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Nima Holdings Ltd v Giali [2011] PGNC 34; N4239 (25 February 2011)

N4239

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO. 2 OF 2010

BETWEEN

NIMA HOLDINGS LIMITED
Plaintiff

AND

NOAH GIALI, for and on behalf of
MOROBE PROVINSEL FISIKEL PLENNING BOD
First Defendant

AND

COLIN LOKO, PROVINCIAL PHYSICAL PLANNER,
MOROBE PROVINCE
Second Defendant

AND

MOROBE PROVINCIAL GOVERNMENT
Third Defendant

Lae: Gabi, J
2011: 25th February

JUDICIAL REVIEW - Practice and procedure – application for an order in the nature of certiorari to quash orders of the defendants which was to create drainage easement and remove all material erected or placed on property – plaintiff also seeking declaratory orders – whether the Planning Board has the power to create an easement and order demolition of the wall; and (ii) whether plaintiff has exhausted all remedies under the Physical Planning Act before seeking judicial review- Board may consider the question of easements when considering an application for planning permission under Physical Planning Act - Board does not have the power to create an easement – Morobe Provinsel Fisikal Plenning Bod had no power to issue demolition notices - actions of the Bod were ultra vires and plaintiff being denied natural justice – orders in the nature of certiorari granted – declaratory orders sought granted – ss 3, 72, 77, 94 & 99 Physical Planning Act

Facts:

The Building Board approved the plaintiff's plans and drawings for a warehouse and a retaining wall. After obtaining approval, the plaintiff backfilled the land and commenced building a retaining wall. A few days before the wall was completed, the Planning Board received a complaint of over flooding from the lessee of the adjoining property. It is alleged that the over flooding was caused by the retaining wall. As a result, the Planning Board ordered the plaintiff to create an easement and demolish the wall. The Court in granting orders to the plaintiff in the nature of certiorari to quash two decisions of the defendants and seek some other declaratory relief;

Held:

1. An order in the nature of certiorari to quash the decision of the defendants which ordered the plaintiffs to provide a drainage easement and remove all materials erected and placed on the property is granted.

2. A declaration that the Stop Work Notice was not served on or notified to the plaintiff

3. A declaration that the retaining wall referred to in the Stop Work Notice was completed prior to the issuance of the Notice.

4. An order in the nature of certiorari to quash the decision to remove the retaining wall and restore the land to its original state is granted

5. A declaration that the first defendant does not have the legal power to remove building or engineering operations whether authorised or unauthorised

Cases Cited:

Kekedo vs. Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122
Rex Paki vs. MVIL (2010) SC1015
SCR No. 1 of 1998; Reservation Pursuant to s.15 of the Supreme Court Act (2001) SC672

Counsel
J. A. Griffin, QC, with J. Kais, for the plaintiff
A. Maribu, for the defendants

DECISION

25th February, 2011

1. GABI, J: Introduction: The Building Board approved the plaintiff's plans and drawings for a warehouse and a retaining wall. After obtaining approval, the plaintiff backfilled the land and commenced building a retaining wall. A few days before the wall was completed, the Planning Board received a complaint of over flooding from the lessee of the adjoining property. It is alleged that the over flooding was caused by the retaining wall. As a result, the Planning Board ordered the plaintiff to create an easement and demolish the wall.

2. The issues are: (i) whether the Planning Board has the power to create an easement and order demolition of the wall; and (ii) whether the plaintiff has exhausted all remedies under the Physical Planning Act (hereinafter the "Planning Act") before seeking judicial review.

The Review and Orders

3. The plaintiff seeks an order in the nature of certiorari to quash two (2) decisions of the Morobe Provinsel Fisikel Plenning Bod (hereinafter referred to as the "Bod"). First, the decision of 22nd April 2009, where the plaintiff was ordered to provide a drainage easement and to remove all material placed or erected on Allotment 1 Section 20 Lae (hereinafter referred to as the "Land"). Secondly, the decision of 9th October 2009, where the Bod resolved to issue a Demotion Notice for the removal of the retaining wall on the Land. The plaintiff also seeks declaratory orders. The orders the plaintiff seeks are set out in full below:

"1. An Order in the nature of certiorari removing and quashing orders of the First Defendant made on 22nd April 2009 and referred to in the First Defendant's letter dated 29th April 2009 ordering that the plaintiff provide a drainage easement 15 metres wide on Allotment 1 Section 20 Lae, and that the plaintiff remove all material placed or erected by the plaintiff on Allotment 1 Section 20 Lae within 15 metre of the western boundary of Didiman Creek within 30 days.

