SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Namibia: Supreme Court

You are here:  SAFLII >> Databases >> Namibia: Supreme Court >> 1996 >> [1996] NASC 5

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Ohlthaver & List Finance and Others v Minister of Regional and Local Government and Housing (SA 4/95) [1996] NASC 5 (30 April 1996)

PDF of original document.PDF of original document

.RTF of original document

CASE NO. SA 4/95
IN THE SUPREME COURT OF NAMIBIA
In the matter, between

OHLTHAVER & LIST FINANCE AND TRADING CORPORATION LTD WERNHILL PARK (PTY) LTD LIST TRUST COMPANY (PTY)"LTD

FIRST APPELLANT
SECOND APPELLANT
THIRD APPELLANT

versus

THE MINISTER OF REGIONAL AND LOCAL GOVERNMENT AND HOUSING THE PERMANENT SECRETARY OF THE MINISTRY OF REGIONAL AND LOCAL GOVERNMENT AND HOUSING CHAIRPERSON OF THE NAMIBIA PLANNING ADVISORY BOARD CHAIRPERSON OF THE MUNICIPAL COUNCIL OF THE MUNICIPALITY OF WINDHOEK
 RPP DEVELOPMENTS (NAMIBIA) (PTY) LTD
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT

CORAM: MAHOMED, C.J., DAMBUTSHSNA, A.J.A, et STRYDOM, A.J.A.
Heard on: 1995.12.13 & 14 Delivered on: 1996.04.30

2

JUDGMENT
STRYDOM, A.J.A. ; This is an appeal against the whole of the judgment and order made by the Full Bench of the High Court of Namibia on 28th April, 1995. Appellants, who were the applicants in the Court a QUO, took on review various decisions taken by the First to Fourth Respondents. The application to review was rejected in its entirety and hence this appeal. Mr Hodes, assisted'by Mr Maritz, appeared for the Appellants, whereas Mr Blignaut, assisted by Mr Mouton, appeared for the First, Second and Third Respondents and Mr Gauntlett, assisted by Mr Smuts, appeared for the Fourth Respondent. The Fifth Respondent was unrepresented.
The history of the matter goes back to 1984. At this time the Fourth Respondent commissioned a consortium of experts in the field of urban planning, to prepare a master plan for the central business area of Windhoek. This plan was approved by the Fourth Respondent on or about 27th May, 1987. Further approval, at the time by the Administrator-General, was obtained on 4th October, 1989. The latter caused the plan to be promulgated in terms of the provisions of Proclamation A.G. 28 of 1988.
According to the Appellants the most important features of the master plan were -
3.       the closure of Post Street and the conversion thereof as a pedestrian shopping mall;
4.       the development of "the area opposite Post Street and

3
along the western side of Tal Street. This included the development of erf no. 6874 as a retail shopping
         centre which would also serve as.an anchor for future
development in this area; and

(c) the linking of the said shopping centre with the existing business area along Kaiser Street by a bridge across Tal and Post.Street pedestrian shopping mall.
The master plan furthermore indicated that the area, now known as erven 7033 and 7034 and situated immediately to the north of the proposed Tal Valley development along Tal Street, was earmarked for future development of offices, an office park and open air parking space. As such this development would therefore not have been in direct competition with the activities of Appellants and its tenants' businesses on Erf no. 6874.
After the master plan was in place Third Appellant tendered and acquired erf no. 6874 which was then developed as a shopping centre by the Second Appellant who succeeded to the rights of the Third Appellant. The shopping complex was eventually developed at a cost in excess of R50 million and was inaugurated during September, 1990.
Thereafter, and during April 1991, Appellants became aware of a resolution passed by the Management Committee of the Fourth Respondent whereby instruction was given to heads of departments of the Fourth Respondent to investigate the possibility to develop a "shopping centre and office space on

4
erf no. 7033, Tal Street. Appellants, through their attorneys, objected to this development of the erf contrary to its intended purpose as contemplated and spelled out in the master plan. Other interested parties also raised objection to the development of this area as a shopping centre.
.By resolution dated 23rd September, 1991 the Management Committee resolved to recommend to the Council to rezone erf 7034 to "business" with a bulk of 2,0 and to advertise for comments for or against the proposed rezoning. This was done. Appellants, again through their attorneys, placed on record their opposition to the said rezoning.
On 10th February, 1992 the Council resolved to defer any decision in relation to the intended rezoning of erf 7034 until a temporary bus terminal had been removed from the said property and the economic climate would become more favourable for development of the area.
The matter was left there until about a year later. The Fourth Respondent on 24th February 1993, and after further investigations were made, by inter alia the City Engineer, took a resolution to set in motion the rezoning of erven 7033 and 7034. I will later herein refer more fully to this resolution.
This resolution taken by the Fourth Respondent was given effect to when advertisements were placed in various local newspapers. On 13th April, 1993 objection was lodged by the

