REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

FAILURE OF
THE PORT VILA MUNICIPAL COUNCIL
TO ENFORCE ITS BY-LAWS

16 June 2003

6137/2003/12

PUBLIC REPORT
ON THE
FAILURE OF
THE PORT VILA MUNICIPAL COUNCIL
TO ENFORCE ITS BY-LAWS

TABLE OF CONTENTS

1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS, REGULATIONS AND RULES
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

1.	JURISDICTION

1.1	The Constitution and the Ombudsman Act allow the Ombudsman to look into the conduct of government agencies and related bodies. This includes the conduct of the Port Vila Municipal Council in enforcing its by-laws.

2.	PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1	The scope of this investigation is to establish the facts about the alleged failure of the Port Vila Municipal enforcement mechanisms in enforcing its by-laws and also to determine whether such negligence was proper. 

2.2	This Office collects information and documents by informal request, summons, letters, interviews and research.

3.	RELEVANT LAWS, REGULATIONS AND RULES

3.1	The constitutional and statutory provisions relevant to this report are mentioned in Appendix Q.

3.2	The Port Vila Municipal Council (Control of the Breeding and Keeping of Farm Animals and Poultry) By-law No.1 of 1997 provides for the regulations governing the breeding and rearing of farm animals within the Municipal boundary.

3.3	The Port Vila Municipal Council Public cleansing and Prevention of Nuisance By-law No. 1 of 1994 provides for regulations governing the cleansing and making of nuisance in public places within the Municipal boundary.

4.	OUTLINE OF EVENTS

4.1	On 15 January 1996 Mr. Mike Wusterhaus lodged a formal complaint to the Municipality about the burning of rubbish by Mr. Jacob Namariau at Ohlen area in Port Vila (APPENDIX A).

4.2	In a letter dated 13 May 1996 Mr. Mike Wusterhaus stated that "In the afternoon of 26-04-1996 rubbish was burned again in front of the property of Jacob Namariau after it had been dumped there a few weeks earlier. Also at 6h30 on 11-05-1996 rubbish had been burned again in the same place… I suggest that you take the legal action mentioned in your letter, as I am no longer prepared to have my health endangered… " (APPENDIX B).

Despite the issuance of notice to the various persons concerned in the area, rubbish was still dumped and burnt there.

4.3	On 21 May 1996 Mr. Mike Wusterhaus lodged another complaint to the Ombudsman.

4.4	On 3 June 1996 Mr. Wusterhaus sent another letter to the Municipality saying "Rubbish dumped in the roads in the Ohlen area has been recently removed by you. However, the rubbish on the side of the property of Jacob Namariau has again as so many times before not been removed. On 1 June ’96 it has been burned again". (APPENDIX C).

4.5	On 13 June 1996 Mr. Wusterhaus reported to the Municipal Health Inspector that "on the neighboring property (Land Title 11/OH31/004) of Mason and Willy Essau, no changes have occurred. The pigs are still being kept on the unoccupied property, the chickens are still damaging my garden, my hedge is still being killed further and my fruits contaminated with the daily laundry done next to it by the tenants" (APPENDIX D).

4.6	On 20 June 1996 Mr. Wusterhaus sent another letter to the Ombudsman stating that on 15 June 1996 in the afternoon, Mr. Willy Essau with a few boys came to search for his pig which had run away (APPENDIX E).

4.7	On 27 June 1996, Mr. Tonny M Ata, Senior Environmental Health Officer advised the Ombudsman that the Municipal Environmental Health Unit had conducted an inspection of the area with respect to the dumping and burning of rubbish and the keeping or rearing of farm animals and poultry. Verbal Notice was given and followed by a written one dated 20 June 1996 and issued to the accused (APPENDIX F). The notice clearly stipulated that people that own poultry should remove them or put them behind proper fencing and those rearing pig(s) should have them moved out of the municipal area by 21 June 1996.

Mr. Ata also mentioned that "…We will now take tougher measures against the owner of the premises after liaising with our Town Planning Unit".

4.8.1	On 8 August 1996 Mr. Wusterhaus sent a letter to the Ombudsman saying that "Six weeks after Mr. Ata’s follow-up visit the situation still has not changed. Chickens are still damaging my garden, the washing is still going on unabated, so is the destruction of my hedge. As far as Namariau’s rubbish burning is concerned, nothing has changed there either. By-law No.1/1994 provides for a fine of 20,000 vatu. Has that been done? No! If required by you or the Municipality video-taped evidence is available. I demand that immediately appropriate measures are taken to ensure a permanent enforcement of the relevant laws" (APPENDIX G).

