Makum Trading Ltd v Temu [2011] PGNC 315; N4243 (5 April 2011)

N4243

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 762 OF 2007

BETWEEN

MAKUM TRADING LIMITED
Applicant

AND

HONOURABLE DR PUKA TEMU, MINISTER FOR LANDS AND PHYSICAL PLANNING
First Respondent

AND

RUPA MULINA, CHAIRMAN OF PAPUA NEW GUINEA PHYSICAL PLANNING APPEALS TRIBUNAL
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Mount Hagen: Makail, J
2010: 14th July
2011: 05th April

ADMINISTRATIVE LAW - Judicial review - Review of decision making body - Minister for Lands and Physical Planning - Rejection of appeal for approval of development plan - Grounds of - Ultra vires - Error of law - Physical Planning Act, 1989 - Sections 5 & 7.

PHYSICAL PLANNING - Physical planning matters - Duties and functions of Minister for Lands and Physical Planning - Exercise of power - Acts on recommendations of Physical Planning Appeals Tribunal - Public Interest - Sound physical planning principles - Physical Planning Act, 1989 - Sections 5, 7, 88 & 97.

REAL PROPERTY - Easement - Street included in State lease - Misdescription of land area in title deed - Wrong description of land area - Effect of - Whether misdescription of land area a ground to reject application for approval of development plan - Land Registration Act, Ch 191 - Section 33.

PRACTICE & PROCEDURE - Statement in support - Pleadings - Grounds of - Pleading of - Sufficiency of - Clear and unambiguous - National Court Rules, 1983 - Order 16, rule 3(2)(a).

Cases cited:

Mudge & Mudge -v- Secretary for Lands & Physical Planning & Ors [1985] PNGLR 387
Rose Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122

Counsel:

Mr P Mawa, for Applicant
Ms J Y Doa, for Respondents

JUDGMENT

05th April, 2011

1. MAKAIL, J: By an originating summons filed on 30th October 2007 and subsequently amended and filed on 02nd May 2008, the applicant Makum Trading Limited seeks judicial review of the decision of the first respondent of 03rd May 2007 which rejected its appeal for approval of a development plan for a land being a State lease (business), described as section 2, allotment 17, Mt Hagen, Western Highlands Province.

BRIEF BACKGROUND FACTS

2. A brief background is necessary to appreciate the basis of the application for judicial review. The applicant is the registered proprietor of the State lease having purchased it from a previous registered proprietor named Bando Enterprise Limited pursuant to a contract of sale and was granted title on or around 03rd July 1998. Its title is recorded in the Registrar of Titles' register as Volume 6, Folio 19. The land area is 0.1469 ha with an annual land rent of K3,600.00. The applicant proposed to put up substantial development on the land. It proposed to build a two storey commercial building to house shops and offices and submitted its development plan to the Physical Planning Board for consideration and approval. The Physical Planning Board considered the application and rejected it.

3. Aggrieved by the decision, it exercised its right of appeal under the provisions of the Physical Planning Act, 1989 and appealed to the second respondent. The second respondent considered the appeal and recommended to the first respondent to reject the appeal and uphold the decision of the Physical Planning Board. The first respondent accepted the recommendation, rejected the appeal and upheld the decision of the Physical Planning Board. It is from the first respondent's decision that the applicant seeks judicial review.

GROUNDS OF JUDICIAL REVIEW

4. In the statement in support made pursuant to Order 16, rule 3(2)(a) of the National Court Rules, it relies on three grounds which are as follows:

"The First and Second Defendants erred in that:

(a) They failed to find and realize that the street between Section 2 Allotments 16 and 17 was closed pursuant to the Mount Hagen Town Development Plan 1984, Drawing No TRP6/42 and National Planning Office Site Plan No. M/11/305 of 22nd April 1985 and as gazetted in National Gazette no. G9- 19th February 1987.

(b) They failed to realize that the subject street was involved into Section 2 Allotment 17 comprising a land area of 0.1469 hectares with an annual land rental of K3,600.00.

