Management Corporation of Grange Heights Strata Title No 301 v Lee Tat Development Pte Ltd

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 05 March 2007
• Neutral Citation: [2007] SGHC 32
• Docket Number: Originating Summons No 706 of 2004
• Date: 05 March 2007
• Published date: 09 March 2007
• Year: 2007
• Plaintiff Counsel: Edwin Lee and Looi Ming Ming (Rajah & Tann)
• Citation: [2007] SGHC 32
• Defendant Counsel: Tan Cheng Han SC (TSMP Law Corporation) and Ernest Balasubramaniam (Arfat Selvam Alliance LLC)
• Court: High Court (Singapore)
• Subject Matter: Whether owner of dominant tenement giving up right of way by amending development plans to exclude original proposed road on servient tenement -Whether owner of dominant tenement entitled to repair and/or maintain such right of way,Land,Right of way over servient tenement,Rights of way,Easements

5 March 2007

Woo Bih Li J:

1 The plaintiff is Management Corporation of Grange Heights Strata Title No. 301 (“the MC”). It is the management corporation of a condominium development known as Grange Heights. The development stands on lot 687 of Town Sub-division 21. Lot 687 is an amalgamation of what was formerly lot 111-34 and an adjoining plot of land which was formerly lot 561 of Town Sub-division 21.

2 The defendant Lee Tat Development Pte Ltd (“Lee Tat”) was previously known as Collin Development (Pte) Ltd. At all material times Lee Tat was and is the owner of lots 111-32 and 111-33 of Town Sub-division 21.

3 Adjoining lots 111-32, 111-33 and what was formerly lot 111-34 is lot 111-31. Lot 111-31 is a long, narrow but irregular strip of land. A right of way was granted over lot 111-31 to the owners of lots 111-30, 111-32, 111-33 and 111-34. Lots 111-30, 111-31, 111-32, 111-33 and 111-34 were formerly parts of a larger piece of land owned by a company, Mutual Trading Ltd. In or about 1919, Mutual Trading Ltd, then in voluntary liquidation, sold and conveyed lots 111-30, 111-32, 111-33 and 111-34 and granted a right of way over the Reserve for Road to the purchaser of the four lots. In the context of lot 111-34, the right of way was granted in a deed of conveyance dated 19 March 1919. The grant was in the following terms:

And together with full and free right and liberty for the Purchaser his executors administrators and assigns being the owner or owners for the time being of the land hereby conveyed or any part thereof and their tenants and servants and all other persons authorized by him or them in common with others having a similar right from time to time and at all times hereafter at his and their will and pleasure to pass and repass with or without animals and vehicles, in along and over the Reserve for Road coloured yellow in the said plan.

4 Based on the colouring in the plan attached to the deed of conveyance, the Reserve for Road mentioned in the grant occupies the entire lot 111-31 which is the servient tenement. On 17 January 1997 Lee Tat acquired lot 111-31.

5 By this originating summons, the MC sought a declaration that it was entitled to repair and/or maintain the right of way in the manner set out in the schedule to the action. The schedule also set out the dimensions of the road to be repaired/maintained. I should mention here that the width of the proposed road works is less than the width of the Reserve for Road itself. I will elaborate on this later.

6 After hearing arguments, I made the substantive declaration sought and clarified that the repair/maintenance was at the expense of the MC, subject to the MC obtaining such regulatory approval as may be required. Lee Tat was directed to allow the MC to take all measures to obtain such approval and to sign and endorse all appropriate documents failing which the Registrar of the Supreme Court would do so on behalf of Lee Tat. However, Lee Tat was not precluded from making representations to any relevant authority. Lee Tat has appealed against my decision and I now set out my reasons.

Reasons

7 The thrust of Lee Tat’s submissions before me was that the MC could no longer enjoy the right of way. Hence, there was no question of repairing or maintaining such a right of way. Lee Tat ran its case in the following manner.

8 Lee Tat asserted that on 15 October 1970, the developers of the condominium Hong Leong Holdings Ltd (“Hong Leong”) obtained permission from the relevant authority to develop Grange Heights in accordance with a plan annexed to the Grant of Written Permission. A road was to have been built on lot 111-31 providing the entrance to the condominium from Grange Road.

9 As the owner of other dominant tenements, but not yet the owner of the servient tenement, Lee Tat, under its previous name of Collin Development, objected to the proposed road. Consequently Hong Leong amended its plan to delete the road on lot 111-31. The revised Notice of Grant of Written Permission dated 13 March 1975 stated that lot 111-31 was excluded from the site layout.

10 Accordingly, Lee Tat submitted that the MC’s present action was an attempt to get through the back door what the relevant authority had rejected several years ago.

