In common with other common law jurisdictions, Fiji exercises State control over land including but not limited to how it may be developed. The regulation of development falls within the domain of planning and environmental law.

The government has announced that in the public interest it is in the process of updating its Town Planning Schemes for Suva, Lautoka and Nadi. This is an important nation building initiative because a Town Planning Scheme will shape future development in all these cities. But, it is also a significant undertaking that provides an opportunity for, and in our view, requires - wide consultation. If this consultative process is successful it will result in better planned development that along with the effective regulation of environmental standards, is essential to create sustainable and resilient cities and towns for Fiji’s future and its citizens' well-being.

In this update, we take a look at Fiji’s planning law framework and set out various reasons why it is vital for Fiji’s citizens to become involved in the consultation process that is being led by the Ministry for Industry, Trade, Tourism, Local Government, Housing and Community Development to create and adopt new Town Planning Schemes.

The reasons that public involvement is vital include but are not limited to:

• the significance of Town Planning Schemes to the way planning law and decisions operate in Fiji law
• the fact that the decisions made pursuant to Town Planning Schemes will have far reaching effects on all citizens, and may affect existing property rights
• Town Planning Schemes should be suited to Fiji’s context and linked to a shared and bold vision for Fiji’s future.

Each citizen who becomes involved in this consultative process has an opportunity to provide her/his views on how Fiji’s towns and cities should develop to improve but also what aspects of Fiji’s culture and values should be part of that future too.

Suva City - how it looks now - Suva residents can have an opportunity to determine how it should look in the future

State exercises control over land in the public interest

The State, in the public interest, exercises legal control and regulates land in a variety of ways and this includes, but is not limited to:

• How land may be owned or held (tenure) - in Fiji we have 3 main types of land tenure freehold title, crown/State lease and iTaukei (native) title. All may be leased or sub-leased in accordance with the legal process
• How parcels of land are created (subdivided)
• How land ownership may be transferred so that the State guarantees the title (in Fiji we have the Torrens title system)
• How land may be developed and the enforcement against unlawful development (planning and environmental law)
• The standards that must be followed when buildings are built on land (the building code is under the Public Health Act)
• Various land taxes and other regulations.

In addition, as with other common law jurisdictions, Fiji has the law of nuisance that may provide a landowner or occupier with private remedies before Court if another person unreasonably interferes with the occupier’s use and enjoyment of the land via an actionable nuisance. To understand what is an actionable nuisance requires specific legal advice. Other legal protections for land may be found in criminal and civil law but these are not directly related to planning law.

While this update considers only the legal and regulatory framework of planning law as it relates to the creation of Town Planning Schemes, it assists to explain how Fiji’s planning law system is intended to work. This is because a new Town Planning Scheme must be adopted within this framework, and engaging with the consultative part of this framework will provide a better chance of an outcome that is better suited to the Fiji context.

Fiji’s planning law system is based on the British/English system but with some important differences. One of these differences includes the creation of Town Planning Schemes.

In brief, the British system relies on similar planning legislation (and a similar definition of “development”) and like Fiji, the implementation of the legislation is delegated to local authorities (indeed the English have taken recent steps to localise decision making even further with neighbourhood plans). However, while the English planning system local plans must be made, the national planning guidance is provided by central government.

The result is a system in England that relies on many town planners, lawyers, planning inspectors and complicated planning inquiries. The English system therefore requires significant expertise and resources to implement.

It may be for this reason, Fiji has adopted the Town Planning Scheme approach that enables what we consider is a clearer, more easily implementable but perhaps less flexible approach to planning decisions. In short, Fiji has the legislative tools to implement effective planning law decisions and this legislation is suited to Fiji's context as we do not have the resources required to follow an English system.

This is, in our view, the first reason why getting the Town Planning Scheme right is important, because the Town Planning Schemes that Fiji adopts will to a large extent predetermine planning decisions - and therefore how towns and cities will develop and what buildings will be allowed to be built.

A final point to note regarding the English system is that in common with other places, the presumption for all planning decisions is the presumption in favour of development.