(c) The First Defendant erroneously exercised his powers under Section 5 and Section 7 of the Physical Planning Act 1989 to reject the Appeal as recommended by the PNG Physical Planning Appeals Tribunal under the Chairmanship of the Second Defendant on the 29th March, 2007."

PARTIES' EVIDENCE

5. The applicant relies on four affidavits to support the application for judicial review. The first one was from its lawyer Mr Roger Otto sworn on 15th July 2009 and filed on 20th July 2009 which was tendered as exhibit "P1". Mr Otto was not cross-examined by the respondents' counsel. The other three affidavits were from its managing director Mr Max Kumbamong. He also gave oral evidence and was cross-examined by the respondents' counsel in relation to the circumstances surrounding the inclusion of the street in the land, the submission of the development plan to the Physical Planning Board, its rejection and subsequent appeal to the second respondent and the first respondent's decision and reasons to reject the appeal. His affidavits are:

1. Affidavit sworn on 29th October 2007 and filed on 30th October 2007 - Exhibit "P2";

2. Affidavit sworn on 26th November 2007 and filed on 27th November 2007 - Exhibit "P3"; and

3. Affidavit sworn on 15th July 2009 and filed on 20th July 2009 - Exhibit "P4".

6. As for the respondents, the affidavit of the Chief Physical Planner Mr John Ofoi sworn on 04th March 2009 and filed on 05th March 2009 was rejected following the applicant's lawyers objection because he was absent at trial for cross-examination. As a consequence, the respondents did not produce any evidence to support their defence.

PARTIES' SUBMISSIONS

7. The applicant's counsel submits, as the registered proprietor, the applicant had indefeasible title to the land. As such, it was protected from any interference or challenge to its ownership of the land. Given its clear title, it was wrong for the first and second respondents to question its title, especially the land area which included the street in its appeal against the decision of the Physical Planning Board following the Physical Planning Board's refusal to approve its development plan of the land.

8. When they did, first, they acted ultra vires their powers under section 33 of the Land Registration Act, Ch 191 which provision gives the applicant indefeasible title upon registration unless one or more of the exceptions are established, eg, fraud. Counsel relies on the case of Mudge & Mudge -v- Secretary for Lands & Physical Planning & Ors [1985] PNGLR 387 to support his contention.

9. Secondly, the first respondent's decision to dismiss the appeal was contrary to sections 5 and 7 of the Physical Planning Act, 1989 which provisions gave him power to determine appeals by taking into account public interest and sound physical planning principles. If he did exercise his powers properly, he would have found the street was closed and included in section 2, allotment 17 and its closure was consistent with the Mt Hagen Town Development Plan. As he did not, he committed an error of law.

10. Counsel for the respondents, on the other hand vigorously opposes the application for judicial review. First, she argues that it should be dismissed because the applicant has failed to sufficiently plead the grounds for judicial review in the statement in support. As a consequence, the respondents are left to guess the grounds of review and that has prejudiced them in defending the application.

Secondly, she argues the originating summons and the amended originating summons do not plead the grounds of review or the events giving rise to the application for judicial review. They only plead the reliefs sought. For this reason, she submits the applicant is not entitled to make submissions on those grounds or events that have not been pleaded in the originating summons or the amended originating summons.

11. Thirdly, she argues that the first and second respondents acted within their powers under sections 5 and 7 of the Physical Planning Act, 1989 when they rejected the appeal of the applicant. This is because the applicant's land did not include the street. She points out and argues the land on which the street is on is a "reserved land". As a consequence, there is a misdescription of the land in the title deed, based on an erroneous survey of the land sometimes prior to the registration of the land in the register of title's records. For these reasons, she asks the Court to dismiss the application for judicial review.

UNDISPUTED FACTS

12. Upon perusal of the affidavits of Mr Otto and Mr Kumbamong and noting Mr Kumbamong's oral evidence, it is apparent most of the facts are not in dispute. The undisputed facts are, the applicant is the registered proprietor of the State lease which covers the land in dispute. It is a business lease and its land area is 0.1469 ha. It proposed to put up substantial development on the land in the form of a two storey commercial building to house shops and offices. It submitted its development proposal to the Physical Planning Board for consideration and approval. The Physical Planning Board considered the application and rejected it.

