N854

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MOROBE BAKERY PTY LTD AND MOROBE BAKERY PTY LTD FOR AND ON BEHALF OF THE RESIDENT, OWNERS AND OCCUPIERS OF PROPERTIES SITUATED ON AIRWAYS AVENUE, HILLSIDE AVENUE, BUTIBUM ROAD, MARKHAM ROAD, HUON ROAD, ARIEL AVENUE AND HERMES ROAD, LAE MOROBE PROVINCE AND ALL OF THEM

V

MINISTER FOR LANDS AND PHYSICAL PLANNING

Lae
Doherty AJ

2 March 1990

HIGHWAYS - Creation and extinction - Closing road - Ministerial powers - Notice in gazette - Notice discretionary - Fair and reasonable exercise of power - Application to streets within "town" - Application to streets required for access to property - Street Closing Act (Ch No 201), s 2 - Town Boundaries Act (Ch No 8) - Cities Act (Ch No 4).

The Street Closing Act (Ch No 201), an Act to "provide for the closing of streets or parts of streets no longer required", by s 2 provides that "if in the opinion of the Minister it is necessary or desirable to close a street [within a town] he may give notice in the National Gazette of the intention to close the street".

Held

(1) Where a place has been declared as a "town" under the Town Boundaries Act (Ch No 8) and a "city" under the Cities Act (Ch No 4), the provisions of the Street Closing Act (Ch No 201) continue to apply to streets within the declared town boundary.

(2) The power of the Minister under the Street Closing Act, s 2, is a discretionary one to be exercised in a fair and reasonable manner.

(3) Where streets within the City of Lae which were required for access and egress by the residents, were closed without notice to the residents and without notice in the National Gazette, the Minister for Lands and Physical Planning should be enjoined to comply with the provisions of the Street Closing Act (Ch No 201).

Summons

This was an application for an interlocutory mandatory injunction seeking to have the Minister for Lands and Physical Planning comply with the provisions of the Street Closing Act (Ch No 201).

Counsel

L Dacre, for the first and second plaintiffs.

2 March 1990

DOHERTY AJ: This matter has come before me as an application in the nature of a mandatory injunction and an application for protection of property under O 14, r 9 of the Rules of the National Court. It is an application by a land owner, Morobe Bakery Pty Ltd the first plaintiff, and a class action on behalf of the other residents of streets in Lae. The class action is brought under O 5, r 13 of the Rules. The subject matter of the application is the closing of certain roads by the Minister for Lands and Physical Planning which interferes with the rights of egress and access by residents of the roads in question or roads whose access depends on the roads in question.

Two affidavits have been filed by residents of the area. One by Robert Campbell Gilchrist shows that he occupies a house at Lot 2, Section 67, Markham Road, Lae, the property of the first plaintiff and this has been occupied by, or the property of, the first plaintiff since 1947.

This land is subject to a lease issued by the then Minister for Lands under what was s 61 of the Land Act 1911 (Ch No 185).

The premises are situated between Markham Road and Hillside Avenue. Markham Road and an adjoining street, Airways Avenue, are the subject of a partial closure which is intended to facilitate the construction of a sports stadium for use in the forthcoming South Pacific Games. In order to erect this sports stadium various drainage and other works have to be completed and this will result in the complete isolation of property at Lot 2, Section 67; the occupants will be unable to go into or go out of buildings. The deponent Mr Gilchrist states that he has no formal notice of the proposed road closure nor has he seen any gazettal in the National Gazette pursuant to s 2 of the Street Closing Act (Ch No 201). He received a letter dated 27 February 1990, addressed to the first plaintiff company which included information that Markham Road will be "ripped off" on 15 March 1990 which will result in his access becoming difficult. This will be followed by construction of a fence and drain which will make access impossible.

The applicants refer to s 2 of the Street Closing Act, which states:

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

The section does not impose a mandatory obligation on the Minister to give notice in the gazette of his intention to close the street. The matter has apparently been raised with the Minister who has replied by letter dated 19 January 1990 stating:

"I confirm the closure of roads by gazette under the Street Closing [sic] Act (Ch 201) is not applicable. This is due to the fact that the roads have already been deleted on the Lae City noting sheets and the areas are zoned as being party of the stadium site."

It is not clear how a road can be "deleted"; it is not as simple as erasing it on a drawing, as the road physically exists.

In considering the powers of the Minister under s 2(1) and whether his discretionary power has been exercised in a fair and reasonable manner I note the wording of the preamble to the Street Closing Act which states that it is an Act to "provide for the closing of streets or parts of streets no longer required". From the information before me it would appear that these streets are required for access and egress by the occupants of them and there is evidence that the Minister has not exercised his discretionary power in a reasonable manner. Although it has not been fully argued before me I take note of the provisions of the Town Planning Act (Ch No 204) with particular reference to the zoning of the area as "open space" and its apparent conversion to special use and allocation for the erection of the stadium. I also note the provisions of s 29(3) of the Land Act, and bear in mind these provisions in considering this application.

The Street Closing Act refers to "a town". A town is defined in the Interpretation Act (Ch No 2) to mean "a place declared to be a town under the Town Boundaries Act" (Ch No 8).

The Town Boundaries Act (Ch No 8) provides for any place in the country to be declared a town and Lae was declared as such in 1967. Therefore although Lae is a city under the Cities Act (Ch No 4), it is also a town under the Town Boundaries Act and the area to which this application applies is within that town boundary. I therefore consider this is an area to which the Street Closing Act applies.

I therefore grant this interim mandatory injunction and protection of property until the Minister conforms with the provision of the Street Closing Act. I order that this matter be set down for hearing within 30 days or such other time as the court directs.

Injunction granted

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Lawyers for applicants: Warner Shand.