Shell Company (Pacific Islands) Ltd v Korean Enterprises Ltd [2001] SBHC 120; HC-CC 323 of 1999 (27 June 2001)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO. 323 OF 1999

SHELL COMPANY (PACIFIC ISLANDS) LIMITED

-V-

KOREAN ENTERPRISES LIMITED
& PREMIER OF GUADALCANAL PROVINCE

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

HEARING: 25TH JUNE 2001
JUDGMENT: 27TH JUNE 2001

Sol-Law for the Plaintiff
A. Radclyffe for the First Defendant
A & H Lawyers for the Second Defendant

PALMER J.: Judgment in the main case was delivered on 15th May 2001. The Court held inter alia that the Plaintiff, Shell Company (Pacific Islands) Limited [hereinafter referred to as “Shell”] was entitled to a right of way as an overriding interest under section 114(a) of the Land and Titles Act [Cap. 133] over inter alia the perpetual estates held by the Second Defendant (hereinafter referred to as “the Province Land”) and leasehold estates held by the First Defendant (hereinafter referred to as “the KEL Land”). The matter was then adjourned to allow the parties agree on the appropriate orders to be made. This was done at the specific request of Counsels for the parties. The parties succeeded in part and have produced draft judgment for consideration by this Court. The contentious order is paragraph 3. Paragraph 5 seeks removal of the fill immediately above the pipeline whilst paragraph 6 agrees to stay that order pending an appeal.

Shell seeks under paragraph 3 to define its right of way as measuring 1.5 metres from either end of the width of the pipeline, giving a total width of three metres. Shell is concerned to protect its access to the underground pipeline should that contingency arise especially for any future developments which the First Defendant might undertake. The Defendants on the other hand feel the orders set out in paragraphs 1 and 2 of the draft order are sufficient.

The starting point in this matter must be the right of way, which this Court had found in favour of Shell. That right of way essentially is to enable Shell have safe access to the underground pipeline and the non-return valve and inspection hatch. Any hindrances or obstructions therefore placed over the right of way can only be done at the risk of the party doing it. In this instance, it is not disputed the whole level of the KEL Land had been raised by as much as 2 -3 metres. If anything happens therefore to the pipeline below and Shell wants to have access, the extra soil placed above the pipeline would also have to be removed. In my respectful view, that will have to be done at the cost of the First Defendant. Also any costs in clearing the hatch and non-return valve of any debris and rubble, which might have hindered safe access must also be borne by the First Defendant. I am not satisfied however it is necessary to specify the width of the right of way at this point of time. Clearly common sense and practicalities must prevail in the circumstances of this case. If the First Defendant wishes to develop its land, it is obliged to take this right of way into account and allow more than sufficient room for access to be made to the pipeline. If it places any obstructions in the way of that right of way then it will be obliged to bear the cost of any such removals by Shell to gain access. The First Defendant is also obliged to disclose any development or building plans, which might impede the right of way in favour of Shell. In the circumstances, paragraph 3 is unnecessary at this point of time. The orders of this Court accordingly are as set out in the draft judgment except paragraph 3.

THE COURT