13. The reason for its rejection was that, there was conflicting information in relation to the description of the land or rather the land area. One set of information showed the land included the adjacent street that had been closed in 1984 in accordance with the Mt Hagen Town Development Plan and such approval was gazetted in National Gazette No 69 of 19th February 1987. The other set of information showed the land did not include the street because no survey plan was done and no approval was granted for the land to also include the street. However, it is noted both sides accepted and acknowledged the street still exists and is still being used by the public to date.

13. Aggrieved by the decision of the Physical Planning Board, the applicant appealed to the second respondent. The second respondent considered the appeal and recommended to the first respondent to dismiss the appeal and allow the decision of the Physical Planning Board to stand because the land on which the street is on is a "reserved land". It is a street that is still being used. The first respondent accepted the recommendation and rejected the appeal. In his written decision dated 03rd May 2007, the first respondent said the decision was made for the protection of public interest and for the land to be used in accordance with sound physical planning principles and the need for maintaining continuity and consistency of these principles.

ISSUES

14. Having considered the parties' arguments, I consider the arguments boil down to one threshold issue and that is whether the right-of-way or easement, namely the street is a sufficient ground for the first respondent to reject the appeal of the applicant for approval of its development plan pursuant to sections 5 and 7 of the Physical Planning Act, 1989.

15. The peripheral issue is whether the applicant has sufficiently pleaded the grounds of review in the statement in support under Order 16, rule 3(2)(a) of the National Court Rules, 1983.

ANALYSIS OF THE LAW AND EVIDENCE

16. Turning to the law on judicial review, in the often quoted case on judicial review, Rose Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122, it was held that judicial review is available where the decision making authority exceeds it powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abused its powers.

17. It is also important to understand that "the purpose of judicial review is not to examine the reasoning of the subordinate body with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process." see Rose Kekedo's case (supra) at p 124. Judicial review is concern about the procedures in the decision making process and is not an appeal.

18. With these principles in mind, I deal first with the issue of lack of pleadings raised by the respondents. The grounds of review must be set out in the statement in support as required by Order 16, rule 3(2)(a) of the National Court Rules, 1983 and not the originating summons as contended by counsel for the respondents. To my mind, her contention that the applicant has failed to plead the grounds of review or events giving rise to the application for judicial review in the originating summons and amended originating summons is misconceived and is therefore, dismissed. It is also trite the grounds must sufficiently be pleaded in the statement in support and must be clear and unambiguous.

19. From my perusal of the grounds in the statement in support as set out above, I can see the first two grounds relate to the street. In these grounds, the applicant alleges the street was closed and included in the land on which it was granted the business lease. The last ground appears to be a summation of the first two grounds. It alleges breaches of the relevant law. There, the applicant alleges the first respondent erroneously exercised his power when he accepted the recommendation of the second respondent and rejected its appeal for approval of its development plan on the ground that the street was not closed and was not included in its land under the provisions of the Physical Planning Act, 1989.

20. Given these allegations, I am of the view that these grounds cannot be said to be vague and lacking in particulars. On the contrary, I find they sufficiently set out the basis of the application for judicial review and identify the issues for determination. They are clear and unambiguous. For these reasons, I am not satisfied the respondents have made out a case where the application for judicial review should be dismissed on this ground. I dismiss their objection and deal with the merits of the case.

21. In relation to the threshold issue of whether a right-of-way or easement, namely the street is a sufficient ground for the first respondent to reject the applicant's appeal for approval of its development plan, first, it must be stated at the outset, the dispute is not over the grant of title of the land to the applicant but over the misdescription of the land area upon which the title was granted to the applicant. In my view, these are two different issues and must not be confused with each other. In other words, the Court is not asked to determine the validity of the grant of title to the applicant. Rather, it is asked to determine whether the decision of the first respondent to reject the appeal of the applicant for approval of its development plan was proper given the existence of a right of way or easement, namely the street.