2. A declaration that the Stop Work Notice issued on 21st January 2009 by the First Defendant ordering that construction of a retaining wall along Didiman Creek Reserve at Section 20 Allotment 1 Lae stop forthwith was not served on, or notified to the plaintiff until 22nd February 2009.

3. A declaration that the construction of the retaining wall referred to in the Stop Work Notice issued on 21st January 2009 by the First Defendant ordering that construction of a retaining wall along Didiman Creek Reserve at Section 20 Allotment 1 Lae stop forthwith was completed prior to service of the Stop Work Notice on the plaintiff on 22nd February 2009.

4. An order in the nature of certiorari to remove into this Honourable Court and quash the Demolition Notice made by the First Defendant on the 9th October 2009 ordering the removal of a retaining wall along Didiman Creek in Allotment 1 Section 20 Lae and restoration of the land to its original state within 14 days of the service of the notice.

5. A declaration that the First Defendant has no legal power to itself demolish or remove building or engineering operations whether same are authorized or unauthorized.

6. A permanent injunction restraining the defendants by themselves, their servants, agents or otherwise however from physically interfering directly or indirectly with the improvements including the retaining wall and earthworks on Section 20 Allotment 1 Lae.

7. The Defendants pay the Plaintiff's costs on a solicitor/client basis.

8. Time for entry of the orders is abridged to the date of settlement by the Assistant Registrar which shall take place forthwith."

Evidence

4. The trial proceeded by way of affidavit evidence and oral testimonies. The following affidavits were filed: (i) four affidavits of Michael Chan dated 4th January, 5th February, 13th October and 2nd November 2010 respectively; (ii) three affidavits of Colin Loko dated 7th and 13th October and 8th November 2010 respectively; (iii) affidavit of Ron Dickson dated 14th October 2010; (iv) affidavit of Mark Anthony Pryke dated 12th July 2010; and (v) affidavit of Greg Kasen dated 2nd November 2010.

Facts

5. I set out the relevant facts in chronological order. The plaintiff is the registered proprietor of the Land. It is zoned light industrial. The reason the plaintiff purchased the Land was to build buildings on it and lease them. As a light industrial area, the plaintiff decided to build warehouses. The area of the Land is 3 acres 1 rood 25 perches "Be the same a little more of less." The State Lease shows Didiman's Creek but no water reserve or drainage easement is registered on it.

6. In 2004, a new warehouse was built on the Macdhui Street end of the Land which is now leased to Carpenters Hardware. In 2006, the plaintiff and KK Kingston Ltd agreed that if the plaintiff were to build another warehouse on the Land, KK Kingston Ltd would rent it from the plaintiff. Plans were subsequently drawn up by Designscope Architects in accordance with KK Kingston Ltd's specifications. The plans and drawings included a plan for construction of a retaining wall, which was to be constructed using gabion baskets, not concrete. In May 2006, the plans and drawings for the warehouse and retaining wall were submitted to the Morobe Provincial Building Board for approval. On 22nd June 2006, the second defendant, who is the Executive Officer of the Bod, approved the plaintiff's application to the Building Board for a Building Permit for construction of a warehouse and a retaining wall to support the warehouse. The approval was endorsed on the plaintiff's application which was on Building Board Form A. The endorsement reads: "Conforming use. Approved subject to the demolishing of the existing front fence and erected on the current property boundary." On 20th July 2006, the Building Board approved the application and issued Building Permit No. 7765/06.

7. In August/September 2006, the plaintiff's manager, Mr. Michael Chan, consulted Messrs Api Gima, Lawrence Billy, Kasen Bala and Chris Manda regarding the boundary of the Land and the construction of the retaining wall. Mr. Api Gima, the then Provincial Physical Planner, advised him that the plaintiff's retaining wall should run parallel to the retaining wall on the other side of Didiman Creek, that it should not block the flow of the creek and that it should not increase the size of the Land. Mr. Lawrence Billy, the then Provincial lands officer and Chairman of the Bod until his resignation in 2008, told him that the edge of the creek is the boundary and that the land enclosed should be kept to the area shown in the State Lease. Mr. Kasen Bala, the City Engineer, agreed with the advice given by Messrs Api Gima and Lawrence Billy and told him that a diversion channel had been constructed along the old Lae Airport which diverted most of the water away from Didiman Creek. He also advised Mr. Michael Chan against using gabion baskets for the wall as rubbish gets tangled up in it which may block the creek. Mr. Chris Manda, a surveyor with the Department of Lands and Physical Planning, also confirmed that the edge of Didiman Creek is the boundary of Allotment 1.

