PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2020 >> [2020] PGNC 154

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Pacific Medical Centre Inc v Tkachenko [2020] PGNC 154; N8327 (20 May 2020)

N8327


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) No. 57 of 2018


BETWEEN
PACIFIC MEDICAL CENTRE INC.
Plaintiff


AND
HON. JUSTIN TKACHENKO, MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant


AND
NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD
Second Defendant


AND
HON. POWES PARKOP, MP GOVERNOR OF NCD & CHAIRMAN, NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD
Third Defendant


INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Waigani: Gavara-Nanu J
2019: 6th May
2020:20th May


REAL PROPERTY – Land – Compulsory acquisition – Land Act, 1996; ss.10, 11, 12 and 13 - Subsequent grant of Urban Development Leases – Validity of the Urban Development Leases


REAL PROPERTY – Physical Planning Board – Physical Planning Act, 1989; ss. 5, 7, 75, 78 (1), 79, 80 and 97 – The Physical Planning Regulation, 2007; s. 10 - Application for physical planning permission – Delay by the Physical Planning Board to make a decision – Delay by the plaintiff in appealing the decision of the Physical Planning Board decision.

REAL PROPERTY – Physical Planning Act; ss. 5, 7 and 94 - Appeals Tribunal – Recommendation by the Physical Planning Appeals Tribunal – Minister’s power to decide an appeal.


Cases Cited:


Lucky Manoka & Bootless View Estate Limited v. Pepi Kimas, Secretary for Lands and Physical Planning & Ors (2019) N8126
Martin Maso v. Romily Kila Pat, Secretary for Lands and Physical Planning & Ors (2016) N6550
NCDC v Crusoe Pty Ltd 1993] PNGLR 139


Counsel:


R. Leo, for the Plaintiff
R. Uware, for the First and Fourth Defendants
T. L Cooper, for the Second and Third Defendants
A. Koisen, for Roy and Momo Kunia
B. William, for Geita Iova Geita


20th May, 2020


1. GAVARA-NANU J: On 10 July, 2014, the plaintiff was granted two Urban Development Leases (UDLs) over portions of land described as Portion 2734 (Dogura), Milinch Granville, Fourmil Port Moresby, National Capital District (NCD), contained in Volume 59 Folio 247 and Portion 2910 (Giboea) Milinch, Granville, Fourmil Port Moresby, NCD, contained in Volume 59 Folio 248 (the land).


Introduction


2. The UDLs were granted pursuant to s. 108 (a) (1) of the Land Act, 1996, for five years commencing on 6 June, 2014 and ending on 5 June, 2019. The conditions of the UDLs required the plaintiff to among others, make infrastructure developments such as excision of easements for electricity, water sewerage, drainage and roads etc, etc which were to be inspected by the Chief Physical Planner, the Surveyor General, an Engineer from Department of Works or the NCD, officers of Eda Ranu Ltd, PNG Power Ltd and Telikom PNG Ltd. The plaintiff could then subsequently surrender the UDLs in accordance with the requirements set out under s. 110 of the Land Act, for new 99 year leases with conditions as prescribed in ss. 107 and 109 (3) of the Land Act.

3. Sections 109 (3) and 110 are relevant to the issues before the Court and are reproduced below:


109. Final proposal for Subdivision and full planning permission.

(3) In approving a final proposal for subdivision, the Physical Planning Board shall—

(a) decide whether the proposal appears suitable within the provisions of Section 5 of the Physical Planning Act 1989; and

(b) determine the periods during which the stages of the development associated with the subdivision shall be carried out; and

(c) specify the covenants and conditions relating to physical planning that will be included in new leases granted under Section 110.


110. Surrender of land in the Subdivision and Grant of new leases.

(1) On the completion, to the satisfaction of the Chief Physical Planner or his delegate of development of all or any part of the land the subject of an urban development lease, the lessee may surrender all or part of the land and a new lease or new leases shall be granted over the developed portions of the land—

(a) in the name of the lessee; or

(b) at the direction of the lessee.

(2) The new lease or new leases shall contain the covenants and conditions specified under Sections 107(c) and 109(3).

(3) On the partial surrender of a lease in accordance with Subsection (1), the rent, covenants and conditions of the lease may be varied to such extent as the Minister, on the recommendation of the Departmental Head, thinks proper.

