Borissik Svetlana v Urban Redevelopment Authority

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 02 July 2009
• Neutral Citation: [2009] SGHC 154
• Docket Number: Originating Summons No 116 of 2009 (Summons No 734 of 2009)
• Date: 02 July 2009
• Published date: 03 July 2009
• Year: 2009
• Plaintiff Counsel: Gopalan Raman (G R Law Corporation)
• Citation: [2009] SGHC 154
• Defendant Counsel: Michael Hwang SC (Michael Hwang)
• Court: High Court (Singapore)
• Subject Matter: Whether declaratory relief available under O 53 Rules of Court (Cap 322, R 5, 2006 Rev Ed),Whether ministerial bias to be inferred from potential conflict of interest of advisors,Application of judicial review principles to decision of public body concerning land planning and redevelopment in Singapore,Judicial review,Exhaustion of remedies,Administrative Law

2 July 2009

Tan Lee Meng J:

1 The applicant, Mdm Borissik Svetlana, and her husband, Mr Low Eng Pah (“Mr Low”), are joint owners of a semi-detached house, No 2 Jalan Chengam (“No 2”). No 2 is attached to another semi-detached house, No 1A Jalan Chengam (“No 1A”). The applicant, who is dissatisfied with the decision of the Urban Redevelopment Authority (“URA”) rejecting the application that she and Mr Low submitted through their architect for the demolition of the semi-detached house standing on No 2 and for its replacement with a detached bungalow, obtained leave on 12 February 2009 to apply for a mandatory order to quash the said decision.

2 After hearing the parties on 3 April 2009, I dismissed the application with costs and now give the reasons for my decision.

Background

3 A “detached house” is defined in the URA’s handbook on development control parameters for residential development (“the handbook”) as a free standing dwelling unit within a plot of land. Outside the areas designated as “good class bungalow” areas, they should have a minimum plot size of not less than 400m² unless the existing lots are already been subdivided with a smaller area.

4 A “semi-detached house” is defined in the handbook as a dwelling house “partially attached on one side to any number of other units, including a semi-detached house, a semi-detached terraced house (also known as a corner terrace) and a back-to-back semi-detached house; or abutting the common boundary as a result of the adjoining unit being demolished or redeveloped into other housing forms”. A semi-detached house has a smaller minimum plot size requirement of 200m² per plot. This means that a pair of semi-detached houses must stand on at least 400m².

5 Before 1996, the URA did not issue any guidelines that dealt specifically with the redevelopment and conversion of semi-detached houses into other forms of housing although the URA had issued a Press Release in 1991, announcing the minimum plot size and plot width requirements of 400m² and 10m respectively for a detached house and 200m² and 8m respectively for a semi-detached house (“the 1991 guidelines”).

6 In 1996, the URA released a circular to professional institutes (“the 1996 guidelines”), which sets out guidelines for semi-detached houses standing on large plots of land to be re-developed into other housing forms, including detached houses provided the new housing form complied with the 1991 guidelines for minimum plot size and plot width. Thus, under the 1996 guidelines, if a semi-detached house (“house A”), which is attached to another semi-detached house (“house B”), stood on at least 400 m² of land with a plot width of at least 10m, it could have been knocked down and replaced with a detached house regardless of the size of the land on which house B stood. Such redevelopment of house A would leave house B standing on the boundary line between the two properties.

7 In 2002, restrictions were imposed on the redevelopment of semi-detached houses after the URA received feedback on the houses that broke away from the original pair of semi-detached houses. The URA’s key concern was that in some cases, the redevelopment of some semi-detached houses into detached houses left the remaining half of the original pair of semi-detached houses with a lop-sided appearance if the land on which it stood was too small for a detached house to be built on it. The URA’s revised guidelines for redevelopment of semi-detached houses were stated as follows in a circular on 25 July 2002 (“the 2002 Circular”):

A semi-detached house can break away if the adjoining semi-detached house is also capable of redeveloping into a standard detached house under prevailing guidelines. This means that the adjoining semi-detached plot must have a plot size of at least 400 m2 and a plot width of 10m. [emphasis added]

8 The 2002 Circular was incorporated into the Development Control Parameters for Residential Development, which is available on the URA Website. In a nutshell, its effect is that no semi-detached house can be converted to a detached house unless both that semi-detached house and the house to which it is attached each stand on at least 400m² of land.

