GONESS S. & ORS v THE MUNICIPAL COUNCIL OF VACOAS-PHOENIX

2025 SCJ 77

Record No. SCR 122660

THE SUPREME COURT OF MAURITIUS

In the matter of:

1. Satyam Goness

2. Vikram Goness

3. Rajanand Dauhajee

4. Chand Dauhajee

5. Vinesh Kumar Dauhajee

6. Amardeep Sharma Dauhajee

7. Sanjiv Dauhajee

Applicants

The Municipal Council of Vacoas-Phoenix

Respondent

In the presence of:

1. J & J Group Ltd

2. The Ministry of Local Government, Disaster

and Risk Management

Co-Respondents

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JUDGMENT

The applicants challenge, by way of judicial review, a decision of the Respondent to grant a Building and Land Use Permit (“BLUP”) to the co-respondent no. 1. The said permit relates to the construction of a four-storey building to be used as a store for construction materials at Petit Camp, Phoenix. 2

Leave to enter a judicial review application was granted by a differently constituted Bench on 26 May 2023 [2023 SCJ 208]. It was not in dispute then that the construction works were already ongoing.

The grounds for review are set out in the Statement of Case as follows:

“GROUNDS FOR THE REVIEW

A. ILLEGALITY AND/OR ULTRA VIRES inasmuch as the Respondent, in the decision-making process, failed to comply with: –

1) The relevant statutory provisions under the Local Government Act 2011, the Planning and Development Act 2004, the Town and Country Planning Act 1954 for the granting and/or refusal to grant applications for Building and Land Use Permits;

2) The Technical Sheet (Industrial & Commercial Roads) of the Planning Policy Guidance 1 (PPG1) issued for Local Authorities under Section 13(2) of the Planning and Development Act and

3) The Outline Planning Scheme approved in General Notice No. 942 of 2015 and the said Notice is provided for, under Section 14(3) of the Town and Country Planning Act.

B. IRRATIONALITY AND/OR UNREASONABLE IN THE WEDNESBURY SENSE inasmuch as: –

1) The decision of the Respondent to approve the Application is unreasonable as the said development has been approved in a residential zone and the business of the Co-Respondent No. 1 is industrial in nature and concerns activities which are not appropriate for a residential area and the more so as such activities will cause severe nuisance for the already settled residents of all age groups, in terms of road safety, continuous nuisance related to noise, loading and unloading, fumes and dust;

2) The Respondent’s failure to get the relevant clearance from the Traffic Management and Road Safety Unit (TMRSU) led to an unreasonable decision.

C. PROCEDURAL IMPROPRIETY in as much as: –

1) Respondent failed to provide the Applicant Nos. 1 and 2 enough time or to ensure that the Applicants Nos. 1 and 2 had enough time to attend a hearing for the objections raised by them to the application of the Building and Land Use Permit of the Co-Respondent No. 1.

2) The absence of the Applicants Nos 1 and 2 at the hearing held on the 24th November 2021 cannot be the reason why the Respondent decided to grant the Building and Land Use Permit in the light of the several violations of the relevant guidelines highlighted in the e-mail dated 26th October 2021.

It is the case for the applicants that the development is against the Vacoas-Phoenix Outline Planning Scheme for being in a predominantly residential area. Whilst there can be no objection to light commercial activities like shops and bakeries, or even a call centre, a four-storey building to house construction materials is an altogether different matter.

The development is also said to be against the Planning Policy Guidance (1) (“PPG1”) since the road leading to the site is less than four (4) metres wide when it ought to be at least six (6) metres wide and there is no provision for pedestrian circulation.

For the applicants, a development involving storage of construction materials, transportation and haulage of iron bars, construction equipment, frequent loading and unloading, noise and heavy traffic would constitute “bad neighbourhood activities” and “nuisances”.

The applicants also rely on alleged procedural impropriety in relation to a hearing that took place on 24 November 2021 on their objections, to which hearing they could not be present as the letters were only posted on 19 November 2021 and they had not been granted enough time.