Evidence

4. Mr Kenneth Atasoa, the Deputy City Manager- Regulatory Services with the National Capital District Commission (NCDC) deposes in his affidavit sworn 5 March, 2018, that the NCD Physical Planning Board (PPB) in its Meeting No. 08/2013 held on 20 December, 2013 approved two applications for physical planning permission were lodged by the plaintiff on or about 12 December, 2013. The applications were Nos. PB.13.347 and PB.13.348. The applications were approved for a “Declaration of Subdivision Zone”, and not as a “Declaration for Public Institution Zone”, which was what the plaintiff requested in its applications. The PPB decision was conveyed to Mr Evan Paki, the Chairman of the plaintiff company in a letter dated 22 January, 2014. The letter advised that the plaintiff’s application for planning permission had been granted for a declaration of a subdivision zone over the land. The PPB made two separate approvals, one for each portion of land. The approvals were attached to the letter. In the letter, the PPB also explained that the land was designated as subdivision zone. In each of the approvals, the PPB advised as follows: “APPROVED FOR DECLARATION OF SUBDIVISION ZONE AT THIS STAGE AND NOT PUBLIC INSTITUTIONAL ZONE AS REQUESTED”. The approvals were signed by the Governor of NCD as Chairman of the PPB. The PPB also advised the plaintiff that under s. 94 of the Physical Planning Act, 1989, a person aggrieved by its decision may appeal within three months from the date of the decision to the PNG Physical Planning Appeals Tribunal (Appeals Tribunal). The approvals were given on 20 December, 2013.

5. The last three paragraphs of the above letter are worth noting, they read as follows:

“...The NCDPPB reached this determination primarily because the Board noted that in addition to the Public Institution uses, there will also be Residential, Commercial, General Industrial, Open Spaces and Public Utility Zones as described in your detailed Master Plan.

As soon as the UDLs have been granted by the PNG Land Board over Portions 2734 and 2910, the next step is that you will need to lodge your application for a detailed subdivision design for approval showing the various different zones and uses including road networks for the total area covered by Portions 2734 and 2910 which has now been declared a subdivision zone.

When the approval is granted by the NCDPPB, then you undertake a detailed survey based on the approved subdivision design. When the survey is registered with individual descriptions given by the Surveyor General’s Office, then you apply for the surrender of the UDL (sic) in favour of individual titles over the newly created allotments with the various types of leases consistent with the approved zones...” (my underlining).


6. This advice was in fact a narrative of the procedural requirements set out under ss. 108, 109 and 110 of the Land Act. The requirements are mandatory and the plaintiff had to comply with them. Under these provisions, any final proposal or application for a detailed subdivision design had to show various different zones, which would be subject to further scrutiny by the PPB. Section 109 (3) of the Land Act, provides that for the PPB to approve a final proposal, there had to be a survey plan based on the approved subdivision design. When the survey plan was registered with individual zone descriptions given by the Surveyor General, the applicant could then apply for the surrender of the UDL(s) for ordinary 99 year State leases.

7. When making its decision whether to approve the application or not, as part of the requirements set out under ss. 108, 109 and 110, the PPB was required to take into account the matters mentioned in s. 5 of the Physical Planning Act. Section 5 is in these terms:

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.


8. In spite of the PPB approving its earlier application on 28 July, 2014, for subdivision zone, the plaintiff submitted another application for detail Subdivision and Subdivision Design and Rezoning (Master Plan). The application was registered as Planning Application No. PB.14.187 on 29 July, 2014. It was for the proposed development of an International Teaching Hospital and other supporting facilities. That application is the subject of this proceeding. The application was scheduled for determination by the PPB in its Meeting No. 06/2014 scheduled for 17 December, 2014, but the meeting was deferred to allow for public consultation and comments on the proposed multi facet development projects by the plaintiff on the land as well as other related issues regarding the land.

9. In its Meeting No. 01/2015, held on 30 March, 2015, the PPB decided to refuse the plaintiff’s second application on the grounds that the Subdivision Plan submitted by the plaintiff was not consistent with Subdivision Regulated Standards. Mr Atasoa attached the Minutes of that meeting and a letter dated 30 March, 2015, signed by the Governor for NCD (as Chairman of the PPB). The letter was addressed to Mr Paki through Post Office Box number 2002, PORT MORESBY, National Capital District, advising the plaintiff of the PPB decision. At the bottom of the letter the plaintiff was advised of its statutory right under s. 94 of the Physical Planning Act, to appeal the decision to the Appeals Tribunal within three months from the date of the decision.

10. The postal address the letter was addressed to was the same postal address the plaintiff used for business. The postal address was also on the plaintiff’s business letter-head.

11. Mr Atasoa deposes in his affidavit that there was misunderstanding between the parties because the plaintiff claimed that PPB failed to make a decision on its application. This application is partly based on the plaintiff's claim that the PPB failed to make a decision on its application within the prescribed time. The defendants deny this claim. Thus, the plaintiff’s appeal was against the “non determination” of its application with the Master Plan by the PPB. The plaintiff claims the Minister failed to take this into account in his decision to reject its appeal.

12. In 2016, the plaintiff commenced communicating with the NCDC to do earthworks and construction of demonstration houses for Stage 1 of the project under its Master Plan. However, the NCDC advised the plaintiff that the overall subdivision design would need to be considered and approved first by the PPB before any earthworks and demonstration houses could be constructed.