8. After consultations, the plaintiff engaged Mr. Greg Kasen, a registered surveyor, to verify the correct boundary of Allotment 1. Mr. Kasen took bearings and measurements and put wooden pegs and star pickets along the edge of Didiman Creek where he said the boundary to the Land was. The surveyed area complied with the State Lease. Soon after Mr. Kasen completed his work, the plaintiff commenced backfilling the Land and building a concrete retaining wall along the eastern bank of Didiman Creek which forms the western boundary of the Land.

9. On 5th February 2008, while the retaining wall was about 50% complete, Mr. Mike Quinn, a member of the Bod, entered the Land and told Mr. Michael Chan that he was doing a good job on the retaining wall. In about March or April 2008, the second defendant entered on the Land to inspect the retaining wall and said to Mr. Michael Chan that he was doing a good job.

10. On 3rd November 2008, the plaintiff terminated the services of Mr. Mike Quinn of The Professionals as its real estate agent. Mr. Mike Quinn had been the plaintiff's real estate agent since 1995. It appears that a complaint was lodged by BOC PNG Ltd against the plaintiff regarding over flooding as a result of the construction of the retaining wall. BOC PNG Ltd is the lease holder of the property at Section 20 Allotment 2, which is the property adjacent to the Land. At its meeting on 26th November 2008, the Bod considered the complaint by BOC PNG Ltd and agreed to issue a stop work notice to the plaintiff and that the plaintiff provide a 6 metres wide easement. On the same day, Mr. Mike Quinn, the acting Chairman of the Bod, wrote to Mr. Robert Parrish of BOC PNG Ltd advising him that the Bod had resolved to issue a stop work notice to the plaintiff to cease any further work on the retaining wall and that the City Engineers and the Physical Planning Office with the owner to create an easement to accommodate the existing Didiman Creek. He went on to state that the "agreed width of Didiman Creek must be 15 meters wide to cater for the volume of water to pass through without over flowing it's banks endangering properties on both sides of the Creek." On 28th November 2008, the construction of the retaining wall was completed.

11. On 21st January 2009, a "Stop Work Notice" was prepared by the Bod. At the Bod meeting on 18th February 2009, the acting Chairman, Mr. Mike Quinn, raised the question of flooding of BOC PNG Ltd's property on Allotment 2 as a result of the narrowing of Didiman Creek. The Bod agreed that the plaintiff would be informed to provide 15 metres wide easement. On 22nd February 2009, some two (2) months after the completion of the wall, the notice ordering the plaintiff to cease work on the retaining wall was served on the plaintiff. On 3rd March 2009, the plaintiff wrote to the first defendant referring to the stop work notice and enclosed a copy of the Building Permit and a letter from the Building Board.

12. On 11th April 2009, Mr Greg Kasen supplied an Identification Certificate and Survey Report which say that the area of the Land on the Original Survey shown on the original plan is 3 acres 1 rood 25 perches which is the equivalent of 1.37837 hectares. They show that the area of the Land with the current boundary is 1.384 hectares which is .006 hectares larger than the area on the original plan.

13. At the Bod meeting on 22nd April 2009, it appears that a letter from BOC PNG Ltd was presented which complained about flooding of adjoining properties as well as properties upstream from Mangola Street. The Bod resolved to notify the plaintiff to demolish the wall and to provide 15 metres wide drainage easement on the Land. On 29th April 2009, Mr. Mike Quinn, the acting Chairman, wrote to the plaintiff advising it of the Bod decision. Parts of the letter read:

"A drainage easement has not been previously provided for by the Department of Lands through Allotment 1. The reason for this is currently unclear however it has now become obvious that an easement through Allotment 1 is necessary to allow the free and unimpeded flow of Didiman Creek through the property to prevent localized flooding. The need for the easement has become obvious as a result of your development of Allotment 1 which has included the dumping of fill in what was the Didiman Creek natural drainage course and construction of unacceptable retaining walls which have effectively reduced the Creek to a width of 3 to 4 meters at its narrowest point.

