Application by National Capital District Interim Commission [1987] PGLawRp 536; [1987] PNGLR 339 (19 October 1987)

Papua New Guinea Law Reports - 1987

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

[1987] PNGLR 339

N636

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE APPLICATION OF THE NATIONAL CAPITAL DISTRICT INTERIM COMMISSION

Waigani

Amet J

6 October 1987

19 October 1987

STATUTES - Interpretation Act - Statutory powers - Exercise of - No power to revoke, alter or vary - Power deriving from Interpretation Act - Land Act (Ch No 185), s 25 - Interpretation Act (Ch No 2), s 35.

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 (Ch No 185), s 25 - Interpretation Act (Ch No 2), s 35.

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 (Ch No 185), s 25 - Interpretation Act (Ch No 2), s 35.

The Land Act (Ch No 185), s 25, empowers the relevant Minister to make declarations reserving land as public reserves.

The Acts Interpretation Act (Ch No 2), s 35, 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 s 25 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

N1>(1)      Section 35 of the Interpretation Act was to be applied to s 25 of the Land Act.

N1>(2)      Accordingly the Minister had power to revoke, alter or vary an order made under s 25 of the Land Act; such power to be exercised for good and justifiable reasons consistent with the public interest and public welfare.

N1>(3)      The exercise of such power was subject to review by the Court.

N1>(4)      The power to alter, vary or revoke a declaration made under s 25 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.

N1>(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.

N1>(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 s 25 of the Land Act should be revoked.

Cases Cited

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 s 25 of the Land Act (Ch No 185) in respect of public reserves.

Counsel

G Powell, for the plaintiff.

Z Gelu, for the defendant.

Cur adv vult

19 October 1987

AMET J: This is an application seeking judicial review of two declarations under s 25 of the Land Act (Ch No 185) 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 s 25 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 s 25 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 s 25 of the Land Act (Ch No 185) 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 lease by the State under this Act, Government land or land that is subject of a State lease, that in his opinion is or may be required for that purpose.”

There is no provision in the Land Act enabling revocation, suspension or variance of such a declaration. It would seem that the Minister relied upon the provisions of the Interpretation Act (Ch No 2) the exercise the right to revoke or vary the initial exercise of power under s 25. This is enabled by s 35 of the Interpretation Act which reads as follows:

“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.”

Without embarking upon an analysis of all of the arguments for and against, I am of the opinion that s 35 does enable a decision making authority such as the Minister or a tribunal exercising statutory power of decision-making to alter, vary, modify or revoke as the case may require, the said decision, upon good grounds. And so I am satisfied that there is power to revoke, alter or vary any declaration under s 25 for good and justifiable reasons. I would expect such reasons to be in the public interest and public welfare.

The next issue then arises whether such an exercise of statutory power is reviewable by this Court. This area of law is now trite that exercise of administrative statutory powers by individuals or tribunals are subject to review by this Court in its inherent jurisdiction under the Constitution quite apart from the principles of common law and equity.

In this application there is very little evidence before me. I have the two statutory instruments which are not in dispute as to the portions of land and the declarations that were made. I have two affidavits from the parties. Ian Frederick Maxwell, the Town Planner employed by the applicant, deposed to being responsible for advising the applicant on matters pertaining to land and in particular on matters affecting public reserves. He confirmed that the applicant is the trustee of both reserves and that as trustee it proposes to develop the areas as recreation reserves open to all the public. In relation to Ela Beach the applicant has expended in excess of K600,000 to date and documentation is being finalised for a further development of the area affected by the revocation of public reserve. It is expected that tenders could be called within the month. He annexed a letter from a former delegate of a former Minister giving the required approval for work to be done on the Ela Beach Reserve, now subject of this application.