13. Mr Atasoa deposes in his affidavit that at the insistence of Mr Paki the matter was raised at the pre-Board meeting of the NCDC technical officers in Meeting No. 01/2017, held on 23 January, 2017. Mr Paki asked to do a presentation at that meeting but the request was declined because the meeting felt that plaintiff’s proposed developments should be put to the members of the public for their views and comments. The decision to seek public views and comments was consistent with the requirements of s. 5(o) of the Physical Planning Act.

14. The public consultation was done through the print media in a public notice in March, 2017. The notice was titled – “Subdivision, design & zoning of Portion 2734, Granville – Dogura and Portion 2910, Giboea – Bautama”. The response from the public was overwhelming. Objections to the proposed infrastructure developments on the land came from customary landowners, ILGs, private entities and private lawyers on behalf of their respective clients. The objections were received by Mr Atasoa.

15. A number of those objections were based on pending legal proceedings challenging plaintiff’s ownership of the land. In one of the proceedings there was allegation of fraud in the acquisition of the land by the State and the subsequent grant of the UDLs to the plaintiff. In another proceeding, the National Court ordered the defendants, which included the plaintiff, the Secretary for Lands and the State to produce to the Court documents relating to the acquisition of the land by the State. In another proceeding, the plaintiff claimed that alleged acquisition of the land was done “without due process”, and without proper consultation, especially with those having interest in the land. Through those objections the NCDC found out that there were total of five court proceedings pending against the plaintiff.

16. In a letter dated 19 August, 2017, Mr Atasoa requested Mr Paki to clarify the status of the five court proceedings against the plaintiff. The proceedings were brought to the notice of the NCDC for the first time by those who issued the proceedings, including those who claimed were true customary landowners.

17. On 13 March, 2018, Mr Paki swore an affidavit in response to the queries raised by Mr Atasoa. Mr Paki deposed to many things but the relevant part of the affidavit is paragraph 14, in which he said:

“14. None of the objections to the Plaintiff’s application received by Mr Atasoa or the Board as a result of the Public Consultation notice ( as listed in Mr. Atasoa’s Affidavit, clauses 10 and 11) was/ is relevant for the purposes of considering the Plaintiff’s pending application – the only statutorily relevant considerations are those given under sections 78 and 79 of the Physical Planning Act, which are to do with “regulating the development or use of land”. Thus, anyone can send a letter of objection (as did happen here) but these ‘objectors’ were all squatters and the Board and its agents ought to have seen those objections in that light, whereas the Plaintiff holds an indefeasible legal title to develop the Project land in accordance with its approved Master plan and the Project land acquisition instruments as executed between the State and the Plaintiff. (Refer to my first Affidavit, paragraph 66 to 70 including annexures “Zj”, “Zk”. “Zl”, “Zm” and “ZN” etc).


18. Mr Paki’s first affidavit which he made reference to in the above affidavit was sworn on 6 February, 2018. The Annexure “Zm” to that affidavit is a letter date 28 September, 2017, from Mr Paki to Mr Atasoa, in which Mr Paki among others, told Mr Atasoa that assurances given to the NCDC Management and the PPB by the plaintiff’s lawyers that there were no existing court orders preventing the PPB from granting the planning permission, was enough for the PPB to grant the planning permission to the plaintiff. Mr Paki said if the NCDC lawyers were not satisfied with the plaintiff’s lawyers’ advice then it (NCDC) should have advised the plaintiff accordingly. He said because of the PPB’s failure to decide its application, it had already incurred huge costs. Mr Paki said the court proceedings against the plaintiff were baseless.

19. This application challenges the decision of the Minister for Lands, Hon. Justin W. Tkatchenko given on 29 November, 2017 to reject the plaintiff’s appeal against “non-determination” by the PPB of its application for planning permission that was lodged on 28 July, 2014, which the plaintiff revised and resubmitted on 10 November, 2016.

20. Notably, in rejecting the plaintiff’s appeal, the Minister among others said the matter was still being dealt with by the NCDC PPB. The Minister further said the UDLs were only for the construction of a hospital and not for anything else.

21. It should be noted that the Minister’s decision to reject the plaintiff’s appeal went against the Appeals Tribunal’s recommendation which was to allow the appeal, given that the PPB had failed to make its decision on the plaintiff’s planning permission within the prescribed period of three months from the date the plaintiff lodged its application for a planning permission as required under s. 78 (1) of the Physical Planning Act, and s. 10 of the Physical Planning Regulation, 2007. Furthermore, because of the failure by the PPB to make its decision within the required time, the plaintiff incurred huge costs in planning the project.

22. The plaintiff strongly maintained that objections by those who claimed to be customary landowners had no basis because the land had been acquired by the State and there was an agreement between the plaintiff, the State and State approved landowners for the plaintiff to develop the land.