The boundary between Allotments 1 & 2 follows the western side of Didiman Creek and allows Didiman Creek to flow through Allotment 1. The natural flow of Didiman Creek is through part of what is now Allotment 1. Your lease over Allotment 1 with the State makes provision for the Department of Lands to provide easements for drainage and other utilities if it is found necessary. In this case the State, through the Morobe Provincel Fisikel Plennin Bod, has approved at is meeting held on 22nd April 2009 that a drainage easement with a width of 15 meters is to be provided for by the lessee of Allotment 1 Section 20, Lae for the purposes of allowing the free flow of Didiman Creek.

As a result the Board herewith orders that you remove within a period of thirty (30) days from the date herewith all and any material that has been placed or erected by you within 15 meters of the western boundary of Allotment 1 down to the existing water level of Didiman Creek and to continue to provide a drainage easement as described above for the remainder of the period of the existing State Lease." (emphasis added)

14. On 9th July 2009, Warner Shand Lawyers, acting for KK Kingston Ltd, Rabtrad Niugini Ltd and BOC PNG Ltd, wrote to the Bod complaining that their clients' properties have been adversely affected by flooding of Didiman Creek as a result of the development undertaken by the plaintiff on the Land. On 11th August 2009 and 7th October 2009, Warner Shand Lawyers again wrote to the Bod advising that there have been further instances of flooding allegedly due to the unlawful developments on the Land and suggested that the issue of Demotion Order be placed on the agenda for discussion at the next meeting of the Bod. On 9th October 2009, the Chairman of the Bod wrote to Warner Shand Lawyers advising them that a Demotion Notice has been issued to the plaintiff. On the same day, the Bod issued a Demotion Notice.

15. On 19th November 2009, Hornibrook NGI provided its quotation to the plaintiff for the supply and construction of a warehouse on the Land. On 22nd December 2009, Mr. Michael Chan was shown the Demotion Notice dated 9th October 2009 by the then Chairman of the Bod, the late George Naemon, who told him that he had heavy equipment on the way to the Land for the purpose of pulling down the retaining wall. On the same day, Mr. Chan attended at the office of the second defendant and was informed of the letter dated 29th April 2009 from Mr. Mike Quinn to the plaintiff. Mr. Chan denied receiving the letter so a copy was given to him. On 29th December 2009, the then Chairman of the Bod extended the time for compliance with the Demolition Notice of 9th October 2009 by fourteen (14) days to 12th January 2010.

16. Counsel for the defendants urged the Court not to place any weight on the plaintiff's evidence regarding the time for completion of the retaining wall due to conflicting evidence. Secondly, he submitted that the plaintiff deliberately ignored the Stop Work Notice. This submission is based on Mr. Loko's assertion that the notice was served on the plaintiff. There is no factual basis for that submission.

17. With regards to the completion of the wall, Mr. Chan's evidence is that the wall was 50% complete on 5th February 2008 and 90% complete by August 2008. It was finally completed on 28th November 2008. As for service of Stop Work Notice and Demolition Notice, there is no evidence that the defendants served the notices on the plaintiff before the completion of the retaining wall. Accordingly, I find that the retaining wall was completed on 28th November 2008 and that the notices were never served on the plaintiff before the completion of the wall.

Easement

18. Counsel for the defendants conceded that the Bod acted ultra vires its powers in ordering the plaintiff to create an easement.

19. I am of the view that this is the central issue. It is clear from the letter of 29th April 2009, the Bod considered itself as agent of the State. Acting as the agent of the State, the Bod demanded that the plaintiff provide a drainage easement with a width of 15 metres. It relied on clause 1(g) of the State Lease to demand the creation of an easement. Clause 1(g) reads:

"1. THE LESSEE DOTH HEREBY COVENANT AND AGREE with the Administrator that he will during the said term observe and perform and be bound by the several covenants, terms, conditions and agreements hereinafter contained, that is to say:"

(a)....

(b)....

(c)....

(d)....

(e)....

(f)....

(g) THAT in the event of the land or any part thereof being at any time required by the Administration for railway or tramway purposes, or water supply purposes, irrigatin purposes, reservoirs, dams, races, water courses or drains, or for public works or highways or mining purposes the lessee shall remove any improvements therefrom and relinquish and give up possession of the land or the part thereof required for the purposes aforesaid to the Administration. (emphasis added)

20. Where the land or part of it is required for any one or more of the purposes specified in the clause, the lessee may remove the improvements and surrendered it to the State. The clause does not permit the Bod to require the lessee to grant an easement over the land.

