Steamships Trading Company Limited v Minister for Lands and Physical Planning, Garamut Enterprises Limited and Ralph Guise and Others (Members of the National Land Board) (2000) N1959

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 10 May 2000
• Court: National Court
• Citation: (2000) N1959
• Year: 2000
• Judgement Number: N1959

Full Title: Steamships Trading Company Limited v Minister for Lands and Physical Planning, Garamut Enterprises Limited and Ralph Guise and Others (Members of the National Land Board) (2000) N1959

National Court: Sheehan J

Judgment Delivered: 10 May 2000

N1959

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 552 of 1999

BETWEEN

STEAMSHIPS TRADING COMPANY LIMITED

Plaintiff

AND:

MINISTER FOR LANDS AND PHYSICAL PLANNING

First Defendant

AND:

GARAMUT ENTERPRISES LIMITED

Second Defendant

AND:

RALPH GUISE & ORS

Members of the NATIONAL LAND BOARD

Third Defendant

Waigani: SHEEHAN, J.

2000: 28 Jan, 10 May

Judicial Review - Challenge to issue of commercial State Lease in breach of Statutory provisions - allegations that necessary procedures under Land Act and Physical Planning Act not complied with - Claim of irregular circumstances tantamount to fraud - equitable - constructive fraud - indefeasible title.

Mr P. Young for the Plaintiff

Mr D. Lambu for First and Third Defendants

Mr I. Molloy and I. Shepherd for the 2nd Defendant

On 14th January 1999 Secretary for Lands gave notice in National Gazette No. 8 of 1999 that Garamut Enterprises Pty Limited the 2nd Defendant, was the successful applicant for a business commercial lease over Lot. 23 Section 71, Hohola. On 23 February 1999 that Lease was registered under the Land Registration Act 1989 under Volume 21 Folio 120.

On 13th September 1999 some eight months later, the Plaintiff Steamship Trading Company Limited (Steamships) the Plaintiff, sought leave to apply for Judicial Review of the granting of both the rezoning of the land from open space to commercial, and the subsequent granting of the lease. The Statement in Support, filed under Or. 16 R. 3 (2)(a) of the National Court Rules seeks orders in the nature of certiorari setting aside as invalid the determinations, of the Minister of Lands and Physical Planning, the First Defendant, (the Minister), and of the Third Defendants the members of the National Land Board, (the Land Board) that resulted in the rezoning of the land and the issue of the lease of it to the Second Defendant. The Plaintiff also seeks consequential orders prohibiting further development of the land.

Leave to apply for review was granted on 14th October 1999 and now following hearing of evidence and submissions on 28th January 2000 the matters now falls to decision.

The Statement details the grounds relied on. In short Steamships contends there has been a total failure by the Defendants to follow or comply with the statutory procedures for the rezoning of land set out in the Physical Planning Act or for the consideration of applications for and the issue of State Leases as prescribed in the Land Act.

FACTS

The land the subject of this dispute was formerly State Land being described as “Open Space” lying adjacent to Section 71 Hohola. It is situated at the junction of Boroko Drive and the Poreporena Highway. It is now known as Lot 23 Sect. 71 Hohola District. The following chronology details the significant events from the initial application for rezoning of the land till the issue of the lease.

Chronology

23 June 1997 Garamut applies under the Physical Planning Act for rezoning as commercial area of open space adjacent Section 71 Lots 11-21 Hohola to erect a supermarket and bakery.

16 July 1997 N.C.D. Physical Planning Board declines application. “Supermarket and bakery not suitable for site / too close to residents / site zoned open space and will be developed as public park.”

1 September 1997 Taps International Pty Ltd lodges appeal on behalf of Garamut with National Physical Planning Appeal Tribunal against refusal of N.C.D. Physical Planning Board.

13 October 1997 PNG Physical Planning Appeal Tribunal acknowledges appeal from Taps International Pty Ltd on behalf of Garamut.

November 1997 National Physical Planning Appeal Tribunal considers appeal and makes recommendation against the appeal to the Minister.

3 February 1998 Minister for Lands “having considered all issues” grants appeal by Garamut.

10 June 1998 Minister for Lands grants Garamut 12 months Licence 24/98 effective 22 June 1998:

(1) “to carryout feasibility studies as to viability of land.

(2) To carry out survey ……

(3) (fencing permitted

(4) Licence does not confer upon Licences any rights of ownership”.

18 June 1998 Minister of Lands advises PNG Land Board of allowance of appeal - states:

(1) Land yet to be surveyed.

