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East New Britain Provincial Government v Wularia [2021] PGNC 590; N9409 (29 June 2021)

N9409

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 251 OF 2020

BETWEEN:
EAST NEW BRITAIN PROVINCIAL GOVERNMENT
First Plaintiff

AND:
EAST NEW BRITAIN PROVINCIAL PHYSICAL PLANNING BOARD
Second Plaintiff

AND:
WILSON MATAVA – Chairman of the East New Britain Provincial Planning Board
Third Plaintiff

AND:
ISAAC WULARIA
Defendant

Kokopo: Suelip AJ
2021: 10^th & 29^th June

CIVIL – Practice and Procedure – seeking declarations and orders – defendant’s failure to obtain approval prior to building extensions to existing building – existing and adjacent properties jointly owned by defendant and estranged wife – repeated issuance of Stop Work Notice – noncompliance to demolition notice – demolition notice given late – payment of default fine paid – defendant admit failure to obtain prior approval – plaintiffs to deliberate on “As Built” drawings submitted – further penalty fine ordered – order for demolition subject to plaintiff’s deliberation on defendant’s drawings

Cases Cited

Simon Wama v. Powes Parkop & 4 ors (2018) N7323
Simon Wama v. Powes Parkop & 4 ors (2020) SC1977

Legislations

Physical Planning Act
Physical Planning Regulation Act 2007

Counsel

J Marubu, for the Plaintiffs
H Hilary, for the Defendant

DECISION

29^th June, 2021

1. SUELIP AJ: This is the substantive hearing of the plaintiffs Originating Summons in which they seek certain declarations and orders. Firstly, they want this Court to make a declaration that the defendant failed to make an application for a planning permission to the second plaintiff prior to building extensions to his existing property described as section 47 allotment 29, Kenabot, Kokopo, East New Britain Province. The second declaration they seek is that the defendant failed to comply with the Demolition Notice issued on 28 May 2020. They also seek an order that all the extensions made to the existing building without prior approval from the second plaintiff be demolished forthwith at the defendant’s expense. They also seek an order for costs of these proceedings.

2. The hearing is contested.

3. This is my decision.

Background

4. The defendant and his former wife own section 47, allotments 29 and 30, Kenabot, Kokopo, East New Britain Province. On an unknown date in 2017, it was discovered by the plaintiffs that improvements were done to section 47 allotment 29 (the “property”) without obtaining the necessary approval from the second plaintiff. As a result, the second plaintiff issued three (3) separate Stop Work Notices to the defendant to cease extending the existing building on his property. These notices were issued on 27 November 2017, 14 March 2018, and 18 March 2019, respectively. When these notices were ignored, the plaintiffs issued a Demolition Notice on 28 May 2020. Again, the defendant disregarded this notice prompting the plaintiffs to file these proceedings.

Issues

5. The issues for determination are these: -

(i) whether the defendant failed to make an application for a planning permission to the second plaintiff prior to making extensions to his existing property?

(ii) whether the defendant failed to comply with the Demolition Notice issued on 28 May 2020?

(iii) whether all the extensions made to the existing building without prior approval from the second plaintiff should be demolished forthwith at the second defendant’s expense?

Law

6. Section 76(1)(a) of the Physical Planning Act (the Act) provides as follows:

76. BOARD TO WHICH APPLICATION FOR PLANNING PERMISSION TO BE MADE IN THE FIRST INSTANCE.

(1) An application for planning permission shall be made in the first instance–

(a) where the development concerned is in a province and a Provincial Physical Planning Board has been established in that province and is not suspended–to that Provincial Physical Planning Board; or

(b) ...

(c) ...

7. Section 99(4) of the same Act states:

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 unauthorised 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.

(Underlining mine)

8. Meanwhile, section 54(2) of the Physical Planning Regulation 2007 provides as follows:

54. DEMOLITON NOTICES

(1) In the event that an unauthorized development has been carried out and a notice issued under section 98 or 99 of the Physical Planning Act is disregarded, a Physical Planning Board may serve a demolition notice set out in schedule 2.

