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Aluya v Kipit [2026] PGNC 8; N11695 (3 February 2026)

N11695

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 330 OF 2021 (IECMS)
BETWEEN:
ANDIKI ALUYA
First Plaintiff

AND
FRIENDSHIP TRADING LTD
Second Plaintiff

AND
BENARD KIPIT in his Capacity as
National Capital District City
Administrator
First Defendant

AND
PHYSICAL PLANNER- National
Capital District Commission Physical
Planning Section
Second Defendant

AND
National Capital District Commission (NCDC)
Third Defendant

AND
ANE ALU in his capacity as Registrar
Of Titles in the Departments of
Lands & Physical Planning
Fourth Defendant

AND
SECRETARY- Department of Lands &
Physical Planning
Fifth Defendant

AND
DAVID MANNING in his capacity as
Police Commissioner of PNG
Sixth Defendant

AND
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Seventh Defendant

WAIGANI: WIMALASENA J
04 DECEMBER 2025; 3 FEBRUARY 2026

LANDS - Determinative issue - Registered proprietor - Physical Planning Area - Unauthorised development - Deemed planning permission - Local Development Plan – Zoning - Commercial and public utility zones – Demolition - Claim for damages.

Cases cited
Koima v Pat [2020] PGNC 13; N8181
Lamana Development Ltd v Kavana [2007] PGNC 273; N3180
Ikipe v National Capital District Commission [2025] PGNC 394; N11551

Counsel
Mr L Koreken, for the first and second plaintiffs
Mr J Ules, for the first, second and third defendants
Mr R Mesa, for the fourth, fifth and sixth defendants

RULING

1. WIMALASENA J: By directions made on 17 November 2025, the parties were ordered that the issue of whether the Plaintiff is entitled to seek damages or other relief for the demolition of structures or buildings constructed without first securing the approval of the National Capital District Physical Planning Board (NCDPPB) be determined as a determinative issue in the first instance. The parties were directed to file and serve submissions, and the matter was listed for hearing.
   
2. On 26 November 2025 when the matter came before this Court for hearing, there was no representation on behalf of the Fourth to Seventh Defendants. Accordingly, a direction was given to issue notice on the Fourth to Seventh Defendants to appear in Court and the hearing was adjourned. Subsequently on 04 December 2025 the matter was taken up for hearing and the parties made oral submissions, in addition to the written submissions filed by them.
   
3. The Plaintiff filed ‘amended submissions’ on 19 November 2025 and ‘further amended submissions’ on 01 December 2025. The First, Second and Third Defendants filed extract of submissions on 19 November 2025 and supplementary submissions on 06 February 2026. The Solicitor General filed extract of the submissions on behalf of the Fourth, Fifth, Sixth and Seventh Defendants on 04 December 2025.
   
4. The land subject to this action is described as Allotment 65, Section 1, Bomana, National Capital District (land). The Plaintiff states that the subject land is registered as a State Lease (Commercial), Volume 20, Folio 31, in the State Lease Register maintained by the Department of Lands and Physical Planning.
   
5. The First and Second Plaintiffs instituted this action on 19 July 2021 by way of a Writ of Summons. They allege that between 12 and 15 February 2021 the servants, agents, and employees of the First Defendant wrongfully demolished infrastructure, buildings, and other assets located on the subject land, causing loss estimated at K20 million. The Plaintiffs accordingly seek damages for the demolition of the buildings and for loss of business against the First Defendant. In addition, the Plaintiffs allege that the actions of the Defendants infringed their human rights.
   
6. The purpose of the order made on 17 November 2025 was to set this matter down for the determination of whether the reasoning in Koima v Pat [2020] PGNC 13; N8181 (5 February 2020) applies to the present case and, if so, whether the Plaintiffs are thereby precluded from seeking damages or other relief in respect of the demolition of structures or buildings constructed without first securing the approval of NCDPPB.
   
7. The First Plaintiff’s affidavit filed on 29 August 2025, has an annexure numbered “A” which confirms that a land known as Allotment 65, Section 1, Bomana in NCD, containing an area of 0.205 hectares is given a state lease under Section 92 of the Land Act for a period of 99 years from, 25 September 1997 to 24 September 2096, for commercial purposes of the land referred to in the schedule. It appears that the grant of the lease is registered on 19 February 1998. In paragraph 5 of the Plaintiffs’ further amended submissions filed on 01 December 2025, it is stated that there were infrastructure and other assets and developments on the property with one of the buildings being leased to a company named Friendship Supermarket Limited, which is the Second Plaintiff of this action.
   
