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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 453 OF 2013
BETWEEN:
ISLANDER VILLAGE MANAGEMENT & RECREATION ASSOCIATION INC.
Plaintiff
AND
ZHONGQUIN SHI
First Defendant
AND
MICHAEL MALABAG AS THE THEN CHAIRMAN OF THE NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD & MEMBERS OF THE BOARD
Second Defendant
AND
MEMBERS OF THE PAPUA NEW GUINEA PHYSICAL PLANNING APPEALS TRIBUNAL
Third Defendant
AND
LUCAS DEKENA as the then MINISTER FOR LANDS & PHYSICAL PLANNING
Fourth Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant
Waigani: Nablu, AJ
2014: 24th October
2015: 2nd October
JUDICIAL REVIEW – Physical Planning Act ss. 87 & 95 – Physical Planning Regulations – Decision to revoke deemed planning permit – Appeal to the Physical Planning Appeals Tribunal – Process of appeal to the PNG Physical Planning appeals Tribunal – Denial of Natural Justice – Decision quashed and referred back.
Cases cited:
Kekedo v. Burns Phillip [1988-89] PNGLR 122
Mision Asiki v. Manasupe Zurenuoc (2005) SC 797
Ombudsman Commission v. Peter Yama (2004) SC 747
Counsel:
A.Mana, for the Plaintiff
A.Maribu, for the First Defendant
C.Manua , for the Second Defendant
B.Kulumbu, for the Third, Fourth and Fifth Defendant
2nd October, 2015
1. NABLU, AJ: The Islander Village Management & Recreation Association, the plaintiff was granted leave on 22nd November 2013 to review two decisions. The first decision is the decision of the National Capital District Commission (NCDC) Chairman of the National Capital District (NCD) Physical Planning Board to revoke the deemed Planning Permit issued to the plaintiff on 8th December 2011. The second decision is the decision of the PNG Physical Planning Appeals Tribunal Decision to uphold the first defendants appeal and revoke the deemed planning permit.
Background Facts
2. The first defendant, Zhongqin Shi, is the appellant in an appeal to the PNG Physical Planning Tribunal on 6th December 2011. The
first defendant was aggrieved by the decision of the Chief Physical Planning Office to grant a deemed planning permission on 9th
September 2011 to the plaintiff. The deemed planning permission was granted to build a permanent gate between Allotment 1, Section
440 and Allotment 12 Section 409. The National Capital District Building Authority subsequently granted a building permit [No. BDD11-165(F)]
to the plaintiff on 3rd November 2011 (Affidavit of Sajani Kattapuram paragraph 27 & 28).
3. Zongquin Shi, the first defendant owned the property located at the main entrance into Islander Village. She was aggrieved by the grant of the deemed planning permission and appealed to the Tribunal. The second defendant then noted the contents of the appeal letter and resolved to revoke the decision and order the relocation of the main gate to its original location. The second defendant then wrote to the plaintiff and in the letter they stated that its decision was independent and did not pre-empt the outcome of the appeal before the third defendant. In its reasons for revoking the planning permission the second defendant gave the reason that the gate must be relocated for safety and security of people living within the Islander Village compound, including the first defendant who was fenced out as a result of the relocation of the gate.
4. The plaintiff relies on four (4) grounds of review. The first ground of review is that the plaintiff was denied natural justice. That the second defendant acted unilaterally and exceeded his powers under the Physical Planning Act.
Legal Issues
5. Parties conceded that the following legal issues arise for determination:
Evidence
6. The plaintiff relied on the Affidavit of Sarjani Kattapuram sworn on 22nd August 2013 and filed on 26th August 2013. In response the first defendant filed two affidavits which were sworn on 9th September 2013 and 9th October 2013. The affidavits were filed on 10 September 2013 and 10th October 2013 respectively. The second defendant also filed the affidavit of Sebastine Isu which was sworn and filed on 16th May 2014.
7. There were no issues regarding the affidavits and they were included as part of the Review Book and were accepted into evidence.
8. The third, fourth, fifth and sixth defendant filed the affidavit of Juliana Awuko which was sworn on 15th October 2014 and filed on 16th October 2014. The affidavit was filed on the date the matter was set down for a hearing. The trial date was vacated and I granted leave to the third to fifth defendants' lawyer to rely on the affidavit in the substantive hearing. The plaintiff then filed the appropriate notice under the Evidence Act to cross-examine the deponent.
