SIKRA CO.

LTD v THE MUNICIPAL COUNCIL OF QUATRE BORNES & ANOR

2024 SCJ 493

Record No. 124280

THE SUPREME COURT OF MAURITIUS

In the matter of:

SIKRA Co Ltd
Applicant
v
The Municipal Council of Quatre Bornes
Respondent

In the presence of:

The Ombudsperson for Children
Third party

JUDGMENT

This is an application for a judicial review of the decision of the respondent to attach a
condition to the building and land use permit (“BLUP”) issued to the applicant on 26 January
2023 and to maintain same following the service of a Notice mise en demeure on the
respondent on 23 February 2023. The respondent did not object that leave be granted to the
applicant, but it is resisting the application. The third party is abiding by the decision of the
Court.

The background facts are as follows. The applicant operates numerous private schools
around Mauritius under the Dukesbridge brand. It has leased a portion of land (“the
development site”) from The Dukesbridge School Company Ltd for the purposes of
constructing a secondary school thereon. It submitted an application for a BLUP to the
respondent for constructing the said school (“the proposed development”). One of the
conditions attached to the BLUP is as follows: “The access road enlarged to 5.0 m should be
tarred with asphalt.” It is undisputed that the development site is bordered by a road which is
4 metres wide (“the road”) and that the condition imposed on the applicant is to enlarge the
road to 5 metres and to asphalt it at its own costs (“the impugned condition”).
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The applicant is challenging the respondent’s decision to impose the impugned

condition (“the impugned decision”) on the grounds that it is ultra vires, illegal, unfair,
disproportionate, in breach of natural justice, Wednesbury unreasonable and/or irrational. The
applicant is also seeking an order directing the respondent to bring up the record of its decision
and decision-making process in respect of the impugned decision in order to have same
quashed, reversed, set aside or otherwise dealt with as the Court may deem fit.

The applicant has averred, in essence, that the impugned condition was imposed
without due process, it was not consulted on the impugned condition, the respondent has
failed to carry out any or any adequate checks or an impact assessment to ascertain relevant
matters including the legal status of the road, its precise delimitations, the identity of the
owners or occupiers of the lands bounding the road and their stand in respect of the road. It
is its contention that the respondent has failed to consider that the road serves several other
plots whose owners and/or occupiers will benefit from its upgrade and maintenance, the cost
implication of the impugned decision on the applicant and how it impacts the best interests of
children.

Learned Counsel for the applicant argued, firstly, that the respondent was wrong to
apply planning policy guidance 5 (“PPG 5”), secondly, that it did not have the right to impose
the impugned condition, thirdly, even if it could impose the impugned condition, so as to comply
with it, the applicant would be compelled to interfere with third parties’ rights and, finally, it did
not treat the applicant in a fair manner.

Learned Counsel for the applicant also submitted that the road is used by the public
and is a public road and, as such, any improvement or widening works should have been
undertaken by the respondent. In the alternative, he argued that, if it is the respondent’s
contention that the road is a private road, then the respondent should have acted under section
49(1)(a) of the Roads Act which provides as follows –

“(1) (a) Where it appears to a local authority that a private road within its area of
jurisdiction is not, to its satisfaction, levelled, paved, metalled, flagged, channelled,
drained or made good, the local authority may pass a resolution with respect to the
road to execute road works, and the expenses incurred by the highway authority in
executing those works shall, subject to this Act, be apportioned between the premises
fronting the road.”,

and required all the owners of properties fronting the road to bear the costs of executing the
works. Learned Counsel for the applicant further contended that the applicant is involved in a
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project which is “in the best interests” of children and that the imposition of the impugned
condition may impair its ability to deliver on its proposed development and, thus, on the quality
of education that it can offer to the children of Mauritius.

For her part, learned Counsel for the respondent submitted, in a gist, that PPG 5 is
applicable and that the respondent did not have to consult the applicant before taking the
impugned decision which fell within the purview of its powers.

We have carefully considered the affidavits and annexed documents filed by the
applicant and respondent and given due consideration to both the oral and written submissions
of Counsel.

It can be gleaned from the plan of the proposed development (found in Annex 1 of the
respondent’s affidavit) that the development site can be accessed through the road which is 4
metres wide and the applicant has proposed to provide a drop off for 20 vehicles along the
said road. Furthermore, learned Counsel for the applicant agreed that the road leads to the
school parking which, as per the above plan, will accommodate 50 parking slots.

In its affidavit, the respondent explained that, under PPG 5, the development site falls
within an area defined as a “pre-designated area” along the M1 motorway. This is not disputed
by the applicant. However, it was its contention that PPG 5 is inapplicable. The respondent
averred that the impugned condition was imposed on the applicant pursuant to paragraph 7.1
of PPG 5 entitled “Accessibility and Parking”, the relevant extract of which reads as follows:
“The cost of widening existing narrow roads, provision of footpath, laybys where
applicable and other transport infrastructure improvements leading to development sites
should be born (sic) by promoters.”