The Preliminary Objection

To the above the respondent raises, first and foremost, a preliminary objection to the effect that the applicants have no locus standi to bring this judicial review as they have 4

not been able to demonstrate how they are personally and directly affected by the proposed development.

Reliance is placed for this purpose on the decision in Troylukho J.C. v The District Council of Black River [2023 SCJ 234].

In that case, the applicant, whose locus standi to enter a judicial review against the granting of a BLUP was put in issue, argued that he was an inhabitant of the village, as well as a Councillor, where the proposed development would take place. The Court, in deciding the issue of locus, compared the English position (that of “a genuine interest in seeking a remedy”) to the position in Mauritian law (an applicant’s own concern in relation to a case) to come to the conclusion that the test for “locus standi” in Mauritius is “stricter than that in the UK” (page 4 of the judgment). It was held that the applicant’s affidavits failed to demonstrate how he was directly and individually affected by the proposed development.

In MRU 2025 and Ors v The District Council of Savanne [2024 SCJ 218], the decision to grant a BLUP for a hotel development was challenged by way of judicial review.

The applicant in that case was a registered non-governmental organisation having as one of its main objects the promotion of actions in favour of environment protection and sustainable development. The organisation was one which had received recognition locally for actively participating in key public policy consultations on the sustainable development of the coastal zone.

Upon the issue of “locus standi” being raised, the Court addressed its mind to the question of standing and took the view that a distinction must be drawn between a mere busybody and an applicant who has a sufficient interest in the matter. The observations from AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46 were adopted –

“I would not like to risk a definition of what constitutes standing in the public law context. But I would hold that the words “directly affected” whichappear in rule 58.8(2) capturethe essence of what is to be looked for. One must, of course, distinguish between the mere busybody, to whom Lord Fraser of Tullybelton referred in R v Inland Revenue Commissioners, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 646, and the interest of the person affected by or having a reasonable concern in the matter to which the application related. The 5

inclusion of the word “directly” provides the necessary qualification to the word “affected” to enable the court to draw that distinction. A personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.”

In the present case, we see that the applicants are not acting for a section of the public whom they seek to represent. They seek to raise, as individual inhabitants of Petit Camp, Phoenix, environmental concerns based on what they predict will in the future be “bad neighbourhood activities” (the term relied on by the applicants for their case).

In his affidavits and the documents in support, the main applicant (Mr Satyam Goness) states that –

 He is a Senior Health Inspector residing at Sofia Lane, Petit Camp, Phoenix.

 He noticed a board affixed on “a portion of bare land situated at Petit Camp, Phoenix”.

 The other applicants and him “all live in the vicinity of the said portion of land”.

 Irreparable prejudice is being caused and will continue to be caused to him, the other applicants “and the other inhabitants of the vicinity of Petit Camp, Phoenix by the development being made by the co-respondent no. 1”.

(Underlining added)

 Himself and applicant no. 2 reside in a radius of about 120 metres of the development, whilst the other applicants reside at a distance of 20m – 50m.

We also note that this is not the only such case lodged by the main applicant. In Goness S. & Ors v The Municipal Council of Vacoas-Phoenix [2023 SCJ 247] cited before us by Counsel for the respondent, the main applicant, together with other members of his family, challenged a BLUP granted to another company (Gokhool Engineering and Constructions Ltd) for the conversion of a building into a store for depot of vehicles at Petit Camp, Phoenix. The applicant also refers to this case in evidence, in response to the co-respondent no. 1’s averments to the effect that there are other industrial developments in the area. 6

After going through the evidence, and the applicable legal principles, it appears to us, after careful consideration, that the applicants have hardly substantiated how they are directly and individually affected by the proposed development.

The prejudice alleged in the affidavits is of a general nature:

“the site is in a residential zone, the storage of construction materials involving the transportation and haulage of iron bars, construction equipment, frequent loading and unloading which is noise generating to a painful level in a residential zone …”.

