Port Moresby Gun Club Inc. v Allan [2016] PGNC 299; N6500 (20 October 2016)

N6500

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 646 OF 2014

BETWEEN
PORT MORESBY GUN CLUB INC.
Plaintiff

AND

HON. BENNY ALLAN, MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

AND

NATIONAL LAND BOARD
Second Defendant

AND

ROMILLY KILA PAT, in his capacity as SECRETARY FOR LANDS & PHYSICAL PLANNING
Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND

OUR REAL ESTATE LIMITED
Fifth Defendant

Waigani: Makail, J
2016: 19^th & 20^th October

JUDICIAL REVIEW – Review of grant of title – State Lease – Grant of State Leases for residential purposes – State Leases granted over pre-existing State Lease – Special Purposes Lease – Rezoning of land – Whether rezoning of land defeats the title of registered proprietor – Land Act, 1996 – Sections 99 & 100 – Physical Planning Act – Sections 71 & 77

Cases cited:

Nil

Counsel:

Mr. K. Imako, for Plaintiff
Mr. T. Mileng, for First to Fourth Defendants
Mr. F. Alua, for Fifth Defendant

JUDGMENT

20^th October, 2016

1. MAKAIL, J: The Plaintiff claims that it is the registered proprietor of a piece of land described as Allotment 1, Section 201, Hohola, National Capital District contained in the State Lease Volume 27 Folio 6668. It is a Special Purpose Lease for 99 years granted under section 100 of the Land Act. It was granted on 20^th June 1976.

2. A copy of the Plaintiff’s State Lease and its registered survey plan of the Lease were produced and identified as annexures “VAB1” and VAB2” to the affidavit of Mr. Vincent Arthur Bull, the Public Officer and Secretary of the Plaintiff. It has a land area of 20.00 hectares. The land is being used by the Plaintiff as a shooting range and adjacent to the Waigani Drive just before the Pacific Games Village Police Barracks.

3. At no time was the Plaintiff’s State Lease forfeited under section 122 of the Land Act, 1996 or cancelled under sections 160 and 161 of the Land Registration Act. Further, the Plaintiff has never surrendered it under section 121 of the Land Act, 1996.

4. Somehow on 18^th June 2014 the Fifth Defendant was granted 37 State Leases by the First Defendant for residential purposes over part of the land. The Leases were for high covenant residence.

5. The land was sub-divided into 37 allotments. They are Allotments 1 to 19, Section 549 and Allotments 15 to 33, Section 201. The Fifth Defendant stands on these State Leases and asserts that it is the registered proprietor.

6. The Plaintiff seeks judicial review of the decision of the First Defendant to grant these State Leases to the Fifth Defendant in circumstances where the land was already covered by a pre-existing 99 year Special Purposes Lease granted on 20^th June 1976.

7. Secondly, that the Defendants failed to comply with the relevant provisions of the Land Act, 1996 before the decision was made.

8. For this, it contends that the First Defendant acted ultra vires its power to grant the State Leases to the Fifth Defendant, breached the mandatory provisions of the Land Act, 1996, took into account irrelevant considerations and failed to take into account relevant considerations in relation to its pre-existing State Lease.

9. Finally, it was denied natural justice under section 59 of the Constitution because it was not heard prior to the decision was made.

10. If the Plaintiff’s State Lease was not forfeited, cancelled or surrendered, how was it then that the First Defendant granted another State Lease over the same land to the Fifth Defendant?

11. The First to Fourth Defendants have no answer or explanation to this because they failed to attend the trial or filed affidavits in response. They did not even respond to an order for production of documents in respect of the subject land.

12. Under the Land Act, 1996 documents that ought to have been produced but missing are the Application for State Lease made in the approved form: section 70 (a), Receipt of payment of prescribed fee: section 70 (b), Notice of Exemption from Publication by the First Defendant (Public Tender), if any: section 69 (2), Applicant’s Proposed Development Plan: section 70 (a), Meeting Minutes of Land Board (Second Defendant) with recommendation for allocation of land to the Fifth Defendant: section 71, Decision of the First Defendant in granting State Lease to the Fifth Defendant: section 72, Gazettal Notice of Fifth Defendant as successful Applicant: section 74, Notice to Fifth Defendant as being successful Applicant: section 75 and Fifth Defendant’s acceptance of terms and conditions of proposed lease: section 76.