8. The Secretary for Department of Lands and Physical Planning (Fifth Defendant) too, in his affidavit filed on 15 December 2025, confirms at paragraph 11, that the Department of Lands and Physical Planning (DLPP) complied with all the administrative processes stipulated under the previous Land Act (Chapter 185) in granting the state lease for the subject property and the First Plaintiff is the genuine title holder who is protected under Section 33 of the Land Registration Act, 1981.
   
9. However, contrary to the position of the Plaintiffs and the Secretary for DLPP, in the Statement of Agreed and Disputed Facts filed on 03 April 2023, First to Third Defendants state that “according to NCDC zoning records, there is no record of an Allotment 65, Section 1, Bomana, NCD. The First – Third Defendants do not recognize the First Plaintiff as legal proprietor of the subject property”. But contradictorily, on behalf of the Third Defendant, the Director -Compliance of the National Capital District Commission (NCDC) states at paragraph 15 of the affidavit filed on 06 May 2024, that the First Plaintiff is the registered proprietor of Section 1, Allotment 65, Bomana NCD. Furthermore, at paragraph 18 of the same affidavit the Director -Compliance of the NCDC confirms that a deemed planning permission dated 16 December 2014 was issued to the First Plaintiff by NCDPPB for an application for an extension to an existing house.
   
10. Be that as it may, the Plaintiffs maintained the position that they have made necessary application for construction of the buildings, but the application is still pending for approval. In paragraph 11 of the Plaintiffs’ further amended submission, it is stated that the NCDC has not given a response since 2014 to his application for a Building Board Approval. The Plaintiffs assert that the application was never approved and, to their understanding, remains pending. The Plaintiffs refer to an annexure marked “G” that was submitted with the affidavit of the First Plaintiff, filed on 29 August 2025, as copies of the architectural designs said to have been submitted to the National Capital District Commission Building Board (NCDCBB) sometime in 2014. I will deal with the issue of whether an application was in fact submitted by the First Plaintiff seeking approval to erect buildings on the subject land later, after setting out the sequence of events relating to the land.
    
11. The affidavit filed by the Secretary of the DLPP on 15 December 2025, in paragraph 5 of the affidavit, states that the PNG Town Planning Board in its meeting No.26/87 held on 22 December 1987, considered an application by the First Plaintiff for a petrol station, mini supermarket and residential development on the subject property. It says that the board also resolved to approve the subdivision of the subject property and approved in principle, the First Plaintiff’s proposed development. However, the letter further requests the First Plaintiff to submit the detailed plans for Boards Approval. The said letter written by the Chairman of the Papua New Guinea Town Planning Board marked “BS1” is submitted with the affidavit to confirm that the PNG Town Planning Board approved the subdivision of the subject land and approved in principle the First Plaintiff’s proposed development.
    
12. But it should be noted that, there was no evidence submitted by the Plaintiffs to confirm that the requested detailed plans were submitted for approval to build a petrol station, mini supermarket and residential development on the subject land.
    
13. Instead, it appears that in 1993 the First Plaintiff applied for rezoning of the land. In paragraph 6 of the First Plaintiff’s affidavit filed on 29 August 2025, it is stated that the subject land was initially zoned as an Open Space vacant state land free of any registered interest. The First Plaintiff stated that given the free and vacant nature of the land he got a subdivision plan done and submitted to NCDPPB for its approval. The plan marked as “C” is tendered with the affidavit and it appears that the said plan was done on 06 October 1993.
    
14. The First Plaintiff also states in his affidavit that the NCDPPB approved the said plan and granted approval for rezoning from Open Space to Commercial. The First Plaintiff tendered a document marked as “D” dated 25 August 1994, which is titled as ‘Notification of determination of an application of planning permission’, addressed to the First Plaintiff by the Chairman of the NCDPPB, with the subject: “Rezoning from open space to commercial”. The document reads:
    

“Your application for planning permission numbered as above, was received on 22. 08. 1994. The determination of the application on Lot 65, Section 1, Bomana situated in the town of Port Moresby was considered by the National Capital District Planning Board. The Board determined that the application be approved.”

