Wamp NGA Holdings Ltd v Nau [2011] PGNC 109; N4378 (6 September 2011)

N4378

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 788 OF 2005

BETWEEN

WAMP NGA HOLDINGS LIMITED
Plaintiff

AND

POPUNA NAU & NAU NIKINTS
First Defendants

AND

BULDUNG GOMBA trading as BICA HARDWARE & BUILDING SUPPLIES
Second Defendant

AND
PEPI KIMAS, SECRETARY FOR LANDS AND PHYSICAL PLANNING
Third Defendant

AND

THE INDEPENDANT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Mount Hagen: Makail, J
2010: 04th June & 2011: 06th September

PROPERTY LAW - Public street - Culdasec - Zoned for public use purpose - Easement - Right of way - Claim of - Whether public street an easement - Distinction between public street and easement discussed - Interference of - Closure of - Encroachment - Construction of building - Legality of.

PHYSICAL PLANNING - Re-zoning of land - Public street re-zoned for commercial use - Creation of new lease - Decision of Physical Planning Board - Discretion of - Re-zoning of land done to comply with authorised purpose of development and use of land - Physical Planning Act, 1989 - Sections 72 & 74.

PRACTICE & PROCEDURE - Application for leave to further amend originating summons - Additional relief sought - Declaration of re-zoning of land as illegal - Proposed amendment based on change of circumstances - Decision of Physical Planning Board to re-zone land and create a new lease - Whether further amendment appropriate - Further amendment must resolve the dispute between parties - Proceeding not an application for judicial review - Additional relief sought will serve no purpose - Leave to further amend originating summons refused - Order 8, rule 50(1) & Order 16, rule 1.

Facts

The plaintiff and the first defendants had a dispute over a piece of land which was originally an access road and later re-zoned for commercial use purpose and converted into a commercial purpose lease described as section 28, allotment 14, Mt Hagen, Western Highlands Province. It is located along Moka Place in the town of Mt Hagen. Prior to it being re-zoned for commercial use purpose, it was an access road or a culdasec which connected the plaintiff's State leases to Moka Place. The first defendants entered and constructed a warehouse on it. The second defendant is presently occupying it and operating a hardware and merchandise shop.

The plaintiff claimed the access road is an easement and it had a right of way over it. When the first defendants constructed the warehouse on it, they had invaded, interfered with and disturbed its right of way to its surrounding State leases. It commenced action and sought declaratory orders to assert its right of way and invalidate the construction of the warehouse. While the matter was pending trial, the first defendants obtained approval from the Physical Planning Board to re-zone the land and it was re-zoned to a commercial use purpose and a new lease for commercial purpose was created as section 28, allotment 14. At trial, the plaintiff applied for leave to further amend the originating summons to seek an additional declaratory order to invalidate the re-zoning of the access road land from a public use purpose to a commercial use purpose.

Held:

1. The access road land is a public street and not an easement. As a public street, it did not confer unfettered right of way to the plaintiff.

2. The discretion to deal with a public street is vested in the State through the Minister for Lands and Physical Planning and the Physical Planning Board pursuant to the Street Closing Act and the Physical Planning Act, 1989.

3. The Physical Planning Board had exercised its discretion in favour of the first defendants where it decided to re-zone the access road land from a public use purpose to a commercial use purpose to cater for the first defendants' interest to develop the land.

4. There was a substantial change in the circumstances of the case which had substantially changed the parties' position in relation to the original dispute, in that, the dispute changed from the first defendants' interference with the plaintiff's right of way on the access road land to that of the validity of the decision of the Physical Planning Board to re-zone the land and create a new lease.

5. As the plaintiff had not applied for judicial review of the decision of the Physical Planning Board, the decision was deemed valid and the further amendment sought by the plaintiff in the present case will not resolve the dispute between the parties and was accordingly refused.