(2) In the event that a Demolition Notice issued under the Act and Regulation is disregarded and the development of the subject of notice remains unauthorized within the meaning of the Physical Planning Act the board with jurisdiction over the land area the subject of the notice may apply to the National Court for a further order in respect of demolition and an order to pay the penalty fine in respect of each full day the notice is disregarded.

(3)...

(4) The existence of pre-existence of an application for planning permission shall not be a defence in the non-compliance of a demolition notice.

Plaintiffs’ submission

9. The plaintiffs’ evidence are in the affidavits of the Lands Advisor, Joyce Guan and the affidavit of the Physical Planning Officer, Solomon Boloa.

10. On the first issue, the plaintiffs submit that the defendant failed to seek planning permission prior to any development on his premises. This requirement is set out in section 76(1)(a) of the Act.

11. Regarding the second issue, section 99 of the Act says that any owner, occupier or developer of any land on which the 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 the Board. It says further that where an unauthorized building or engineering operations have been carried out, the Board may serve a demolition notice that requires that unauthorized work to be removed. That notice must be given with 12 months from the date when it was first brought to the attention of the Board. In subsection (4), it says that in the event the person fails to comply with the requirements of the stop work and demolition notice, he is guilty of an offence and must pay a fine not exceeding K4000 with a default fine of K400.

12. The plaintiffs submit that the defendant failed to comply with the 3 stop work notices and one demolition notice issued by the plaintiffs and continued to build the unauthorized extension since 2017 until completion.

13. On the last issue, section 54(2) of the Physical Planning Regulation 2007, the Board can apply for an order to pay the penalty fine in respect of each full day the notice is disregarded. Also, in section 54(4), the regulation says that the existence or pre-existence of an application for planning permission shall not be a defence in the non-compliance of a demolition notice. The plaintiffs therefore submit that they have the right to apply for an order from this Court where the defendant has failed to obtain planning permission from the second plaintiff.

Defendant’s submission

14. The defendant in his affidavit denies being served the 3 Stop Work Notices and says he only had the benefit of reading those notices when he engaged his lawyers this year. He says he owns both properties jointly with his former wife. He admits doing the extension to the property without the approval of the plaintiffs, but the reason for the extension was to accommodate for his children after he broke up with his wife.

15. He says he has paid the penalty fee of K4000 on 20 November 2019 after he received the plaintiffs’ lawyers’ letter of 13 March 2019. He denies being served the plaintiff’s lawyers letter of 19 March 2019 which required him to pay the K4000 penalty fee together with the submission of drawings for the extension. He says if he knew of these requirements, he would have provided both then. He has since 21 May 2021 through his architects submitted “As Built” drawings for works already done to the third plaintiff.

16. He begs this Court should be wary of the reason for the extension which is to provide accommodation for his children. It is also submitted that the extension was made on the adjourning property which is owned by the defendant and his former wife. The defendant further submits that he is now waiting on the plaintiffs to deliberate on the drawings and give him an answer hence, he submits that the application by the plaintiffs be refused.

Consideration

17. On the first issue of whether the defendant failed to make an application for a planning permission to the second plaintiff prior to making extensions to his existing property, the defendant admits that he failed to make an application for a planning permission to the second plaintiff prior to making the extension to his property. Let us now also look at the definition of “planning permission”. This is described in the Act as:

“planning permission” means an approval from a Board to permit development and includes–

(i) an approval to allow the use of a building or land in a zone for a purpose which is not specifically permitted; and

(ii) an approval to a request for the change in zoning of land; and

(iii) an approval to subdivide or consolidate land,

under this Act;”

(Underlining mine)

18. It is obvious that the defendant failed to seek prior approval to making the extensions to his property.

19. Now onto the second issue of whether, the defendant failed to comply with the Demolition Notice issued on 28 May 2020. The extensions have remained since the issuance of this notice and no demolition has taken place. However, the defendant has since paid the penalty fee of K4000.00. It is unknown whether, the plaintiffs required payment of K400 as default penalty and, if the defendant paid that sum too. Therefore, although the defendant failed to comply with the demolition notice, he has paid the penalty fee.