23. There is no dispute that the validity of the acquisition of the land by the State and the UDLs held by the plaintiff are challenged in at least four legal proceedings. The NCDC was not aware of those proceedings until about late March, 2017, when they were brought to its attention through the objections lodged by those who issued the proceedings in response to the public notice put out in the print media by the NCDC inviting members of the public to comment on the proposed project developments on the land by the plaintiff.

24. It is noted from the foregoing that before March, 2017, the NCDC had no way of knowing that there were court proceedings challenging the validity of the acquisition of the land by the State and plaintiff’s UDLs. It is significant to also note that the plaintiff did not disclose those court proceedings to the NCDC, in particular the Physical Planning Board. It also appears that the Minister was unaware of those court proceedings at the time he rejected the plaintiff’s appeal.

25. In Mr Paki’s first affidavit, he deposes that he had discussions with the State recognized customary land owners since 2007 which resulted in the land being compulsorily acquired by the State. He says the acquisition of the land was jointly financed by the plaintiff and its overseas financiers. He therefore deposes that there are no issues regarding the validity of plaintiff’s UDLs as the land was a State land when the UDLs were granted to the plaintiff. Mr Paki has produced documentary evidence which indicate that the proposed infrastructural developments were approved by the NEC and various government authorities. Hence, plaintiff’s physical planning permission to develop the land.

26. The plaintiff has adduced evidence that a court proceeding issued by the plaintiff describes as the State approved customary landowners against it was withdrawn.

27. Mr Paki also deposes in his first affidavit that certain named people who were squatting on the land were told to vacate the land. Some of them have vacated the land. He described those still occupying the land as illegal squatters.

28. It is significant to note that certain people and ILGs from the surrounding Motu Koita villages and communities who claim ownership of the land and are living on the land and have issued legal proceedings against the plaintiff have also been described as squatters by the plaintiff.

29. The plaintiff’s appeal against the PPB is grounded on the alleged delay by the PPB in making its decision on the plaintiff’s application for physical planning permission as well as the alleged failure by the PPB to give its decision within the prescribed time as provided under s. 78 (1) of the Physical Planning Act, and s. 10 (1) of The Physical Planning Regulation, 2007. The other ground of appeal was the huge costs the plaintiff allegedly incurred in planning the project.

30. The Appeals Tribunal accepted these grounds and allowed the appeal and recommended to the Minister that the appeal be allowed.

31. Sometime after the Minister rejected the plaintiff’s appeal, Mr Paki had an audience with the Minister in which he sought clarification on the Minister’s reasons for rejecting the appeal. According to Mr Paki, the Minister told him that the land was for a hospital and developments should only be for the construction of a hospital and not for other developments. At one stage the Governor expressed similar views, warning the plaintiff that its proposed project developments went beyond building a hospital and queried whether the plaintiff had the capacity to undertake such huge project. He accused the plaintiff of engaging in land grabbing. Those sentiments were based on the size of the project which occupied over 1,200 acres of land and covered both sides of the Magi Highway stretching from Dogura just outside of Port Moresby city all the way to Bautama.

32. In its appeal to the Appeals Tribunal the plaintiff only disclosed that State recognized landowners had withdrawn their legal proceeding against it. It made no mention of the remaining four legal proceedings which were still pending.

33. Notably, the plaintiff’s application was for the construction of a Pacific Medical Center and an Emerald city development. The plaintiff told the NCDC that the project was huge and it would be owned entirely by the plaintiff. The Master plan was for the development of medical and educational institutional facilities as well as residential, commercial and industrial developments. In addition to these was development of a waterfront community. All these developments were to compliment the growing city of Port Moresby. The overseas project teams were from China and USA with a large number of overseas employees. A total of 165 skilled employees were to come from China.

Submissions

34. Mr Robert Leo of counsel for the plaintiff argued that the legal proceedings against the plaintiff were issued by the illegal squatters on the land and were all speculative and frivolous and were without any legal basis. He submitted that the plaintiff had completed negotiations with its international financiers on the understanding that the project would go ahead. He told the Court that as a result, the plaintiff had incurred huge costs which ran into millions of PNG kina.

35. Mr Leo claimed the PPB had “inexplicably” refused or failed to determine the plaintiff’s application for a planning permission. He argued that the Minister took irrelevant matters into account in rejecting the plaintiff’s appeal. He claimed the plaintiff was not given an opportunity to be heard and the Minister had in rejecting the plaintiff’s appeal abused his powers. It was submitted that the Minister’s decision was unreasonable. It was further submitted that the PPB acted in breach of the Physical Planning Act, by failing to determine the plaintiff’s application as soon as possible as required under s.78 (1) (b) or within the prescribed three months from the date the plaintiff lodged its application, as required under s. 10 (1) of the Physical Planning Regulation. It was further submitted that s. 80 of the Physical Planning Act, was breached because it did not convey its decision in writing to the plaintiff. According to Mr Leo the PPB did not make any decision at all on the plaintiff’s application for a planning permission.