6. The action was dismissed.

Cases cited:

Papua New Guinea cases

Madang Provincial Government -v- Cyrillus Loman (2003) N2470
Kenn Norae Mondiai -v- Wawoi Guavi Timbers Co Limited (2007) SC886
Steamships Trading Co Limited -v- Garamut Enterprise Limited (2000) N1959
New Guinea Company Ltd -v- Thomason [1975] PNGLR 454

Overseas cases

Re Ellenborough Park [1956] Ch 131

Other Reference & Texts:

Peter Butt, Land Law, 5th ed, (2005) Sydney, Law Book Co
Osborn's Concise Law Dictionary, 9th ed, (2001) London, Sweet & Maxwell

Counsel:

Mr R Lains, for Plaintiff
Mr G Anis, for First Defendants
No appearances for Second Defendant
No appearance for Third & Fourth Defendants

JUDGMENT

06th September, 2011

1. MAKAIL, J: The plaintiff and the first defendants had a dispute over a piece of land which was originally an access road and later re-zoned for commercial use purpose and converted into a commercial purpose lease described as section 28, allotment 14, Mt Hagen, Western Highlands Province. It is located along Moka Place in the town of Mt Hagen. On it is the first defendants' warehouse. The second defendant is presently occupying it and operating a hardware and merchandise shop.

2. The third and fourth defendants were joined in the action by an order of the Court because it is alleged they did not follow the procedures in relation to re-zoning of land when they approved the first defendants' application for re-zoning of the access road land from a public use purpose for commercial use purpose and subsequently created a new lease for commercial purpose. Despite this, they have not shown any interest in defending the action.

Background Facts

3. It is alleged the plaintiff is a holding company of Wamp-Nga Enterprises Limited and Bindon Plantations Limited. Wamp-Nga Enterprises Limited is the registered proprietor of a State lease for residential purposes described as section 28, allotment 3, Mt Hagen, Western Highlands Province and Bindon Plantations Limited is a registered proprietor of another State lease for residential purposes described as section 28, allotment 2, Mt Hagen, Western Highlands Province. These two State leases run adjacent to each other and the access road from the eastern end and another State lease runs opposite these two State leases and adjacent to the access road from the western end. It is section 28, allotment 1 and Farmset Limited is the registered proprietor. All these leases are located along Moka Place.

4. It is further alleged, as a result of the warehouse, the first defendants have blocked the free access to section 28, allotments 1, 2 and 3 and have also encroached on the residential lease section 28, allotment 2 by 2 metres. The first defendants denied the allegation.

5. When the action was first commenced on 10th August 2005, the access road land was zoned as a public use purpose and provided free access to occupants of section 28, allotments 1, 2 and 3, more so allotments 1 and 2. Farmset Limited occupied section 28, allotment 1 and used the access road for unloading its goods for its hardware and merchandise shop. The plaintiff sought declaratory orders to assert its right of way on the access road land on the basis that the first defendants did not have title to the land and that the land was zoned for public use purpose. It also sought an order against the first defendants to demolish the warehouse.

6. It is further alleged, while the action was pending trial, the first defendants applied and obtained approval from the Physical Planning Board to re-zone the access road land for commercial use purpose and created a new lease for commercial lease described as section 28, allotment 14. It further alleged the first defendants are in the processing of obtaining a commercial purpose lease over it, in that, the first defendants have applied to the Land Board for a grant of title by closed tender to the newly created lease section 28, allotment 14.

7. As the status quo had changed, the plaintiff has applied to further amend its originating summons and sought an additional declaratory order to invalidate the re-zoning of the access road land and the creation of the lease section 28, allotment 14. It alleged the first defendants did not follow the process of re-zoning of land which resulted in the decision of the Physical Planning Board to re-zone the land to commercial use purpose and creation of the new lease section 28, allotment 14.