This means that decision-makers, who are mostly local authorities (although in England and other parts of the UK other decision makers and processes get involved for larger infrastructure project) are supposed to favour development provided it fits within the relevant planning guidelines. But, within the last 8 years or so, the English have altered the presumption from, in favour of “development”, to a presumption in favour of “sustainable development”. This reflects and incorporates into national decision-making the international principle of sustainable development in quite an innovative manner. It is something that we consider Fiji may also be wise to adopt.

Before we address the Fiji system of planning law, it is also worth briefly considering the US planning system that adopts a zoning approach to planning decisions. The US approach evolved from the US context where land was plentiful, development encouraged, and in order to avoid nuisances by creating development zones - the zoning approach.

By creating zones where certain development was allowed and other development or uses were not allowed e.g. residential zones and industrial zones, the US took advantage of its large open spaces where prohibiting certain activities from certain zones the possibility of private nuisances arising from a particular use would be minimised.

However, this also led to large spread of urban areas that also reflected the rise of, and dependency on, the private motor vehicle from the early 20th century. The rise of the private motor car, was therefore, highly influential on the way US cities spread out. If anyone has ever flown into Los Angeles airport, think of the view that greets you. This has resulted in the US being in a situation where it is looking for more sustainable/greener/electric private vehicles as opposed to the better option of redesigning its cities to be more sustainable. Perhaps it can do both, but it may need to reconsider its zoning approach.

This provides the second reason for getting the Town Planning Schemes right via a consultative process.

Fiji is not the US and does not have large areas of land that can be easily developed due to landowning complexities that are well understood locally. Further, perhaps Fiji does not want to develop sprawling urban areas that require dependency on private cars and ongoing investment in road maintenance and imported fuel. Via the consultative process a different vision for Fiji could emerge with well planned towns and cities with better transport links, more walking areas and better planned housing.

Fiji’s planning legislation and Town Planning Schemes

At present, the Ministry of Local Government has within it two relevant government departments that will be involved in the creation, adoption and implementation of Town Planning Schemes, being:

• The Department of Town and Country planning with a Director of Town & Country Planning (responsible for the final approval of the Town Planning Scheme)
• The Department for Local Government (responsible for implementing the Town Planning Scheme)

The relevant legislation is the Town Planning Act, Cap 139 (as amended) (the Act). Part II of the Act provides for Town Planning Schemes.

Section 16 provides what a Town Planning Scheme (scheme) is intended to do and demonstrates how wide its effect will be:

"A scheme may be made, in accordance with the provisions of this Act, with respect to any land with the general object of controlling the development of the land to which such scheme applies, and of securing suitable provision for traffic, transportation, disposition of commercial, residential, and industrial areas, proper sanitary conditions, amenities and conveniences, parks, gardens and reserves, and of making suitable provision for the use of land for building or other purposes, and as more particularly set out in the Schedule."

Section 16 of the Act also provides how a Town Planning Scheme may alter the area that it applies to and hints at its potentially far reaching effects:

"With those objects such scheme may provide for planning, re-planning, pooling, redistributing, or reconstructing the whole or any part of the area comprised in the scheme."

The Town Planning Scheme, in accordance with section 17 of the Act must, amongst other things:

"Contain such provisions as are necessary or expedient for prohibiting or regulating the development of land in the area to which the scheme applies and generally for carrying out any of the objects for which the scheme is made…"

Also in accordance with section 17 all other development/construction under any other law must comply with the Town Planning Scheme:

"Any Act, regulation, or by-law, relating to development, road constructions, building operations, or sanitation, inconsistent with the provisions of a scheme or the application of which would tend to hinder the carrying out of the scheme shall, in so far as it is inconsistent with the provisions of a scheme, not apply to the area to which the scheme applies."

Once the Town Planning Scheme is adopted via the process set out in the Act, the relevant local authority is obligated to implement the scheme and in accordance with section 25 of the Act:

"The local authority shall not thereafter undertake or permit any alteration or modification of any existing buildings or works if such modification or alteration would tend to prevent or delay their being brought into conformity with the requirements of the approved scheme."