15. Therefore, it appears that in 1994, pursuant to an application by the First Plaintiff, the NCDPPB rezoned the subject land from Open Space to Commercial land.
    
16. Furthermore, the affidavit of the Secretary of the DLPP on 15 December 2025, states that after the subject property was subdivided, a survey plan was registered on 18 October 1993 with catalogue number M49/1176 with the legal description Allotment 65, Section 1, covering a total land area of 0.205 hectares. A copy of the survey plan made in October 1993 (the date is not legible) is marked as “BS2”. Also, a letter issued by the National Housing Corporation is tendered in the affidavit marked as “BS3” dated 01 December 1993, addressed to the Assistant Secretary of the DLPP by the Managing Director of the National Housing Corporation, the letter titled as ‘Application for lease for lease title SCC1, Lot 65, Bomana’. It reads as:
    

“we confirm that Mr Andiki Aluya is currently the legal occupant of the above mentioned allotment consolidated at 9 Mile settlement, he has erected a permanent house and shop at the site already and is requesting your office to consider his lease through the Land Board hearing, submitted for your perusal approval only”(emphasize mine).

17. Therefore, according to the said letter, it appears that by 1993 a house and a shop had been already built on the subject land.
    
18. Paragraph 8 of the affidavit of the Secretary of the DLPP filed on 15 December 2025 states that the National Housing Corporation wrote another confirmation letter to the Chairman of PNG Land Board on 01 December 1995, that the First Plaintiff was a legal occupant as the subject property was allocated to him under NHC Self Help Home Ownership Scheme Program, upon which he has erected permanent house and shop.
    
19. The said letter dated 01 December 1995, addressed to the Chairman of PNG Land Board and written by the acting Managing Director of National Housing Corporation titled, ‘Application for lease over Allotment 65, Section 1, Bomana, NCD’, reads:
    

“We confirm that Mr Andiki Aluya is currently the legal occupant of the above mentioned or residential allotment consolidated at Nine (9) Mile Settlement.

The Allotment had been allocated through this office under the Self Help Home Ownership Scheme Program.

He has erected a permanent house and shop already at the site, thus compliancing improvement conditions normally set down through this office. We also confirm that this office has no objection to this particular application. We recommend that this matter be referred to the next available Land Board meeting for consideration and endorsement.

Submitted herewith for your perusal and approval only.”

20. In the same affidavit of the Secretary of the DLPP at paragraph 9, it is stated that the PNG Land Board in its meeting No.1985, recommended the subject property to be granted to the First Plaintiff for business (Commercial) purposes. The Annexure “BS5” is a letter addressed to the First Plaintiff dated 24 April 1997 by the Chairman of PNG Land Board, under the Title ‘Land Application No.1, Land Board No.1985, Item No.9’, which states:
    

“I have to inform you that a meeting of Papua New Guinea Land Board will be held at the Department of Lands conference room on the 4th floor, Aope Center, Waigani commencing at 9.00 am on the 30th of May 1997, when your application for a Business (Commercial) Lease over Allotment 65, Section 1, Bomana city of Port Moresby, National Capitol District will be considered.

A notice to this effect is published in the National Gazette of 1st May 1997.

You are entitled to attend the Board Meeting either personally or by agent and give evidence to your application. The Board will sit publicly and may examine witnesses on oath and may admit such documentary evidence as it thinks fit. You are further advised to submit any documentary evidence in support of your application or any other information you consider may support your case.”

21. Subsequently, it appears that, the First Plaintiff was successful in his application for a commercial lease. Accordingly, on 13 February 1998, on behalf of the Minister of Lands, a State Lease for Commercial purposes was granted to the First Plaintiff, and it is registered in the Register of State Leases on 19 February 1998. Also, it is published in the National Gazette No. G78 of 25 September of 1997, under Item 8 as “DE/001/065- Andiki Aluya a Business Commercial Lease or Allotment 65, Section 1, Bomana, City of Port Moresby, National Capitol District”.
    
22. In his affidavit filed on 29 August 2025, the First Plaintiff states at paragraph 13 that, prior to putting up the built structures, he engaged an architectural draftsman to prepare building designs suitable for the subject area and a proposed development plan incorporating the required structures. On this basis, the First Plaintiff appears to assert that, following the registration of the state lease in 1998, he engaged an architectural draftsman before constructing the buildings. In support of this assertion, the Plaintiff annexes a document marked “G” to his affidavit. It should be noted, however, that document “G” is a plan of Section 1, Lot 65, showing two existing buildings and a drawing for a proposed extension to an existing two-storey building.
    