36. It was submitted that the court proceedings against the plaintiff were “all” dismissed as having no merit on 19 December, 2018.

37. Mr Russel Uware of counsel for the Minister and the State argued that the Minister had power under s. 97 of the Physical Planning Act, to consider the plaintiff’s appeal, which he did and decided to reject the appeal. The Minister gave his reasons for his decision. The decision was therefore reasonable.

38. It was submitted that before reaching his decision the Minister rightly consulted the Governor for NCD and Mr Atasoa as Deputy City Manager responsible for Regulatory Services to make his decision. Mr Uware submitted that the Minister had power to reject the plaintiff’s appeal because the UDLs granted to the plaintiff were purposely for the construction of a medical center but the plaintiff illegally widened the scope of the proposed project by preparing a Master Plan in which other substantive infrastructural developments were added, thus going were well beyond the purposes of its UDLs.

39. Mr Uware refuted the claims by the plaintiff that the plaintiff was not informed of the Minister’s decision. He said there is undisputed evidence that the decision was conveyed to the plaintiff in writing and the decision was fair and impartial. He submitted that although the plaintiff has accused the PPB of delay in making its decision on plaintiff’s application for planning permission, the plaintiff is also guilty of inordinate delay by waiting for about three years before appealing the PPB decision to the Appeals Tribunal.

40. Mr Uware also refuted claims by the plaintiff that all court proceedings against it have been dismissed. He said there are pending court proceedings against the plaintiff by genuine customary landowners.

41. Mr Belden William of counsel for Geita Iova Geita supported Mr Uware’s argument that the plaintiff has not come to the court with clean hands because its appeal was filed two years seven months after the PPB refused its application for physical planning permission.

42. It was submitted that the plaintiff erred in law when it appealed against “non-determination” of its application for planning permission by the PPB because the PPB did make a decision in which it refused the plaintiff’s application. He therefore argued that the appeal which was filed pursuant to s.94 (2) of the Physical Planning Act, for “non determination’ was wrong in law thus rendering the appeal incompetent. Mr William argued that the appeal should have been filed within the prescribed three months from the date the PPB refused its application. Section 94 (1) and (2) are pertinent and are reproduced below:

94. Appeals against a Board's decision.

(1) An applicant, or an owner or an occupier of land who is aggrieved by a decision of a Board, may appeal to the Tribunal within the prescribed time from the date of the decision or, in the case of a zoning, the date of the gazettal of the decision, whichever is the later.

(2) An appeal under Subsection (1) may only be against—

(a) a decision on a planning permission; or

(b) a condition imposed on the approval of a planning permission; or

(c) an order for the preservation of trees; or

(d) a requirement by a Board to supply additional information under Section 78(3); or

(e) non determination within the prescribed time under Section 78(1); or

(f) a stop work notice under Section 99(1); or

(g) a demolition notice under Section 99(2); or

(h) the declaration of a zone under Section 71, (except as provided under Subsection (3)),

provided that, in the case of Paragraph (f) and (g), the appeal may only be made on the grounds that the operations are authorised under the Act.

43. It is plain that the plaintiff’s appeal against “non-determination” of its application for planning permission by the PPB was based on its claim that the PPB failed to determine its application within the prescribed time. Hence, the appeal filed under s. 94 (2) (e) of the Physical Planning Act. Mr William also submitted that the plaintiff did not plead any grounds of appeal. He argued that the plaintiff only complained that PPB had delayed its decision thus causing it to incur huge costs in planning. The appeal was therefore incompetent and the Minister was right in rejecting it.

44. Mr William also submitted that there are legal proceedings pending against the plaintiff which essentially challenge the validity of the acquisition of the land and plaintiff’s UDLs. He submitted that this application is therefore an abuse of process and should be dismissed.

45. Mr Timothy Cooper of counsel for the second and third defendants argued that this application is mischievous because it has not addressed the pending legal proceedings against it. He submitted that in one of the proceedings, restraining orders were obtained against the plaintiff from developing the land. He told the court that the orders are still on foot.

46. Ms Avia Koisen of counsel for Roy and Momo Kunia who claim to be customary owners of the land argued that her clients were not informed about the acquisition of the land by the State and the UDLs granted to the plaintiff. She argued that her clients were never heard on the acquisition of the land, she therefore argued that the purported acquisition was done in breach of ss. 10, 11, 12 and 13 of the Land Act. She therefore submitted that the acquisition of the land was illegal. These provisions require the State to have full and proper consultation with the customary landowners in any process of customary land acquisition. The provisions make it mandatory on the Minister to carry out thorough searches of persons who claim customary ownership of the land to be compulsorily acquired and inform such persons of the proposed acquisition of the land. In this case, given the legal proceedings issued against the plaintiff by those who claim to the customary owners of the land, it appears that this mandatory process was not complied with by the relevant State authorities, including the Minister.

