Lamana Development Limited v Raga Kavana, The Registrar of Titles and Pepi Kimas, The Secretary of The Department of Lands and Physical Planning and The Independent State Of Papua New Guinea and Talasea Investiment Limited and Hg Properties Limited (2007) N3180

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 27 June 2007
• Court: National Court
• Citation: (2007) N3180
• Docket Number: OS 738 OF 2005
• Year: 2007
• Judgement Number: N3180

Full Title: OS 738 OF 2005; Lamana Development Limited v Raga Kavana, The Registrar of Titles and Pepi Kimas, The Secretary of The Department of Lands and Physical Planning and The Independent State Of Papua New Guinea and Talasea Investiment Limited and Hg Properties Limited (2007) N3180

National Court: Gavara–Nanu, J

Judgment Delivered: 27 June 2007

N3180

PAPUA NEW GUINEA

[in the national court of justice]

OS 738 OF 2005

BETWEEN:

LAMANA DEVELOPMENT LIMITED

Plaintiff

AND:

RAGA KAVANA, THE REGISTRAR OF TITLES

First Defendant

AND:

PEPI KIMAS, THE SECRETARY OF THE DEPARTMENT OF LANDS AND PHYSICAL PLANNING

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

AND:

TALASEA INVESTIMENT LIMITED

Fourth Defendant

AND:

HG PROPERTIES LIMITED

Fifth Defendant

Waigani: Gavara-Nanu, J

2006: 3 & 8 August

2007: 27 June

PRACTICE AND PROCEDURE – National Capital District Physical Planning Board – Power to rezone – Physical Planning Act, 1989; ss. 3, 42, 67, 71, 72, 94, 95 and 115 – Title holder not notified – Pre-requisites to rezoning of land – Duty to observe principles of natural justice – Title holder an overriding factor.

PRACTICE AND PROCEDURE – National Court - Declaratory orders – Jurisdiction to make – Constitution, s. 155 (4) – Primary right – Whether a party having no primary right can invoke s. 155 (4) of the Constitution to obtain declaratory orders.

Cases cited

Avia Aihi v. The Sate (No.1) [1981] PNGLR 81

Douglas Charles Dent v. Thomas Kavali [1981] PNGLR 488

National Capital District Interim Commission -v- Bogibada Holdings Pty Ltd [1987] PNGLR 135

OK Tedi Mining Ltd -v- Niugini Insurance Corporation [1989-90] PNGLR 4 Mount Hagen YMCA v. Mamun Investments & Ors [1991] PNGLR 337

25.

Patterson Lowa & Ors v. Wapula Akipe [1991] PNGLR 265

B. Fortunaso Pty Ltd v. Bank of South Pacific & Ors [1992] PNGLR 275

Counsel

J. Shepherd & F. Griffin, for the plaintiff

K. Iduhu for the fourth defendant.

1. Gavara-nanu J: Plaintiff is seeking declaratory orders that the land described as Section 405, Lot 5, Hohola, National Capital District (State Lease Volume 5, Folio 218), ( subject land ) which the plaintiff claims is by virtue of s. 72 of the Physical Planning Act, 1989, a zoned public utilities as published in a notice in the National Gazette No. G81 dated 26 June, 2003; should not be developed otherwise than in accordance with such zoning. Also, as a consequential order, the plaintiff seeks a permanent injunctive order to prohibit the fourth and fifth defendants forthwith from any form of dealing, including development and or transfer on or of the subject land which would be contrary to law and its zoning as public utilities for public car park purposes.

2. In seeking these orders, the plaintiff relies on; National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135 and Ok Tedi Mining Ltd v. Niugini Insurance Corporation [1988-89] PNGLR 425. In these cases, it was held that the power of this Court to make declaratory orders is derived from s. 155(4) of the Constitution. See also, Douglas Charles Dent v. Thomas Kavali [1981] PNGLR 488; Patterson Lowa & Ors v. Wapula Akipe [1991] PNGLR 265; Mount Hagen YMCA v. Mamun Investments & Ors [1991] PNGLR 337 and B. Fortunaso Pty Ltd v. Bank of South Pacific & Ors [1992] PNGLR 275.

3. In National Capital District Interim Commission v. Bogibada Holdings Pty Ltd (supra), Kapi DCJ (as he then was), inter alia, made two observations, which are relevant to this case. First, where granting of declaratory orders sought would not settle the dispute between the parties, declaratory orders should be refused. Secondly, declaratory orders are made according to the principles of equity adopted under Schedule 2.2 of the Constitution.

4. In this instance, the plaintiff is the registered owner of the land described as Section 405, Lot 1, Hohola, (State Lease Volume 29, Folio 9); and the fourth defendant is the registered owner of the subject land.