There is nothing here to substantiate how each applicant is individually affected. The applicants’ position appears to be all the inhabitants of Petit Camp Phoenix will be prejudiced eventually by the proposed developments, but we are not told how.

The applicants’ contention is that they stay in a residential area (but without any further precision). We note that the subject site is in fact found between two compact industrial zones. The applicants only have their word to the effect that Petit Camp, Phoenix is residential, whilst the respondent demonstrates, with the help of photographs, the industrial sites found in the same area.

We very much fear that the applicants cannot demonstrate how they are personally affected by the granting of the BLUP. Examples would have been vehicular flow on the road they live, noise next door to them, other obstructions. The application has been lodged purely and simply on the basis that all the applicants live in Petit Camp and do not agree to the BLUP having been granted.

Merely being a resident of Petit Camp, Phoenix cannot be sufficient to acquire “locus standi”, in our view, whether for the applicants or all other residents of the “vicinity” as referred to in evidence.

In any event, the grounds invoked for judicial review – illegality, Wednesbury unreasonableness and procedural impropriety are also not made out on the evidence before us. When we look at the permit which has been granted by co-respondent no. 1, it is clearly set out that the developer needs to comply with the Local Government Act 2011, the Building Control Act 2012, the Town and Country Planning Act 1954, the Planning and Development Act 2004, the Environmental Protection Act 2002 and the Sugar Industry 7

Efficiency Act 2001, so that complaints at this premature stage about traffic and noise levels can only be at best hypothesis and, at worst, potentially an abuse of the court’s process, as submitted by co-respondent no. 1.

The applicants’ absence at the hearing held on their objection was their choice. They decided to ask for a week’s delay when it was clearly stated in the letter convening them that the authority had only fourteen days to make a decision and was therefore operating within a strict time limit. In any case, the objections were all listed in the applicants’ letter of 25 October 2021 where they themselves say there may be no need for a hearing.

The alleged failure to get Traffic Impact Assessment (TIA) clearance in accordance with PPG1 Design Guidance only applies, from what we see in the documents before us, where the proposal is for a development of more than 1,000 sqm commercial, 5,000 sqm industrial or 100 plots/units residential (re: Design Guidance Industrial Development). Counsel confirmed that the development is less than 2,500 m2 in terms of gross floor area, which means that it did not meet the threshold value for such an assessment.

There is unfortunately a logic which we cannot follow when we are told by applicant’s counsel that his clients’ stand is that offices or call centres are acceptable to them but not a store for construction materials.

We consider, on all the evidence and the submissions before us, that the applicants have not made out a case for judicial review.

We also wish to re-emphasise two of the observations made in the first Goness decision, namely

(1) the existence or non-existence of factual objections are best left to the judgment of the authorities to whom the law has entrusted the decision-making power, so long as they do not act outside these powers or in bad faith.

(2) specialised tribunals are better suited to deal with such matters and there is to date no response to the various appeals by this Court to the legislator to look into the way forward following the decisions in Baumann M.L.I v The District Council of Rivière du Rempart [2019 SCJ 311], Peerthy J. 8

v The Municipal Council of Vacoas & Anor Beeharry I. v The Municipal Council of Port Louis [2022 SCJ 166], on what an appropriate forum would be to deal with complaints such as those raised in this case by the applicants.

For all the reasons given above, we set aside the application, with costs.

D. Chan Kan Cheong

Judge

S. Beekarry-Sunassee

Judge

24 February 2025

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Judgment delivered by Hon. S. Beekarry-Sunassee, Judge

For Applicants : Mr J. Hemraz, Attorney at Law

Mr G. Bhanji-Soni, of Counsel

For Respondent : Mrs A.K. Ghose, Attorney at Law

Mr R. Appaya, of Counsel together with

Ms S. Doolooa, of Counsel

For Co-Respondent No. 1 : Mr P. Thandarayen, Attorney at Law

Mr A. Toorabally, of Counsel

For Co-Respondent No. 2 : Mr D.K. Manikaran, Principal State Attorney

Mr H. Adeen, Senior State Counsel