On behalf of the defendant, Minister for Lands and Physical Planning, was filed an affidavit from one Karipe Pitzz, the Secretary of the Department of Lands and Physical Planning, deposing first, that the revocation of part of the Ela Beach Reserve was now in the process of resolution by administrative action by the department and should no longer be an issue. It further purported to give a legal opinion as to the effect of s 25 of the Land Act in relation to the Minister’s powers. I quote, “Generally speaking, if the Minister in the first place has the power to reserve land from lease, he also has the same power to revoke”. In par (3) he purports again to give a legal view about the Minister’s powers; I quote:

“Trustees for reserved land, are appointed by the Minister as per s 26 of the Land Act (Ch No 185) hence are responsible to him for their actions. The Minister is not required to consult the Trustees nor can they direct him to do or not to do over a subject matter of which he is ultimately responsible for.”

No affidavit has been filed by the Minister nor by Max Day the delegate of the Minister. Nor has the State filed any documents, ministerial briefs or advice which has led to this declaration revoking the public recreation reserve.

Once again counsel for the State representing the Minister has boldly made the submission that the Minister has absolute unfettered discretion to declare a public recreation reserve and conversely to revoke such a public recreation reserve. It was contended that the Minister need not give any reasons, notice or consult any person. This view is supported by the affidavit of Karipe Pitzz who purports to make legal conclusions about the effect of the various provisions of the Land Act in relation to the powers of the Minister.

These two reserves are of considerable public value. They are located on valuable sites in the city. They are of much benefit and value to the public of the city of Port Moresby. And so for any authority or a delegate of an authority to exercise or purport to exercise an administrative statutory discretionary power, to make a declaration revoking such public recreational reserves, which would affect the interest and the welfare of the public at large of the city, the least that that authority or that delegate is required to do when that decision is challenged in a court of law, is to provide an explanation for the action that was taken.

On the other hand, an officer responsible for planning of the city’s public facilities employed by the applicant has deposed to plans for the development of the Ela Beach Recreation Reserve in particular and also in the immediate future the Touaguba Hill Reserve. The kind of development and benefit to the public at large from the Ela Beach Reserve speaks for itself from the development that has taken place. In my view it behoves any authority which purports to exercise statutory powers which have the effect of depriving the public at large of the benefits of public facilities and public reserves, to provide explanations and reasons when those decisions are challenged. It is no answer for the principal officer of that department to assert legal conclusions in which he has no expertise, such as did Karipe Pitzz in his affidavit. I dismiss that affidavit for what it is worth as being without any merit whatsoever. It is really an assertion of an ignorant person about legal construction of statutes which is the function of courts.

The trusteeship of public recreation reserves has been by regulation entrusted to a statutory corporation which exercises all powers of management, expending finance and incurring liabilities and is liable in law for the supervision and management of such public reserves and therefore in my view it has the right to be informed, advised and consulted if such public recreation reserves which it administers are proposed to be revoked. There can be no justification in logic or equity for the contention that such a statutory organisation, entrusted with the administrative and legal responsibility of administering such a reserve, has no right to be informed or consulted. Common sense alone dictates that it must be consulted in view of the expenses it has incurred and proposes to incur.

If this kind of attitude to administrative decision-making, maintained by the most senior administrative officers advising government ministers and administrative tribunals continues, then it is my strong view that it is erroneous and will continue to bring grave consequences for the State and for the decision-making bodies.

I quote again from the text Equity: Doctrines and Remedies by R P Meagher, W M C Gummow and J R F Lehane (2nd ed, 1983) at 409, a brief statement of the court’s jurisdiction in regard to administrative reviews:

“Administrative decisions may be declared inoperative on the ground that they have been reached in bad faith, or as the result of legally irrelevant considerations, or were activated by some improper purpose, or were made on the wrongful assumption of authority, or were otherwise vitiated.”

Counsel for the State relied on the two pieces of evidence from Mr Maxwell as being sufficient reasons and grounds for the declarations revoking the declarations of public reserves. It was submitted that both these two reasons are sufficiently in the public interest for the exercise of the Minister’s discretion by his delegate to revoke the declarations of public reserves. It was submitted, therefore, that the exercise of that discretion by the delegate on behalf of the Minister was proper and justified.