23. On 10 April 2025, the parties filed Document No. 63, titled “Affidavit by Consent”, together with a bundle of documents pursuant to directions of the Court. That bundle contains several plans relating to the subject land. The draft plans marked as “Item 5” in the affidavit by consent relate to a proposed extension to an existing two-storey building at Section 1, Lot 65, 9 Mile, Bomana, NCD, and appear to have been drawn in November 2014. The document marked “G” in the First Plaintiff’s affidavit filed on 29 August 2025 appears to form part of those documents contained in “Item 5”. Upon perusal of the plans, it is apparent that there were two existing buildings on the subject land and that the plans prepared in November 2014 relate only to an extension to one of those existing buildings.
    
24. It is very clear that that document “G”, referred to in the First Plaintiff’s affidavit filed on 29 August 2025, is a plan depicting a proposed extension to an existing building and it also shows another existing building already on the land. Accordingly, the averment in paragraph 13 of the First Plaintiff’s affidavit that he engaged an architectural draftsman to prepare designs ‘prior to putting up the built structures’ is inconsistent with what document “G” discloses. Therefore, I am not inclined to accept that the document “G” supports the assertion that the designs were prepared prior to the construction of the buildings on the subject land.
    
25. The Plaintiff further states in his affidavit dated 29 August 2025, at paragraph 15, that upon completion of his development plan, which was regarded as an application for deemed planning permission because it was lodged by the registered title holder, the application was submitted, assessed, and considered by a Physical Planner attached to the NCDPPB. He states that a deemed planning permission was granted on 16 December 2014, and that construction commenced thereafter. While the Plaintiff asserts that the developments commenced after the grant of deemed planning permission, I am not persuaded, on the documents before the Court, that the entire construction of the buildings on the subject land commenced after that date. Rather, the evidence suggests that the deemed planning permission related only to an extension to an existing building, quite contrary to what the First Plaintiff asserts.
    
26. Although the First Plaintiff states that the approval by the NCDPPB is tendered as document “J”, the document marked “J” appears to relate to the rezoning of the land, which was earlier tendered as document “D”. The correct document evidencing the deemed planning permission is found among the documents tendered as “G” with the First Plaintiff’s affidavit and is titled “Section 84 Certificate Deemed Planning Permission”. That certificate identifies the applicant as Andiki Aluya and describes the development proposal as “proposed extension to existing house”. It states that, in reference to an application for planning permission dated 16 December 2014, the proposed development falls within Class 1(i) of Section 50 of the Physical Planning Regulation 2007 (revised) and is therefore deemed to be granted planning permission under Section 84(1) of the Physical Planning Act, without conditions. The certificate is dated 16 December 2014 and was issued by Sebastian Iso, a Physical Planner authorised by the Chief Physical Planner.
    
27. Class 1(i) of Section 50 of the Physical Planning Regulation 2007 (revised) is confined to development for residential purposes and applies only to the building, rebuilding, enlargement, improvement, or alteration of a single dwelling within a residential zone. It is very clear that it does not extend to commercial, retail, or business developments, nor does it authorise the construction of commercial buildings. Accordingly, a commercial building cannot fall within Class 1(i) and cannot obtain deemed planning permission under that provision. Any construction of commercial buildings requires a separate and proper grant of planning permission under the Physical Planning Act and does not qualify for deemed approval under the Regulations. Therefore, the granting of deemed planning permission confirms that it does not relate to any commercial building but to an extension to an existing residential building.
    
28. In Any event, the First Plaintiff states in his affidavit filed on 29 August 2025 that, following completion of his constructions, normal business activities continued until approximately 9 November 2020, when he was served with a notice alleging unauthorised use of land. However, in the further amended written submissions filed on 01 December 2025, at paragraph 9 it was submitted that “on the 9^th November 2020, Defendants served a letter in the form of a notice on the occupants of section 1 allotments 15 and 16 and others including our client under ss. 74 and 98 of the Physical Planning Act 1989, which stated that the use of the land by our client was unauthorized and that the property was for a public utility, namely, a reserve road...”.
    
