065-NLR-NLR-V-58-J.-B.-L.-KARUNARATNE-Chairman-Town-Council-Kochchikade-Appellant-and-W.-W..pdf
1956 Present- : Weerasoorlya, J., and H. N. G. Fernando, J.J.B. L, KARUXARATXE (Chairman, Town Council,Ivochchikadc), Appellant, and W. W. FERNANDOet al., Respondents
S. C. -52 {Inly.)—D. G. Ncgombo. 2'. C. 1
TOC o "1-5" h z
Housing and Town Iniprovemenl Ordinance (Cap. 100)—litfusal by Chairman to-o pprouc building j>lans—Scope of right of appeal—By-laws—Sect ions–5, 7, 1G, SG.-
By-laws 3 and 4 enacted under the enabling powers conferred by section23 of the Housing nn,d Town Improvement Ordinance provide :—
“3no person shall within a residential area, ■ .-.
except with the written permission of the Chairman erect a building forthe purpose of being used as …. a shop ….
4. Permission to erect a new building for any purposo set out in by-law3 shall bo refused by the Chairman unless the following conditons orefulfilled :—…. ”–
Held : (i) There is no right of appeal to the Tribunal of Appeal against tho-refusal of the Chairman to grant written permission under by-law 3.
' (ii) Where application is made for the approval of plans for tho erection ina residential area of any building referred to in by-law 3, the Chairman is bound
under section. 7 of tho Housing and Town Improvement Ordinnneo to rofusoapproval of tho plans, unless written permission for the orcction of that buildinghas already been or is simultaneously granted in lenns of tho by-laws._
(iiij Every refusal to approve plans is appealablo to tho Tribunal of Apponl ;but where tho proposed building is one. for tho erect ion of which written per-mission under tho by-laws is required, the appeal must necessarily fail if suchpermission has not in fact been granted.
'^^-PPlSAIv from an order of the District Court, Nogombo.
>$. Ncidesan, Q.C., with K. Shinyn and T. G. Gunasilcra. for the■petitioner.
S. J ay amici: reme, Q.C.,tli Stanley Pe-rera. for the 2nd respondent.
Cur. adv. vult.
IVIarch 27, 1956. H. K, G. Ferxaxdo, J.—
The 2nd respondent to this appeal (whom I will call the “ applicant ”)applied to the Chairman of the Town Council of Kochchikacle for theapproval of plans, drawings and specifications for the erection ofa building within the administrative area of the town. His applicationwas in the Form ordinarily used for the puriioses of section 5 of theHousing and Town Improvement Ordinance (Cap. 199), which providesthat “ no person shall erect any building within the limits administeredby a local authority except in accordance with plans, drawings andspecifications approved in writing by the Chairman ”. The buildingproposed to be erected was described in the application as a “MobiloilService Station ”. The Chairman in reply informed tho applicant thatthe erection of a service station “ cannot be approved as the site is ina residential area ”..
There arc in force for the town of Kochehikade “zoning” by-lawsenacted under enabling powers conferred by section 28 of the same Ordi-nance, and it is conceded that the site on which the applicant desiredto erect the service station is in a residential area and that a petrol.service station is a “ shop ” within the meaning of the relevant by-laws :—
3no person shall within a residential area, ….
except with the written permission of the Chairman erect a buildingfor the purpose of being used as- …. a shop …. :
-upon any person t: aggrieved by the refusal of the Chairman to approveany plan, drawing or specification, or by any requirement or order ofthe Chairman
It was argued on behalf of the Chairman before the Tribunal that theChairman’s letter constituted, not a refusal to approve building plans(against which there would be a right of appeal), but rather a refusalof the written permission referred to in the zoning by-laws, against whichrefusal an appeal to the Tribunal does not lie. This preliminary objectionto the hearing of the appeal was over-ruled by'the District Judge on theground that the right of appeal conferred by section 16 was not onlyfrom a refusal to approve plans, but also “ from anjf order of the Chairmanin regard to an application for a building under the by-laws madeunder the Ordinance•
In my opinion the preliminary objection was rightly rejected, but notupon the ground specified by the District Judge. Section IG occursin a Chapter, the principal section of which is section 5 to which I havealready referred. There follow provisions which enable the Chairmanto require applicants to submit j>lans and drawings in a prescribed formor to amend plans and drawings or to submit further information or toattend for purposes of explanation. There arc also provisions whichempower the Chairman, in a case of unauthorised building operations,to require the person undertaking them to show cause why the buildingshould not be removed, altered or pulled down, as well as thereafterto order any building to be removed or pulled down. There is thenconferred in the penultimate section (section 16) of the Chapter, the rightof appeal in the terms set out above.
In a subsequent Chapter dealing with streets, the Chairman is em-powered to make certain orders against which a right of appeal to theTribunal is conferred by a section in that Chapter. Similarly in anotherChapter which empowers the Chairman to order the demolition of ob-structive buildings, a right of appeal against any such order is given byprovision in that Chapter. In a Chapter iieaded “ Miscellaneous Pro-visions ” further supervisory powers are conferred on the Tribunal of.Appeal..
In this context, it seems clear that the Tribunal of Appeal only hasjurisdiction in respect of matters expressly committed to it by variousprovisions of the Ordinance and that any action of the Chairman whetherit be an order or notice or a refusal to grant any species of applicationwill not be appealable unless the right of appeal is expressly conferred.
