Choo Kok Lin and Another v The Management Corp Strata Title Plan No 2405

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 11 August 2005
• Neutral Citation: [2005] SGHC 144
• Docket Number: District Court Appeal No 20 of
• Date: 11 August 2005
• Published date: 16 August 2005
• Year: 2005
• Plaintiff Counsel: Davinder Singh SC and Adrian Tan (Drew and Napier LLC)
• Citation: [2005] SGHC 144
• Defendant Counsel: Jimmy Yap (Jimmy Yap and Co)
• Court: High Court (Singapore)
• Subject Matter: Structure remaining as subject of injunction minor infringement of by-laws,Strata titles,Various structures installed before constitution of management corporation and by-laws,Mandatory injunction for removal of various structures installed in breach of condominium by-laws granted,Section 3 Land Titles (Strata) Act (Cap 158, 1999 Rev Ed),Common property,Whether by-laws having retrospective application making installation of structures breach of by-laws,Whether mandatory injunction should be preserved where only one of original numerous structures forming subject-matter of injunction found to be valid complaint,Land,Whether unconsumed gross floor area of condominium amounting to common property,By-laws

11 August 2005 Judgment reserved.

Judith Prakash J:

Introduction

1 This is an appeal against the order of District Judge Low Lye Fong Kathryn that the appellants (defendants in the action below) remove the unauthorised works at No 3, Oxford Road #01-04 and #01-05, Kentish Lodge, Singapore (“the units”) and reinstate the units to their original condition within four months from the date of the order. The appellants, Mr Choo Kok Lin and Mdm Irene Wee, are husband and wife and are the registered proprietors of the units.

2 The units are adjoining units in the condominium development known as Kentish Lodge. The respondent is Management Corporation Strata Title Plan No 2405 (“the MCST”) formed to manage Kentish Lodge.

3 The units are located on the ground floor of Kentish Lodge. When the condominium was constructed, each of the units contained two uncovered areas, vis the “terrace” and the “air well”. These areas were commonly described as “private enclosed space” or “PES areas”. The PES areas are comprised within the strata title lots of the units and consequently are the private property of the appellants. The appellants erected roof coverings over the terrace and air well areas, installed windows in the terrace area and erected air-conditioning units over the air well area and a planter area.

4 The MCST took out an action against the appellants to obtain a mandatory injunction requiring them to remove these additional works. The district judge held that:

(a) the windows in the terrace area breached the MCST’s by-laws 11 and 12;

(b) the air-conditioning units breached the MCST’s by-law 11;

(c) the roof coverings over the terrace and air well areas amounted to exclusive use of common property; and

(d) she was justified in ordering a mandatory injunction against the appellants in the terms requested by the MCST.

The appellants had made a counterclaim in the court below. This was dismissed by the trial judge but, at the hearing of the appeal, the appellants indicated that they were no longer pursuing their counterclaim due to a change in the law.

5 The legal framework in which this action was adjudged and must be considered by me is the framework established by the provisions of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“the Act”) as those provisions were worded at the material times, ie, in 1999 and 2000. Some of the sections which the district judge considered and which I also have to deal with have since been amended. Where these sections are quoted below, the versions quoted are those current at the material times.

The background

6 The appellants bought the units in 1998 from the developer of the condominium, Kentish Green Pte Ltd (“the developer”). The condominium contained 75 units in a structure that was partly seven storeys in height and partly four storeys in height. In August 1998, the authorities issued the temporary occupation permit for the condominium and, two months later, the appellants moved into the units.

7 According to the appellants, their initial intention was to use the PES areas as a garden. As more and more residents began moving into Kentish Lodge, however, litter starting falling into the PES areas. Among the items that fell were a rusty knife, cigarette butts, construction debris and women’s underclothing. The appellants spoke to the developer’s representative, one Mark Lim, about the problem but it did not abate. The appellants then decided that for safety reasons they should cover the PES areas.

8 On 9 March 1999, Mr Choo wrote to the developer and asked for permission to have the terrace area covered with a reinforced concrete roof “for safety and security reasons”. The developer replied two weeks later stating that it was currently managing the estate as a “custodian” pending the formation of the MCST. As such, the developer considered that it did not have the authority to grant proper approval for the appellants’ proposed works. It further advised the appellants that the MCST when formed would be able to require residents who had already erected such roofs to remove them if the MCST found the roofs to be marring the aesthetics of the estate. The letter went on to say that if the appellants decided to proceed with the roofing works and take the risk of being required to remove them later, they should consult the Urban Redevelopment Authority (“URA”) and the Public Works Department’s Building Control Division for the necessary approvals before putting up any additional structures as the same would deviate from the approved building plans.