29. However, no such letter stating that the use of the subject land was unauthorised and required for public utility was produced by the Plaintiffs. The only notice said to have been served on the First Plaintiff is the document marked “K” in his affidavit, titled “Notice Issued under Sections 74 and 98 – Use of Land in a Zone for Unauthorised Purposes”, which identifies the location as the road reserve of Section 1, Allotments 15 and 16, Bomana (Hubert Murray Highway, 9 Mile). The notice describes ‘zone’ as public utility and ‘unauthorized use’ as fence and building structures encroaching onto road reserve. The notice directs to cease the specified unauthorised use of land and/or buildings and was served on the First Plaintiff on 09 November 2020.
    
30. It was contended on behalf of the Plaintiffs, at paragraph 16 of the Further amended written submissions that the said notice marked as “K” was directed at Section 1, Allotments 15 and 16 and not at the subject land, Allotment 65 Section 01.
    
31. Be that as it may, the First Plaintiff further states that, on or around 12 January 2021, that is two months after the notice was given to him, a demolition notice was served on him, which is marked as “L”, in his affidavit. The demolition notice states, in relation to unauthorized operations namely, fence and building structures encroaching onto road reserve, taking place at road reserve of Section 01, Allotment 15 & 16, Bomana, also, it says in accordance with Section 99 of the Physical Planning Act, the owner or the occupier and or developer and or builder are required to remove the unauthorized work and restore the land to its state, prior to the commencement of the operations. The Plaintiff states that a contractor was later engaged to demolish the buildings.
    
32. The First to Third Defendants submitted that the Plaintiffs failed to obtain the requisite physical planning approval and building approval before constructing the buildings and structures on the property. They further submitted that the deemed planning permission relied upon by the First Plaintiff related only to the extension of an existing building. By virtue of Section 84(2) of the Physical Planning Act, a deemed planning permission does not exempt a person from the obligation to apply for and obtain proper planning approval for development that falls outside the scope of the deemed permission.
    
33. Although the First Plaintiff assert that he applied for planning permission in or around 2014, other than the proposal submitted for the extension of an existing building, there is no evidence before the Court to support the contention that he applied for planning permission to construct the buildings presently standing on the subject land. The evidence presented in this case indicates that the First Plaintiff previously applied to the PNG Town Planning Board for approval to develop a petrol station, mini supermarket, and residential development. While the Board approved the subdivision of the site, it does not appear that the First Plaintiff submitted detailed development plans to obtain approval for the proposed development, despite the request to do so by the Board. The evidence further shows that, by 1993, the First Plaintiff had already erected a permanent house and shop on the land. No evidence has been produced to demonstrate that those buildings were erected with the requisite planning approval. As noted earlier, the only evidence of any approval before the Court relates to the extension of an existing house, for which deemed planning permission was granted in 2014.
    
34. Although the Plaintiff repeatedly states that, since 2014, the National Capital District has failed to determine his application, no evidence has been produced to substantiate that claim. I am therefore not satisfied that an application for planning permission to construct the buildings on the subject land was lodged in 2014 and remains pending. Even if the Plaintiff’s position were accepted that there was no determination by the Board, Section 94 of the Physical Planning Act expressly provides a right of appeal to the Tribunal where an application is not determined within the prescribed time under Section 78(1). Under the Regulations, the prescribed time for determination is three months, and the Board is required to notify the applicant of its decision within 14 days of making that decision. Accordingly, a person cannot rely on delay in the granting of approval as a justification for undertaking construction on land without proper planning approval.
    
35. Another issue raised by the Plaintiffs in the Writ of Summons is that the Defendants did not comply with Section 67 of the Physical Planning Act. In this regard, the Plaintiffs relied on Lamana Development Ltd v Kavana [2007] PGNC 273; N3180 (27 June 2007). In that case, the Court considered whether the NCDPPB had the power to rezone land over which the fourth defendant held a valid title. Although the subject land in that case was located within the National Capital District, the Court held that it was a necessary precondition for the Minister to first declare the area to be a physical planning area in accordance with Section 67 of the Physical Planning Act before the NCDPPB could exercise its zoning powers under Section 71. As no ministerial declaration had been made under Section 67, the Court held that the NCDPPB lacked authority to rezone the land under Section 71. The Court also held that the registered owner of the subject land was required to be personally notified of any intention to rezone the land, and that a failure to provide such notification constituted a breach of the principles of natural justice. It was further held that failure to notice also undermined the statutory right of appeal provided for under Section 94 of the Act.
    
