Fun World Co Ltd v. The Municipal Council of Quatre Bornes, Court of Appeal - Privy Council, March 16, 2009, [2009] UKPC 10

Resolution Date:March 16, 2009
Issuing Organization:Privy Council
Actores:Fun World Co Ltd v. The Municipal Council of Quatre Bornes
 
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38[2009] UKPC 8Fun World Co Ltd v. The Municipal Council of Quatre Bornes (Mauritius) [2009] UKPC 10 (16 March 2009)Privy Council Appeal No 46 of 2008Fun World Co Ltd Appellantv.The Municipal Council of Quatre Bornes RespondentsFROMTHE SUPREME COURT OF MAURITIUS- - - - - - - - - - - - - - - - -JUDGMENT OF THE LORDS OF THE JUDICIALCOMMITTEE OF THE PRIVY COUNCILDelivered the 16th March 2009- - - - - - - - - - - - - - - - -Present at the hearing:- Lord Scott of Foscote Lord Rodger of Earlsferry Lord Walker of Gestingthorpe Lord Brown of Eaton-under-Heywood Lord Mance - - - - - - - - - - - - - - - -[Majority Judgment delivered by Lord Mance]This appeal arises from the introduction by the Local Government Act 2003 of a new procedure, requiring any person carrying on certain classified trades from a date in early August 2004 to have a municipal licence issued by the relevant municipal council. Previously, there had been a requirement to obtain a tourist enterprise licence from the Tourism Authority under the Tourism Act 2002. Subsequently, from (it appears) 1st October 2006, the Business Facilitation (Miscellaneous) Provisions Act 2006 has in turn repealed the provisions of the 2003 Act relating to municipal licences and substituted another significantly different scheme. This involves the issue in respect of specified economic activities of land use permits by a new Permits and Monitoring Committee, whose decisions are subject to a right of appeal to the Town and Country Planning Board established under the Town and Country Planning Act 1954.Under the 2003 Act, the classified trades included two of the businesses or activities which the appellant carries on in Mauritius: operating ``coin-operated gaming machines'' and a ``gaming house holding a casino licence''. According to the appellant's evidence, the appellant, having resolved to extend its operations to premises at Bobby Building, St Jean Road in the respondent Council's area from the end of September 2004, was advised by the Council that this was a transitional period, that the respondent was not yet ready to issue licences and that the appellant should obtain any licences from, and make payment therefor to, the Tourism Authority until the Council was ready. The appellant sought and obtained from the Tourism Authority in respect of its proposed operations licences dated 24th and 30th September 2004 valid in each case until 30th June 2005. The agreed statement of facts (paragraph 4) notes in this connection that necessary approvals were also obtained from various other authorities (the Commissioner of Police, the Chief of Fire Services, the Commissioner of VAT and the Ministry of Health). The appellant paid the Tourist Authority Rs 1.2 million for these licences, set about acquiring the required machines, renovated the building, engaged some 79 operating staff and on 9th April 2005 commenced its operations.From 11th April 2005, the respondent, during visits by its inspectors and by police at its request and during correspondence, sought first to verify and then to challenge the appellant's right to conduct its operations in Quatre Bornes. By letter dated 13th April 2005 the respondent requested sight of inter alia any development permit held by the appellant as well as ``the trade licences issued by the Tourism Authority'' and by letter dated 25th April 2005 it challenged the appellant's right to conduct its operations without a development permit. On 13th May 2005 it sought an injunction to restrain such operations, now also alleging that any licences issued by the Tourism Authority were invalid after the legislative changes of early August 2004. An interim injunction was granted ex parte by P Lam Shang Leen J in chambers on 13th May, but was discharged by the same judge, sitting again in chambers, on 20th May 2005. The judge rejected the need for any further development permit, since the building owner, Bobby Holdings Ltd, already possessed one, but accepted that, since the legislative changes, any municipal licence needed to be obtained from the respondent rather than the Tourism Authority. He stated that, until such had been obtained, the appellant was not entitled to conduct its operations.The appellant applied for municipal licences but was informed by the respondent by letter dated 24th June 2005 that its application``has not been favourably considered by the Permits and [L]icences Committee at its meeting of 17th June, 2005 in view of(1) the Municipal Council's policy decision adopted on 10th March 2005 of not allowing the running of Gaming houses and Places of Entertainment within the township because,(a) Such activities would have a negative effect on the public in general and more particularly on the youth and jeopardize their future.(b) A vast majority of the inhabitants are against such activities.