Section 27 provides local authorities with wide powers of enforcement to bring all existing buildings and land into conformity with the Town Planning Scheme in accordance with a process set out in section 27. This includes, but is not limited to:

"The local authority may at any time… remove, pull down or alter, so as to bring into conformity with the provisions of the scheme, any building or other work which does not conform with those provisions or the removal, demolition or alteration of which is necessary for carrying the scheme into effect, or in the erection or carrying out of which any provision of the scheme has not been complied with; or... where any building or land is being used in such a manner as to contravene any provisions of the scheme, prohibit it from being so used."

The Schedule to the Act provides for “Matters which may be dealt with by general provisions in a Town Planning Scheme” (General Provisions), and within this Schedule to the Act are further details regarding the effect of a Town Planning Scheme. The General Provisions provide, in the public interest, how the Town Planning Scheme can shape and create the urban environment including but not limited to: essential infrastructure works (including roads, drains and sewers), parks and public conveniences. In order to achieve the vision for the town or city the General Provisions include wide powers that can adversely affect existing property rights. This is because, amongst other things, the General provisions allow for:

• The pooling of the lands of several owners (or any lands, roads, streets or rights of way adjacent or near thereto
• The re-division of such land among such owners
• Providing and making new roads, streets and rights of way
• Adjusting and altering the boundaries of any such lands, roads; streets or rights of way
• Effecting such exchanges of land, or cancellation of existing subdivisions as may be necessary or convenient for the purposes aforesaid
• Adjustment of rights between such owners or other persons interested in such lands, roads, streets, or rights of way
• The vesting of such lands, roads, streets, or rights of way subject or not subject to any rights or trusts and any other provisions necessary for giving effect to the purposes aforesaid.

This, in our view provides the third reason why Fiji’s citizens should take part or be involved in the creation of the Town Planning Schemes: In short, existing private property rights may be adversely affected in favour of the public interest of implementing the Town Planning Scheme. This also supports why consultation on the public interest is vital, because those whose property rights may be affected should understand why the Town Planning Scheme is important and in the public interest.

Protection of Property Rights under Fiji Law

While private property rights may be adversely affected, in common with many other jurisdictions, Fiji provides a constitutional right in Section 27 of the Fiji Constitution, 2013 - to protect private property rights. Section 27 of the Constitution provides for the Freedom from compulsory or arbitrary acquisition of property

"27.—(1) Every person has the right not to be deprived of property by the State other than in accordance with a written law referred to in subsection, and no law may permit arbitrary acquisition or expropriation of any interest in any property.

(2) A written law may authorise compulsory acquisition of property— (a) when necessary for a public purpose; and (b) on the basis that the owner will be promptly paid the agreed compensation for the property, or failing agreement, just and equitable compensation as determined by a court or tribunal, after considering all relevant factors, including— (i) the public purpose for which the property is being acquired; (ii) the history of its acquisition by the owner; (iii) the market value of the property; (iv) the interests of any person affected by the acquisition; and (v) any hardship to the owner.

(3) Nothing contained in, or done under the authority of, a law is inconsistent with this section to the extent that the law makes provision for the acquisition of property by way of— (a) taxation; (b) sequestration of bankrupt estates ; (c) confiscation of the proceeds of crime; (d) penalty for breach of the law; (e) satisfaction of a mortgage, charge or lien; or (f) execution of a judgment of a court or tribunal."

Part V of The Town Planning Act provides powers to the Local Authority to compulsorily acquire land in accordance with the Local Government Act.

Therefore although Town Planning Schemes may adversely affect private property rights, owners of private property are guaranteed compensation from the State. This reflects the overriding public interest of designing and implementing the Town Planning Scheme. Although, it is not difficult to foresee that private property owners may, in some circumstances, not be won over by the public interest argument, reinforcing the importance of a public consultation to increase support and legitimacy for the Town Planning Scheme. In short, a bold, sustainable and longer term vision for Fiji’s towns will also adversely affect some in the short-term.

Public consultation requirement and legal process before the Town Planning Scheme is approved

Before the Town Planning Scheme is approved by the Director of Town and Country Planning, sections 18 - 26 of the Act set out a process regarding the creation of the Town Planning Scheme.