Evidence of Parties

8. A number of affidavits have been filed by the parties. The plaintiff relied on the following affidavits:

1. Affidavit of Camillus Kumbi sworn on 08th August 2005 and filed on 10th August 2005 (exhibit "P1"),

2. Affidavit of Camillus Kumbi sworn on 21st November 2005 and filed on 24th November 2005 (exhibit "P2"),

3. Affidavit of Camillus Kumbi sworn on 28th February 2006 and filed on 03rd March 2006 (exhibit "P3"),

4. Affidavit of Camillus Kumbi sworn and filed on 11th July 2007 (exhibit "P4"),

5. Affidavit of Ramse Onbi sworn on 15th May 2006 and filed on 18th May 2006 (exhibit "P5"),

6. Affidavit of Ponge Opoya sworn on 09th March 2006 and filed on 10th March 2006 (exhibit "P6") and

7. Affidavit of Alois Jim sworn on 15th May 2006 and filed on 18th May 2006 (exhibit "P7").

9. The first defendants' evidence comprised of:

1. Affidavit of Popuna Nau sworn and filed on 03rd April 2006 (exhibit "D1"),

2. Affidavit of Nau Nikints sworn on 05th October 2006 and filed on 06th October 2006 (exhibit "D2"),

3. Affidavit in Response of Roger Otto sworn and filed on 12th June 2007 (exhibit "D3"), and

4. Further affidavit of Roger Otto sworn and filed on 29th August 2007 (exhibit "D4").

Preliminary Applications

10. Parties have also filed interlocutory applications which I had directed at the directions hearing to be heard together with the substantive matter at trial. I would then make one decision. These interlocutory applications are:

1. Plaintiff's application for leave to further amend its amended originating summons pursuant to Order 8, rule 50(1) of the National Court Rules; and

2. First defendants' cross application to dismiss the proceeding for failure to disclose a reasonable cause of action, frivolous and vexatious and an abuse of process pursuant to Order 12, rule 40(1)(a),(b)&(c) of the National Court Rules.

Parties' Submissions

11. In its submissions, the plaintiff argued as the holding company of Bindon Plantations Limited who is the registered proprietor of State lease for residential purpose section 28, allotment 2 and Wamp-Nga Enterprises Limited who is the registered proprietor of State lease for residential purpose section 28, allotment 3, they hold an indefeasible title over the State leases and are protected from invasion, interference or disturbances by trespassers. That protection extended to any easement on or connected to the leases.

12. It further argued, as the access road land is an easement, they are also protected from invasion, interference or disturbances by trespassers. As the first defendants have erected a warehouse on the access road land, they have invaded, interfered with and disturbed its right of way. Accordingly, it is entitled by way of remedy to ask the Court to declare the first defendants' occupation and erection of the warehouse illegal and order its demolition.

13. On the other hand, the first defendants strongly oppose any suggestion they invaded, interfered with or disturbed the plaintiff's right of way when they constructed the warehouse on the access road land. They argued they have an equitable right or interest as original traditional landowners of the access road land and its nearby surrounding land to occupy and develop them. That is why they entered, occupied and erected the warehouse on the access road land.

14. They further argued, their decision to enter and occupy the access road land was fortified by the fact that the access road land had been a waste and vacant land for many years. This was compounded by the lack of development of the two adjacent State leases, section 28, allotments 2 and 3. Given the state of affairs, they were under a mistaken belief that no-one was interested in developing the access road land and the adjacent State leases and decided to enter and erect the warehouse on the access road land. They submitted, the action should be dismissed.

14. In addition to these grounds, they submitted the action should be dismissed because it did not disclose a reasonable cause of action, is frivolous and vexatious and an abuse of process pursuant to Order 12, rule 40(1)(a), (b) & (c) of the National Court Rules. They argued the plaintiff has no locus-standi to bring the action because it is not the one affected by the alleged invasion, interference and disturbance of the access road land and the alleged "encroachment" on section 28, allotment 2. This is because the plaintiff is not the registered proprietor of section 28, allotment 2. The registered proprietor of section 28, allotment 2 is Bindon Plantations Limited. As for section 28, allotment 3, they argued it is not affected because its boundary does not touch or connect to the access road land.

15. They further argued there are no pleadings to lay the foundation for the plaintiff's claim that the re-zoning of the access road land resulting in the creation of the new lease section 28, allotment 14 is illegal. For example, the plaintiff did not plead the procedures which it alleged they had breached when they applied to have the access road land re-zoned from a public use purpose to a commercial use purpose.

16. In any event, they asked the Court to dismiss the action because events have overtaken the plaintiff's cause of action. This is because the access road land has been re-zoned from a public use purpose to a commercial use purpose and they are waiting for the Land Board to make a decision on their application for grant of title to the newly created lease section 28, allotment 14. If the plaintiff alleged their entry and occupation of the access road land is illegal because it is a public street, it is too late to complain because the land has been re-zoned for commercial use purpose and therefore, there is no utility to pursue the action.

Analysis of the Law and Evidence

17. From the affidavits, there is no dispute the access road land was previously zoned as a public street and was used by the public including the registered proprietors and occupants of section 28, allotments 1, 2 and 3 as access to and from these State leases. There is also no dispute the access road land was a waste and vacant land for many years and in 2005, the first defendants entered and started constructing a building (warehouse). There is also no dispute that at the time, the first defendants did not have title to the access road land nor did they re-zoned it from a public use purpose to a commercial use purpose prior to building the warehouse.