9. Under Order 16 Rule 13(11)(3) of the National Court Rules (NCR), applications for judicial review are only by affidavit evidence only. However, in this case, given the fact that the affidavit was filed after the Review Book was compiled and filed, I exercised my discretion pursuant to Order 16 Rule 13(11)(3) of the NCR to dispense with the strict requirements of the rules and granted leave for the deponent to be cross-examined.
The Law
10. Judicial Review applications go through a two stage process. The applicant must first establish the grounds of review which must be the same grounds of review pleaded in the Statement of Support filed pursuant to Order 16 Rule 3(2)(a) of the National Court Rules. If the plaintiff has established one or more of the grounds of review, the next step is for the applicant to then make a case for the relief (See Mision Asiki v. Manasupe Zurenuoc (2005) SC 797). The grant of relief is discretionary according to Order 16 Rule 4 of the NCR.
11. The area of law in dispute is the interpretation and application of the Physical Planning Act 2007 and the Physical Planning Regulations.
12. The relevant sections of the law is reproduced below for ease of reference.
Physical Planning Act
(1) Where it appears to a Board that a planning permission previously granted by that Board needs to be revoked or modified in the public interest, that Board may revoke or modify the planning permission granted by agreement with the owner of the land affected.
(2) Where any planning permission is revoked or modified by agreement, such agreement may provide for compensation to an owner, occupier or developer of the land and such compensation may take the form of–
(a) a planning permission; or
(b) a monetary consideration; or
(c) such other consideration as may be agreed between the parties concerned; or
(d) any combination of Paragraphs (a), (b) and (c).
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 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.
Section 95 – Consideration of representations by the Tribunal
(1) The Tribunal shall afford the appellant, an applicant for the planning permission, an owner or occupier of the land to which the appeal relates, an objector and the Board making the decision an opportunity to make representations concerning the appeal if they so wish.
(2) At the discretion of the Tribunal the above representations may be made in writing or may be at a hearing.
(3) Where representations are made at a hearing, a party may be represented by an agent and may call such evidence and produce such documents as a relevant and material in support of those representations.
(4) In the absence of any or all of the interested parties or their representatives at a hearing, the Tribunal may proceed to determine the appeal on the basis of such representations as are before it but in such situation the Tribunal shall satisfy itself that there is sufficient information to make a considered decision.
Physical Planning Regulation 2007
Section 18 Notification of Appeals Tribunal
(1) Upon receipt of an appeal the Tribunal shall notify the appellant in writing whether the appeal is valid or not.
(2) With regard to the wider implications and impact of the subject matter, the Tribunal shall notify the appellant in writing whether representations by the appellant are to be made in writing or at a hearing.
(3) Where written representations are required the Tribunal shall give all relevant parties not less than fourteen days notice for the submission of a written representation, and this notice shall be made in the form set out in Schedule 2.
(4) Where a hearing is to be held the Tribunal shall advise the appellant, the Board concerned and any other affected parties in writing of the date, place and time of the hearing, giving not less than twenty-one days notice and an invitation to attend.
Section 20 Procedure during a meeting of the Tribunal
(1) At a meeting of the Tribunal the Chairman shall endeavour to ensure that all relevant parties have been notified and that all notified parties have the opportunity to represent their views, either in writing or by both written representation and verbal presentation at a hearing.
(2) The Tribunal, in framing its resolution of recommendation, shall take into account the approved policy of the physical planning board, whether such policy is set out in an approved development plan, a development plan in preparation or by a specific resolution of the Board, and shall also take into account any current and relevant policy direction of the Minister.
(3) The Tribunal, in framing its recommendation, shall take into consideration its obligations under Section 5 of the Act.
Grounds of Review
13. The plaintiff's challenge of the decision is based on two main grounds of review. They are that the plaintiff's right to natural justice was denied in the whole process. The other ground of review is that the second defendant, the Chairman of the NCDC Physical Planning Board acted ultra vires. The plaintiff alleged that different aspects of the decisions resulted in the denial of natural justice and also resulted in the defendant's exceeding their jurisdiction.
Ground One of Review
14. The plaintiff primarily argued that the defendants did not notify the plaintiff of the appeal in order to give them an opportunity to be heard and give full representations at the hearing of the appeal by the third defendant thereby contravening Section 95 of the Physical Planning Act (PPA).