4.9	On 20 May 1997 the Ombudsman sent a letter to the Deputy Town Clerk 
Mr. Fatani Sope reiterating that:

"Mr. Wusterhaus has been complaining to my office since the beginning of 1996 about burning of rubbish and keeping of farm animals in the area near to where Mr. Wusterhaus lives. I have consulted Mr. Tonny Ata, the Senior Environmental Health Officer about this complaint… Since then Mr. Wusterhaus has returned to my office to say that nothing has changed…"

4.10	In his response to the Ombudsman in a letter dated 23 May 1997 Mr. Fatani Sope (Deputy Town Clerk) said "In such case witness’ statement may be obtained from a complainant and summons may be issued against anyone in possession of poultry and farm animal to appear in court. Under bye-law 4 of 1992, an authorisation may be given by the Council to police officers, town wardens, officers of the Council to seize and destroy poultry and farm animal in the urban area. In regard to burning of rubbish, the Environmental Health Unit may serve notices to owners of premises to keep their yard clean and also advise them to keep their green garbage in their back yard until such time as a disposal vehicle does the collection" (APPENDIX H).

4.11	In his response on 18 June 1997 to the Ombudsman’s letter of 16 June 1997, Mr. Ata said that the Municipal Council was in the process of having its by-laws amended because of errors that had been overlooked, signed and were gazetted before being enforced (APPENDIX I).

The Port Vila Municipal Council By-Laws Nos. 4/77, 3/81 and 4/92 were repealed and replaced by the Port Vila Municipal Council (Control of the Breeding and Keeping of Farm Animals and Poultry) By-Law No.1 of 1997. The corrected animal and poultry by-law was gazetted on 14 July 1997.

4.12	On 9 May 1998 Mr. Wusterhaus informed the Ombudsman that the "loudly announced inspection for farm animals to take place in November last year obviously never happened. My neighbor Bongnebu is keeping a pig since several months directly next to my house in addition to the chickens which are kept since many years" [Refer also to letter dated 4/06/98 to the Municipality] (APPENDIX J).

4.13	On 3 August 1999 the Ombudsman sent a letter to the Town Clerk, Mr. George Kalo requesting him to explain the role of the Municipal police with their powers to remove farm animals and poultry (APPENDIX K). A response was only received on 21 March 2000 (APPENDIX L).

4.14	On 2 October 2000 the Assistant Environmental Health Officer Mr. Malcolm Dalesa submitted to the Ombudsman a report on their inspection of the Ohlen area that was carried out on 21 September 2000, and also a public health notice that was delivered the next day (APPENDIX M).

5.	RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

5.1	The Ombudsman sent letters to the following people in an attempt to obtain their comments on the matter but only Mr. Wusterhaus responded:

Mike Wusterhaus	Fatani Sope	
Jacob Namariau	Malcolm Dalesa	
Willy Essau	Port Vila Municipal Councillors	
George Kalo	Madeleine Tom	

Commenting on the issued working paper, Mr. Wusterhaus said in a letter dated 27 November 2002 that for a couple of weeks there was a pig being kept again on the property of a neighbor but it would be a waste of time reporting it to the Municipality. He also provided pictures of not only the rubbish being thrown into his premises but also of garbage being burnt thus having a deteriorating effect on his fence (APPENDIX N).

6.	FINDINGS

6.1	Finding 1:	The Municipal Council has failed to enforce by-law No. 1 of 1997 which came into force on 14 July 1997

6.1.1	Upon receiving Mr. Wusterhaus’ complaint by the Municipality, the Municipal Council could not enforce by-law No.4 of 1994 as a result of an error within the by-law (see APPENDIX M). However, the above law was repealed and replaced by the Port Vila Municipal Council (Control of the breeding and keeping of farm animals and poultry) No. 1 of 1997 - which came into force on 14 July 1997. But even after such enactment of the by-law, the Municipality delayed the enforcement of its by-law over a period of over 3 years (from 14 July 1997 to 21 September 2000) in actually sending another inspection team to the area concerned and distributing health notices to the residents. As a matter of fact the farm animals and poultry were already removed to another site outside of the municipal boundaries. Thus, the Municipal Council had failed to enforce its bye-law No.1 of 1997 which says that:

"Any person being the owner of poultry or any farm animal who contravenes section 2 shall be guilty of an offence and shall be liable to a fine not exceeding Vt 20,000 or, in default of payment to imprisonment for a term not exceeding 12 months" (APPENDIX Q).

7.	RECOMMENDATIONS

7.1	Recommendation 1:	The Port Vila Municipal Council jointly with the Public Prosecutor should at all times enforce the Port Vila Municipality by-laws. 

The lack of effective action on the part of the Municipality is unfair since it enables people to break the by-laws with impunity.

7.2	Recommendation 2:	The Municipal Police should be given the responsibility of dealing with residents in breach of the Municipal By-law No.1 of 1997 on breeding and keeping of poultry and any farm animal. Their reports should be submitted to the Prosecution for legal proceedings.