18. It is also not disputed section 28, allotment 1 runs adjacent to the access road at the western end while section 28, allotment 2 runs adjacent to the access road land at the eastern end and section 28, allotment 3 is located next to or shares its boundary with section 28 allotment 2. The registered proprietor of section 28, allotment 1 is Farmset Limited and Bindon Plantations Limited is the registered proprietor of section 28, allotment 2. As for section 28, allotment 3, Wamp-Nga Enterprises Limited is its registered proprietor. It is also not disputed the plaintiff is a holding company of Bindon Plantations Limited and Wamp-Nga Enterprises Limited.

19. Finally, there is no dispute the plaintiff proposed to build a warehouse on section 28, allotment 2 and a building to house a line of shops on section 28, allotment 3. At present, no work has been carried out on these leases and they are undeveloped.

20. From the foregoing submissions and evidence before the Court, it is obvious there are two competing interests at play here. One by the plaintiff and the other is the first defendants'. The issue is one of whose interest should prevail in the circumstances as described. The plaintiff's interest is the claim of right of way on the access road to its leases section 28, allotments 2 and 3 and the first defendants' interest is the warehouse on the access road land, which land, has been re-zoned and converted into a commercial purpose lease and pending grant of title.

21. I deal first with the first defendants' preliminary objection to dismiss the action as being frivolous and vexatious and abuse of process on basis of lack of standing of the plaintiff. The first matter I note is that the first defendants do not object to the competency of the proceeding on the ground that the plaintiff is a wrong party to commence the proceeding. Rather they object on the basis that the plaintiff does not have locus-standi to bring the action against the defendants. As the first defendants do not object to the plaintiff being a wrong party to the proceeding, I take it that it is a non-issue between them and the only issue is the standing of the plaintiff in commencing the proceeding.

22. The Courts have observed that the question of locus-standi has been watered down to a point where a person who has sufficient interest and/or a person is aggrieved may have locus-standi. The Court has discretion, in appropriate cases, to recognise a person as having locus-standi: see Madang Provincial Government -v- Cyrillus Loman (2003) N2470 and Kenn Norae Mondiai -v- Wawoi Guavi Timbers Co Limited (2007) SC886.

23. Proceeding on this premise, it is further noted the first defendants do not deny that the plaintiff is a holding company and Wamp-Nga Enterprises Limited and Bindon Plantations Limited are its subsidiaries. They also do not deny Wamp-Nga Enterprises Limited is the registered proprietor of section 28, allotment 3 and part of section 28, allotment 3 runs adjacent to section 28, allotment 2. On that premise, I am of the view, as the holding company, the plaintiff's interest has been affected by the presence of the warehouse on the land that was once an access road. This is because it has restricted or denied the plaintiff through its subsidiaries free access to the leases. For these reasons, I am satisfied the plaintiff has sufficient interest in the dispute, hence locus-standi to bring the action against the defendants. I dismiss the first defendants' preliminary objection.

24. Turning to the substantive issues, the first issue is whether the first defendants' construction of the warehouse on the access road land has invaded, interfered with or disturbed the plaintiff's right of way, hence illegal and secondly, whether the re-zoning of the access road land and subsequent creation of a new lease section 28, allotment 14 is illegal.

25. The plaintiff contended the access road is an easement and has made lengthy submissions on it. To better appreciate the position of the plaintiff, it is pertinent that some time be spent at this juncture to discussion the law on easement.

26. An easement is defined by the Osborn's Concise Law Dictionary, 9th ed, (2001), London, Sweet & Maxwell at 145 as "[a] servitude; a right enjoyed by an owner of a land over another such as a right of way, of light, of support, or air or water. An easement must exist for the accommodation and better enjoyment of land to which it is annexed; otherwise only a mere licence can exist. An easement is acquired by grant or prescription. The land owned by the possessor of the easement is called the dominant tenement and the servient tenement is the land over which the right is enjoyed."