5
Appellants against Fourth Respondent's intention to rezone erven 7033 and 7034 to allow a consent use for the development of a business complex comprising inter alia, retail facilities. At the same time Appellants also objected to the fact that the time allowed for the filing of objections was, as a result of public holidays, too short. This led to the re-advertising of the notices during June, 1993. Appellants thereupon filed a further objection through their attorneys on 23rd June, 1993.
Subsequently on the 3 0th June, 1993 the matter concerning the rezoning of the erven came before the Fourth Respondent who resolved as follows:
"(a) That erf 7033 and erf 7034, Windhoek be rezoned to 'business' with a bulk of 2,0.
(b)    
(c)     That prior to the promulgation of the
rezoning, consent be given for the land to be
used for purposes falling within the
definition of 'business', with a bulk zoning
of 2,0 in the Town Planning Scheme."
On 19th July, 1993 Appellants were informed that their objections against the intended rezoning of the erven were rejected. In the notice written by the City Engineer, Appellants were told that their objeccions "were considered by the Management Committee and it was resolved that the objections received are not convincing enough to compel Council to set aside the business proposals for the two sites concerned. Consequently it was resolved to reject the objections for a variety of reasons."

6
On 11th August, 1993 the Appellants lodged an appeal in terms of section 35 of the Windhoek Town Planning Scheme against the rejection of their objections by the Fourth" Respondent. One of the grounds of appeal was that the Counsel of the Fourth Respondent did not take cognisance of the objections filed by the Appellants in that the objections were considered by the Management Committee only and not the Council itself.
Whilst this appeal was pending the Town Clerk of the Fourth Respondent continued to implement the previous resolution taken by the Fourth Respondent by calling for tenders in relation to the purchase and development of the two erven. This was suspended after objection thereto was raised by the Appellants.
Then on 30th September, 1993 Appellants' attorneys were advised by the Fourth Respondent that -
"Council, at its meeting of 29 September 1993, considered the objections by your clients, as well as the appeal grounds, and resolved to reject same."
Appellants were further also informed that the tenders received in regard to erven 7033 and 7034 would be subject to the outcome of the pending appeal and they were further advised of their further right of appeal. The action taken by the Fourth Respondent on 29th September, 1993, led to some confusion on the part of the attorneys of the Appellants and this resul.ted in a spate of correspondence to and fro. By telefax, dated 1st November, 1993, the

7
attorneys for the Fourth Respondent conceded, by way of explanation, that their client did not consider the objections raised by the Appellants prior to its resolution to reject them on 30th June, 1993. This failure, so it was said, was then rectified by the Fourth Respondent when, at its meeting of 29th September, 1993, it considered Appellants' objections and resolved to reject them. In the meantime Appellants were- notified that their appeal would be heard on 11th November, 1993 before a Sub-Committee of the Third Respondent.
At the hearing of the appeal on the 11th the legal representative of the Appellants and a Mr Stubenrauch, a Planning Consultant, and the General Manager of the Appellants' group of companies, were called before the Sub-Committee and were given the opportunity to put submissions and express opinions to the Sub-Committee. Thereafter they were required to leave the hearing and representatives of the Fourth Respondent were called in and given a similar opportunity. The Appellants still endeavoured to lodge an appeal against the decision of the Fourth Respondent taken on 29th September, 1993. Their application, addressed to the Second Respondent, for an extension of the time within which to lodge the appeal, was refused by the Second Respondent.
Subsequently the Appellants received notice on 10th January, 1994 that their appeal against the decision of the Fourth Respondent to rezone erven 7033 and 7034 had been rejected by the First Respondent."