Reasons for decision

47. My task here is to decide whether the Minister’s decision to refuse the plaintiff’s appeal was valid or not. The Minister gave his reasons for refusing the appeal. In exercising the powers conferred on the Minister by s. 97 of the Physical Planning Act, the Minister’s decision was in my view consistent with the duties imposed on him under s. 7 (1) which is in these terms:

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.

48. The Minister was therefore right in his decision. It must be remembered that the Minister for Lands, the Land Board and the Physical Planning Board all have a statutory duty to protect the scarce State land from being depleted through highly dubious and unscrupulous land deals. Part of that duty is for them to be particularly vigilant with people and entities with schemes which really are aimed at attaining unjust enrichment. The duty also requires them to ensure that laws governing and regulating the use and acquisition of State land are strictly followed and complied with, See, Martin Maso & Ors v. Romly Kila Pat, Secretary for Lands and Physical Planning & Ors (2016) N6550 and NCDC v. Crusoe Pty Ltd [1993] PNGLR 193.

49. Section 94 (2) (e) of the Physical Planning Act, pursuant to which the plaintiff lodged its appeal against the alleged “non-determination” of its application for planning permission by the PPB, provides that the “the prescribed time” within which such determination should be made is given in s.78 (1), which provides that PPB shall subject to Sub-section (3) make its decision within the prescribed time from the receipt of the application for planning permission. Sub-section (3) provides that where the PPB requires additional information regarding the application, it shall advise the applicant of its requirement within 14 days or such other time as may be prescribed of the receipt by it of the application and the prescribed time within which the decision is to be made shall commence from the date on which the additional information is submitted to the PPB by the applicant. The “prescribed time” for the purposes of this provision is given by s. 10 (1) of the Physical Planning Regulation, which is in these terms:

10. Prescribed times for determination and notification.

(1) The prescribed time for determination of an application shall be three months from the date of submission of an application provided that—

(a) the correct fee has been paid; and

(b) the application is complete in accordance with this Regulation; and

(c) the application has been acknowledged as received by or on behalf of a Board,

in accordance with the form set out in Schedule 2.

50. So, under this provision, the prescribed time within which the PPB had to make its decision on the plaintiff’s application for planning permission was three months from the date the plaintiff made its application which was 28 July, 2014.

51. In his first affidavit Mr Paki deposes that when he was informed on 8 September, 2014, that the PPB was going to decide the plaintiff’s application on 11 September, 2014, he emailed the Governor seeking Governor’s permission to appear before the PPB to support the plaintiff’s application. In the email, he told the Governor that the plaintiff had five years to implement the backbone structures consistent with their “approved” Master Plan.

52. On 17 December, 2014, Mr Paki appeared before the PPB which was held at Holiday Inn. Mr Paki was asked to brief the Board on the project, which he did. Between 17 December, 2014 and 23 January, 2015, Mr Paki provided the Board with more project briefing documents, including details of the project Master Plan, land acquisition documents as well as the relevant NEC decision and other government approvals for the project.

53. On 23 January, 2015, Mr Paki wrote to the Governor assuring him that all the documents he provided to the Board should be sufficient to clarify any queries any of the Board members had. In the letter, he asked the Governor permission to appear before the next Board meeting scheduled for 26 February, 2015.

54. When he did not receive any response to his letter, on 25 February, 2015, Mr Paki wrote again to the Governor asking him if the Board was still going to meet on 26 February, 2015. No response was received to that letter from the Governor or the Board.

55. Mr Paki further deposes in his affidavit that – “Expecting to start construction by 1 March, 2015 (as the Board’s secretariat had assured them that planning permission would be granted by then)” – went ahead and recruited – “an additional 165 experienced construction managers and other skilled Chinese workers”. He says those workers were granted work permits and entry visas by the Government, including exemptions from the requirements of English Language Proficiency under the Employment of Non-citizens Act, 2007.

56. The prescribed time of three months under s. 10 (1) of the Physical Planning Regulation, has to be determined subjectively against the prevailing circumstances, especially when deciding as to when the three months prescribed period started to run. The prevailing circumstances, may include the conduct of the parties, for example the applicant providing additional information on an application which had already been lodged, as happened in this case. In my view in such a case, the three months prescribed period will run from the date the last information was received by the Board. Applying this theory, in this case the decision by the PPB to refuse the plaintiff’s application for planning permission was made on 30 March, 2015, it was conveyed in writing to Mr Paki on 30 March, 2015, which was made within the prescribed time of three months.