27. In the text book, Peter Butt, Land Law, 5th ed, (2005) Sydney, Law Book Co, at 419, para 1601, an easement is defined as "a right enjoyed by the owner of one parcel of land to carry out some limited activity (short of taking possession) on a parcel of land owned by another person. An example is a right of way: it gives rights to cross one parcel of land to provide access to another parcel of land."

28. Further on in the text book Land Law by Peter Butt (supra) at 422, para 1609, the learned author lists four essential requirements of an easement as endorsed by the English Court of Appeal in Re Ellenborough Park [1956] Ch 131 at 140 as follows:

1. there must be a dominant tenement and a servient tenement.

2. the easement must accommodate the dominant tenement.

3. the same person must not own and occupy the dominant and servient tenement.

4. the right claimed as an easement must be capable of forming the subject matter of a grant.

29. In my view, all these essential characteristics of an easement must be present to create an easement. With regards to when to bring an action for interference with an easement, it is said interference with an easement is not actionable unless it is "substantial" or "material". There must be a "real and substantial interference". The reason is that the grant of an easement confers only reasonable enjoyment of the right granted, not the level of enjoyment that a fee simple owner could demand. The servient owner retains all the rights of an owner except those conferred on the dominant owner by the terms of the easement: Peter Butt, Land Law (supra) at 476, para 16112.

30. As for the remedies, substantial interference with an easement is actionable in nuisance. (It is not actionable in trespass, since the right to an easement does not give any right to possession of the servient land). Any person with a proprietary interest in the dominant land, and whose right to use the easement is being interfered with, may take action. Two avenues are available: abatement and proceedings in nuisance: Peter Butt, Land Law (supra) at 477, para 16113.

31. Instead of self-help, the person whose enjoyment of the easement is interfered with may take proceedings in nuisance, seeking damages or an injunction to restrain continuing or threatened breaches, or both. Of course, an injunction may be refused on equitable grounds or it may be granted on terms. Where an injunction is sought and refused, any right to self help by way of abatement disappears, because the court has decided the matter. So too does the right to damages for future breaches, though not for loss suffered to date. In appropriate cases, where the obstruction has involved removing or damaging structures over which rights are enjoyed under the easement, the court may grant a mandatory injunction requiring restoration or re-instatement of the structure: Peter Butt, Land Law (supra) at 478, para 16115.

32. In the present case, I am not satisfied the access road land is an easement. This is because first, two essential characteristics of an easement are absent in this case and they are, there is no servient tenement and the access road land is not capable of forming a grant. In so far as the absence of the servient tenement is concern, the access road land is not on another State lease at the time the first defendants constructed the warehouse; for example, the access road was not on the commercial purpose lease of Farmset Limited section 28, allotment 1 and was used by the plaintiff as access road to section 28, allotments 2 and 3, thereby making Farmset Limited's commercial purpose lease a servient tenement. In my view, the absence of a servient tenement makes the access road land not an easement.

33. In relation to the absence of the other essential characteristic of an easement, I am of the view the access road is not capable of forming a grant because it is a public street. As a public street, it cannot be transferred to another person or body.

34. This leads me to the second reason and that is, I am of the opinion it is a public street because according to the description in the plan of section 28, allotment 2, the access road is a public street or culdasec. As noted in the discussion above, easements are created by grant or by prescription. In this case, if the alleged easement is created by grant, the map or description of the access road land does not show that it falls within another State lease and connects with section 28, allotment 2. Section 3 of the Land Registration Act, Ch 191 defines land in certain instruments as:

"3. Definition of land in certain instruments.

(1) This section applies to certificates of title, transfers, leases, mortgages and charges.

(2) In an instrument to which this section applies, "land" includes all easements and appurtenances appertaining to the land described in the instrument or reputed to be part of the land or appurtenant to it.

(3) Subsection (2) does not limit, in an instrument, the meaning that "land" has apart from this section." (Emphasis added).

35. An "instrument" is defined under section 2 of the Land Registration Act, Ch 191 to include "a certificate of title and a document relating to dealing." In this case, a copy of the certificate of title for section 28 allotment 2 is marked annexure "A" to the affidavit of Camillus Kumbi sworn on 08th August 2005 and filed on 10th August 2005 (exhibit "P1"). It gives a description of the land as follows "all that piece of land which the following description applies allotment 2, section 28 Mount Hagen. 1acre 19.2 perches be same a little more or less Western Highlands, as shown coloured yellow in the plan annexed with appurtenances thereto (hereinafter called "the Land")."