7.3	Recommendation 3:	The Municipality should remind owners of poultry or any farm animals within the Port Vila Municipal boundary of their obligations pursuant to the Municipal by-laws relating to animals and nocturnal noise. This could be in a form of a booklet of all by-laws.

Dated the 16th day of June 2003

Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8.	INDEX OF APPENDICES

A	Copy of letter dated 15 January 1996

B	Copy of letter dated 13 May 1996

C	Copy of letter dated 2 June 1996

D	Copy of letter dated 13 June 1996

E	Copy of letter dated 20 June 1996

F	Copy of letter dated 27 June 1996 and Copy of Notice

G	Copy of letter dated 8 August 1996

H	Copy of letter dated 23 May 1997

I	Copy of letter dated 18 June 1997

J	Copy of letter dated 9 May 1998

K	Copy of letter dated 3 August 1999

L	Copy of letter dated 20 March 2000

M	Copy of letter dated 2 October 2000

N	Photos

Q	Relevant laws, regulations and rules

APPENDIX Q

RELEVANT LAWS, REGULATIONS AND RULES

3.1	CONSTITUTION OF THE REPUBLIC OF VANUATU

	Article 62 (2)

	This article shall apply to all public servants, public authorities and ministerial departments, with the exception of the President of the Republic, the Judicial Service Commission, the Supreme and other judicial bodies.

3.2	THE PORT VILA MUNICIPAL COUNCIL (CONTROL OF THE BREEDING AND KEEPING OF FARM ANIMALS AND POULTRY) BYE-LAW NO. 1 OF 1997

	KEEPIN OF FARM ANIMALS AND POULTRY PROHIBITED

1.	No person shall keep, raise or breed any farm animal or poultry within the boundaries of the Council.

POWER OF POLICE, MUNICIPAL WARDENS AND COUNCIL OFFICERS

2.	It shall be lawful for any municipal warden or officer of the Council authorized by the Council in writing for the purpose of section 2, or any police officer at all reasonable times to enter premises and to make inquiries to ascertain whether any breach of section 2 has been committed.

POWER TO DESTROY POULTRY AND FARM ANIMALS

3.	Any police officer, municipal warden or officer of the Council may seize and destroy any poultry or farm animal found wandering at large, in circumstances in which it constitutes a nuisance or danger to the public or to any person.

OFFENCE

4.	Any person being the owner of poultry or any farm animal who contravenes section 2 shall be guilty of an offence and shall be liable to a fine not exceeding Vt20,000 or, in default of payment to imprisonment for a term not exceeding 12 months.

3.3	PORT VILA MUNICIPAL COUNCIL PUBLIC CLEANSING AND PREVENTION OF NUISANCE BYE-LAW NO.1 OF 1994
	
PREVENTION OF NUISANCES IN STREETS AND PUBLIC PLACES 

DUMPING OF LITTER IN PUBLIC PLACES

	2.	(1)	No person shall deposit or cause or permit to be deposited any litter or waste on or in –

(a)	any street or public place;
(b)	the common parts or any building;
(c)	any watercourse, stream, channel, ditch or reservoir or the waters of Port Vila Harbour;
(d)	any Government property except with the consent of a public officer; or
	(f)	any land except with the consent of the owner of the land.

(2)	If any litter or waste is deposited from a window, balcony, verandah or roof of any premises or part of any premises in violate of paragraph (1), the occupier of such premises or part thereof shall be guilty of an offence unless he proves that the contravention was committed by a person who is not a member of his family nor employed by him.

	(3)	If a violate of paragraph (2) is committed, it shall be no defence for the occupier to prove that the contravention was committed without his consent or knowledge.

	OCCUPIER OF PREMISES REQUIRED TO KEEP SURROUNDINGS CLEAN

	3.	(1)	If any litter or waste is found –
(3)	in a street or public place, within 6 metres of any premises fronting, adjoining or abuting on such street or public place and having direct access thereto; or
(4)	in any common part of a building as specified in paragraphs 4 and 6 of the First Schedule, within 6 metres of any premises fronting, adjoining or abuting on such common part and having direct access thereto;

an officer of the Council authorized in writing in that behalf by the Council may by notice in writing served on the occupier of such premises, require him to remove there- from the litter or waste within one hour or such longer period as may be specified in the notice.

DEPOSIT OF LITTER CAPABLE OF CAUSING FIRE

(ii)	No person shall deposit or cause or permit to be deposited in a container provided by the Council for the receipt litter anything which is capable of igniting therein or any of the contents thereof.

NAME IN WHICH PROCEEDINGS FOR OFFENCES MAY BE BROUGHT

25.	Without prejudice to the provisions of any other enactment relating to the prosecution of criminal offences prosecutions for an offence under any of the provisions of these bye-laws may be brought in the name of the Council.