8
A reading of the Appellants' application shows that, at least at the stage when the documents were drafted, a lot was made by Appellants of the master plan and the effect thereof on the decisions made by Appellants to invest some R50 million in the development of the premises in Tal Street. Fourth Respondent throughout denied that the master plan constituted more than guidelines for future development and furthermore denied that any representations were made which could be interpreted as restricting the options available in regard to any future development in the area, known as Tal Valley. It was conceded however, that there was an undertaking that the site, which is to the southern side and adjacent to the Wernhill complex, and which was zoned "municipal", would not be changed for a period of five years after implementation of the master plan. Notwithstanding the great reliance placed on the master plan by Appellants in their papers it seems that the very fact that they have come to Court on review proceedings is an indication that they themselves did not believe that the master plan could be elevated into a binding contract which would have enabled them to insist on the enforcement of a contractual right. It seems that the relevance of the master plan is therefore limited to the background history and the consideration of issues such as reasonableness and bias on the part of the Respondents.
The attack of the Appellants on the various decisions taken by the Respondents was waged over a wide front. However some of the issues raised before the Court a quo were not again argued by Mr Hodes and to that extent the field of

9
attack was somewhat narrowed on appeal. During argument it soon became clear that the appeal hinged upon two basic issues, namely whether the decision, taken by the Fourth Respondent in the first instance, suffered from any reviewable defects, and if so, whether the subsequent appeal could, and did indeed, cure the failures which may have affected the proceedings in first instance. Leaving aside for the moment questions such as whether the Fourth Respondent acted unreasonably or not, the attack of the Appellants on the proceedings in first instance was twofold, namely:
1. That the Fourth Respondent was biased in the sense that it predetermined the issue; and
2 . That the Fourth Respondent did not itself consider the objections filed but left it to its Management Committee to do so and, in regard to objections lodged after the second advertisement was published, did not consider such objections at all (except perhaps on its meeting of 29 September, 1994 when it was already functus officio.)
Because of the conclusion to which I have come on the above two issues I find it unnecessary to deal with the Appellants' allegations in regard to unreasonableness etc. and I will immediately proceed to address the above two grounds.
In regard to the issue of bias it was accepted by Counsel on

10
both sides that section 20 of the Windhoek Town Scheme renders the Fourth Respondent judge in its own cause in that the Fourth Respondent, in the implementation of the provisions of the section where it concerns its own property, may initiate the steps whereby it will eventually be required to decide whether to grant consent use and to bring about the rezoning of such property. It was therefore accepted by Counsel that the Appellants, in order to succeed on this point, would have to prove more than institutional bias on the part of the Fourth Respondent when it decided to continue with the rezoning of erven 7033 and 7034 notwithstanding the objections they received thereto.
Although Counsel were agreed on this score they differed vigorously as to the test which the Court should apply to establish the presence or absence of bias. On behalf of the Appellants it was submitted that a mere likelihood of bias would suffice to set aside the decisions taken by the Fourth Respondent. On behalf of the Respondents it was submitted that nothing less than proof of a predetermination of the issue amounting to actual bias must be shown, before the Court could interfere with the said decisions.
There is no doubt that where an administrative body is by statute empowered to ace in its own cause, it is entitled to do so, provided that it acts fairly and keeps an open mind. Its decision cannot be assailed on the grounds that it acted in its own cause, a circumstance which, according to the rules of natural justice, would in any other instance have disqualified such body. Thus it was stated in R v Sevenoaks

11
District Council, ex parte Terrv . 1985(3) All ER 226 (QBD) at 255 J - 256 A, as follows:
"        there must be many cases in which planning
committees have to make decisions which affect the interests of the local authority and many instances where the local authority itself is the owner of the site the subject of a planning application and thus likely to derive substantial benefits from a favourable decision in respect of that site."
In R v Amber Valley District Council ex parte Jackson. 1984(3) All ER 501 at 509 C - E similar sentiments were expressed as follows:
"The rules of fairness and natural justice cannot be regarded as being rigid. They must alter in accordance with the context. Thus in the case of highways the department can be both the promoting authority and the determining authority. When this happens of course, any reasonable man would regard the department as being predisposed towards the outcome of the enquiry. The department is under an obligation to be fair and to carefully consider the evidence given before the inquiry but the fact that it has a policy in the matter does not entitle a court to intervene. So in this case I do not consider the fact that there is a declaration of policy by the majority group can disqualify the district council from adjudicating on a planning application. It may mean that the outcome of the planning application is likely to be favourable to an applicant and therefore unfavourable to objectors. However, Parliament has seen fit to lay down that it is the local authority which have the power to make the decision and an applicant for planning permission in the normal way are entitled to have the decision from a local authority if the Secretary of State decides not to intervene."
As previously pointed out Counsel were not agreed as to the test applicable to determine reviewable bias. In Anderton & Others v Auckland Citv Council and James Walace (Ptv) Ltd. 1 NZLR 657, Mahon J., discussed the approach of Courts of