11 To bolster its submission, Lee Tat further submitted that Hong Leong’s revised plan showed an internal road within Grange Heights which stopped short of the boundary between Grange Heights and lot 111-31. This, according to Lee Tat, also showed that the original intended road on lot 111-31 was rejected by the relevant authority.

12 It seemed to me that while this was all very well and good from Lee Tat’s point of view, there had been court decisions against Lee Tat which I could not ignore. Indeed, Lee Tat relied on evidence which was given in the first of these actions but ignored the outcome thereof. I will now set out in some detail the various actions which Lee Tat was involved in in respect of the right of way, whether under its previous or present name.

13 In 1974, Lee Tat commenced Suit No. 3667 of 1974 against Hong Leong (“the First Action/1974”). Notwithstanding Hong Leong’s revision of its plan for a road on lot 111-31, the litigation continued. The nature of the complaints and the reliefs sought were set out in the judgment of Justice FA Chua in Collin Development (Pte) Ltd v Hong Leong Holdings Ltd [1975-1977] SLR 457. At pg 458, Chua J said:

The plaintiff complained that (1) the defendant had permitted its contractors employed for the construction of Grange Heights to use the right of way for access into and egress from Lot 561; (2) the defendant’s contractors had excavated the side table of the metal road on the right of way and the earth excavated was removed to the Grange Heights site for filling purposes; (3) the defendant was in the course of making up a metal road which led from Grange Heights in the direction of the right of way and the defendant intended to link up the road with Grange Road through the right of way; (4) the defendant was in the course of selling the apartments in Grange Heights, and in its brochure regarding Grange Heights the defendant represented that it intended to give the purchasers access to Grange Heights at three points, one of them from Grange Road through the right of way.

The plaintiff now claims against the defendant for:

(1) A declaration that the defendants Hong Leong Holdings Ltd as the owners of Lot 561 of TS XXI by their directors, officers, servants, workmen or agents or any of them or otherwise howsoever are not entitled to use, nor as such owners to permit or invite any persons or purchasers of apartments in the Grange Heights to use Lot 111³¹ , of TS XXI, District of Claymore, Singapore or any part thereof for the purpose of passing either to or from Grange Road, Singapore aforesaid.

(2) An injunction to give effect to the said declaration restraining the defendants as the owners of Lot 561 of TS XXI by their directors, officers, servants, workmen or agents or any of them or otherwise howsoever from so using and inviting their purchasers and other persons so to use the said passage.

(3) Damages.

14 I should mention that in the First Action/1974, Lee Tat was making its claim as owner of two of the dominant tenements. As mentioned above, it acquired lot 111-31 only on 17 January 1997.

15 In the action before me, Lee Tat referred to the evidence of one Steven Ang a planner in Development Control Division, Public Works Department which was given in the First Action/1974 before Chua J on or about 20 November 1975. The relevant part of the notes of evidence in that action stated:

I have the file of my department in relation to the development of Grange Heights. My department received a letter from the developers’ architects on 25^th August 1970… The architect enclosed a letter from Drew & Napier regarding the right of way through Lot 111-31. They asked us to exclude Lot 111-31 from the development.

Xxd by Mr Lee.

(L: Ex. D.1 2^nd para)

Yes the original submission included Lot 111-31 in the development and Lot 111-31 is taken into the calculation of the density. Yes the purpose of this letter was to tell us to exclude Lot 111-31 from the calculation for density and that they were prepared to pay more development charges. The approval of the plans included Lot 111-31 but it was subsequently amended and approval was given on 13^th March 1975 and this excluded Lot 111-31. The amended plan does not include Lot 111-31 as an excess [sic] road. The first amended plan was submitted on 27^th October 1970 but it included Lot 111-31. The amended plan excluding lot 111-31 as an access road was submitted on 2^nd August 1974 and the amended plan was approved on 13^th March, 1975.

Yes as from 13^th March 1975 Lot 111-31 as excess [sic] road is completely excluded from the development.

Yes the only access road to Grange Heights is now through River Valley Road and through St. Thomas Walk.

We received a letter dated 30^th July 1974 from plaintiffs’ former solicitors Lee & Lee pointing to us that the developers have wrongly included Lot 111-31 in their development that Lot 111-31 does not belong to the developers. (L: It is at AB.6 p 1). We must have informed the developers of this and the developers submitted an amended plan excluding Lot 111-31.

16 I was of the view that this evidence did not assist Lee Tat in the present action for the following reasons.

17 First, it suggested that perhaps the relevant authority had not “rejected” Hong Leong’s original plan as contended by Lee Tat. Steven Ang’s evidence suggested that perhaps it was Hong Leong who chose not to pursue its original plan for the road on lot 111-31 when Lee Tat objected and Hong Leong decided in the face of such objection to amend its plan accordingly. Accordingly, there might have been no ruling by the relevant authority on the point. It is also unclear whether Hong Leong had relied on its express right of way over...