21. Counsel for the plaintiff submitted that a Planning Board does not have general power/function to create an easement, or to require the registered proprietor of the land to create an easement. However, it may, on an application for planning permission, consider conditions of drainage and water flow which could lead to a consideration of relevant easements (see s.79 of the Planning Act). In this case, there was no application for planning permission before the Bod and no planning permission was needed.

22. The Planning Act sets out the relevant considerations in physical planning matters (s. 5). The relevant functions of a Planning Board are: (i) zoning and re-zoning (s. 74); (ii) declaring a redevelopment zone (s. 71); (iii) planning permission (s. 77); (iv) preservation of trees (s. 82); (v) control of sign Boards (s. 83); (vi) enforcement – issue stop work and demolition notices (s. 99) and order to plant trees (s. 100); and (vii) chairman to enter premises for inspection (s. 102). As indicated above, a Board may consider the question of easements when considering an application for planning permission under section 77. Apart from that situation, a Board does not have the power to create an easement.

Demolition of work

23. Counsel for the defendants submitted that the plan approved by the Bod and the Building Board was for the plaintiff to construct a step like retaining wall using gabion baskets but the plaintiff built a concrete retaining wall. As such, it is an "unauthorized development" under section 98 of the Planning Act and the Bod has power under section 99(2) to issue demolition notice.

24. There is no dispute that a Planning Board has power to issue demolition notice but it can only do so where "unauthorized building or engineering operations" have been carried out. A penalty for non-compliance with a demolition notice is also specified. Section 99 provides:

"99. Stop work and demolition notices

(1) The owner, occupier or developer of any land on which building, engineering, mining or other operations are being carried out in contravention of this Act., may be issued with a stop work notice, by or on behalf of a board, requiring the operations to stop.

(2) Where unauthorized building or engineering operations have been carried out, a Board may serve a demolition notice on the owner, occupier, developer or builder or on any two or more of the foregoing requiring the unauthorized work to be removed and the land restored to its state prior to the commencement of the operations.

(3) A demolition notice under Subsection (2) shall be issued within 12 months of the date when the operations were first brought to the notice of the Board.

(4)A person who, without reasonable excuse (proof of which is on him), fails to comply with the requirements of a stop work notice or a demolition notice is guilty of an offence.

Penalty: A fine not exceeding K4, 000.00

Default penalty: A fine not exceeding K400.00."

25. The defendants claim that the retaining wall has caused the narrowing of Didiman creek which has led to over flooding of the adjoining property. There are allegations of over flooding but the defendants have failed to produced evidence to show that the wall caused the over flooding. There is no technical or engineering report before the court to show that the retaining wall is the cause of the over flooding.

26. The Land is zoned industrial and the Building Board has approved the construction of a warehouse and a retaining wall on it. A warehouse is a purpose specifically permitted on land zoned industrial. The retaining wall is needed to support the warehouse. I am satisfied that the warehouse and the retaining wall are an "authorized purpose" under the Planning Act and the Physical Planning Regulation 2007 and no planning permission is required (ss. 3 & 72 of Planning Act; s. 1 of Planning Regulation). I agree with counsel for the plaintiff that the Bod had no power to issue the demolition notices.

27. On the question of the use of concrete to build the wall instead of gabion baskets, I am of the view that that is a building matter and has to be addressed by the Building Board, not the Bod.

28. A matter which I wish to briefly comment on is the claim by the plaintiff that the demolition notices were not issued within twelve (12) months of the Bod becoming aware of the construction of the retaining wall. It is not disputed that the acting Chairman became aware of the wall in February 2008 while the second defendant became aware in May 2008. However, the first time the matter appeared in the minutes of the meeting of the Bod was on 22nd April 2009. I am of the view that the "operations were first brought to the attention of the Board" on 22nd April 2009. As such, the notices were issued within twelve (12) months.

Alternative remedies

29. Counsel for the defendants argued that the legislative intent of section 99 is to issue stop work or demolition notices without affording the party affected an opportunity to be heard and that the only remedy available to the plaintiff is to appeal under s94 of the Planning Act to the Papua New Guinea Physical Planning Appeals Tribunal.

