Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority

• Jurisdiction: Singapore
• Judgment Date: 27 November 2013
• Date: 27 November 2013
• Docket Number: Originating Summons No 457 of 2013
• Court: High Court (Singapore)

Chiu Teng @ Kallang Pte Ltd

Plaintiff

and

Singapore Land Authority

Defendant

[2013] SGHC 262

Tay Yong Kwang J

Originating Summons No 457 of 2013

High Court

Administrative Law—Judicial review—Respondent, contrary to its circulars and website, not assessing differential premium payable for lifting title restrictions in accordance with Development Charge Table of Rates and instead assessing it through spot valuation—Whether application for leave was out of time—Whether applicant had exhausted all possible remedies—Whether respondent's actions were irrational and/or unreasonable—Whether doctrine of substantive legitimate expectations ought to be recognised in Singapore law—Whether applicant could avail itself of doctrine of substantive legitimate expectations

The applicant was a company in the business of property development. The applicant acquired two plots of land (Lots 1338 M and 2818 V, collectively known as ‘the Land’) through competitive tenders for the purpose of redevelopment.

Generally, state land was sold at a price based on the proposed use and intensity at the time of sale. State leases usually specified, as a condition in the lease, the permissible use of the land under the lease and the maximum gross floor area for the said permissible use. The lease documents for both plots contained two references to the payment of a differential premium (‘DP’). The first, the ‘DP Clause’, stated that a differential premium was payable in respect of any increase in floor area or change of use from a lower use category to a higher use category which would result in an enhanced value. The second, the ‘Land Return Clause’, stipulated that the lessee was to notify the government of any portions of land not used for specified purposes; if directed, the lessee was to surrender back to the government land that was not used for the specified purposes at Land Acquisition Act rates. If no such direction was forthcoming within a year, the government would lift title restrictions subject to the payment of a differential premium.

The Singapore Land Authority (‘SLA’) published two circulars and maintained a website to provide the public with information on how the payable DP was calculated. The first circular, published in 2000, stated inter alia that the SLA had implemented a transparent system of determination of DP, which would be based on the published Table of Development Charge (‘DC Table’) rates. A number of exceptions were listed, but none of these applied to the applicant. The second circular, published in 2007, was materially similar to the first circular. The SLA's website also stated that DP was calculated based on DC Table rates, and also listed exceptions which were not applicable to the applicant. The website went on to detail an appeal process, whereby developers not satisfied with the DC Table of Rates could write in to appeal, after which the SLA would consult the Chief Valuer for a spot valuation. The website's terms of use stated, inter alia, that the SLA was not making any representations or warranties whatsoever, and in particular did not make any representations or warranties as to the accuracy and completeness of the website.

On 25 January 2011, the applicant submitted an application to the SLA for the lifting of title restrictions on the Land for the purposes of redevelopment. On 15 March 2011, the SLA in its reply said that the tenures of both plots of land had to be aligned, and this would involve the surrender and re-issue of the lease of Lot 1338 M. Between March and November 2011, the applicant made various telephone calls and e-mails to rush the SLA. In the meantime, the applicant obtained the requisite construction permit on 8 April 2011 and started construction work despite the lack of response from the SLA. Finally, on 29 November 2011, the SLA replied and stated that ‘differential premium equal to 100% of the enhancement to land value as assessed by the Chief Valuer would be levied for the lifting of title restrictions.’ On 20 February 2013, the SLA wrote to the applicant stating that it was prepared to lift the title restriction upon payment of $44,067,828.23. In a further letter dated 3 April 2013, the SLA clarified that this sum was determined by the Chief Valuer, and that the DC Table rates were not adopted. In its reply on 9 April 2013, the applicant took the position that if the DC Table rates were applicable, the applicant would have paid $11,175,115.00 instead. On 11 April 2013, the SLA explained that the applicant's case was different from conventional leasehold sites because the Land was formerly directly alienated to the former owner instead of through competitive tender. As such, DP was pegged at 100% of the enhancement of land value as determined by the Chief Valuer.