Suffice it to say I reject this submission from the State. It is without substance. No affidavit material was filed by Mr Max Day or the Minister nor were any such reasons advanced by Mr Karipe Pitzz, the Secretary of the Department, whom one would expect to know. I find these possible reasons as most unacceptable. I find the cavalier manner in which the State has defended this application and the decisions of the delegate of the Minister to be most unsatisfactory. It seems to me that there has been no preparation, no attempt whatsoever by counsel or the principal officer in the Department to justify, or to show some reasons in writing for the decisions that were made. And as I have quoted from the cases:

“If it gives no reasons in a case when it may reasonably be expected to do so, the courts may infer that it has no good reason for reaching its conclusions, and act accordingly.”

Furthermore it leaves it wide open for allegations and inferences that such decisions were made with ulterior motives and for reasons other than in the public interest. It seems to me that it is even more imperative to consult and give reasons when public authorities, administrative tribunals and executive government are dealing with matters of public interest which will affect the welfare and interest of the public at large, such as public reserves where large sums of public funds are expended by a public trustee to improve such reserves for the benefit and enjoyment of the whole public of a city or town, such as in these two cases. And it behoves the relevant Departmental officers concerned and the decision-making tribunal to be diligent and to act with integrity and fairness and above reproach in the conduct of its business so that no aspersions can be cast upon their motive. I have found in this case and also in Re Gegeyo v Minister for Lands and Physical Planning [1987] PNGLR 331 involving the same Department and the same Minister to be wanting in a lot of respects. The decision-making process, it seems to me, has been taken in a cavalier, haphazard, ill-advised fashion and consequently when these decisions are being challenged and reviewed by the court it exposes the deficiencies in the administrative machinery. In both cases I have found the Department and the senior officers, whom one would expect to have given advice and to respond to providing the necessary supportive affidavit materials, to defend the actions of the Ministers, to have been less than diligent.

In the end result in these two cases, I am not at all convinced that there were justifiable public interest reasons for the declarations revoking the public reserves which were proposed and planned to be developed by the trustees for the benefit of the public at large. The supposed reasons advanced by counsel for the State, belatedly, from evidence adduced from Mr Maxwell for the applicant are not in the best interest of the vast majority of the public of Port Moresby. The supposed reason of relocation of the Ex-Servicemen’s Club can only benefit a handful of people to the disadvantage of the vast majority of the public of Port Moresby. Similarly the supposed reason for the location of TV aerials on the Touaguba Hill Reserve, is again not a purpose which will benefit the whole city. It will benefit a minority who can afford television.

I consider therefore the applicant trustee of these two reserves had an interest in the decision to be made by the delegate of the Minister and ought in equity to have been given notice and advice of the proposed decision and given an opportunity to be heard. The applicant had made long term plans for the development of the two reserves, had already expended money in relation to the Ela Beach Reserve and was in the process of calling tenders for the development of the second stage, including the piece of land the subject of the declaration, revoking it from public reserve. In these circumstances the applicant, has in my view sufficient interest entrusted unto it on behalf of the public at large of Port Moresby and it ought to have been consulted and heard before a decision was made to revoke the declarations of public reserves.

The decisions in the end result are not, in my view, in the best interest of the public at large for which the reserves had been declared in the first instance and were being developed and proposed to be further developed. In all of the circumstances, therefore, I grant the relief sought in the following terms:

N2>1.       That the declaration under s 25 of the Land Act published in the National Gazette on 7 May 1987 revoking the declaration of public recreation reserve being part of the land referred to in folio 10, vol 1 of National Land register is invalid.

N2>2.       The Minister for Lands and Physical Planning is restrained from alienating or dealing with the said area of land.

N2>3.       Declare that the declaration under s 25 of the Land Act published in the National Gazette on 11 June 1987 revoking the declaration of the public recreation reserve being part of allotment 7, section 28 Granville, is invalid.

N2>4.       The Minister for Lands and Physical Planning is restrained from alienating or dealing with the said area of land.

Orders accordingly

Lawyer for the plaintiff: G Powell.

Lawyer for the defendant: State Solicitor.