Section 18 of the Act provides that the Director may direct each local authority to prepare a scheme by a certain time, and then that scheme may be provisionally approved by the Director: “subject to such alteration and modification as the Director may decide.”

Section 19 of the Act requires the relevant local authority to publicly notify of the provisionally approved scheme and deposit a copy of the scheme with the local authority for public inspection as well as copies relevant maps and plans.

Sections 20 and 21 of the Act provides all “owners or occupiers” of land to provide their objections to the scheme within 3 months of the first public notification of the scheme by writing to the local authority and those objections must be passed on to the Director.

Section 22 requires the Director to consider all objections and convene a public hearing for all objections enables an objector to be legally represented, and section 23 of the Act provides that the Director may reject or uphold the objection and modify the scheme accordingly.

Finally, section 24 of the Act enables the Director to finally approve the scheme after all objections have been heard and determined.

Where Fiji has got to in this process

It has been publicly announced by the Honourable Minister, Premila Kumar that Fiji is undertaking a review of its planning schemes for Suva, Lautoka and Nadi to provide new “master plans” for good reasons, We understand that Fiji is currently at the beginning of this process.

From the Fiji Times, 28 June 2019

As the Fiji Times reports quoting in part the Honourable Minister:

"The master plan would provide a road map for all future development decisions to guide, and co-ordinate the various government agencies in carrying out development works.” It has also been announced that Dr Liu Thai Ker, chairman of Morrow Architects and Planners of Singapore is in charge of developing the new Town Planning Schemes.

According to reports this involves: “Singapore Cooperation Enterprise to deliver a Strategic Spatial master Plan Study of Viti Levu and a Conceptual Master Plan of greater Suva, Nadi and Lautoka. The Strategic Spatial master Plan will determine the locations, size and boundary of the urbanised area for Viti Levu by examining the major transport connectivity within the mainland and to the surrounding outer islands.”"

For many reasons, this is a large and ambitious undertaking but with expertise and knowledge of Fiji’s local context and appreciation for its natural environment and with a long term vision focused on a sustainable future, this means that Fiji is on the cusp on a potentially exciting future. In our office, we have discussed that there is a real need for more vibrant, liveable, sustainable towns and cities that build a sense of community, that are safe and free from harmful or polluting vehicles or activities and provide opportunities for children to access nature and natural areas. But this was just our office over a morning tea break, and we imagine that these sorts of discussions could or should take place in offices and homes throughout Fiji.

In our view, this is the fourth reason why consultation, engagement and involvement in this process is important. This is to ensure that as many views as possible are heard and taken into account, so that the Town Planning Schemes respect and reflect Fiji’s context, culture and values that it wants its towns and cities to project. They may also promote an inclusive vision for Fiji’s future based on more sustainable/clean public transport.

Conclusions

The creation of new Town Planning Schemes for Fiji’s main cities provides a unique opportunity for bold decisions that should benefit Fiji, its citizens, and its environment for generations to come. But this is also a significant undertaking and one that would benefit from the support of citizens, civil society organisations, academic institutions and other interested parties.

However, Fiji does not have the resources of larger countries, and may require support to create an inclusive and thorough process that assists Fiji’s citizens to determine what they want their towns and cities to look like. There may also be scope for innovative approaches to support the legal and consultative processes that will be required to ensure what emerges has widespread public support.

Finally, in out view, thought must be given to the implementation of the Town Planning Schemes once they are adopted. To some extent a thorough consultation phase should assist with implementation as the public interest and vision will have more legitimacy if it has more support.

This is also the sort of planned vision for Fiji that would benefit from cross party political support as the Town Planning Schemes will have consequences and impacts for generations. Also, an integrated approach involving various government departments working with interested CSOs and the private sector is likely to be required to achieve and implement a bold vision.

This legal update is provided for information purposes only, and is not, and should not be relied on as, legal advice.

Further, this legal bulletin reflects the views of the author only.

Suva, 2018:

Los Angeles, from the air, and the result of zoning and planning for the private motor vehicle: