In Fiji law the requirement for building permits for new buildings within cities and towns and any other areas “gazetted" by the relevant Minister derives from regulations made pursuant to section 39 of the Public Health Act 1935. A building permit is issued by the local authority and is required prior to the lawful construction of any building. Depending on a building proposed, its location and other factors like environmental impacts, the local authority may not be able to issue the building permit until approvals are issued from other government ministries or departments.
On 14 July 2017, the Fiji Parliament enacted the Regulation of Building Permits Act 2017 (“RBPA”) which aims to streamline the process for obtaining a building permit.
In this bulletin we consider the implications of the RBPA both for developers but also in terms of the potential impacts on good decision making for Fiji’s natural resources and those who may be adversely affected by development decisions.
The RBPA will become law when it is brought into force by the Minister and it creates a Building Permits Evaluation Committee (“Committee”) that is provided with wide powers to coordinate and provide building permits, licences or reports to applicants who have submitted applications for building permits to the Committee. The RBPA does not apply to residential buildings unless the owner of the building is in the business of owning or leasing real property.
The Committee sits within the Ministry for Industry and Trade, and is made up by the Permanent Secretary and such other members to be appointed by the Minister for Industry and Trade. A quorum for Committee meeting is formed by half the total members of the Committee, and decisions are made by a majority of votes with the Chairperson or if absent the member presiding with the casting vote. The Committee is empowered to regulate its own proceedings and the functions of the Committee are to:
- receive and consider applications for building permits;
- expedite the process for obtaining building permits;
- coordinate with approval agencies to ensure that the relevant approvals in relation to the issuance of a building permit are granted within the prescribed time;
- coordinate with an independent person to ensure that an assessment is carried out where an approval agency has failed to provide a response within the prescribed time;
- coordinate with the authority to issue the building permit within the prescribed time; and
- carry out such other functions conferred upon the Committee by this Act or any other written law.
When RPBA is brought into force it will mean that pursuant to section 9, any applicant can apply directly to the Committee for a building permit by completing the prescribed form and paying the prescribed fee. At this point the Committee must within a prescribed time:
- consider the application to identify the relevant approval agencies;
- send the application to each relevant approval agency
- coordinate with each approval agency for—
- an approval of the application; or
- the refusal to grant an approval of the application.
As such, the RPBA represents a laudable attempt to streamline inter government agency approvals and will be welcomed by developers, amongst others.
However, there are also implications and questions that must be carefully considered to ensure that the approval of building permits are not rushed to the detriment of Fiji’s environment and those that could be adversely impacted from development approvals. In this respect it should be noted that the time limits set out in the RPBA are tight, and once the relevant approval agency has received the application it must consider and determine the application and notify the Committee of its decision. At this point the Committee must within 5 working days following the receipt of written notifications for approvals send the application to the relevant local authority responsible for issuing building permits. Upon receipt of this application from the Committee the relevant local or approving authority must within 5 days consider and determine the outcome of an application and notify the Committee and the applicant in writing of its decision and if applicable, issue the building permit to the applicant.
In terms of good decision making and consistency it will be important for the approval agencies to have their general development planning and zoning schemes in place so their decisions apply those schemes to the application for the building permit under consideration. Carefully considered planning policies and guidance that takes into account the impacts on Fiji’s natural environment and resources like mangroves, coastal zones and natural resources like fisheries will assist with good decisions. The key question here is whether all the impacts of approving the building can be taken into account with such timeframes - for example, we are unclear what will happen when an environmental impact assessment or a traffic assessment should take place.
Further assistance to good decision making flows from a clear and inclusive process for approving applications, and it should also be noted that the Committee has wide powers to oversee this process. For example, RPBA empowers the Committee to
- direct approval agencies to consider and identify the necessary approvals required to issue a building permit within the prescribed time;
- engage an independent person to carry out an assessment and provide a recommendation to the Committee;
- where an independent person has completed an assessment, and has recommended an approval, direct the approval agency to grant the approval;
- direct an authority to issue a building permit within the prescribed time; and
- appoint officers to assist the Committee to carry out its functions.
RBPA defines “independent person” as a person who is qualified, experienced and competent to carry out an assessment for the purposes of approvals. In the circumstances where the approving authority or agency has been unable to fulfil its obligations, and an “independent person” is appointed that person effectively assumes the approving authority or agency’s statutory role. In such situations the importance of a good decision by the “independent person” will be particularly important as the Committee may direct the approving agency to grant the approval within 5 working days. The Committee may also issue such other directives to the approval agency and authority in respect of an application made under this Act and the approval agency and authority must comply with the directive. In the event of any failure to follow these directions again an offence is committed and the approval agency or local authority can be fined up to $20,000 or receive 5 years in prison.
Those applications that are not approved by approving agencies may be amended and resubmitted, and the Committee can play a coordinating function by bringing the approving agency and the relevant local authority to meetings to consider the application for a building permit. Failure to attend such meetings is an offence and both representatives of the approving agency and the relevant authority can be fined up to $20,000 or receive up to 5 years in prison or both. Representatives is defined as the person who is authorised to make decisions on behalf of the approving agency or the Committee.
The RBPA has effect notwithstanding any provision of any other written law, and accordingly, to the extent that there is any inconsistency between this Act and any other written law, the RBPA prevails.
The Minister may make regulations prescribing matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and generally for achieving the purposes of this Act. (2) Without limiting the generality of subsection (1), the Minister may make regulations prescribing penalties for any offence in any regulations made under this Act to a fine not exceeding $20,000 or imprisonment for a term not exceeding 5 years or both.
While those who have experienced frustration and delay in obtaining a building permit will applaud the intent behind and the enactment of the RBPA, there will be concerns regarding how the RBPA will be implemented when it is brought into force, to ensure the protection of Fiji’s natural environment and those whose interests may be adversely affected by a proposed construction.
The RBPA and its processes underline the importance for approving authorities to adopt clear and consistent guidelines that protect Fiji’s natural environment, and upholds acceptable building and planning norms like zoning and setbacks amongst other things. In the event that a particular building proposal raises particular concerns it will be important for approving authorities and the Committee to provide time and process to ensure that concerns are taken into account within Fiji’s common law/ administrative law system and to allow time for consultations with, or concerns to be raised by, local residents and other interested parties, and this may include civil society organisations who are not part of the formal approval process pursuant to RBPA.
This legal bulletin is provided for general information purposes only and it is not, and should not be relied on as, legal advice.