22. Secondly, it is important to understand and appreciate the functions of the Physical Planning Appeals Tribunal and the Minister for Lands and Physical Planning. I propose to briefly discuss their respective functions in the foregoing discussions below in the context of this case.

23. The second respondent is the chairman of an appellate Tribunal called the Physical Planning Appeals Tribunal. This Tribunal is established under section 88 of the Physical Planning Act, 1989 and hears appeals from decisions of the Physical Planning Board pursuant to its powers under section 97 of the Physical Planning Act, 1989. Under section 97, the second respondent as the appellate Tribunal recommends to the first respondent as the Minister for Lands and Physical Planning to either allow the appeal or dismiss the appeal and allow the decision of the Physical Planning Board to stand, or refer the matter back to the Physical Planning Board with appropriate directions as he thinks just in a particular circumstances of a case.

24. Upon receipt of the recommendation, the Minister shall consider the matter and shall accept the recommendation of the Tribunal or refer the matter back to the Tribunal for further consideration, or reject the recommendation of the Tribunal and allow the appeal, or reject the appeal, or refer the matter back to the Physical Planning Board concerned with such direction as he thinks just in the particular circumstances of a case. Whatever, his decision is, it is final except on a point of law.

25. Turning to the present case, much of the evidence of Mr Kumbamong relate to the closure of the street and its inclusion in the land on which the applicant was granted title and is the registered proprietor. Mr Kumbamong explained that the land was surveyed and a plan was drawn up in accordance with the Mt Hagen Town Development Plan in 1984. That plan was TRP 6/42. The plan included the street in the land. That is why when one looks at the schedule of the title deed, it shows a land area of 0.1469 ha. That was the same land area that was submitted in the development plan by the applicant to the Physical Planning Board for consideration and approval.

26. Prior to the closure of the street, a notice of intention to close it was published in the National Gazette. This was done in accordance with section 2 of the Street Closing Act, Ch 201. A period of 60 days was given for anyone to raise any objection but there was none. Again, this was done in accordance with section 3 of the same Act. Even if there was an objection, he says, there is no evidence of it before the Court. Following the expiry of 60 days, by operation of law under sections 4 and 5 of same Act, the Minister may close the street and title of the land upon which the street is located is vested in the State. However, it is noted, it is unclear if the Minister had closed the street as there is no instrument evidencing its closure before the Court.

27. He further explained that it was the responsibility of the Department of Lands and Physical Planning through the Physical Planning Office and the Surveyor General's Office to effect the necessary changes. The Physical Planning Office was supposed to advise the Minister to close the street after the expiry of 60 days and brief him in the survey plan and the need to sign necessary documents to effect the street's closure. It did not.

28. Likewise, the Surveyor General' Office was supposed to draw up a new survey plan to include the street in section 2, allotment 17 and submit it to the Registrar of Titles for inclusion in the title deed. It also did not. Instead, it relied on a survey plan no 11/1204 which did not take into account the street's closure. As a result, their records still showed that the street was not closed and was still being used by road users.

29. It was only the records of the Registrar of Titles that were changed to effect the change in the land description and boundary in view of the street's closure. That is why the title deed shows the street was closed and included in the land. The total land area of 0.1469 ha is confirmation of the Registrar of Titles' position. Furthermore and very interestingly, he explained the survey plan no 11/1204 stated in the schedule of the title deed is outdated and incorrect because it did not take into account the street's closure in 1984 or somewhere thereabouts.

30. Mr Kumbamong's detailed explanation as to the process and formalities pertaining to the closure of the street and its inclusion in the land makes a lot of sense and has merits but in my view, that does not make any difference to the existence of the street. This is because he and the applicant also accepted and acknowledged the street still exists and is still being used by the public. That supports the respondents' case as that has always been the respondents' position.