It was market knowledge that this same policy was applied to the redevelopment of Market Street Car Park by Capita Land. In particular, a news release in January 2008 had stated that Capita Land had to pay 100% of the enhancement in land value as assessed by the Chief Valuer in a spot valuation.

The applicant thereafter applied for judicial review, seeking a quashing order against the assessed DP and a mandatory order to direct the SLA to assess the DP in accordance with the DC Table. The Attorney-General, a non-party to the action, also made submissions. The parties had agreed to consolidate the application for leave with the substantive application.

Held, dismissing the application:

(1) An applicant seeking judicial review had to meet three conditions for leave to be granted: (a) the subject matter had to be susceptible to judicial review; (b) the applicant had sufficient interest (i.e.,locus standi) in the matter; (c) the material before the court disclosed an arguable or prima facie case of reasonable suspicion in favour of granting the remedies sought by the applicant. As the parties had agreed to consolidate the application for leave with the substantive application, the applicant's case would be decided on its merits: at [26] and [27] .

(2) The application for leave was not out of time. Time only started to run from 20 February 2013 and not 29 November 2011. The SLA's decision was a multiple-step decision process. As a practical matter, the nub of the applicant's complaint was not just the method that was used to compute the DP but also the outcome of that method. The 29 November 2011 letter did not specify the amount of money that was payable and the applicant was not in a position to determine if an application for judicial review ought to be made. Even if time started to run from 29 November 2011, the delay was justified for the same reasons. In any case, O 53 r 1 (6) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) only applied to quashing orders and not mandatory orders: at [36] and [37] .

(3) As a general rule, a person seeking judicial review of a decision by a public body had to exhaust all alternative remedies before invoking the courts' jurisdiction in judicial review. The applicant was not caught by this rule. The appeal process was not an alternative remedy for two reasons The DP payable in this case was not based on the DC Table. More fundamentally, the appeal process necessarily involved a spot valuation by the Chief Valuer; this was precisely the outcome that the applicant sought to impugn: at [39] to [41] .

(4) In order to satisfy the high threshold of Wednesbury unreasonableness, the applicant had to show that the SLA had, on one formulation, taken into account extraneous considerations that it ought not to have taken into account or had not taken into account considerations which it ought to have taken into account. Alternatively, the applicant must show that the SLA's decision was so outrageous in its defiance of logic that no sensible person who had applied his mind could have arrived at the same decision: at [67] .

(5) There was an immense difference between, on the one hand, the implementation of a second extant policy (which was not discernible from the public statements put out by the SLA), and on the other hand, a change in policy (with there being only one policy applicable to start with) or a decision not to apply a policy to a particular case. In the former, the policy was already in operation at the time of the act in issue. In the latter, the change of policy or decision not to apply the policy was contemporaneous with the act in issue. This court proceeded on the basis of the former: at [57] .

(6) The SLA, in formulating policy, was statutorily obliged to have regard to ‘efficiency and economy and to the social, industrial, commercial and economic needs of Singapore’. The balancing of these competing interests was not within the institutional competence of the judiciary. The policy per se of assessing DP via a spot valuation could not be said to be unreasonable: at [69] .

(7) The doctrine of substantive legitimate expectation was part of English law, and had subsumed the doctrine of estoppel. Australia did not recognise both estoppel and substantive legitimate expectation. Canadian law did not grant substantive relief via substantive legitimate expectations, but via the doctrine of estoppel. Hong Kong recognised the doctrine of substantive legitimate expectation: at [83] , [84] , [86] , [89] , [94] , [96] , and [97] .

(8) Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 72 ALD 613 (‘Exp Lam’) had reasoned that the doctrine of substantive legitimate expectation was influenced by European law and was inconsistent with the Australian Constitution and more specifically, the separation of powers. However, this line of reasoning did not command the assent of the majority of the court. It was also clear that the UK system, despite the absence of a written constitution, also recognised the separation of powers, even before the Supreme Court of the United Kingdom was established in 2009. It could not be argued...