12
Law in various jurisdictions in regard to this issue. The test postulated by the learned Judge in cases such as the present is "actual predetermination of ¡ the adjudicated question." (p. 696). It was pointed out that a test such as "real likelihood" of bias would be too easily satisfied because
" (it) will be inherent in and apparent from the statutory power of a local authority as adjudicator in its own cause." (p. 696).
(See further Lower Hutt City Council v Bank, 1974 1 NZLR 545 at 550; R v Sevenoaks District Council ex parte Terrv. supra, at 226 G - H and R v St Edmundsburv Borouah Council ex parte Investors in Industry Commercial Properties Limited, 1985(3) All ER 234 (QBD)).
On behalf of the Appellants reliance was placed on inter alia the case of Steeples v Derbyshire Country Council. 1984(3) All ER 468 as well as various South African cases such as Monnina & Others v Council of Review & Others. 1989(4) SA 866 (C) at 879 G 0 880 A and Smith v Ring van Keetmanshooo van die Nederduitse Gereformeerde Kerk, Suidwes-Afrika en Andere, 1971(3) SA 353 (SWA) at 631 D -632 F which applied the oft repeated test of a real likelihood of bias. As was pointed out by Mr Gauntlett the approach in Steeples v Derbyshire Country Council, supra. was expressly disapproved in R v Sevenoaks District Council, supra, and R v St Edmundsburv Borough Council, supra. See further R v Amber Vallev District Council, supra.

13
For reasons which will become apparent I need not decide whether the test to be applied by the Court should be a real likelihood of bias or actual bias. Although it was submitted by Mr Hodes that the Appellants need only demonstrate a real likelihood of bias he submitted that they in fact had succeeded in proving actual bias, in the sense of a pre-adjudication of the issue demonstrating a closed mind to persuasion by the Appellants.
In order to decide this question the Court must look at all the actions of the Fourth Respondent and the surrounding circumstances in order to determine whether the Fourth Respondent, when it took its decision on 30th June, 1994, did so with a closed mind. The facts on which the Appellants rely for their submission are either common cause or undisputed. What is disputed is the inferences which the Appellants submit the Court should draw from these actions.
To substantiate his submissions, Counsel for the Appellants, as a starting point, referred to the Fourth Respondent's resolution of 10th February, 1992 whereby it was decided to defer any decision in relation to the rezoning of the erven until a bus terminus on the property had been removed and until the economic climate warranted further development of the area. This was then followed by a letter from the Second Respondent, dated 6th September, 1992, whereby strong support was expressed, on behalf of the Government, for the development of a shopping centre on the said erven.
I must agree with the Court a quo that this letter is no

14
more than a statement of policy reflecting the viewpoint, at that time, held by the Ministry of Local Government and Housing. At best for Appellants this letter can perhaps be seen as pointing the approach of the Fourth Respondent in a particular direction. On the papers it seemed that Fourth Respondent decided to reconsider the situation because of the application submitted to them by the Fifth Respondent.
A much more serious complaint raised by Mr Hodes is the resolution taken by the Fourth Respondent on 24th February, 1993. This is the resolution taken by Fourth Respondent which set in motion the whole process of the rezoning of erven 7033 and 7034. This resolution reads as follows:
" (a) The city Council support the development of 'undetermined zoned Erven 7033 and 7034, Courtney Clarke Street, and the "industrial" zoned erf no. 6941, Windhoek for business purposes, including retail',-
5.      
Seeing that the proposed business centre will be approved as a consent use the Council's intention of allowing business development on the land concerned be advertised immediately;
6.      
suitable conditions of tender be formulated after the advertisement procedures have been concluded successfully;
7.      
Council delegate to the Management Committee authority to finalise tender documents and to specify precisely the area and conditions under which the land is to be sold and to put the area out to tender as soon as possible;
8.      
the applicants be informed of Council's intention of allowing business development and that any interested developer, including his client, will be granted an opportunity to tender for the land."
 Various submissions were .made by Counsel for the Appellants in regard to the above resolution. Bearing in mind the