36. However, with respect, I am unable to agree that Section 67 of the Physical Planning Act has application in the circumstances of the present case. There is no relevance of Section 67 to a land located within the National Capital District. Section 67 reads as follows:
    

67. DECLARATION OF PHYSICAL PLANNING AREA IN THE NATIONAL INTEREST.

The Minister may, after–

(a) consideration of the advice of–

(i) the National Physical Planning Board; and
(ii) the Chief Physical Planner; and

(b) consultation with–

(i) where a province is affected–the provincial minister of that province; and
(ii) where the National Capital District is affected–the National Capital District Commission,

by notice in the National Gazette declare an area to be a physical planning area in the national interest.

37. The National Capital District is expressly included within the definition of a physical planning area under Section 3 of the Physical Planning Act, and its status as such does not depend upon a separate ministerial declaration under Section 67. Section 3 of the Physical Planning Act states:
    

“Physical planning area” includes–

(a) any town; and

(b) any area which is declared as such under Section 67 or 68; and

(c) the National Capital District;”

38. Accordingly, where land is already situated within the National Capital District, the operation of the Act does not require a prior declaration under Section 67. I am therefore not inclined to accept the Plaintiffs’ argument that it was necessary for the Minister to declare a physical planning area under Section 67 in the present case, as the subject land is undoubtedly located within the National Capital District, which is, by virtue of Section 3 of the Act, a physical planning area. As such, there is no contravention of Section 67 as alleged by the Plaintiffs.
    
39. In any event, the evidence shows that the subject land was rezoned as Commercial land in 1994 by the NCDPPB. That fact is not disputed by the First to Third Defendants. However, the First to Third Defendants now assert that the subject land falls within a Public Utility zone. The question that therefore arises is how, and when, the area was subsequently rezoned as a Public Utility zone.
    
40. The First to Third Defendants rely on paragraph 22 of the affidavit sworn by the Director of Compliance of NCDC on 06 May 2024 to assert that the subject land falls within a Public Utility zone. That paragraph states:
    

[22] The First Plaintiff’s property is located in an approved Local Development Plan (LDP), namely the 8/9 Mile Interim Local Development Plan which was gazetted on 23 June 2011. The Road reserve along the 9-Mile to Laloki and 9-Mile to 14- Mile roads are zoned Public Utility under the 8/9 – Mile Interim LDP zoning plan.

41. A copy of the said Gazette Notification published on 23 June 2011 is submitted as “AB-5” with the affidavit of Director of Compliance of NCDC and it reads as follows:
    

“Physical Planning Act 1989

PART VI: DEVELOPMENT PLANS

DECLARATION OF FINAL APPROVAL OF A DEVELOPMENT PLAN

THE NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD, gives notice that the Eight/Nine Mile Interim Local Development Plan, which was ordered by Hon. Powes Parkop, LLM., MP., & Chairman of the National Capital District Commission Board on 25th February, 2009 and belatedly gazetted by National Gazette No. G244 dated 19th October, 2010 has been processed in accordance with Sections 58, 59, 60, 61 and 62 and is declared as approved in accordance with Sections 63 and 64 of the Physical Planning Act.

The Eight Nine Mile Interim Local Development Plan takes effect from the date of publication of this Notice and shall be reviewed, in accordance with Section 66(1)(b) of the Physical Planning Act, not later than 10 years after this notice.

Hon. P. PARKOP, LLM., MP., Chairman, National Capital District Physical Planning Board.”

42. A plain reading of the Gazette Notification dated 23 June 2011 shows that it relates to the final approval of a Development Plan pursuant to Section 64 of the Physical Planning Act. However, the rezoning of land within a physical planning area is governed by Section 71 of the Act. Although the Third to Fifth Defendants contend that the road reserves along the 9 Mile to Laloki Road and the 9 Mile to 14 Mile Road are zoned Public Utility under the 8/9 Mile Interim Local Development Plan zoning plan, a mere interim zoning plan is not, of itself, sufficient to effect a rezoning. A Development Plan primarily operates as a proposal or framework for future land use and zoning. For rezoning to take legal effect, it must be carried out through the statutory mechanism prescribed under Section 71, including the gazetting of the zoning decision. The description “Interim LDP Zoning Plan” itself indicates that the plan is provisional in nature and contemplates subsequent formal rezoning in accordance with the Act.
    