15. The plaintiff argued that the evidence shows that the third defendant did not meet or convene a meeting or hearing to hear and determine the appeal. There was no evidence of meeting minutes to indicate that a meeting took place. Alternatively, if the meeting was in fact convened and the appeal was determined, the plaintiff argued that they were not notified of the meeting and therefore they were denied the opportunity to make representations concerning the appeal. It is further argued that the second defendant did not have the requisite authority and acted ultra vires its powers to hear the first defendant's appeal and failed to comply with Section 37(4) and Section 59 of the Constitution.
16. Mr Mana of counsel of the plaintiff submitted that section 95(1) of the PPA requires the Tribunal to give an opportunity to the plaintiff, the owner of the property and the appellant to make representation concerning the appeal. He submitted further that the provision mandatorily requires the Tribunal to give notice to all relevant parties pursuant to ss. 18(3), 18(4), and 20(1) of the Physical Planning Regulations 2007. It was also submitted that the Constitutional provisions of a fair hearing under Section 37(4) of the Constitution and the natural justice principles under Section 59 of the Constitution impose on all Tribunals and administrative bodies the obligation to inform the interested person that there was an appeal on foot and affording them the right to be heard. As a result of failing to observe the minimum requirement under Section 59 and the breach of the mandatory process under the Act and Regulations the third and fourth defendant erred in law, in not taking into account the relevant facts and law before arriving at their respective decisions.
17. Furthermore, the third defendant took into account incorrect facts, irrelevant facts and disregarded the applicable law.
18. The first defendant submitted that the second defendant did act within his statutory powers to revoke the deemed planning permission pursuant to Section 87 of the Physical Planning Act on 8th December 2011. Therefore, it rendered any appeal to the Tribunal futile. The second defendant had rectified or corrected the decision which was subject of the appeal. Therefore, any decision of the subsequent appeal is rendered of no use.
19. Alternatively, the first defendant argued that the appeal letter by the first defendant dated 6th December 2011 and the Application schedule together with the approval (deemed planning permission) by the NCDC Physical Office was "sufficient information" within the meaning of section 95(4) of the Act that warrant a hearing by the Tribunal. The tribunal must be satisfied that the information was sufficient before hearing the matter. The Tribunal exercised the discretion to waive representation by the parties (or their agents) pursuant to Section 95 of the Physical Planning Act.
20. Therefore it was submitted by Mr Maribu of counsel for the first defendant that the plaintiff was not denied natural justice.
21. The second defendant did not make any submissions in relation to the first ground of review.
22. It is not disputed that the plaintiff was not given an opportunity to be heard on appeal at the Tribunal. Ms Kulumbu of counsel for the third, fourth and fifth defendants submitted that the procedure for an interested party to be heard prior to the Appeals Tribunal making its decision is discretionary. Counsel submitted further that a strict interpretation of Section 95(1) of the Physical Planning Act that the Tribunal shall afford the appellant or any other interested and relevant party an opportunity to be heard if they so wish. She submitted that the phrase "if they so wish" does not impose a mandatory obligation on the Appeals Tribunal hearing. It is implied that the procedure is discretionary. Their right to be heard is not an automatic right but it is a discretionary power of the Court to either afford the right to be heard or not. If the Tribunal is of the opinion that it has sufficient information before it to make a decision then it can go ahead and make the decision without hearing the parties.
23. In my view, the main issue here is the construction of Section 95 (1) of the Physical Planning Act. The critical issue for determination under this ground of review is whether the mandatory statutory process was complied with.
24. In the words of His Honour Kapi, DCJ (as he then was) in the classic case of Kekedo v. Burns Phillip [1988-89] PNGLR 122 at page 124:
"Judicial review is not concerned with the decision itself but the decision making process."
25. I reject the submissions of the first, third, fourth and fifth defendants in regard to the interpretation and application of Section 95(1) of the Physical Planning Act.
26. Section 95(1) is clear, the Tribunal is obliged to give an opportunity for the following persons to make representation before the tribunal. The persons are the appellant, the applicant of the planning permission, the owner or occupier of the Land, the Board or an objector. In my view, Section 95 (1) is worded in mandatory terms, imposing a statutory obligation on the Tribunal to give an opportunity to make representation to the Tribunal. The use of the word "shall" in the subsection clearly does not impose a discretion on the Tribunal to exercise.
27. The State Counsel's submission regarding the phrase "if they wish to do" implies a discretionary power on the Tribunal is misconceived. If the subsection is read in whole it is clear that the phrase "if they wish to do so" refers to those persons namely, the owner of the property, the applicant of the deemed planning permission etc... The Tribunal must give the opportunity to those persons to make presentation if they wish to do so. The Tribunal must inform the appellant and the other interested persons that there is an appeal under consideration.