36. The plan shows section 28, allotment 2 runs adjacent to Kak Place, which is the culdasec or the access road. A culdasec is a French word for a street that is closed at the end. Based on the definition of the culdasec and description of the land area of section 28, allotment 2, the culdasec or access road is outside the boundary of section 28, allotment 2. In my view, this confirms that it is a public street.

37. Finally, the access road land is a public street because it is used by the general public including the registered proprietors and occupants of the surrounding State leases to have access to and from these leases. Its description as a public street is also consistent with its purpose and that is, it is for public use purpose. They all make it consistent with its zoning requirement as a public use purpose land. Indeed, section 72 of the Physical Planning Act, 1989 provides for the use and development of the land and buildings within a zone for authorised purposes. It states:

"72. Use and development of land and buildings within a zone for authorized purposes.

(1) Subject to this section, the purposes for which a building or land may be used in a zone (other than a redevelopment zone) are -

(a) the purposes specified in respect of that zone; and

(b) any other purpose for which planning permission has been granted in a particular case.

(2) Subject to this section, the purposes for which development may take place in a zone (other than a redevelopment zone) are –

(a) the purposes specified in respect of that zone; and

(b) any other purpose for which planning permission has been granted in a particular case.

(3) Subject to Section 73, the purposes for which a building or land may be used in a redevelopment zone are -

(a) where the land is also in another zone - a purpose for which a building or land may be used in the other zone; and

(b) a purpose for which planning permission has been obtained in a particular case."

38. The authorised purpose of the access road land within the zone is for public use for the commercial and residential leases within that zone or area. If a person carries out development or uses a building or land in a zone for a purpose that is not an authorised purpose in relation to the building or land, that person is guilty of an offence: see section 74(1) of the Physical Planning Act, 1989.

39. All these reasons have persuaded me to conclude that the access road land is not an easement. On the other hand, it is a public street and is used by the public including the registered proprietors and occupants of the State leases around it to gain access to and from them. Also as it is a culdasec, it appears it has been used by the public and others as a round-about. Having concluded that the access road land is a public street, I consider that the effect of that is, it does not confer unfettered right of way to the plaintiff as in the case of an easement. The rationale behind this proposition is that, public streets are managed and controlled by the State and the State has the ultimate discretion to deal with them in the interest of the public.

40. Where the State intends to close a public street and use the land on which a public street is on for some other purpose, eg, commercial purpose, the discretion to close it is vested in the Minister for Lands and Physical Planning under sections 2 and 3 of the Street Closing Act. Where the Minister closes a public street, by section 5 of the same Act, the land is vested in the State. Thereafter, if the State intends to use the land for commercial purpose, the decision to convert the land to a commercial purpose shall be made by the Physical Planning Board pursuant to the provisions of the Physical Planning Act, 1989.

41. In the present case, leaving aside how and why the first defendants entered the access road land in the first place, it is not disputed the first defendants applied and obtained approval from the Physical Planning Board to re-zone the access road land to commercial purpose and subsequently created a new commercial purpose lease known as section 28, allotment 14. All these were done to facilitate the first defendants' interest to develop the access road land. As noted above, the discretion to deal with the access road land is vested in the State through the Physical Planning Board and it decided that the access road land should be re-zoned for commercial use purpose.

42. In my view, the decision to do that is entirely within the discretion of the Physical Planning Board. However, whether the discretion is exercised properly is another matter. If the plaintiff alleged the Physical Planning Board did not exercise its discretion properly because the decision was reached without the first defendant properly following the procedures for re-zoning and creation of a new lease under the provisions of the Physical Planning Act, 1989, or the re-zoning of the access road land was contrary to the zoning of the area under section 67 of the Land Act, 1996, or the decision was unreasonable or in breach of the provisions of the Street Closing Act as it was reached without taking into account the plaintiff's interest, then these are matters that can appropriately be raised in an application for judicial review of the decision of the Physical Planning Board.

43. But the point is the access road land did not confer an unfettered right of way to the plaintiff. It may be removed at anytime at the discretion of the State. For these reasons, I am not satisfied the plaintiff has made out its case that the access road is an easement and based on that, its' right of way has been interfered with by the first defendants. I dismiss the claim in relation to the interference with the right of way.