(2) zoning to “become legal” once gazetted

(3) Directs land be advertised for leasing per s. 68 of Land Act 1996 “since there are no legitimate grounds for exempting advertisement” under s. 69. “

3 July 1998 Garamut applies for commercial lease of land adjacent Lot 21 Sec. 71 Hohola.

29 July 1998 Garamut apply to Minister for exemption from advertisement of tender of land on grounds of

1) Having conducted survey

2) Being original applicants

3) Need for land

4) Present lease expiring.

8 September 1998 Garamut applies to Eda Ranu applying for water connection.

17 September 1998 Agenda of Special PNG Land Board meeting no:- 2004 published pursuant to s. 58 of Land Act in National Gazette G. 108 no listed applications in respect of Section 71, Lot 23 Hohola.

25 September 1998 Survey Plan creating Lot 23 Section 71 Hohola registered.

29-30 Sept. 1998 Land Board Meeting 2004

8 October 1998 Minister issues notice of exemption under s. 69 (2) of the Land Act exempting Lot 23 Sec. 71 Hohola from tender or advertisement for special reasons.

“1) the parcel of land was an open space which is a leftover pocket from construction of the Freeway.

2) The applicant has funded the basic planning requirements under the Physical Planning Act from an Open Space to a zoned land.

3) The applicant funded the zoning survey and valuation of this land”.

15 October 1998 Rezoning of Lot 23 Sec. 71 Hohola from Open Space to Commercial Gazetted (G. 119).

5 November 1998 Gazettal of commercial Lease (G.134) tender 32/98 for Lot 23 Section 71 Hohola 1.37 ha. Annual rental 1st 10 years K10,000 Reserve price K120,000.00. Closing Date for Tenders 25 November 1998.

25 November 1998 Closing date for Tenders for Lease of Lot 23 Sec. 71 Hohola.

10 December 1998 Gazettal (G.152) under s. 74 Land Act 1996 of applications and tenders contains and successful applicants of Land Board meeting 2004 cartons no reference to Lot 23 Sec. 71 Hohola.

15 December 1998 National Gazette (G. 133) Corrigendum withdrawing tender of Lot 23 Sec. 71 Hohola because of exemption from advertisement by Minister.

14 January 1999 Gazettal (G.8) of grant of Commercial Lease to Garamut Enterprises Ltd of Lot 23 Sec. 71 Hohola at Land Board Meeting 2004.

18 February 1999 State Lease issued to Garamut Enterprises Ltd for Lot 23 Sec 71 Hohola.

23 February 1999 State Lease of Lot 23 Sec. 71 Hohola registered Vol. 21 Folio 120.

Those base facts which relate directly to the process of rezoning and issue of lease are not disputed. Added to these there is the evidence disclosed in the affidavits of the Secretary for Lands. In the first, dated 3rd November 1999, the Secretary deposes inter alia that “the Company (Garamut) has not paid the correct tender price, Land Board Meeting No:- 2004 minutes do not reconcile with the gazettal of successful applicant of that meeting on 10th December 1998. The members of the Board who signed the recommendation for grant were not at the Meeting No:- 2004 of the 29th and 30th of September 1999”. There was no evidence contradicting those assertions.

At the time of trial the tender price had still not been paid. It was acknowledged though, that the Lands Department had even then, not asked for that sum and that Garamut was ready at all times to pay.

Further anomalies are disclosed in the Secretary’s second affidavit of 3rd February 2000 where he annexes a copy of the Notice of Exemption under s. 69 (2) of the Land Act. This annexure is dated “8th Sept 1998.” But in the affidavit of Christoper Pratt of 10th Sept 1999 the same exemption notice is dated “8th Oct 1998”. The annexure in affidavits of both deponents are purportedly photocopies of an original. Both photocopies, show indication that at the place where the words for the months are written there is indistinct writing not now clearly recorded in the photocopy annexure. No evidence has been adduced to explain those anomalies.

Plaintiff’s Case

The Plaintiffs case begins with the application of 23 June 1997 to rezone the land from open space to commercial, made by Taps International Ltd for Garamut Enterprises Pty Ltd. The rezoning was to enable development of a supermarket and bakery. That application was refused by the National Capital District Physical Planning Board because the site was unsuitable for that purpose, because of access and because the land was to be developed as a park. Upon appeal by Taps International Ltd to the Minister of Lands, rezoning was approved on 3rd February 1998 though not gazetted till 15 October of that year.

The challenges raised by Steamships on rezoning are that by Sect. 77 (3) (e) of the Physical Planning Act...