28. There is no evidence by the third defendant that such persons were notified of the pending appeal. The evidence of Mrs Juliana Awuko in her affidavit and on oath was that the Tribunal proceeded to determine the appeal on the basis of the first defendant's appeal letter. In her affidavit she provides reasons for the decision to uphold the appeal but she does not state whether the interested persons were informed of the appeal pursuant to Section 95 of the Physical Planning Act.
29. In regard to the first defendant's submission that the third defendant can consider the appeal based on the representation of the first defendant was sufficient, I am of the view that these submissions are also misconceived. According to Section 95 of the PPA, the Tribunal has a discretion when considering the appeal to allow the representations to be made either in writing or representations made at the hearing of the appeal (Section 95(2) of the Act). The Tribunal can proceed to hear an appeal in the absence of the appellant or all of the interested persons if it is satisfied that that the representations before it is sufficient information to reach a considered view (Section 95(4) of the Act).
30. To my mind, Section 95(4) of the Act is not applicable until the appellant and the interested persons are notified of the appeal and have been afforded the right to be heard. If they were informed of the appeal and exercised their right not to make representations then, Section 95(4) becomes operational.
31. The evidence before me shows that the Tribunal for some unknown reasons came to the view that there were no representations by the interested parties and they could unilaterally consider the appeal on the basis of the appellant's appeal. Though this discretion is given to the third defendant, they are still bound to inform the interested persons first, pursuant to Section 95(1) of the Act. The failure to inform the interested persons is made contrary to the mandatory provisions of the Act and the principles of natural justice as enshrined in Section 59 of Constitution. This is a fundamental breach of the law and therefore renders the hearing of the appeal void and of no effect.
32. Even if I am wrong, the Supreme Court case of Ombudsman Commission v. Peter Yama (2004) SC 747 is authority for the proposition that despite the absence of any express provisions of the law providing the duty to give reasons, the public authority is still bound by the Constitutional obligations under Section 59 of the Constitution to observe the principles of natural justice. I am of the view, that this principle is applicable, in relation to the present case. The plaintiff was the applicant for the deemed planning permit, they should have been notified of the appeal and afforded the right to be heard or be given the opportunity to make representations at the appeal.
33. Based on the evidence before me and the reasons above, I am satisfied that the plaintiff was denied natural justice in the manner as contended by the plaintiff. The Tribunal unilaterally proceeded on to hearing the appeal without notifying the plaintiff, as the applicant for the deemed planning permit before considering and determining the appeal contrary to section 95(1) of the PPA. Therefore, I uphold ground one of the review.
Ground of Review Two
34. In ground two of the review, the plaintiff argued that the second defendant's decision made in meeting No. 8 of 2011 on 8th December 2011 which upheld the first defendant's appeal was made ultra vires its powers and functions. Mr Mana of counsel for the plaintiff submitted that the second defendant is not the lawful body to determine appeals from a decision of the physical planning board and therefore was not authorised to consider and determine the appeal made to the Papua New Guinea Physical Planning Board.
35. Mr Maribu of counsel for the first defendant submitted that the second defendant only exercised its powers under Section 87 of the PPA. The second defendant did not hear or determine the appeal, it simply revoked the planning permission pursuant to Section 87 of the Act. He submitted further that the second defendant exercised its powers pursuant to Section 87 for the wider public interest.
36. Ms Manua of counsel for the second defendant submitted that the second defendant issued the deemed planning permission to the plaintiff to relocate the existing gate to a new location without any knowledge that it would affect the rights of the first defendant whose property was at the time within the precincts of the Islander Village Management. She submitted that the plaintiff did not disclose that when applying for a planning permission, that it would give effect to its resolution to seclude the first defendant from the Islander Village Compound. After receiving the first defendant's appeal letter to the Tribunal they decided to revoke the permission pursuant to Section 87 of the Act. According to the second defendant, the issues raised by the first defendant were justified and based on good harmonious living between the residents, for public safety and interest. Therefore, they resolved in their meeting No. 11 of 2011 to relocate the gate back to its original position. The plaintiff and the first defendant were informed of the decision in a letter dated 9th December 2011. The second defendant also stated in its' letter that their decision was made independently and they did not intend to pre-empt the decision of the Tribunal. It was submitted that the decision to revoke the permission was not made ultra vires.
37. Ms Kulumbu for the third, fourth and fifth defendants supported the submissions made by the first and second defendants.