57. Consequently, in this instance, because the plaintiff was still providing information up to the end of February, 2015, I find that the determination made by the PPB on 30 March, 2015, on the plaintiff’s application for physical planning permission was made within the prescribed period and was therefore proper. It follows that plaintiff’s appeal to the Appeals grounded on non-determination of its application for planning permission was wrong in law and was incompetent.

58. Having considered all the materials before me I do not find any error in the decision of the Minister. His reasons for rejecting the plaintiff’s appeal were well founded as the proposed project developments went well beyond the proposed construction of a hospital.

59. Mr Paki confirmed that the project was huge it would cover both sides of Magi highway at Dogura from the outskirts of the Port Moresby city all the way to Bautama covering over 1, 200 hectares of land. More significantly, apart from a world class hospital, there would be a medical institution which would award degrees, the project would have emerald city with residential, commercial and industrial developments and a waterway community thus, complimenting the growing Port Moresby City. This huge project was to be owned entirely by the plaintiff. The project would have international workforce coming from China and USA. Notably, expansion of the proposed development projects were made despite the Minister and the Governor telling the plaintiff through Mr Paki that its application was only for the construction of a hospital.

60. The types of further developments proposed by the plaintiff required proper survey and subdivision zones with appropriate State leases to allow for such developments. That was the advice given to the plaintiff by the PPB. The Plaintiff’s Master Plan ignored all those requirements and tried to obtain approval from the PPB without first satisfying the pre-requisites. The Master Plan was in breach of ss. 108, 109 and 110 of the Land Act and s. 9 (4) of the Physical Planning Regulation, which is in these terms:

9. Applications for planning permission.

(1) An application for planning permission shall be made in triplicate.

(2) Where an applicant applies for an outline permission in respect of either development or for a non-conforming use of land, or for a full permission in respect of zoning of land or for a full permission in respect of either subdivision or consolidation of land without a change of zoning the application shall include the following information—

(a) a receipt for the appropriate fee; and

(b) an application form in the form prescribed by Schedule 2 and duly completed; and

(c) a location plan at not less than 1;4000 scale with the site boundary clearly marked; and

(d) a sketch design of the proposed development and disposition of land uses.

(3) Where an applicant applies for a full planning permission for development or for reserved matters following an outline permission the applicant shall, in addition to the items listed in Subsection (2), also submit the following—

(a) a copy of any decision by a physical planning board issued in the past five years in respect of the land area in question; and

(b) a site plan with details of the proposals and any proposed alteration to the natural contours of the area, and landscaping; and

(c) a building plan at an appropriate scale showing—

(i) a plan of each floor; and

(ii) an elevation of each side; and

(iii) cross-sections of the proposed building or buildings; and

(iv) the levels of the building and land in relation to levels of adjacent roads or buildings; and

(v) sufficient details of the construction and materials to be used to give a clear idea of external appearance.

(4) Where an applicant applies for planning permission for a subdivisional design with zoning amendment inclusive of planning permission required in respect of urban development leases over subdivision zones the application shall, in addition to the information required in Subsection (2), also include the following—

(a) a plan at an appropriate scale between 1:1000 and 1:10,000 to show the zoning and subdivisional design coloured and notated in accordance with Schedule 1; and

(b) information on the cost of provision of utilities, services and amenities required by the proposal and evidence that such costs will be met by the applicant.

(5) In the case of engineering works or other development proposals the applicant shall provide, in addition to the items listed in Subsection (2), a plan to show the extent of the works in sufficient detail to enable the scope of the proposal to be considered.

(6) For the purposes of Section 77(4) of the Act or for any other purpose, a Board may require that evidence be furnished to confirm that an agent has been engaged by an applicant to pursue a particular application for planning permission.

61. I am satisfied that the proposed project developments went beyond the construction of a hospital for which the UDLs were granted. The decision of the Minister which was made in the exercise of the powers conferred on him by s. 97 (2) (c) (ii) of the Physical Planning Act, was therefore proper and reasonable. See, Lucky Manoka & Bootless View Estate Limited v, Pepi Kimas , Secretary for Lands and Physical Planning & Others (2019) N8126.

62. The regular contacts Mr Paki was making with the PPB officials, including the Governor who was the Chairman of the PPB was improper, especially during the period the plaintiff’s application for physical permission was before the PPB for consideration. I make particular reference to the informal follow ups he was making regarding the application with the Governor during gatherings in hotels which were for other business purposes. The Governor was the Chairman of the PPB and such approaches could interfere with the impartiality of the PPB in deciding the plaintiff’s application. It is quite plain to me that those approaches were, given the constant reminders Mr Paki was giving to the Governor as well as the PPB officials regarding the plaintiff’s application as well as costs the plaintiff had allegedly incurred already, aimed at influencing the PPB in its decision. The constant follow ups and supply of more information to the PPB including letters, emails and even phone calls plainly contributed to the delay in the PPB giving its decision on the plaintiff’s application.

