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
• Court: National Court
• Citation: (2000) N1959
• Date: 10 May 2000
• Year: 2000

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

1 ADMINISTRATIVE LAW—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 fraud—constructive fraud—indefeasible title.

2 ADMINISTRATIVE LAW—Judicial Review—standing—locus standi.

3 ADMINISTRATIVE LAW—Judicial Review—delay in applying for.

4 ADMINISTRATIVE LAW—Judicial Review—failure to give reasons for decision—effect of—whether decision granting rezoning of land and issue of State lease are illegal, unreasonable and void.

4 ADMINISTRATIVE LAW—Judicial Review—mandatory requirements of statute—test to determine effect of statute.

5 LAND—procedure for granting of a State lease—Land Act 1996.

6 LAND—registration—Land Registration Act (Ch191)—indefeasibility under Torrens type system—exceptions to indefeasibility—registration not effective to vest title in a registered proprietor as proper procedure had not been followed in the granting of the lease

7 TORRENS SYSTEM—Indefeasibility of title—Principles applicable to registration under Land Registration Act—Land Registration Act (Ch191), s33, s36—Land Act 1996, s69(2).

8 REAL PROPERTY—Land Registration Act—Registration under Act confers indefeasible title—Torrens system principles applicable—Lease issued in breach of Land Act—Lease registered—Indefeasible title not conferred—Land Registration Act (Ch191), s33, s36—Land Act 1996, s69(2).

9 REAL PROPERTY—Physical Planning Act 1989—Effect of failure to comply with provisions—Appeal—Failure by Minister to give reasons for overturning decision of Physical Planning Board and for not acting on recommendations of Physical Planning Appeal Tribunal.

10 SCR No 4 of 1980; Re Petition of MT Somare [1981] PNGLR 265, Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 see also Darvell v Auckland Legal Services [1993] NZLR 111. R v Secretary for State ex parte Fire Brigades Union [1995] 2 All ER 244, Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, Beaman v ARTS Limited [1948] 1 All ER 465, Earl of Aylesford v Morris (1873) LR 8 Ch App 484, Fox v Bishop of Chester [1829] 6 ER 581, Blomley v Ryan (1956) 99 CLR 362, Commonwealth Morrison v Coast Finance Ltd [1965] 55 DLR 710, K v K [1976] 2 NZLR 31, Hart v O'Connor [1985] AC 1000, Re Gegeyo v Minister for Lands and Physical Planning [1987] PNGLR 331, The Application of the National Capital District Interim Commission [1987] PNGLR 339, NCDIC v Crusoe Pty Ltd [1993] PNGLR 139, Lonrho plc v Secretary for Trade and Industry [1989] 1 WLR 525, Mudge v Secretary for Lands [1985] PNGLR 387, Emas Estate Development Pty Ltd v John Mea [1993] PNGLR 215, Breskvar v Wall (1971) 126 CLR 376 and Assets Co Ltd v Mere Roihi [1905] AC 176 referred to

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Sheehan J: On 14 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 13 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 O16 r3(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 14 October 1999 and now following hearing of evidence and submissions on 28 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 1989 or for the consideration of applications for and the issue of State Leases as prescribed in the Land Act 1996.

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 NCD 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 NCD 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 carry out 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 s68 of Land Act 1996 "since there are no legitimate grounds for exempting advertisement" under s69. "

3 July 1998 Garamut applies for commercial lease of land adjacent Lot 21 Section 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 s58 of Land Act 1996 in National Gazette G108 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 September 1998 Land Board Meeting 2004

8 October 1998 Minister issues notice of exemption under s69(2) of the Land Act 1996 exempting Lot 23 Section 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...