Section 94 provides:

"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

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

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

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

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

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

(f) 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 authorized under the Act.

(3) An appeal may not be against the approval of a development plan or against the declaration of a zone by gazettal of final approval of a development plan." (emphasis added)

30. I do not agree with counsel for the defendants that Parliament excluded the application of the rules of natural justice to an owner or occupier of land under the Planning Act. This argument is disturbing and I do not entertain it. The common law principles of natural justice are part of the law of this country. In addition, the Constitution demands that everyone discharging judicial and administrative functions must observe the principles of natural justice (see s. 59 of the Constitution).

31. I agree with counsel for the plaintiff that the present proceedings do not fall within any of the grounds in s. 94(2). First, this is not an appeal against a planning permission or against a "condition imposed on the approval of a planning permission." In this case, no planning permission from the Bod was required. The Bod merely approved the permission granted by the Building Board under the Building Act. Secondly, an appeal against a Demolition Notice may only be made on the ground that "the operations are authorized" under the Planning Act. The approval here was given under the Building Act. Finally, this Court is not deprived of jurisdiction to hear the judicial review matter even where appeal procedures exist (see Kekedo v Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122). This is an appropriate case for judicial review because the actions of the Bod were ultra vires and the plaintiff was denied natural justice.

Permanent Injunction

32. The plaintiff asked for a permanent injunction restraining the defendants from interfering with the improvements on the Land. Morobe Provincial Government is a party in the matter. In SCR No. 1 of 1998; Reservation Pursuant to S. 15 of the Supreme Court Act (2001) SC672, the Supreme Court held that a Provincial Government is part of the State. In the event the State requires the land or part of it in the future for "water causes or drains" (clause 1(g) of the State Lease), the injunction may cause some difficulties. I raised the issue with counsel for the plaintiff who agreed not to seek the order. As such, I make no order for a permanent injunction.

Costs on a solicitor/client basis

33. Awarding costs is discretionary. The court may order costs on a solicitor/client basis against a party whose conduct has been improper, unreasonable and blameworthy (Rex Paki v MVIL (2010) SC1015).

34. In this case, the actions taken by the defendants have no basis in law and yet they persisted with it until the end. This has resulted in the plaintiff incurring unnecessary costs and has delayed the construction of the warehouse. In addition, the Bod took it upon itself to pull down the wall and organized machinery to do so. This must have caused a lot of anxiety. The counsel for the defendants only conceded that the Bod acted ultra vires on the last day. I consider the conduct of the defendants to be improper, unreasonable and blameworthy. As such, I award costs on a solicitor/client basis.

35. For all the reasons in the judgment, I make the following orders:

1. An Order in the nature of certiorari removing and quashing orders of the First Defendant made on 22nd April 2009 and referred to in the First Defendant's letter dated 29th April 2009 ordering that the plaintiff provide a drainage easement 15 metres wide on Allotment 1 Section 20 Lae, and that the plaintiff remove all material placed or erected by the plaintiff on Allotment 1 Section 20 Lae within 15 metre of the western boundary of Didiman Creek within 30 days.

2. A declaration that the Stop Work Notice issued on 21st January 2009 by the First Defendant ordering that construction of a retaining wall along Didiman Creek Reserve at Section 20 Allotment 1 Lae stop forthwith was not served on, or notified to the plaintiff until 22nd February 2009.

3. A declaration that the construction of the retaining wall referred to in the Stop Work Notice issued on 21st January 2009 by the First Defendant ordering that construction of a retaining wall along Didiman Creek Reserve at Section 20 Allotment 1 Lae stop forthwith was completed prior to service of the Stop Work Notice on the plaintiff on 22nd February 2009.

4. An order in the nature of certiorari to remove into this Honourable Court and quash the Demolition Notice made by the First Defendant on the 9th October 2009 ordering the removal of a retaining wall along Didiman Creek in Allotment 1 Section 20 Lae and restoration of the land to its original state within fourteen (14) days of the service of the notice.

5. A declaration that the First Defendant has no legal power to itself demolish or remove building or engineering operations whether same are authorized or unauthorized.

6. The Defendants pay the Plaintiff's costs on a solicitor/client basis.

7. Time for entry of the orders is abridged to the date of settlement by the Assistant Registrar which shall take place forthwith.

_________________________________________

Huon Lawyers: Lawyer for the Plaintiff
Lae Urban Local Level Government: Lawyer for the Defendants