15
language used in framing the resolution there is little doubt in my mind that the resolution can only be seen as an expression of intent, on the part of Fourth Respondents to implement their decision, namely to rezone the said erven. What other meaning can be ascribed to the words "Seeing that the proposed business centre will be approved as a consent
use     ". The meaning of the words is plain and clear.
Bearing in mind that it was the Fourth Respondent which would eventually approve the consent use the words used cannot be understood as the expression of an expectation only.
That the words referred to mean what they say is in my opinion supported by the wording used in other paragraphs of the resolution. In paragraph (d) the Management Committee is given authority to finalise tender documents and to specify precisely the area and conditions under which the land was to be sold. The words used refute any inference that the sale of the properties was only a possibility. Furthermore in paragraph (e) applicants were to be informed, it seems there and then, of the Committee's intention of allowing business development. An opportunity was further to be given to interested parties to tender for the land. (It is clear that the land here in question is erven 7033 and 7034.)
I find it impossible to give to the resolution any other meaning than that set out herein before. Even if the Court would be disposed, for some or other reason, not to give to paragraph (b) its literal and grammatical meaning then one

16
searches in vain for any indication in the rest of the resolution which will support a meaning different from the one set out, to be given to paragraph (b). In fact, as I have tried to show, the opposite is true, namely the rest of the resolution supports the literal meaning of paragraph (b) . What is more, the Fourth Respondent, being confronted with this resolution on the documents, did in no way try to explain that the resolution had a different meaning from what was contended for by the Appellants.
However, that is not the end of the matter because there is always the possibility that, notwithstanding the resolution taken by the Fourth Respondent at the time, they might, subsequently, have reconsidered the matter and decided not to be bound by the decision taken on 24th February, 1994. It is therefore of importance to look at the further actions of the Fourth Respondent and its Management Committee, and to see whether such actions give any indication that the Fourth Respondent, notwithstanding its resolution of 24th February, 1994, showed that they approached the issue with an open mind.
The first such relevant act relied upon by the Appellants is the decision by the Management Committee of the Fourth Respondent taken on 14th June, 1993 whereby "in order to save time" the Director: Properties and Protective Services, was authorised "to proceed with the invitation for tenders immediately after the consideration of objections." This resolution again in my opinion did not in the least take cognisance of a possibility that, due to the objections

17
received, a contrary decision, one which would not support the re zoning of the erven, may be forthcoming. What is particularly disturbing is that the instruction was given at a stage when the Management Committee had not yet considered the objections for the purposes of deciding whether they were of any substance or not. I must agree with Mr Hodes that as far as the Management Committee was concerned it was a foregone conclusion that tenders for the purchase and the development of the erven would be invited.
This inference is in my opinion further supported by what had happened on 21st June, 1993. On this date the Management Committee decided to proceed with the invitation to obtain tenders for the erven after they now had regard to objections which they received in response to the first advertisement only. This happened at a stage when the Fourth Respondent had not as yet considered the objections or resolved to reject or uphold them. At that stage the Fourth Respondent had not even received the recommendations of the Management Committee. What is more, when the Management Committee gave such instruction to call for tenders they knew that the closing date for the submission of objections was still two days off, namely 23rd June, 1993. If it were true that the Fourth Respondent was dealing with the issue in a piecemeal fashion then its instruction to go ahead and to call for tenders is unintelligible. In such an instance it would have at least considered the possibility that further objections may still be submitted which may conceivably change the situation. By giving the said instruction the Management Committee

18
demonstrated in my opinion its predetermination of the issue.
The full Council of the Fourth Respondent only came into the picture on 30th June, 1993 when they considered the recommendations made by the Management Committee on 21st June, 1993. Other than what was required by section 20 of the Town Planning Scheme they did not themselves consider the objections. Although objections which were received pursuant to the second advertisement were not put before it and were also not considered by the Management Committee at that stage, the Fourth Respondent rejected the objections. That this resolution was a final one, and not meant to be part of a piecemeal dealing with objections as they were submitted, is in my opinion borne out by the following facts:
(i) After taking its resolution consent use was then granted. How this could have been done when the Fourth Respondent knew that it had not considered all the objections is in my opinion not only proof of the finality of the decision taken on 3 0th June but further demonstrates that the Fourth Respondent still stood by its resolution taken on 24th February, 1993 and was merely going through the motions, if I may say, in a rather inept and blatant way;
(ii) The words of the resolution taken, leave little room for any other meaning but that it was final in form. It stated:

19
"That erf no. 7033 and erf 7034, Windhoek be rezoned to business' with a bulk of 2,0;
That prior to the promulgation of the rezoning, consent be given for the land to be used for purposes falling within the definition of 'business' with a bulk zoning of 2,0 in the Town Planning Scheme."
Apart from the language in which the resolution is couched why would Fourth Respondent's members take any resolution in the form it did if it was not meant to be final?
(iii)Following upon the decision, objectors were informed of their right to appeal and Fourth Respondent, in terms of section 20(c) of the Town Planning Scheme, also caused a letter to be sent to objectors informing them of the decision.
(iv) At no stage did the Fourth Respondent in any of the affidavits filed on its behalf maintain that the decision of 30th June was not what it purported to be, namely a final decision or that it considered objections piecemeal.
I have therefore come to the conclusion that the way in which the matter was treated by the Fourth Respondent when it rejected the objections on 30th June, 1993, (at a time when it knew that it was not in possession of all the objections) , justifies the inescapable inference that the Fourth Respondent had determined previously not to allow any objections and that, also on 30th June, 1993, it still firmly stood by its resolution of 24th February, 1993. This conclusion is further supported by the way in which the

20
Management Committee of the Fourth Respondent dealt with the additional objections when they resolved to disregard these objections on the basis that they were "not convincing enough to compel Council to set aside the business proposals for the two sites." These additional objections were for the first time considered by Fourth Respondent on 29th September, 1993 when it rejected them in the following terms, namely:
"that the objections considered by the Management Committee on 12 July, 1993 as well as the appeal grounds be rejected."
It is now history that the resolution taken by Fourth Respondent on 29th September, 1993 was only taken after Counsel's opinion was obtained and it was pointed out to Fourth Respondent that in terms of section 20(c) of the Town Planning Scheme it was the duty of the Fourth Respondent to consider and decide the objections submitted to it and that it committed a grave irregularity to leave it to its Management Committee to consider the objections. As such this decision was not at all motivated by any genuine demonstration on the part of the Fourth Respondent to reconsider what was previously decided by itself or its Management Committee, and the outcome, namely rejection of all the objections, was more or less a foregone conclusion. The raison de etre for the meeting and the decision there taken was to regularise an otherwise irregular and invalid decision. By itself it cannot dispel the strong indications to which I have referred herein before and which in my opinion demonstrated the predetermination of the Fourth Respondent on the issue of the rezoning of the two erven.

21
Another aspect which supports the above finding is the undue haste with which steps, which followed naturally one upon the other, were skipped. It frequently happened that instructions were given to prepare some step, which was dependent on a decision to be taken, prior to it being taken by the Fourth Respondent or its Management Committee. One example is for instance the instruction given to the Director to prepare documents for the calling of tenders when there was as yet no decision by the Fourth Respondent concerning the objections. In face this was done at a time when those who gave the instruction knew that the time for the submission of objections had not even expired.
A reading of the authorities shows, in my opinion, that the Fourth Respondent is, in deciding to reject or allow the objections, acting in a cuasi judicial capacity and is therefore obliged to follow the dictates of natural justice. In Lower Hutt Citv Council v Bank. 1974 1 NZLR 545 the following was stated in this regard on 547 to 548:
"Mr Barton's basic submission is that when a council is inquiring into and disposing of objections in the course of taking the successive steps required by the sixth schedule, it is acting in a purely administrative capacity, being obliged to do no more than investigate the facts relating to the objections in order to assemble all the relevant information to be sent either to the Town and Country Planning Appeal Board or to the Magistrate's Court. He likened the situation to that which arose in Farnell v Mhanaarei Hiah Schools Board, 1973(2) (NZLR) 705; 1973 (ACO 660, where the Privy Council saw the particular action there under examination as preliminary and administrative. We do not agree. It seems plain to us that the statutory delegation on a council to enquire into and dispose of objections imports at least substantial elements of the judicial function. It requires a consideration of the objections, and a decision whether they are to be