44. Returning to the questions of how and why the first defendants entered and occupied the access road land in the first place, it may well be that they had a mistaken belief that it was a waste and vacant land and that as original traditional owners of the land, they had a right to occupy and develop it. Also, it may well be that it was reasonably within their knowledge that the land being located well within the boundary of Mt Hagen town is State land and that would have sufficiently put them on notice to ascertain its nature and status with the third defendant prior to venturing onto it and building the warehouse.

45. Further, it may well be the case that the plaintiff through the Western Highlands Provincial Building Board and the police had informed them to stop work. In my view, these matters at the end of the day become irrelevant because circumstances have changed since the first defendants' discovery or, might I say, when it was brought to their attention by the plaintiff that the access road land was not a waste and vacant land but a public street. These changes were, the first defendants moved quickly to "legalise" their entry and occupation of the access road land by applying to the Physical Planning Board to re-zone it from a public use purpose to a commercial use purpose and from there, a new commercial purpose lease was created as section 28, allotment 14. They have further applied through a close tender for grant of title to the new lease to the Land Board and a decision is pending.

46. Given the change of circumstances since the commencement of the action on 10th August 2005, the plaintiff further applied to amend its amended originating summons to seek an additional declaratory order to invalidate the re-zoning of the access road land and creation of the new lease section 28, allotment 14.

47. The first defendants opposed the application for further amendment on the ground that the proposed amendment is an abuse of process. They argued this is the second time the plaintiff has sought to amend the originating summons and the proposed further amendment has prejudiced them in the defence of the action. I have considered the proposed further amended originating summons annexed and marked "A" to the affidavit in support of Randolph Lains sworn on 11th March 2010 and filed on 15th March 2010 and I am not satisfied the proposed amendment is appropriate in the circumstances.

48. I am of the view there has been a substantial change in the circumstances of the case which has substantially changed the parties' position in relation to the original dispute of the invasion, interference or disturbance of the plaintiff's right of way on the access road land. This is because there is no dispute the Physical Planning Board has re-zoned the access road land from a public use purpose to a commercial use purpose and following that, has created a new lease section 28, allotment 14. Although there is no evidence of a written decision of the Physical Planning Board stating its reason(s) for arriving at that decision, the point is, it is not disputed the Physical Planning Board has made a decision in favour of the first defendants.

49. That being the case, the decision of the Physical Planning Board, it would seem, has legitimised the first defendants' entry, occupation and use of the access road land as it no longer is a public street but a commercial purpose lease and the first defendant's development and use of it is consistent with or within the authorised purpose of a commercial purpose lease as required by section 72 of the Physical Planning Act, 1989.

50. As the access road land is no longer a public street but a commercial purpose lease by virtue of a decision of the Physical Planning Board, I am of the view the decision cannot be challenged in the present mode of proceeding as it is not an application for judicial review. I consider the Physical Planning Board is a statutory body established under section 8 of the Physical Planning Act, 1989 and its function is to consider and determine all physical planning matters under section 9 of the same Act.

51. As a statutory body charged with the duty to make decisions on physical planning matters in the country, in my view, its decision can only be challenged by way of an application for judicial review by invoking the supervisory powers of the Court under the Constitution and Order 16 of the National Court Rules. If that is done, the plaintiff shall be required to plead the grounds on which it relies upon to seek review of the decision of the Physical Planning Board and the specific reliefs that are available in an application for judicial review such as orders for certiorari, declaration, prohibition, etc: see Order 16, rule 1 of the National Court Rules.

52. My view has been fortified by the decision in Steamships Trading Co Limited -v- Garamut Enterprise Limited (2000) N1959 where Sheehan, J held that non-compliance with procedures pertaining to re-zoning of State land from public open space to commercial space is tantamount to equitable fraud and the grant of title of the commercial lease was a nullity. While the case concerned a grant of title of a State lease based on fraud under section 33 of the Land Registration Act, Ch 191, the decision arose from an application for judicial review.

53. It is trite law that in cases where a party seeks leave to amend a pleading or document in any proceeding, it must be established inter-alia that the amendment will enable the Court to determine the real controversy between the parties: see New Guinea Company Ltd -v- Thomason [1975] PNGLR 454.

