National Capital District Interim Commission v Crusoe Pty Ltd and Kala Swokin, Minister for Lands, John Yawi, Acting Secretary for Lands, The Registrar of Titles, The Chairman of the Land Board, The Government Printer and The Independent State of Papua New Guinea [1993] PNGLR 139

• Jurisdiction: Papua New Guinea
• Judge: Brunton AJ
• Judgment Date: 09 February 1990
• Court: National Court
• Citation: [1993] PNGLR 139
• Year: 1993
• Judgement Number: N836

Full Title: National Capital District Interim Commission v Crusoe Pty Ltd and Kala Swokin, Minister for Lands, John Yawi, Acting Secretary for Lands, The Registrar of Titles, The Chairman of the Land Board, The Government Printer and The Independent State of Papua New Guinea [1993] PNGLR 139

National Court: Brunton AJ

Judgment Delivered: 9 February 1990

N836

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

NATIONAL CAPITAL DISTRICT INTERIM COMMISSION

V

CRUSOE PTY LTD;

KALA SWOKIN, MINISTER FOR LANDS;

JOHN YAWI, ACTING SECRETARY FOR LANDS;

THE REGISTRAR OF TITLES;

THE CHAIRMAN OF THE LAND BOARD;

THE GOVERNMENT PRINTER;

AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Brunton J

June 1989

July 1989

9 February 1990

PLANNING LAW- Judicial Review — Town Planning Act Ch 204 — "Special use zone" — Town Planning Act s 6 (1) — Mandatory or directory — Who is an interested party?

REAL PROPERTY — State leases of town land — Exemption from tender — Land Act s 57 (4) — "Special reason".

REAL PROPERTY — Failure of the Land Board to take action on an application for a special purpose lease — Appeal to the Minister against a refusal by the Town Planning Board to re-zone a special use zone to commercial zone — Ministerial discretion to exempt land from public tender.

ADMINISTRATIVE LAW — Natural justice rules — Delay in applying for relief.

Facts

The applicant applied to the Land Board in 1983 for a special purpose lease over a block of urban land (Lot 29) in order to construct a car park. Its application became lost in the system despite some attempt by the applicant to follow it up. In 1988, first respondent, Crusoe Pty Ltd, applied to the Town Planning Board to have part of the same block re-zoned for commercial purposes. Its application was refused and Crusoe appealed to the Minister. The Minister, without notifying any other interested party, upheld the appeal. Crusoe applied to the Minister to have the portion of land it was interested in exempted from public tender. The Minister granted the exemption. At the hearing of the Land Board to consider Crusoe's application for a commercial lease over the land, the applicant objected, but the Board recommended that a lease be granted, and the Minister approved the grant of the lease. The applicant sought judicial review and renewed its application for a special purpose lease.

Held

1. The applications of the NCDIC for a special purpose lease over Lot 29 are to be heard by the Land Board as a matter of priority.

2. Should the Board decide to excise part of the land from Lot 29 to be developed commercially, that part shall be put up for public tender under s 57 of the Land Act.

3. The Minister's decision on the appeal by Crusoe against the decision of the Town Planning Board not to re-zone Lot 29 is quashed. Crusoe may go back for rehearing, but due notification is to be given to all interested parties.

4. The Minister's decision to exempt part of Lot 29 from public tender under s 57 (4) of the Land Act is quashed.

5. The decision of the Land Board to recommend the granting of a lease over Lot 29 to Crusoe is quashed.

6. The State and all its employees, agents and instrumentalities are enjoined from implementing, or in any dealings whatsoever arising from the decision of the Land Board.

7. The applicant is to have costs which should be shared equally between the first respondent Crusoe, and the State.

Cases Cited

Papua New Guinea cases cited

Application of the NCDIC, Re [1987] PNGLR 339.

Gegeyo v Minister for Lands & Physical Planning [1987] PNGLR 331.

Premdas v The State [1979] PNGLR 329.

Rahonano v Enai, (Re Hitau) [1971-72] PNGLR 58.

Raz v Matane [ 1986] PNGLR 38.

Other cases cited

Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629.

General Electric Co Ltd v Price Commission [1975] ICR 1.

Re Blackman's Special Leases (1931) 13 QCLLR 194.