13. It is a pity that the First to Third Defendants did not attend the trial yesterday to account for the conflicting State Leases issued over the same piece of land. It is the same old story – competing titles over the same land and the story goes on – only with the Department of Lands and Physical Planning, a State agency responsible for administrating all Government lands for the State. One wonders whether officers of the Third Defendant carry out thorough investigation including site inspection of the land to ascertain the true and correct status of the land before issuing a State Lease. We can only wonder.

14. In my view the absence of the supporting documents and explanation from these Defendants support the Plaintiff’s case that it is and has always been the registered proprietor of the land.

15. Despite this the Fifth Defendant maintains and asserts that it has clear title to the land and is not prepared to give in even though it does not produce copies of the above mentioned documents. I make this comment because it is a company and, as its name suggest, a real estate company, it must have copies of the documents submitted and received from these Defendants. There is nothing at all to back-up its assertion.

16. It goes on to make two stunning revelations. First the land was rezoned from a Public Amenities Zone for Special Purposes Lease to Residential Zone for residential purposes.

17. The rezoning of the land was a result of a decision of the NCDC Physical Planning Board in its meeting number 2/2003 on 27^th February 2003. A notice was published in the National Gazette on 26^th June 2003, Gazette No. G81 to that effect.

18. Secondly, the Plaintiff failed to appeal the decision and has been illegally occupying the land.

19. By reason of the rezoning, it asserts that the Plaintiff’s State Lease was rendered “defective” by operation of law. This is a very dangerous proposition as it defeats the principle of indefeasibility of title by registration. To accept this proposition is to say that one’s title is defective and can be set aside because the land no longer conforms or consistent with the new zoning requirement. That is a pretty hard statement to accept from a registered proprietor’s stand point. If that is the current law we properly find half or more registered proprietors of State Leases losing their land because of rezoning requirements.

20. Even the proposition was not supported by legislative enactment under the Physical Planning Act, Land Act and Land Registration Act. Not even a reference was made to the exceptions to indefeasibility of title under section 33 (1) of the Land Registration Act which would really be a futile exercise because rezoning requirement is not one of them.

21. According to the Plaintiff, it came to know about the Fifth Defendant’s claim of rezoning after the proceeding was filed. It is noted that the process of rezoning is set out in section 71 of the Physical Planning Act provides:

“71. Zoning of Physical Planning areas.

(1) Where it is authorised to do so under this Act, a Board may, by notice in the National Gazette—

(a) divide a physical planning area or part of a

physical planning area into one or more zones; or

(b) declare that a physical planning area or

part of a physical planning area is a single zone; or

(c) declare that a physical planning area or part of a physical planning area is a redevelopment zone; or

(d) do any combination of Paragraphs (a), (b) and (c),

and all of the above procedures shall be known as zoning.

(2) A redevelopment zone may be declared on land that is, or is part of, another zone and the declaration does not affect the incidence of the other zoning.

(3) Any request for a change in the zoning of land shall be treated as an application for planning permission.”

22. The Plaintiff submits and I accept that the First Defendant’s assertion that the land was rezoned is misleading because the Gazettal Notice in question does not declare a certain physical planning area to be a residential zone at all. In fact, the gazettal notice is not clear as to what the physical planning area it purports to relate to.

23. I also accept the Plaintiff’s submission and this is consistent with the principle of indefeasibility of title, even if the land was zoned differently pursuant to section 71 (above), it would not affect the Plaintiff’s interest at all. In other words, the rezoning does not defeat the Plaintiff’s title as the registered proprietor. This is affirmed in section 71 (2) of the said Act.

24. Section 71 (2) codifies the Common Law principles of “prior non-conforming use” which essentially states, in this context, that a piece of land zoned for a specific purpose is not affected by any subsequent re-zoning over it and adjourning pieces of land merely by virtue of the re-zoning. Its prior use remains valid.

25. Further, it is noted that the First Defendant purportedly applied for planning permission in respect of Section 201, Allotment 01, Hohola, - the Plaintiff’s land, and was purportedly granted approval for planning permission.

26. Notwithstanding this, it is unclear as to how this could have legally been done given the provision of section 77 of the Physical Planning Act which states:

“77. Application for planning permission.

(1) Subject to Subsection (2), an application for planning permission shall be for—

(a) outline planning permission reserving specified matters for subsequent approval; or

(b) full planning permission; or

(c) approval of reserved matters following outline planning permission.