5. The subject land sits adjacent to the land owned by the plaintiff, and both pieces of land share a common boundary.

6. The subject land was formerly registered under Hetura Paz Development Limited (Hetura), for which a Business (Commercial) Lease was issued to Hetura on 14 November, 1992. The subject land was subsequently transferred to the fourth defendant on 08 March, 1997, and the transfer was entered in State Lease Volume 5, Folio 218. On 19 June, 2000, the then Secretary for Lands and Physical Planning by a letter dated the same day granted five year extension for the fourth defendant to comply with the improvement covenants contained in State Lease Volume 5, Folio 218. The plaintiff contends that the extension is contrary to s 119 of the Lands Act, 1996, and is therefore illegal.

7. On 6 March, 2002, the National Capital District Physical Planning Board (NCD Physical Planning Board) purportedly in the exercise of its powers under s. 71 of the Physical Planning Act, 1989, proposed the rezoning of the subject land to public utilities for public car park purposes in the Waigani City Centre Zoning Plan. That rezoning amended the previous Waigani City Centre Master Plan of 1982, which was made under the old Town Planning Act, Chapter No. 204, which has since been superseded by the Physical Planning Act, 1989. The rezoning of the subject land was advertised in the Post Courier on the same day for public comment.

8. On 27 February, 2003, the NCD Physical Planning Board in its meeting No.2 of 2003, discussed and considered the Waigani City Centre Zoning Plan including the public response for the subject land to be made a public utility. The Board then approved that subject land be rezoned from Commercial land to public utilities for a public car park. On 26 June, 2003, the rezoning of the subject land as a public car park was published in a notice in the National Gazette No.G81 as required under s.71 of the Physical Planning Act, 1989. The three months period for any aggrieved person or entity including the fourth defendant to appeal against rezoning of the subject land expired on 26 September, 2003.

9. The plaintiff says in late 2004, the fourth defendant took steps to sell the subject land to HG Properties Ltd (HGPL), but the sale was not completed as there was no Ministerial Approval given for such transfer. This is of no consequence in so far as the claims by the plaintiff are concerned.

10. The plaintiff claims that the fourth defendant has since becoming the owner of the subject land in 1997, failed to comply with improvement covenants over the subject land namely, “improvements by way of buildings for Business (Commercial) purposes to a minimum value of one hundred thousand kina (K100, 000.00)”; and the plaintiff further claims that under the improvement covenants, such buildings were to have been erected on the subject land within two years from the date of registration of the transfer of the lease from Hetura to the purchaser (the fourth defendant).

11. The fourth defendant has argued that it made attempts to comply with the improvement covenants during the extension given to it by the then Secretary for Lands and Physical Planning on 19 June, 2000. The fourth defendant further contended that it applied for a building permit on 27 July, 2005, to build on the land to comply with the improvement covenants but that application is yet to be considered by the NCD Building Board. The fourth defendant also says that pursuant to its application for a building permit, it engaged House Guard Ltd to erect a building and a perimeter fence at a total cost of K5, 527,000.00, but because the NCD Building Board has not made a decision on its application for a building permit, these improvements cannot be made.

12. The fourth defendant also says that it, on 14 July, 2003, in a letter to the then Minister for Lands, appealed against the NCD Physical Planning Board’s decision to rezone the subject land from commercial purposes lease to public utility for a car park. The fourth defendant however has conceded that no appeal was made to the Appeals Tribunal by 26 September, 2003, (which was the expiry date for the three months appeal period).

13. The plaintiff has argued that the letter by the fourth defendant to the then Minister for Lands on 14 July, 2003, did not constitute an appeal against the decision of the NCD Physical Planning Board to rezone the subject land for public utilities purposes. It therefore says that the fourth defendant has not appealed against the decision of the NCD Physical Planning Board.

14. The rezoning of the subject land by the NCD Physical Planning Board was an administrative act purportedly done in the exercise of its powers under s. 71 of the Physical Planning Act, 1989. This begs the question of whether the purported exercise of power by the NCD Physical Planning Board to rezone the subject land over which the fourth defendant holds a valid title was proper.

15. If the rezoning of the subject land by the NCD Physical Planning Board was proper then the next question that would arise is – whether the letter by the fourth defendant to the then Minister for Lands dated 14 July, 2003, constituted a valid appeal against the decision by NCD Physical Planning Board to rezone the subject land.

16. There is no dispute that the subject land is owned by the fourth defendant and therefore holds a valid title over it.

17. Section 71 of the Physical Planning Act, 1989, pursuant to which the subject land was rezoned...