9 At this juncture, the history of the redevelopment of No 1A, the semi-detached house to which No 2 is attached, must be mentioned. Long before the 2002 circular was issued by the URA, No 1A and the present No 1 were part of the same parcel of land (“the original No 1”) which had a plot size of around 653m². On 14 October 1992, the owners of the original No 1 applied for and received written permission to reconstruct their existing single storey semi-detached house into a two-storey semi-detached house and to erect a two-storey detached house on the said land. For this purpose, the original No 1 was subdivided into No 1A, which had a plot size of 244.51m², and the present No 1, which had a plot size of 408.47m². The new semi-detached house stood on No 1A whereas the new detached bungalow was built on the present No 1.

10 On 2 December 1995, the then owner of No 2, Mr Sathivelu Suppiah, who claimed that he had a “linked bungalow”, complained that No 1A did not have a setback from his house and that this affected his privacy. However, he was informed by the URA that approval for the construction of the semi-detached house at No 1A was given on the basis that the development had previously been approved as a semi-detached house and not as a linked bungalow. He was assured that no windows had been approved at the boundary line as such windows would affect his privacy.

11 Long after the redevelopment of the original No 1 and several years after the issuance of the 2002 Circular, the applicant purchased No 2 in 2007. The requisitions in relation to the purchase of the property clearly showed that the applicant was buying a semi-detached house.

12 On 19 November 2007, the applicant’s husband, Mr Low, applied through his architect, CSL Architects, to the URA for planning permission to redevelop No 2 (“the redevelopment plan”). The redevelopment plan was entitled “Proposed Erection of a 2-storey Detached Dwelling House with a Basement, an attic and a swimming pool… at 2 Jalan Chengam.”

13 If the redevelopment plan had been approved, the link between the applicant’s semi-detached house and the semi-detached house on No 1A would have been severed, leaving the house at No 1A unattached to any other property. Although the applicant’s land met the minimum plot size for a detached house as it is around 419 m², the development proposal ran afoul of the requirement in the 2002 circular that the house to which No 2 is attached, namely No 1A, which is only 244.5m², must also have a plot size of at least 400m². If the development plans were approved, No 1A would become the type of lop-sided semi-detached house that the 2002 circular was drafted to prevent. Mr Low’s architect was advised by the URA on 13 December 2007 that the proposal to build a detached house on No 2 could not be supported as it had “deviated from the planning intention [or] guidelines”. The architect was advised to submit a revised proposal for a semi-detached house within 6 months from 13 December 2007 and to amend the project title to “Proposed Erection of a 2-storey Semi-Detached House”. The URA further stated that if the revised proposed was not submitted by 13 June 2008, it would be deemed as withdrawn and there would be no refund of the processing fee paid for the application for planning permission. A copy of this advice was forwarded to Mr Low and the applicant as owners of No 2.

14 Neither Mr Low nor his architect responded to the URA’s advice for 3 months, after which Mr Low and his counsel, Mr G Raman, exchanged letters with the URA. On 9 April 2008, Mr Raman, requested the URA to review its decision. He pointed out that the URA had approved the redevelopment of No 1 Jalan Chengam (“No 1”) and No 3 Jalan Chengam and there was no reason why a detached bungalow could not be constructed on his client’s land as its size was 419.3m².

15 On 21 April 2008, the URA replied as follows:

2	We would like to clarify that we cannot support your proposal to redevelop the existing semi-detached house into a detached house because your proposal involves a breakaway from the adjoining semi-detached house. To qualify for the breaking away, not only must your site have a plot size of 400m2 with plot width of 10m, the adjoining semi-detached house must also have a site area of 400m2 and plot width of 10m so that it is capable of redevelopment into a standard detached house as well. This redevelopment criteria involving breaking away of semi-detached house is stated in URA’s circular dated 25 Jul 2002. A copy of the circular is attached for your reference.
3	No 1A Jalan Chengam, with a plot size of 244.5m2 cannot redevelop into a detached house. Allowing your site to breakaway from this property will result in a creation of a permanent blank wall and a half semi-detached house in the neighbourhood which is not desirable. Hence, we are unable to support your request to breakaway from the adjoining semi-detached house.
4	We would also like to take this opportunity to clarify that the redevelopment of No 3 Jalan Chengam was approved as it satisfied the criteria for breaking away into a detached house. No 1 and 1A were approved prior to 2002 where it satisfied the prevailing guidelines then for redevelopment.

16 The URA extended a number of invitations to the applicant and her husband to meet its officers to discuss ways to help them to move forward with their development plans, but they insisted on building a detached bungalow on No 2 and appealed to the Member of Parliament for Ang Mo Kio GRC, Mr Inderjit Singh.

17 As neither the Architect nor Mr Low submitted a revised proposal for a semi-detached house on No 2, the proposal to redevelop the said property was treated as withdrawn on 13 June 2008.

18 On...