31. They say the street was not closed and the information in the title deed was incorrect. There was a misdescription of the land area in the title deed. That was the position of the Physical Planning Board when it rejected the applicant's application for approval of its development plan. That position remained unchanged when the second respondent adopted that position and recommended to the first respondent to reject the appeal of the applicant which he did.

32. In my view, the first respondent has wide powers to accept the recommendation of the second respondent and reject the applicant's appeal pursuant to section 5 of the Physical Planning Act, 1989 more relevantly, section 5(j)&(v). Section 5 states:

"5. Consideration of physical planning matters under this Act.

Where consideration is being given to a physical planning matter under this Act, the appropriate authority shall take into account such of the following matters as are of relevance to the matter under consideration:-

(a) the provisions of the Environmental Planning Act (Chapter 370), the Environmental Contaminants Act (Chapter 368), and the Conservation Areas Act (Chapter 362);

(b) the impact on the environment and, where harm to the environment is likely to be caused, any means that may be employed to protect the environment or to reduce that harm;

(c) the effect of any development on amenity including the external appearance of the development in so far as this affects amenity;

(d) the character, location, bulk, scale, size, height and density of any development;

(e) the social and the economic aspects of the matter;

(f) the size and shape of land which is proposed to be developed, the siting of any building or works thereon, and the area to be occupied by any development;

(g) whether land is unsuitable for development by reason of its being, or being likely to be, subject to flooding, tidal inundation, subsidence, slip, bush fire, earthquake, volcanic eruption, or to any other risk whether natural or man made;

(h) the relationship of any development to any development on adjoining land or on other land in the locality;

(i) whether the proposed means of entrance to and exit from any development, and from the land on which any development is to take place, are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles within any development or on any land;

(j) the amount of traffic likely to be generated by any development, particularly in relation to the capacity of the road system in the locality and the probable effect of that traffic on the movement of traffic on that road system;

(k) whether public transport services are available and adequate;

(l) whether utility services are available and adequate;

(m) the landscaping of the land on which development is proposed and whether trees on the land should be preserved;

(n) representations made by a public authority in relation to the development of an area, and to the rights and powers of that public authority;

(o) representations on physical planning grounds made by a member of the general public;

(p) policy directives given by the Minister or a provincial minister provided that such directives may not conflict with any other provisions of this Act;

(q) whether any development will affect the approach to an aerodrome or aeronautical navigation aids or any other civil aviation facilities;

(r) whether any development will affect the operation of a port;

(s) an approved plan for education prepared under Division II.2 Part 2 Division (2) of the Education Act (Chapter 163);

(t) any approved plan for health;

(u) the mineral resources of land whether proven or potential; and

(v) any other matters which can be considered reasonably relevant to physical planning." (Underlining is mine).

33. Section 5 sets out the various considerations the Minister may take into account to arrive at a decision. There are twenty two considerations which he may take into account in his deliberation and the twenty third consideration permits him to take into account any other matters that may be relevant to reach a final decision. In this case, it is apparent the street on the land was the primary consideration he took into account and was the reason he cited for his rejection of the applicant's appeal.

34. The other provision counsel for the respondents relies upon is section 7 of the Physical Planning Act, 1989. That provision sets out the Minister's duties. It states:

"7. Duties of Minister responsible for physical planning.

(1) It shall be the duty of the Minister to ensure, in the public interest, that land is used in accordance with sound physical planning principles and that there is consistency and continuity in the preparation and execution of development plans throughout Papua New Guinea and in the exercise of general physical planning control in Papua New Guinea.

(2) It shall be the duty of a provincial minister to ensure, in the public interest, that land is used in accordance with sound physical planning principles and that there is consistency and continuity in the preparation and execution of development plans in the province and in the exercise of general planning control in the province."

35. It is apparent the first respondent's duty is to ensure that land is used in accordance with sound physical planning principles and that there is consistency and continuity in the preparation and execution of development plans throughout Papua New Guinea. In so doing, he must give paramount consideration to public interest.

36. In the present case, the first respondent accepted the recommendation of the second respondent and rejected the appeal of the applicant because he said it was in the interest of the public and for the land to be used in accordance with sound physical planning principles. It was also to maintain continuity and consistency in physical planning principles and matters.