In the ease of each of the Chapters to which I have referred such an•express right is conferred, but in each case only in relation to the powersand duties of the Chairman under the particular Chapter. In so fai-ns the zoning by-laws arc concerned, however, there is no right of appealexpressly conferred cither in the by-laws themselves or in the Chapterwhich empowers them to be made. If therefore the Chairman's replyto the respondent's application can be properly construed to be a refusalto grant written permission in terms of the by-laws, there would be noright of appeal to (he Tribunal from that refusal.
But the application made to the Chairman in this case was not in mi-opinion an application for ivritten permission under the by-laws-. It-,was rather an application for the approval of plans-submitted for approvalin terms of section 5 ; and whatever bo the ground on which the Chairmandecided to refuse approval of the plans, his refusal was properly the sub-ject for an appeal under section 16, and it was then for the Tribunal*to determine the validity of the grounds of refusal.
Having entertained the appeal, the District Judge proceeded to hold an-inquiry at which evidence was recorded, and he ultimately made order-directing the Chairman to approve the plans and to sanction the con-struction of the petrol service station. The real question for determi-nation in this ease is whether that order of the District Judge can be-snpportcd.
Section 7 of the Ordinance directs that the Chairman “shall not-approve any plan or specification of any building …. which,shall conflict with the provisions of this or any other OrdinanceHaving regard to the power conferred by section 2S to make by-lawsreserving any area for buildings of a specified nature and to the factthat such by-laws have to be laid before Parliament, I think that theprohibition against approval in section 7 is intended to apply (inter alia)'in x-elation to buildings the erection of which would be in conflict with theprovisions of the zoning by-laws. The Chairman is therefore bound to-refuse approval of plans for a shop proposed to be erected in a residentialarea-, unless the erection of the shop will by reason of permission granted1under by-law 3 not be in conflict with that by-law. So far as the pre-sent application was concerned, there was no request in terms of the by-laws for the written permission of the Chairman and it is conceded thatno such permission had in fact been granted.
Mr. Jayawiekreme has argued that since the Chairman is the authority-for both purposes, namely for approving plans as well as for grantingpermission under the by-laws, the application in this case was an appli-cation, both for the written permission as well as for the approval ofthe plans, and that accordingly the right of appeal conferred by section16 rendered justiciable by the Tribunal both the refusal to approvc-plans as well as the refusal of permission to erect a shop. As I havc-already pointed out, there is no express provision in the Ordinance or inthe by-laws which confers a right of appeal to the Tribunal against therefusal to grant permission under the by-laws; but if Mr. Jayawickreme’s-argument is correct-, then an applicant can by incorporating his applicationfor permission in an application for the approval of plans, secure a rightof appeal which he would not have had if he had made in the first instancean application only for permission under the by-laws. I do not agree-tliat such a situation was contemplated by the Legislature. While itmay be correct that the Chairman might choose to treat an applicationfor the approval of plans as being inclusive of an application for per-mission and may therefore properly grant his written permission at the-same time as he approves the plans, the order which he makes in such acase would nevertheless be divisible into two parts and be referable notonly to section 5 but also to the zoning by-laws. The terms of by-law -L
are unusual : the Chairman is not empowered to grant permission wherecertain conditions are satisfied, but is rather enjoined to refuse permissionunless the specified conditions aresatisfied : so that it woidd appear thateven where all the specified conditions arc satisfied there is yet a resi-duum of discretion to refuse permission. I think therefore that save inthe exceptional case where the Chairman ex mcro molu investigates thesuitability of the case for the grant of written permission under by-law 4,it would be for an applicant to satisfy the Chairman affirmatively of theexistence of circumstances justifying the grant of such permission ;and if no effort is made by an applicant to discharge the burden of provingthose circumstances, the Chairman would be fully entitled to refuse per-mission on the ground that the applicant has not made out a ease for per-mission. In the present case the applicant merely asked for approvalof his plans without even a reference to the grant of permission under theby-laws, and the Chairman therefore had the right, if he did not alsohave the dutyr, to refuse the approval of the plans on the ground that theerection of the proposed building would conflict with the zoning by-laws.
Although therefore there was a right of appeal to the Tribunal againstthe order of the Chairman, that order had necessarily to bo upheld by theTribunal as being an order authorised or even required by section 7.For these reasons I would allow the present appeal with costs fixed atIts. 525 payable byr the ajiplieant, and reverse the order of 2nd April, 1954,made by the Tribunal of Appeal.
In lieu of answering the questions as formulated in the case which hasbeen stated for the opinion of this Court, I think it woidd be more helpfulto set out our opinion as follows :—
There is no right of appeal to the Tribunal of Appeal against the
refusal of the Chairman to grant written permission underby-law 3 of the “ zoning ” by-laws.
Where application is made for the approval of plans for the
erection in a residential area of any building referred to inby-law 3 of the zoning by-laws, the Chairman is bound undersection 7 of the Ordinance to refuse approval of the plans,unless written permission for the erection of that building hasalready been or is simultaneously granted in terms of theby-laws.
Fvcry refusal to approve plans is appealable to the Tribunal of
Appeal ; but where the proposed building is one for tho erectionof which written permission under the by-laws is required, theappeal must necessarily fail if such permission has not in factbeen granted.
Weerasooiuya, J.—I agree.
Appeal allowed.