(c) The town is predominantly a residential one.(2) your failure to obtain a permit under section 10 of the Building Act.''The appellant on 20th July 2005 issued proceedings ``for a summons to issue calling upon the Respondents to appear before the Honourable Judge in Chambers .... to show cause why:-(a) the Applicant's application for the licences to operate and run [its operations] should not be granted,(b) an Order should not be made setting aside the decision of the Respondent dated 24th June 2005 rejecting the Applicant's application .....; and(c) for such other order or orders that the Honourable Judge in Chambers may deem fit and reasonable to make in the circumstances.''The matter came again before P Lam Shang Leen J, sitting in chambers, on 29th July 2005. Counsel for the respondent abandoned any point based on the Building Act, said that he ``could not be of any help'' on the ``policy decision'' referred to in the Council's letter dated 24th June 2005 and limited his positive arguments to the proposition that ``the Judge in Chambers has no jurisdiction to entertain the application''. The judge looked at the matter more broadly, concluded that he had jurisdiction and determined that, in the absence of any valid objection, he should ``order that the respondent issue the relevant licences to the applicant, subject to conditions as provided by section 107 of the Act, after the payment of the appropriate fees''. Such licences were issued, without prejudice to the Council's right to cancel them in the event of a successful appeal to the Supreme Court, for a period or periods covering such an appeal.On the Council's appeal, the Supreme Court (K P Matadeen and A F Chui Yew Cheong JJ) concluded on 25th January 2007 that the Judge in Chambers did not have jurisdiction over the application before him, which was in its view ``a disguised form of an application for judicial review'' which should have been made to the Supreme Court. On that ground alone it allowed the appeal, quashing the judge's order. Immediate applications were made for a stay and for leave to appeal to the Privy Council, but these were not determined until 19th May 2008 when both were refused. In the meantime however, the current licences were not revoked. On the contrary, fresh licences (or permits) were issued for at least one and probably two periods currently expiring, the Board understands, in June 2009. There was some discussion about this during the hearing before the Supreme Court on 6th May 2008 of the appellant's application for a stay and for leave. However, neither the documents nor their terms were produced then or to the Board. In view of the commencement date of the 2006 Act, it seems likely that the new documents must have taken the form of land use permits under the 2006 Act. (The appellant's operations would seem to have involved either commercial or, if not, ``sui generis'' economic activities within paragraph 1 or 4 of the Eleventh Schedule, and to have required to be licensed accordingly.) On 23rd June 2008 the Board granted leave to appeal and a stay of the Supreme Court's order, and the appellant's operations have continued pending the present judgment.Statutory provisionsAgainst that factual background, the Board turns to the relevant statutory provisions. The obligation to obtain a municipal licence, on pain of committing an offence punishable by fine, derives from s.103 of the 2003 Act. S.97 requires every local authority to establish a Permits and Licences Committee, consisting of its Chief Executive or his representative and four heads of the relevant departments of the local authority designated by the Chief Executive. S.98(2) provides that this Committee ``shall act as a one-stop shop for the processing of the applications for permits and licences''. S.98 continues:``98. Powers and functions of Permits and Licences Committee......(3) The Committee shall disseminate clear and transparent guidelines for the application, processing and issue of permits and licences.(4) The guidelines under subsection (3) shall be in terms of the requirements of the law, the procedures to be adopted and shall be in accordance with-(a) the guiding principles and plans for land development and planning laid down and published by the Ministry responsible for the subject of lands;(b) the guidelines published-(i) .....(ii) for the purposes of development permits under the Town and Country Planning Act and building permits under the Building Act;(iii) by Police, Fire Services, Sanitary Authority and any other relevant Ministry and Government Department in respect of the necessary clearances and authorisations relating to the permits referred to in subparagraph (ii); and(c) the guidelines published by the Council of the local authority relating to municipal licences, permits or authorisations under this Act or any regulations made thereunder.(5) Subject to section 105, the Committee shall-(a) examine, process and approve applications for permits and licences in accordance with the guidelines referred to in subsections (3) and (4); and(b) issue under the authority of the...

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