37. It is apparent from his decision there was a need to maintain the street on the land. This seems to be what he meant when he said it was to protect the public interest and for the land to be used in accordance with sound physical planning principles. It was also to maintain continuity and consistency in physical planning principles and matters. In effect, he appears to say if the applicant was granted approval to build the two storey building, it would take up the land on which the street is on, hence denying road users the right-of-way through the street. Further, he appears to say it should be retained for road users to use because of lack of access roads and streets into Mt Hagen city centre and its closure would result in traffic congestion into and out of the city centre.

38. I find the decision of the Physical Planning Board and of course the decision of the first respondent to refuse the appeal of the applicant was not based on section 33 of the Land Registration Act, Ch 191 but rather section 5(j)&(v) of the Physical Planning Act, 1989. Section 33 of the Land Registration Act, Ch 191 reads:

33. Protection of registered proprietor.

(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except -

(a) in the case of fraud; and

(b) the encumbrances notified by entry or memorial on the relevant folio of the Register; and

(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and

(d) in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and

(e) in case of the wrong description of the land or of its boundaries; and

(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and

(g) as provided in Section 28; and

(h) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and

(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a department or officer of the State or of a public corporate body.

(2) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority." (Underlining is mine).

39. I say section 33 of the Land Registration Act, Ch 191 does not apply to this case because, as I said earlier, the respondents took no issue with the applicant's title to the land. The validity of the applicant's title to the land was never a ground on which the respondents refused the applicant's appeal against the decision of the Physical Planning Board which rejected its application for approval of its development plan. They only took issue with the easement that is on the land, which is the street. Whether it was closed or not, is not the issue here.

40. The issue is there was conflicting information in relation to the land area where the proposed development was to have taken place which may have been detrimental to public interest if the issue of the street was not properly resolved. That was the basis for the first respondent to reject the applicant's appeal for approval of its development plan. Therefore, to my mind, the applicant's contention that it has indefeasible title under section 33 of the Land Registration Act, Ch 191 is misconceived and I reject it.

41. In rejecting the applicant's contention, I accept the respondents took no issue with the land area when Bando Enterprise Limited was the registered proprietor. When the applicant became the registered proprietor, they took issue. The common reason was that, the applicant proposed to build a two storey commercial building and the building would occupy the street. In my view, it is insignificant or irrelevant who was the registered proprietor of the land prior to the grant of the title to the applicant and it became the registered proprietor, and made the application for approval of its development plan to the Physical Planning Board.

42. In saying this, I accept it is unacceptable the Physical Planning office and the Surveyor General's office took so long to clarify the land area but I am not satisfied the long delay suggests the street was closed and included in the land. The long delay does nothing more than to demonstrate that there was uncertainty as to the land area, in particular the street which needed clarification and resolution before any development could take place on the land.

43. For these reasons, given the existence of the street on the land to date, it was important and proper for parties to resolve it before any development may take place on the land. I observe here, there was nothing stopping parties, in particular the applicant from re-visiting the issue by raising it again with the Physical Planning office and the Surveyor General's office. That right is still available to the applicant.

44. It follows, the conflicting information in relation to the description of the land area, in particular the street on which the applicant's development plan was based upon was a sufficient ground for the first respondent to accept the recommendation of the second respondent and reject the appeal of the applicant for approval of its development plan.

45. In the circumstances, I find there was proper basis or foundation in law for the first respondent to accept the recommendation of the second respondent and reject the appeal of the applicant. He acted within his powers under sections 5 and 7 of the Physical Planning Act, 1989. He committed no error of law or did not act ultra vires his powers. There is therefore, nothing for the Court to intervene and correct.

ORDERS

46. The application for judicial review is dismissed with costs to the respondents to be taxed if not agreed. Time for entry of judgment shall also be abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment and orders accordingly.
____________________________________
Mawa Lawyers: Lawyers for Applicant
Acting Solicitor General: Lawyers for Respondents