54. In this case, I am of the view if the plaintiff is given leave to further amend its amended originating summons, the further amendment will serve no purpose because it will not finally resolve the dispute between the parties. The dispute as to the plaintiff's right of way on the access road land would still be there because the decision of the Physical Planning Board to re-zone the access road land to a commercial use purpose would be deemed valid and must stand. It would follow the plaintiff will have no basis to complain of being denied a right of way on the access road land.

55. Following on from that reason, as the decision to re-zone the access road land from a public use purpose to a commercial use purpose and subsequent creation of the lease section 28, allotment 14 was made by the Physical Planning Board, it is not a party (one of the defendants) in the present action. Assuming the Court was to grant leave to the plaintiff to further amend its amended originating summons, in my view, the proposed order will have no utility or effect on the decision of the Physical Planning Board as it is not a party and cannot be obliged to comply with it.

56. There is a further reason to refuse the plaintiff's application and that is, the process of closing a public street which I had briefly touched on earlier under section 2 of the Street Closing Act, has not being raised and argued before the Court. I can only observe here that, where the Minister for Lands and Physical Planning intends to close a street, he is required to give notice of his intention to close a street by publishing it in the National Gazette. Section 2 is set out in full below:

"2. Notice of intention to close.

Notwithstanding any other law, if in the opinion of the Minister it is necessary or desirable to close a street he may give notice in the National Gazette of the intention to close the street."

57. Under section 3 of the same Act, a person who desires to object to a proposed street closure under section 2 may lodge an objection with the Minister within 60 days of the publication of the notice and under section 5, where the Minster closes the street, the land is vested in the State.

58. In the present case, there is no pleading sought in the further amended originating summons in relation to whether the access road land, being a public street was closed by the Minister prior to its re-zoning as required by section 2 of the Street Closing Act. For example, there is no pleading in relation to whether the Minister published his intention to close the access road in the National Gazette, persons including the plaintiff have objected to the proposed closure and he went ahead and closed it after considering the objections under sections 2, 3, 4 and 5 of the above Act.

59. That is why I said earlier and in any event, any issue arising from the closure of the access road land by the Minster under section 2 of the Street Closing Act, would be properly raised in an application for judicial review under Order 16 of the National Court Rules. It may well be that the decision of the Physical Planning Board was in breach of section 2 of the Street Closing Act, in that, the Minister did not close the street prior to it being re-zoned and a new lease being created. This may be a relevant consideration for judicial review but in my view, it cannot be a matter for decision in the present action.

60. This leads me to the final reason and that is, as the plaintiff has not challenged the decision of the Physical Planning Board to re-zone the access road from a public street to a commercial purpose lease and creation of the new lease section 28, allotment 14, the decision is deemed valid for all intent and purposes and there would be no basis for the Court to grant the order sought by the plaintiff to have the first defendants' warehouse on the access road land demolished. For these reasons, I refuse the plaintiff's application for leave to further amend its amended originating summons.

61. The final matter is the plaintiff's claim of alleged encroachment on section 28, allotment 2 by 2 metres by the first defendants. On the pleadings before me, I am not satisfied the plaintiff's claim of encroachment should be considered because there is lack of pleadings in the amended originating summons for a relief (declaratory order) to invalidate the alleged encroachment on its lease section 28, allotment 2. I dismiss the claim.

62. In any case, since the Physical Planning Board has decided to re-zone the access road land to a commercial use purpose and created a new lease, I am of the view any issues relating to the description of the land area of the lease including any overlapping issues with adjourning leases may be appropriately dealt with in an application for judicial review. As the present action is not an application for judicial review, the issue of encroachment may be left for another time. For this reason too, I dismiss the claim.

63. To conclude, I am not satisfied the plaintiff has properly come before the Court to challenge the decision of the Physical Planning Board to re-zone the access road land and create a new lease on it. In my view, the proceeding is an abuse of process pursuant to Order 12, rule 40(1)(c) of the National Court Rules and must be dismissed.

Order

64. The action is dismissed and the plaintiff shall pay the first and second defendants' cost of the action to be taxed if not agreed. There shall be no order for cost in favour of the third and fourth defendants as they have not shown any interest in defending the action.
Judgment and orders accordingly
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Tamutai Lawyers: Lawyers for Plaintiff
Simon Norum Lawyers: Lawyers for First Defendants
Acting Solicitor-General: Lawyers for Third & Fourth Defendants