22
upheld or rejected.
Furthermore, we believe that the clear-cut distinction, once favoured by the Courts, between administration functions, on the one hand, and judicial functions, on the other, as a result of which it was proper to require the observance of the rules of natural justice in the latter but not in the former, is not in these days to be accepted as supplying the answer in a case such as we have before us. Former clear-cut distinctions have been blurred of recent years by directions from highest authority to apply the requirement of fairness in administrative -actions as well, if the interests of justice make it apparent that the quality of fairness is required in those actions."
(See further R v Amber Valley District Council. supra, 506 - 507.)
In any event, whether the Fourth Respondent was required to discharge its functions in a quasi-judicial capacity or on "administrative" capacity, it was under a duty, in the circumstances to act fairly. (See Article 18 of the Constitution and Ridge v Baldwin, 1964 AC 40) . In the present case the parties were agreed that the principles of natural justice apply. This must of course, as previously pointed out, be qualified to the extent to which the repository of the power is, by statutory enactment, empowered to act. Although it is accepted that in such circumstances the same standard of impartiality cannot be required, as would be required from courts of law, the deciding authority must keep an open mind and be open to persuasion. What is required in such circumstances was aptly stated by McCarthy P. in the Lower Hutt Citv Council case, supra, at p. 550 as follows:
"We think that the state of impartiality which is required is the capacity in a council to preserve a freedom notwithstanding earlier investigations and decisions, to approach this duty of enquiring into and disposing of the objections without a

23
closed mind, so that if considerations advanced by the objectors bring them to a different frame of mind they can, and will go back on their proposals. As to the necessary appearance of impartiality, we think it must, follow that if a public authority exhibits that it has undertaken in advance to exercise the power and duty expressly entrusted to it by the legislator in a specific way which appears to obstruct the fair consideration and disposal of public rights, prohibition should normally issue."
In the Lower Hutt case, supra, the council entered into a lucrative lease agreement with a company which required of the council to stop or close certain streets. The council called for objections to the stopping of the streets and rejected the same in the end. The contract between the council and the company provided that the contract would be null and void if the council would be unable to stop the streets by virtue of a contrary decision of the Magistrate's Court. The Court, McCarthy P., concluded that this implied that only the Magistrate's Court stood between the possible stopping of the streets and that the council, by entering into such a contract, could not fulfil its public duty.
Mr Gauntlett was quick to point out that in the present instance the Fourth Respondent did not labour under the same disqualification and that it was neither alleged nor shown that any of the members of the Fourth Respondent stood to gain personally from the rezoning of the erven. In regard to the resolution taken by the Fourth Respondent on 24th February, 1994, Counsel submitted that the wording of the resolution sets out what would be envisaged by them, namely that the proposed business centre "will be approved as a consent use" and that it was plainly made subject to the provisions of the scheme, to which reference was indirectly

24
made in paragraph (c) of the resolution, namely, "after advertisement procedures have been concluded successfully."
 A reading of the resolution shows in my opinion differently. A reading of the whole resolution shows that what was uppermost in the minds of the Fourth Respondent was to rezone the properties and to sell the land. Here again firm resolutions were taken to set 'in motion the sale of the properties. The Management Committee was given authority to finalise tender documents and to specify precisely the area -and the conditions under which the land "is to be sold." (paragraph (d) ) . Furthermore the Applicants, presumably Fifth Respondents, were to be informed of "Council's intention of allowing business development" and that all interested parties would be granted an opportunity to tender for the land. Whilst the resolution swarms with expressions of the intent of the Fourth Respondent to sell the land one looks in vain for any expression on their part which would show that they were alive to their duties in terms of the Town Planning Scheme to consider objections fairly and to be open to persuasion notwithstanding their support for the rezoning. The rather obscure reference to advertisement procedures set out in paragraph (c) of the resolution, and relied upon by Mr Gauntlett, is prefixed by a decision that suitable conditions of tender be formulated, which again only have relevance to the possible sale of the erven which in turn was only relevant after consideration of objections and their rejection by the Fourth Respondent. Again authority was given to undertake and to prepare a further step in the process of the rezoning of the erven which could

25
only be followed once a decision to rezone was taken by the Fourth Respondent. Furthermore almost all the steps taken after 24th February and the resolutions thereafter taken supported the inference of a Council which predetermined that the re zoning would go through. In my opinion Appellants were able to prove actual bias on the part of Fourth Respondent in the sense that they predetermined the actual point which they had to adjudicate, namely whether to rezone erven 7033 and 7034.
Furthermore I am of the opinion that the Fourth Respondents in the process also committed other irregularities. Firstly, in terms of section 20 of the Town Planning Scheme, they were enjoined by the section to decide on the objections submitted after considering them. It is clear from the evidenc