(2) An application for planning permission for a rezoning or to allow the use of a building or land for a particular purpose shall be an application for full planning permission, unless it forms part of an application for building, engineering, mining or other operations.

(3) An application under Subsection (1)—

(a) shall be in writing; and

(b) shall include such particulars and be accompanied by such documents as are prescribed; and

(c) where applicable, shall contain a statement under Section 76(2) of other Boards to which application has been made; and

(d) shall be accompanied by the prescribed fee; and

(e) shall be made by—

(i) the owner of the land the subject of the application; or

(ii) the agent of that owner; or

(iii) a person who has complied with Subsection (4).

(4) Where an applicant is not the sole owner of land or an agent appointed by the sole owner, the applicant shall—

(a) notify all of the owners that the application is being made; or

(b) where it is not possible for good reason to notify an owner, publish in a newspaper circulating in the area in which the land is situated, a notice giving details of the application.

(5) Where Subsection (4) applies, the applicant shall, at the request of any owner of the land, supply to that owner, free of charge, a copy of the application.”

27. It is clear that under section 77 (3) (e), only the owner of land, or an agent of the owner can apply for planning permission. The First Defendant was never an owner of the land at all when it lodged its application for planning permission on 7^th September 2011, nor did it have the knowledge or consent of the Plaintiff to make such an application.

28. The undisputed evidence is that the Plaintiff was not served or informed of the decision to rezone the land. It would not have possibly appealed the decision. In my view it was denied the right to be heard under section 59 of the Constitution. Despite this, the Fifth Defendant proceeded to subdivide the land for residential purposes and it has been suggested that it has now offered them for sale in the sum of K10 million.

29. The manner in which the First Defendant has gone about to obtain titles to the land is highly questionable. If there is any truth in the suggestion that it has put up the land for sale for the stated price and if someone purchases it, it would be a huge windfall for it, to the detriment of the Plaintiff.

30. The questionable title of the Fifth Defendant should be sufficient to have it set aside under section 33 (1) (c) of the Land Registration Act because we cannot allow people to be running around with two different titles to the same piece of land.

31. As if this is not enough, the Fifth Defendant attacks the title of the Plaintiff by asserting that the State Lease was subject to survey and the Plaintiff failed to comply with it. It asserts that to date there is no survey plan to indicate what sort of development the Plaintiff has on the land. For instance, there are no roads, pathways, easements, etc. The land appears to be vacant and undeveloped.

32. However, it should be acknowledged that the Plaintiff has a Special Purpose Lease. Its evidence which is uncontested is that it runs a gun shooting club for its members. Such is the activity that it would need sufficient space for target practice, that there would be no urgent need to construct roads and pathways, let alone residence in the immediate vicinity of the shooting range.

33. In any case, if the land is undeveloped as the Fifth Defendant contends, there is a process to deal with that concern. It is called forfeiture under section 122 of the Land Act, 1996. Until that process is exhausted by the First and Third Defendants, it is no ground to dispute the Plaintiff’s title and more, seeking to have it quashed. The First Defendant’s contention is misconceived and is dismissed.

34. For these reasons, I find that the Fifth Defendant’s title as per the State Leases granted on 18^th June 2014 is null and void. I further find that the Plaintiff’s title as per the State Lease granted on 20^th June 1976 is valid.

35. I grant the following orders:

1. The application for judicial review is granted.

2. A declaration that the decision by the First Defendant dated 18^th June 2014:

i) Is ultra vires,

ii) Breached procedures prescribed by the Land Act.

iii) Did not take into account the relevant facts and law; and

4. Took into account incorrect or irrelevant facts and disregarded the applicable law;

and is therefore, invalid and of no effect.

3. An order in the nature of Certiorari to bring up to this Court and quash the decision of the First Defendant dated 18^th June 2014.
4. An Order in the nature of Mandamus for the First Defendant;
   1. To cancel titles on the 37 high covenant leases issued to the Fifth Defendant; and
   2. To restore the title to the Plaintiff previously described as Section 201, Allotments, 1, Hohola and contained in the State Lease Volume 27 Folio 6668;

within 14 days from the date this Order is served on the First and Third Defendants.

5. Costs of these proceedings.
_________________________________________________
Allens Lawyers : Lawyers for Plaintiff
Elemi Lawyers : Lawyers for 5^th Defendant
Solicitor-General : Lawyers for 1^st to 4^th Defendants