38. I am of the view that the main issue under this ground of review is the procedure of applications for planning permissions and the functions and powers of the second defendant.
39. Section 77 of the PPA provides the procedure for applications of planning permission. After receipt of an application for a planning permission, the Board then considers the application pursuant to the prescribed process under Section 78 of the Act. The Board pursuant to Section 79 after considering the application can either grant or refuse the planning permission. If the Board grants the planning permission, it can impose conditions. A written notice of the decision must be referred to the applicant within 14 days or other time prescribed by the Board (Section 80 of the Act). In the present case, the planning permission is a deemed planning permission, therefore Section 84 of the Act is applicable.
40. The law is clear; there are two factors which must be satisfied when applying the provisions of Section 87. Pursuant to section 87(1) the Board has the power to revoke and modify the planning permission, that is not disputed. In my view, the power to revoke can only be lawfully exercised where there are two factors present. The revocation of modification is in the public interest. Public interest is not defined. Therefore it is a subjective test applied by the Board on what constitutes matters of public interest. Notwithstanding, a wide discretion to determine what constitutes matters of public interest, like any exercise of discretion, it must be exercised on proper grounds. The second factor is that the revocation must be made by agreement with the owner of the land. In order for a planning permission to be revoked, these two conditions must be met.
41. In relation to the first point, I am not satisfied that there is an issue of public interest. The letter by the appellant raises some issues which she says raise public interest issues, but I am not convinced that they are issues of public interest. The reason for her appeal is that the relocation of the gate to the current position meant that her property would be excluded from the Island Village compound. This is the crux of the appellant's complaint and interest. By been excluded from the compound, the value of her property and if it is tenanted the security issues would arise in regard to her property, this in my view is not a matter of public interest but a matter of personal interest of the first defendant. Public Interest is a wide term which must show a wider interest of the public at large and not reflect the interest of an individual. Even if I am wrong, the first defendant has not provided sufficient evidence to prove that the public's interest is at stake. The first defendant's evidence is not sufficient to prove that there are real public interest issues at stake.
42. Secondly, the second defendant cannot unilaterally make a decision to revoke or modify the grant of the planning permission. In order for the revocation to be lawful, the owner of the land must be informed and they must agree to the revocation.
43. The land on which the gate was to be erected is land which the plaintiff manages. I am of the view that the plaintiff being the applicant of the permission should have been informed of the revocation and if they agreed to the revocation of the permission, then that could then be effected pursuant to Section 87 of the Act.
44. Therefore, I am convinced that the second defendant exceeded their jurisdiction under Section 87 of the Act and therefore acted ultra vires in the manner as contended by the plaintiff.
45. Furthermore, the appeal against the decision was made to the Tribunal pursuant to Section 94(1) and (20) of the Act. The appeal was formally lodged by the first defendant. The matter was now properly before the Tribunal. Even if the second defendant says he had the power to revoke, which I find he did not, he cannot unilaterally review his own decision to grant the deemed planning permission. That was the prerogative of the third defendant. Upon the lodgement of the appeal, the second defendant no longer had a power to deal with the issue and was seized of jurisdiction. The Appeals Tribunal had assumed the power to determine the appeal.
46. I find that the first defendant did lodge an appeal against the decision to grant a planning permission. Based on the evidence, the decision should be reviewed by the appellant authority. I find that the second defendant did act ultra vires and contrary to the prescribed statutory procedure under the Act as contended by the plaintiff. I reject the submissions by the defendants counsel as misconceived and lack merit. Accordingly, I uphold the submissions of the plaintiff's counsel.
47. Therefore, the plaintiff's second ground of review is established and I uphold the second ground of review.
Relief:
48. Having made out two of the grounds of review, the next step is to consider whether the relief sought should be granted.
49. The plaintiff seeks various declarations and an order of certiorari to quash the decision. Having found that there was a fundamental flow in the mandatory statutory decision making process. The Court has the power to interfere with the decision. Furthermore, the plaintiff was denied natural justice and the decision-makers committed serious errors of law when applying the provisions. I am satisfied that the relief sought should be granted and I will make consequential orders with a view of ensuring the matter is progressed in the Tribunal below.
Court Orders
Allens Lawyers: Lawyers for the Plaintiff
Liria Lawyers: Lawyers for the First Defendant
NCDC Legal Division: Lawyers for the Second Defendant
Office of the Solicitor General: Lawyers for the Third, Fourth and Fifth Defendant
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