as he has adjoining property and that his peace and comfort have been interfered with since the construction and commencement of operations of the club or restaurant.

The relief sought by Beverley is for an order of mandamus. The prerogative remedy of mandamus provides the normal means by which the performance of public duties by public authorities of all kinds are enforced[1]. This raises the question as to what that public legal duty is.

Under the grant instrument dated 21st May 1990, the Commissioner of Lands is obliged inter alia to ensure that the following matters are complied with:

(i) that nothing shall be done or permitted which may be or become a nuisance or annoyance to or cause damage or interfere with the peace and comfort of the owners and occupiers of adjoining and other lands in the neighbourhood; and

(ii) that the property shall be used only for residential purposes.

On the part of the grantee, (Kimberley) she is obliged to ensure inter alia that she complies with the following matters:

(i) that the Grantee shall not use or permit to be used the land or any part thereof, of the dwelling house or accessory outbuildings to be erected thereon, for any trade, business occupation or calling whatsoever ...;

(ii) that the Grantee shall ensure that no breach of the Liquor Act takes place on the property; and

(iii) that the Grantee shall not erect any other dwelling house other than the existing premises except where the written consent of the Grantor is obtained.

The issue which arises from these is whether those restrictive covenants, obligations and liabilities are enforceable by a private citizen. To do so, Beverley has to demonstrate that the Commissioner of Lands owes him a public duty. The first hurdle he has to overcome is the problem of privity of contract. He is not a party to the instrument of grant which contains those restrictive covenants, obligations and liabilities. That instrument of grant only binds Kimberley and the Commissioner of Lands and under the principles of contract is enforceable only by either of them.

What rights or interest therefore does Beverley have for which the Commissioner of Lands is obliged to comply with or perform under law?

I am satisfied Beverley has demonstrated on the evidence before this court that he has rights as an adjacent or adjoining owner to the property and that the change of the land use had caused and continues to cause nuisance, annoyance and interference with his peace and comfort and that of other owners within the neighbourhood. I am satisfied he has shown that the Commissioner of Lands owes him a legal duty to ensure that the restrictive covenants, obligations and liabilities attached to the property are complied with.

The first and second respondents did not enter any appearance nor attend the hearing of this notice of motion and so there is no material whatsoever before me to suggest that the change of land use had been validly effected in law.

Whilst I note that some of the concerns raised by Beverley, like instances of drunk and disorderly behaviour are matters for the police to address and deal with, it is clear on the material before me that he had done all he could to register his concerns and complaints with all the responsible authorities regarding the change of use over the land but that no response whatsoever had been received. If the position as stated by him in his affidavit filed 29th August 2006 is correct, this is clearly unsatisfactory. I am satisfied he has exhausted all other alternative relief possible. As an interested party he had not been given the opportunity to be heard regarding any objections that he may have for the purported change of use of the land. I am satisfied on the material before me that the orders sought should be granted.

Orders of the Court:

1. Grant order for mandamus to issue against the Commissioner of Lands to enforce the restrictive covenants, obligations and liabilities attached to the property.
   
2. Costs of the Applicant to be borne by the first and second Respondents.
   

The Court

^[1] Administrative Law by H.W.R. Wade sixth edition at p. 649.