43. Section 71 of the Physical Planning Act provides:
    

ZONING OF PHYSICAL PLANNING AREAS.

(1) Where it is authorized to do so under this Act, a Board may, by notice in the National Gazette–

(a) divide a physical planning area or part of a physical planning area into one or more zones; or
(b) declare that a physical planning area or part of a physical planning area is a single zone; or
(c) declare that a physical planning area or part of a physical planning area is a redevelopment zone; or
(d) do any combination of Paragraphs (a), (b) and (c),

and all of the above procedures shall be known as zoning.

(2) A redevelopment zone may be declared on land that is, or is part of, another zone and the declaration does not affect the incidence of the other zoning.

(3) Any request for a change in the zoning of land shall be treated as an application for planning permission.

44. The First to Third Defendants did not submit any evidence to establish that the NCDPPB rezoned the area in which the subject land is situated from Commercial to Public Utility in accordance with Section 71 of the Physical Planning Act. In the absence of evidence demonstrating that such rezoning was carried out in accordance with Section 71, I am not persuaded that the Gazette notification declaring the Development Plan “AB-5”or the interim Local Development Zoning Plan attached as “AB-6”, of itself, proves the First to Third Defendants’ position that the subject land falls within a Public Utility zone.
    
45. Nevertheless, the fact remains that, even if the subject land was not rezoned from Commercial to Public Utility, there was no evidence to show that the Plaintiffs obtain the necessary approvals to erect buildings on the subject land.
    
46. In view of the above discussed matters, I will now answer the issues raised in this matter. Term 1 and 2 of the Orders of 17 November 2025 reads as follows:
    
    1. The issue whether the plaintiff is entitled to seek damages and other relief for demolition of structures or buildings he built without first securing the approval of the National Capital District Physical Plan Board shall be first determined as a determinative issue.
    2. The parties and the Court shall be guided by the Statement of relevant facts and issues document number 24 of the Court file.
       
47. I am satisfied, based on the evidence before the Court, that the First Plaintiff is the duly registered title holder of the subject land.
    
48. It is very clear that the First Plaintiff never applied for approval to erect the buildings that are on the subject land. As it was noted earlier there is no evidence of a pending application seeking approval for construction, and even if there was one, that is not an excuse to construct buildings without proper approval.
    
49. In Koima v Pat [2020] PGNC 13; N8181, the plaintiff was the registered proprietor of a residential lease in Hohola, NCD, which the State later compulsorily acquired for the Kumul Overpass project. Although the land remained zoned and recorded on title for residential purposes, the Plaintiff had constructed and operated commercial improvements on the property, including a mini-supermarket and rental rooms. He claimed that he first lodged applications for building approval and for a change of purpose. He then constructed the buildings pending approval and later conducted business after obtaining and renewing a trading licence. When he sought additional compensation on compulsory acquisition for the value of the commercial structures and the associated business loss, DCJ Kandakasi held that he was not entitled to such compensation. The Court found that the structures and the commercial use were unauthorised and amounted to illegal development under the Physical Planning Act 1989. As a result, he could not benefit from, or be compensated for, improvements erected and used in breach of that Act.
    
50. The same reasoning was adopted in Ikipe v National Capital District Commission [2025] PGNC 394; N11551 where it was held:
    

“Buildings and other permanent structures brought upon land within the boundaries of the National Capital District without first seeking and securing the approval of the relevant building board is illegal and any subsequent demolishment of the buildings and structures do not entitle those responsible or the owners to any damage or other relief”.

51. In view of the above authorities, I decide that the First and Second Plaintiffs are not entitled to seek damages for the demolition of the buildings and other structures on the subject land, as no planning permission was obtained for developments, nor are they entitled to compensation for any alleged loss of business. Accordingly, the determinative issue is resolved in the negative.
    
52. In the circumstances, the parties are directed to consider the outcome of the determinative issue and to return to Court with draft orders finalising the proceedings, or with proposed directions addressing any outstanding unresolved issues.

________________________________________________________________
Lawyers for the first and second plaintiffs: Kandalawyn Lawyers
Lawyers for the first, second and third defendant: NCDC In-House Counsel
Lawyers for the fourth, fifth, sixth and seventh defendant: Solicitor General