In the Application of the National Capital District Interim Commission [1987] PNGLR 339

• Jurisdiction: Papua New Guinea
• Judge: Amet J
• Judgment Date: 19 October 1987
• Citation: [1987] PNGLR 339
• Court: National Court
• Year: 1987
• Judgement Number: N636

Full Title: In the Application of the National Capital District Interim Commission [1987] PNGLR 339

National Court: Amet J

Judgment Delivered: 19 October 1987

1 Land—judicial review—power of Minister—revocation of recreation reserves

STATUTES—Interpretation Act—Statutory powers—Exercise of—No power to revoke, alter or vary—Power deriving from Interpretation Act—Land Act (Ch185), s25—Interpretation Act (Ch2), s35.

ADMINISTRATIVE LAW—Judicial review of administrative acts—Natural justice—Revocation of decision to declare public reserve—Scope of power to revoke—Duty to give reasons for when challenged—Duty to consult with administering body—No reasons given—Grounds argued without merit—Decision reviewed and revoked—Land Act (Ch185), s25—Interpretation Act (Ch2), s35.

TOWN PLANNING—Parks and reserves—Power to declare—Power to revoke, alter or vary declaration—Duty to consult with administering body—Duty to give reasons for revocation where challenged—No reasons given—Decision reviewed and revoked—Land Act (Ch185), s25—Interpretation Act (Ch2), s35.

The Land Act (Ch185), s25, empowers the relevant Minister to make declarations reserving land as public reserves.

The Interpretation Act (Ch2), s35, provides:

"Where a statutory provision confers a power to make an instrument or decision (other than a decision of a court), the power includes power, exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision."

On an application for judicial review of the decision of the Minister to revoke declarations made under s25 of the Land Act in respect of two public recreation reserves where no reasons were forthcoming either at the time of revocation or by way of explanation to the Court.

Held:

(1) S35 of the Interpretation Act was to be applied to s25 of the Land Act.

(2) Accordingly the Minister had power to revoke, alter or vary an order made under s25 of the Land Act; such power to be exercised for good and justifiable reasons consistent with the public interest and public welfare.

(3) The exercise of such power was subject to review by the Court.

(4) The power to alter, vary or revoke a declaration made under s25 of the Land Act, being the result of a decision affecting the interests and welfare of the public at large, the Minister was required to observe the principles of natural justice, to the extent at least, of informing advising and consulting with the National Capital District Interim Commission as the statutory body charged with the administrative and legal responsibilities of conducting public reserves, and where the decision was challenged to provide an explanation for the action taken.

(5) If an authority purporting to exercise statutory powers gives no reasons in a case where it may reasonably be expected to do so, the Court may infer that it has no good reason for reaching its conclusions and may act accordingly.

(6) In the circumstances, in the absence of any reasons being given for the revocation of the declarations the Minister's decision should be reviewed and as the reasons provided to the court were without substance or merit the ministerial declaration to revoke the declarations made under s25 of the Land Act should be revoked.

Cases Cited

The following case is the only one cited in the judgment:

Gegeyo, Re v Minister for Lands and Physical Planning [1987] PNGLR 331.

Application for judicial review

This was an application for judicial review of a decision of the Minister for Lands and Physical Planning to revoke two declarations made under s25 of the Land Act (Ch185) in respect of public reserves.

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Amet J: This is an application seeking judicial review of two declarations under s25 of the Land Act (Ch185) made in the name of the Minister for Lands and Physical Planning to revoke previous declarations under the Land Act reserving land from lease to be used for public purposes.

The two portions of land previously declared as public recreation reserves are portion 2020 folio 10 vol 1, known as the Touaguba Hill Reserve and allotment 7, section 28 Granville known as part of the Ela Beach Recreation Reserve.

On 21 November 1985 the Minister for Lands gazetted the declaration of the area of land on Touaguba Hill as a public recreation reserve and appointed the applicant, the National Capital District Interim Commission (NCDIC) as Trustee of the reserve. By notice in the National Gazette No G26 on 7 May 1987 a declaration under s25 was notified revoking the declaration of public recreation reserve, in the name of one Max Day a delegate of the Minister for Lands and Physical Planning.

On 29 August 1968 the Ela Beach Recreation Reserve, allotment 7, section 28, was declared a public recreation reserve under the provisions of the Land Act and the applicant NCDIC was duly appointed under the Act as Trustee of the reserve. By notice in the National Gazette No G36 on 11 June 1987 notice was published partially revoking the declaration under s25 of this reserve.

The applicant challenges the declarations by said delegate Max Day on two bases—(1)—that there is no power to effect such revocations and (2)—in the alternative if such power does exist that in the circumstances there was improper exercise of the power and so they are properly subject to review by this Court.

POWER TO REVOKE RESERVATION OF LAND

The principle provision under which declarations of public recreation reserves are made is s25 of the Land Act (Ch185) which reads as follows:

"The Minister may, by notice in the National Gazette, reserve for a purpose specified in the notice, from lease or further...