The promoter here is the applicant. It was, however, submitted on its behalf that PPG
5 does not apply to the proposed development, which is a ground plus two (G + 2) building,
as PPG 5 applies only to high-rise buildings. We are of the view that the applicant’s submission
is misconceived and stems from a misreading of PPG 5. A perusal of PPG 5 reveals that its
aim was to review the restrictions imposed on the height of buildings along the motorway so
as to allow higher buildings in certain specified circumstances. But it is clear that PPG 5 applies
to any proposed development along the motorway, as is the case here, be it low-rise or high-
rise building, and not to high-rise buildings only as contended by the applicant.
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Moreover, it is apposite to note that, under section 13 of the Planning and Development
Act, the Minister may issue planning policy guidance (“PPG”) to any local authority on any
aspect of land use planning and development. Furthermore section 13(2) of the Planning and
Development Act provides that “[e]very local authority to which planning policy guidance
is issued shall comply with such guidance”. PPG 5 which is entitled “Development along
the Motorway (M1)” provides for design guidance relating to developments along the
motorway.

In the above circumstances, we fail to see how it can be argued that PPG 5 is
inapplicable. Since the road leads to the development site, pursuant to paragraph 7.1 of PPG
5, it is clearly the applicant which has to bear the costs of widening the road and asphalting it.

With regard to the applicant’s contention that the road works should have been
undertaken by the respondent or the owners of the premises fronting the road, we note that,
in the applicant’s title deed, the road is described as a “chemin commun” showing that it is not
a public road. The respondent has denied that the road is dedicated to public use or that it is
a public road. In addition, there is no evidence on record to show that the road has been
declared a public road in line with the specified procedure, which has to be followed prior to
declaring a private road as public, provided for under the Roads Act. Be that as it may, under
paragraph 7.1 of PPG 5, it is expressly provided that “[t]he cost of widening existing narrow
roads, provision of footpath, laybys where applicable and other transport infrastructure
improvements leading to development sites should be born (sic) by promoters”. It makes no
doubt from paragraph 7.1 of PPG 5 that it is for the promoter of a development project to bear
the costs of widening a road leading to its development site irrespective of whether the road
is a public or private one.

Learned Counsel for the applicant laid much emphasis on the fact that the respondent
had allegedly failed to consider that the proposed development was being carried out in the
best interests of children and that the impugned condition may impair the applicant’s ability to
deliver on its proposed development and, thus, on the quality of education that it can offer to
the children of Mauritius.

Now, it cannot be gainsaid that the applicant is involved in a business project whereby
it is constructing a private fee-paying school as part of its business. It is the one which is
advocating the use of the road for the purposes of its business. Further, although the road
serves several other plots whose owners and/or occupiers will benefit from its upgrade and
maintenance, the question of widening and asphalting the road arose as a result of the
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applicant’s development project and it is the one which will derive a financial gain therefrom.
The applicant has invoked section 49(1)(a) of the Roads Act (supra), but the respondent or
the owners of the other properties fronting the road cannot be expected to bear the expenses
relating to the applicant’s business. Moreover, it is not because the applicant will have to seek
the authorisation of the owners of the premises fronting the road and bear the cost implications
to enlarge it that the respondent could not have imposed the impugned condition.

Under section 117(10)(a) of the Local Government Act, the respondent has the power
to impose such conditions as it may determine when granting a BLUP. It is axiomatic that there
is a heavy flow of traffic near schools at certain specific times of the day during school term.
As stated above, the road which is 4 metres wide leads to the applicant’s proposed parking
which will accommodate 50 parking slots and the applicant has proposed the provision of 20
drop offs along the said road. In the light of the above, we do not consider that the
respondent’s decision to impose the impugned condition can be said to be ultra vires, illegal,
unfair, disproportionate, Wednesbury unreasonable and/or irrational.

Finally, we shall deal with the applicant’s contention that the respondent treated it
unfairly and that, before taking the impugned decision, it should have notified the applicant
thereof and given him the opportunity to make representations, to inspect documents and to
object thereto. Section 117(10)(a) of the Local Government Act provides that, where an
application is approved, the Municipal Town Council shall, on payment of such fee as may be
prescribed by the Council, issue the BLUP on such conditions as the Council may determine.
The Local Government Act provides for a right of appeal to a person whose application for
BLUP has not been approved by the Municipal Town Council to the Environment and Land
Use Appeal Tribunal. However, when imposing conditions for the granting of a BLUP, there is
no requirement under the Act for any notification to be given to an applicant or for a
consultation to be held between the Council and the applicant. As stated by Lord Bridge in
Lloyd and others v McMahon [1987] 1 All ER 1118:

“… the so called rules of natural justice are not engraved on tablets of stone. To use
the phrase which better expresses the underlying concept, what the requirements of
fairness demand when any body, domestic, administrative or judicial, has to make a
decision which will affect the rights of individuals depends on the character of the
decision-making body, the kind of decision it has to make and the statutory or other
framework in which it operates.”
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In the present case, the applicant’s application for a BLUP was successful and the
respondent imposed the impugned condition, pursuant to its statutory powers, in view of the
nature of the proposed development. In the circumstances, in the absence of any statutory
requirement that the applicant be notified of the condition being imposed or that it be given an
opportunity to make representations, to inspect documents and to object thereto, we do not
agree that there was any procedural unfairness in the respondent’s decision-making process.

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

D. Chan Kan Cheong

Judge

K. D. Gunesh-Balaghee
Judge

4 November 2024

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Judgment delivered by Hon. K. D. Gunesh-Balaghee, Judge.

For Applicant : Me. R. Bucktowonsing, Senior Attorney

Me. V. Reddi, of Counsel

For Respondent : Me. D. Ghose-Radhakeesoon, Attorney at Law

Me. T. Choomka, of Counsel

For Third Party : Me. D. K. Manikaran, Principal State Attorney

Me. P. A. D. Autar Callichurn, Senior State Counsel