63. Mr Paki appears to have entertained a view that because the NEC, Ministers of the State and other government officials had supported the project that the PPB should approve the proposed project as a matter of course. This was a clear and serious misconception by Mr Paki because by law, the only approving authority was the PPB. Any decision by the NEC and Ministers of State and other government authorities were subject to PPB’s views. Any purported approval of the project by authorities other than the PPB, including the NEC and the Minister for Lands were unlawful and destitute of any legal effect.

64. The Plaintiff did not appeal the PPB decision within the prescribed period of three months because it lodged its appeal on 11 October, 2017, almost 3 years after the PPB gave its decision. The Plaintiff has not explained that delay which clearly was inordinate. The only reason I can deduce from the materials before Court is that the plaintiff was still hoping and trying to get the PPB to agree to its proposed developments even after the PPB had decided to refuse its application.

65. In regard to the decision by the Appeals Tribunal to allow the appeal, it failed to address the delay by the plaintiff to lodge its appeal within the prescribed period and the fact that the plaintiff had not given any explanation at all for the delay. As to the purported huge costs incurred by the plaintiff, they were unnecessarily and illegally incurred because the PPB still had not approved its application for planning permission.

66. The Appeals Tribunal’s finding that the PPB delayed its decision was wrong for the reasons I have already given. As I explained earlier in the judgment, the PPB’s decision was given within the prescribed period. The Appeals Tribunal’s decision was therefore against the evidence and the weight of the evidence and had no proper basis.

67. I would for all these reasons dismiss the plaintiff’s application. There is another reason why I would dismiss the application. I find this application quite mischievous and misconceived. The Court has been informed that there are pending court proceedings which essentially challenge the purported acquisition of the land by the State and the UDLs held by the plaintiff over the land.

68. The purported legal clearance letter by Manase Lawyers sent to the NCDC on behalf of the plaintiff only said there were no restraining orders issued by the Court which could prevent the PPB from giving its decision on the plaintiff’s application for a planning permission. Notably though, the letter did not dispute that there were court proceedings against the plaintiff.

69. There is no dispute that there are at least four pending court proceedings against plaintiff which challenge the plaintiff’s ownership of the land. The plaintiff failed to disclose those court proceedings to the NCDC until after they were raised with the plaintiff by the NCDC when clarifications were sought from the plaintiff on the status of those proceedings. The NCDC raised the issue after it was informed of those proceedings by those who issued the proceedings while responding to the public notice put out by the NCDC in the print media for public comments on the proposed project developments by the plaintiff on the land. But even when giving clarifications on the cases, the plaintiff was selective in its explanations, it said the genuine State identified customary landowners had agreed for their land to be compulsorily acquired by the State and had withdrawn their court case against the plaintiff. The other proceedings were described as baseless because they were issued by squatters squatting illegally on the land, including the people from nearby Motu Koita villages who live on the land and who claim ownership of the land as their ancestral land. These people have produced evidence of their ancestry and customary ownership of the land which had been passed on to them from their ancestral and lineal descendants.

70. Whether claims by these people are true or not is irrelevant, what is relevant is the fact that they have issued legal proceedings challenging the State’ alleged acquisition of the land hence the validity of the plaintiff’s UDLs. In the event that acquisition of the land by the State is found to be illegal then that would also have the effect of invalidating the plaintiff’s UDLs. The proceedings raising this issue are pending and I am bound to take judicial notice of the proceedings. Until these proceedings are fully determined by the Court, the issue of whether the plaintiff’s UDLs are legal or not remains pending and sub judice.

71. In the result, given that the legal proceedings against the plaintiff are pending, in my view it would not have mattered even if the rejection of the plaintiff’s appeal by the Minister was wrong because the issue of the ownership of the land is still pending before the Court and is therefore sub judice.

72. For all the foregoing reasons, the plaintiff’s application is dismissed with costs.

73. The Orders are as follows:

(i) The application is dismissed.

(ii) The plaintiff will pay the costs of and incidental to the proceeding for the first, second and third defendants. Such costs to be taxed, if not agreed.

(iii) Costs for Momo Kunia and Geita Iava Geita to be paid by the plaintiff and the State in shared portions of 20% and 80% respectively. Such costs to be taxed, if not agreed.

(iv) The plaintiff and the fourth defendant (State) to pay their own costs.

74. Orders accordingly.
________________________________________________________________
Leo Lawyers: Lawyers for the Plaintiff
TL Cooper Lawyers: Lawyers for the Second and Third Defendants
Solicitor General: Lawyers for the first and fourth Defendants
Koisen Lawyers: Lawyers for applicants Roy and Momo Kunia
M. S. Wagambie Lawyers: Lawyers for Applicant Geita Iova Geita

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2020/154.html