20. The last issue is whether, all the extensions made to the existing building without prior approval from the second plaintiff should be demolished forthwith at the second defendant’s expense. It is the plaintiffs’ contention that the defendant failed to comply with the multiple stop work notices and one demolition notice. The plaintiff provided copies of these notices dated 27 November 2017, 14 March 2018 and 18 March 2019. Apparently, there was another stop work notice dated 1 July 2019. This notice was to stop the unauthorized industrial usage of residential allotment. The defendant responded to this notice in his letter of the same date. In fact, there were several exchanges of correspondences between the parties on this issue of unauthorized usage of machinery on residential property. The only correspondence on the unapproved extension is the letter dated 13 March 2019 from the plaintiff’s lawyers to the defendant and the letter dated 19 March 2019 from the second plaintiff to the defendant. There is only proof that the Demolition Notice of 28 May 2020 was served on the defendant. It is unsure if the other stop work notices were served on the defendant as there is no proof of service. In any event, the 2 letters and the 4 notices remained unanswered to date. Is this because the defendant did not receive them or is it because he deliberately chose not to respond? This is despite his regular response to the other correspondence from the plaintiff regarding the unauthorized industrial usage of residential premises.

21. Section 99(3) of the Act requires a demolition notice under Subsection (2) to be issued within 12 months of the date when the operations were first brought to the notice of the Board. The plaintiffs first became aware of the unapproved extensions in 2017. The first stop work notice was then caused to the defendant on 27 November 2017. Hence, a demolition notice should have been given to the defendant within 12 months from 27 November 2017. That did not happen. This issue was raised in Simon Wama v. Powes Parkop & 4 ors (2018) N7323 and the subsequent appeal in Simon Wama v. Powes Parkop & 4 ors (2020) SC1977. In this case, there is evidence of the demolition notice being issued after 12 months.

22. Be that as it may, the defendant is the owner of Padi Limited, a company specialized in mechanical, building and construction, as well as civil works and earthmoving. It would be in his trade to know the requirements in obtaining prior approval to building extensions. It is therefore inexcusable for him to not to have knowledge of this requirement in the building and construction industry. I find his ignorance mischievous.

23. Section 99(4) of the Act says that 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. The penalty is a fine not exceeding K4,000.00 with a default penalty fine not exceeding K400.00. The defendant had paid K4000 as penalty fine for a stop work notice.

24. I also note that in the letter from the plaintiff of 19 March 2019, the plaintiff required the defendant to submit drawings within 14 days and pay a penalty fine of K4,000 for the unapproved extension already completed. In all fairness and in the interest of justice, I am not inclined to issue an order to demolish the extension already done until the plaintiff deliberates on the “As Built” drawings now with the plaintiffs. This is also because the adjoining property belongs to the defendant and his former wife, and the extensions were done to accommodate their children. There is no prejudice caused to any third party nor the plaintiffs.

Orders

25. In conclusion therefore, the Orders are as follows:

(i) The first two (2) declarations sought in the Originating Summons are granted.

(ii) The plaintiffs’ claim for an order for all the extensions made to the existing building without prior approval from the second plaintiff be demolished forthwith at the defendant’s expense is subject to the plaintiffs’ deliberations on the defendant’s “As Built” drawings.

(iii) The defendant is to pay the default penalty fine accrued in respect of each full day the demolition notice is disregarded.

(iv) Costs for the plaintiffs on a party/party basis to be taxed if not agreed.
________________________________________________________________
Marubu Lawyers: Lawyers for the Plaintiff
Kubak & Kubak Solicitors & Barristers: Lawyers for the Defendants