Re Scott's Application (1902) 2 QCLLR 21.

Ridge v Baldwin [1964] AC 40.

S S Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229.

Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149.

Counsel

K Naru and I Kola for the applicant.

P Paine for the first respondent.

Z Gelu for the second, third, fourth, fifth, sixth, and seventh respondents.

9 February 1990

BRUNTON J: This is an action by the National Capital District Interim Commission (hereafter the NCDIC) to protect a piece of land near Tabari Place, Boroko, which supposedly had been zoned for a special purpose, as a public car-park. It is a dispute about taking urban land out of public use and putting it into private hands. It is a dispute not only between a statutory body and a private person, but between the local and national levels of government.

The NCDIC has been concerned for some time about what it sees as the arbitrary actions of the Minister for Lands re-zoning public land in Port Moresby, such as parks, green spaces, sewerage easements, and water-tank allotments, for commercial purposes or for private housing development.

Crusoe Pty Ltd (hereafter Crusoe), the first respondent, managed to persuade the second respondent, the Minister for Lands and Physical Planning (hereafter the Minister) to re-zone part of allotment 29 section 26, Reke Street, Boroko, (hereafter Lot 29) to commercial use, allegedly without the NCDIC knowing about the re-zoning. Eventually, the land was allocated by the Land Board to Crusoe, and the NCDIC lost control over it.

The matter first came before Amet J on 7 January 1989, ex parte, when the NCDIC sought and obtained interim orders against all the respondents preventing any further dealing in the land until such time as the orders were lifted. That order was sought and granted five days after Crusoe had been declared the successful applicant for the land.

On 9 February 1989, the NCDIC, by originating summons, sought leave to obtain orders for judicial review, declaration, and either an order in the nature of mandamus or a mandatory injunction against the respondents. On 10 February 1989, the applicant obtained leave to apply for judicial review, and the interlocutory restraining orders were extended.

By the notice of motion dated 13 February 1989, the applicant moved for orders that:

1. the decision by the Acting Secretary for Lands and Physical Planning on 2 February 1989 to declare Crusoe Pty Ltd as the successful applicant for a State Lease over land described as part of Lot 29 be declared null and void and of no effect, or invalid;

2. the decision by the Minister for Lands and Physical Planning on 21 October 1989 upholding an appeal by Crusoe Pty Ltd in rezoning land described as part of Lot 29 be declared null and void and of no effect, or invalid;

3. the Government Printer be restrained from publishing in the National Gazette any notification by the Minister for Lands or his servants and agents that the land described as part of Lot 29 be rezoned from special use to business (commercial) use or any other use;

4. the Court declare that the land described as part of Lot 29 be zoned for special use or, alternatively, declare as valid the original zoning of the land as special use;

5. the Registrar of Titles be restrained from registering Crusoe Pty Ltd or any other party as the holder of a State Lease in relation to Lot 29; and

6. an order in the nature of mandamus or mandatory injunction be granted requiring the Land Board to hear the applicant's applications dated 10 March 1982 and 5 January 1989 in relation to Lot 29.

At the hearing of the notice of motion on 17 February 1989, the matter was stood over to the 24th of that month and the injunctions were extended. On 1 March 1989, the matter was moved into the civil call-over list for hearing and the restraining orders generally were extended until the determination of the review.

THE GROUNDS OF THE ACTION

The grounds upon which the relief is sought are as follows:

1. the applicant has sufficient interest in the land described as Lot 29, but it was never notified in regards to its application in relation to that land, and its application was never considered by the Land Board.

2. the notification and grant of the land to Crusoe was irregular in that Lot 29 was zoned special use, and the Lands Minister's decision to rezone the land to business use was against professional advice in that he took into account irrelevant considerations and did not take into account relevant considerations.

3. the decision by the Minister for Lands to rezone the land was invalid because:

(a) He does not have power under the Town Planning Act Ch 204 to rezone a special use zone; and

(b) if he does have power, he failed to advertise in the National Gazette his decision to rezone; because that has not been done, the grant is invalid and must be set aside.

THE PARTIES: NCDIC

The main function of the NCDIC under the National Capital District Government (Preparatory Arrangements) Act Ch 392 s 10 is "to control, manage and administer the National Capital District and to ensure the welfare...