9 Thereafter, there were discussions between Mr Choo and Mr Lim on whether there was a type of roofing that might not require a permit from the building authority. Around 10 April 1999, Mr Choo decided to use lightweight material for his roofs instead of reinforced concrete and informed the developer accordingly. Thereafter, Mr Lim issued passes to the appellants’ contractors to enter the premises of the condominium and to put up the roofs over the terrace. In late May 1999, the developer wrote again to the appellants reiterating its inability to either approve or disapprove of the works done but stating that the appellants should ensure that the works were approved by the relevant authorities. The appellants took no steps at that stage to get such approval.

10 Subsequently, the appellants installed a roof over the air well area. In the process of this work, they had to move their air-conditioning compressors from the ground floor and they then placed the two compressors above the roof by affixing them onto the external wall of the condominium. It should also be noted that apart from erecting the roofs, the appellants affixed windows within the openings in the parapet walls that bordered the terraces of the units. All this was done in 1999. Subsequently, in September 2000, the appellants affixed two additional compressors onto the exterior wall of the condominium.

11 The MCST was constituted as a body corporate under the Act on 7 April 2000 pursuant to s 33(1) of the Act whereunder the subsidiary proprietors of the lots in the subdivided building comprised in a strata title plan become a body corporate upon the registration of the strata title plan by the Registrar of Deeds under s 9 of the Act. The first annual general meeting of the MCST was held on 14 January 2001 and the first management council (“the council”) was elected at that meeting.

12 In May 2001, Mr Choo wrote to the council asking for its approval of the roof over the terrace. He explained that the roof had been erected before the formation of the MCST for safety reasons as the developer had not been able to stop the litter problem by asking the residents not to litter. In July 2001, the MCST informed Mr Choo that the roofing at the terrace and the installation of additional compressors had not been approved because these matters had affected the uniformity of the estate’s façade. Moreover, the compressors were causing inconvenience to the other residents. The council requested the appellants to remove the unauthorised works within 21 days.

13 The appellants did not remove their works. Subsequently, Mr Choo met the council personally to explain his problem with what he described as “killer litter”. According to Mr Choo, after he had given his explanation, the chairman of the MCST, one Mr Wan told him that the council unanimously approved the roofs. On 19 November 2001, the MCST wrote to Mr Choo stating that it had written to the relevant authorities “for their confirmation on their authorisation of the erected installation”. The letter went on to say “as stated to you at our meeting, our only concern is that the renovation in question is not in any way illegal or in violation of existing laws”. The appellants read this letter to mean that the MCST approved of their works as long as the authorities had authorised or would authorise the same.

14 On 11 December 2001, the MCST informed the appellants that the URA had asked it to advise the appellants to apply formally for the retention of their roofs. The letter also asked the appellants to keep the MCST updated on the progress of their application. In a further letter to the appellants dated 20 December 2001, the MCST stated that the council had no objections to the appellants’ installations at the PES areas as long as there was no breach of rules and regulations of the URA. The appellants did not apply for the URA’s authorisation of the works. Mr Choo’s position was that he had not received the MCST’s letter in December 2001 and did not get it until he asked about it in July 2002. In August 2002, the MCST wrote again to Mr Choo explaining the procedure for undelivered mail and ended by saying that that the council had expressed no objection to Mr Choo’s works provided he regularised them with the authorities. Mr Choo then proceeded to engage an architect to prepare plans for submission to the URA.

15 On 21 November 2002, the URA informed the appellants that their inspection of the unit showed that the appellants had covered the open terrace area and converted it into part of their living area. The covering of the open terrace constituted development under s 3 of the Planning Act (Cap 232, 1998 Rev Ed) and planning permission was required for this. The appellants were asked to submit a planning application to retain the unauthorised structure so that the URA could consider it. The appellants then instructed their architect to prepare and submit the necessary form within the deadline of one month specified by the URA. The form required the endorsement of the MCST but, to the appellants’ surprise, the MCST refused to endorse it. On 12 December 2002, the MCST tersely informed the appellants that, after consultation with its legal adviser, the MCST rejected the appellants’ application. No reasons were given.

16 On 9 January 2003, the MCST’s lawyers issued the appellants with a letter of demand calling for the...