MCST Plan No 549 v Chew Eu Hock Construction Co Pte Ltd

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 16 July 1998
• Neutral Citation: [1998] SGCA 41
• Docket Number: Civil Appeal No 258 of 1997
• Date: 16 July 1998
• Year: 1998
• Published date: 19 September 2003
• Plaintiff Counsel: Tan Cheng Han and James Wan Hui Hong (James Wan & Co)
• Citation: [1998] SGCA 41
• Defendant Counsel: Ching Chiak Yong (Ching & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Failure procedural omission,Lack of alternative access route,Whether present case of development and subdivision fell within s 99,Reference to driveway and right of way in both development and subdivision plans,Land,Driveway used and allowed to be used as right of way,Creation,Purpose of statutory implication of easements,Lack of injustice to other party,s 99 Land Titles Act (Cap 157, 1994 Ed),Driveway depicted in plans to certificates of title,Whether any effect if development approval obtained at different time from subdivision approval,s 46(1)(b) Land Titles Act (Cap 157, 1994 Ed),Creation via statutory implication from moment of grant of approval for development and subdivision,Whether failure made s 99 inapplicable,Easements,Failure to lodge subdivision approval with Registrar of Titles,Statutory implication,Common law rule overridden by statute,Whether any quasi-easement or equitable easement arising out of rule in Wheeldon v Burrows,Whether implied easement restricted to user specified for subdivision and development,Intention behind enactment of s 99

Cur Adv Vult

(delivering the judgment of the court): The facts

This appeal concerns a dispute over an easement of way over the land of the appellant under the Land Titles Act ( Cap 157, 1994 Ed) (the Act). The appellant is the management corporation and is the registered proprietor of the land, Lot 544 of Town Subdivision 29, on which stands a ten storey building known as the Golden Tower comprising 40 flats. Approximately half way down the western boundary abutts two adjoining lots, Lots 545 and 546. The respondents are the registered proprietors of Lot 545, while Lot 546 is owned by another party who is not involved in the present dispute.

For the purpose of this appeal it is necessary to trace the origin of these plots of land. All these three plots of land were originally parts of Lot 331 which in turn was derived from Lot 32 of Town Subdivision 29. Way back in 1960, Lot 32 was owned by two brothers, Low Yok Kay and Low Geok Khoon. On 2 January 1960 they obtained written permission from the Singapore Improvement Trust for the development of two pairs of semi-detached houses and two single storey bungalows on the western part of their land. A narrow strip of land along the western boundary, now known as Lot 330, was set aside for road widening. Adjoining this strip of land to the west was a stretch of land marked `Reserve for Road` which, however, was enclosed by a fence erected by Tan Tock Seng Hospital (the Hospital).

The two pairs of semi-detached houses have their fronts abutting Minbu Road running along the northern boundary of Lot 32. The two bungalows are sited at the rear of these semi-detached houses and the sites for these two bungalows run parallel to each other with one of them immediately adjoining the rear of the semi-detached houses. Hence, the question of access to the bungalows arose. In October 1961, the architect in charge made a proposal to the Commissioner of Lands to the effect that, subject to the agreement of the Hospital, permission be given to his clients at the latter`s expenses to set back the Hospital`s fence and construct a road along the land marked as road reserve so as to serve as an access road. The Commissioner of Lands replied on 24 October 1961 stating that, after consultation with the Ministry of Health, such permission could not be granted on the ground of disturbance to patients and security. The suggested solution was to obtain access through Lot 32 itself.

The plots of land approved for the development of the two pairs of semi-detached houses and the two bungalows occupy less than half of Lot 32, and the owners proceeded with plans for development on the remaining part of Lot 32. On 9 July 1963, written permission was granted for the development on the remaining part of Lot 32 of a ten storey building comprising 40 flats and a four storey building comprising 24 flats with a 36 feet wide road within Lot 32 immediately abutting the two bungalows serving as access to the ten storey building and the two bungalows from Minbu Road.

On 24 September 1964, Low Yok Kay and Low Geok Khoon conveyed Lot 32 to their family company, Hup Choon Kim Kee Pte Ltd (Hup Choon). Lot 32 was subsequently sub-divided into Lots 325 to 331 in 1967. Lot 331 was the big plot which comprised the 10 storey building and the two bungalows On 10 April 1968, the solicitors for Hup Choon wrote to the superintendent of the Hospital, referring to an indenture of conveyance dated 28 October 1901 which granted a right of way over the land marked as road reserve which was appurtenant to the original Lot 32. On this ground, the solicitors requested the Hospital to set back their fence so that their clients may be able to enjoy the right of way to which they were entitled. The letter was referred to the Director of Public Works who replied on 21 May 1968, advising that the land marked as road reserve was State land and that the existing fence was necessary to enclose the grounds of the Hospital.

On 27 November 1969, Hup Choon wrote to the Minister of Law, seeking his assistance on the matter. According to Hup Choon, when the original proposal for the development of Lot 32 was first approved, the road proposals to provide access to their land using the road reserve were accepted and approved by the Chief Engineer (Roads), Public Works Department, subject to them (Hup Choon) surrendering a portion of their land for the widening of this road reserve. This they did in the belief that they could use the road reserve as access to their land in accordance with the indenture of conveyance dated 28 October 1901. On 10 March 1970, the Permanent Secretary of the Ministry of Law and National Development wrote to Hup Choon informing them that the medical superintendent of the Hospital had agreed to the re-adjustment of the fence to enable them to have access to their land through the road reserve, subject to two conditions. First, Hup Choon had to reconstruct a new fence of about 600 feet in length along the boundary of the Hospital land to the satisfaction of the medical superintendent of the Hospital and the Public Works Department. Second, Hup Choon had to be responsible for the construction and maintenance of the road reserve up to the standards of the Public Works Department. However, nothing apparently developed out of this proposal.

By 1973, the ten storey building was completed. On 19 February 1973, the competent authority approved the replacement of the proposed 36 feet wide road by a 20 feet wide concrete driveway (the said driveway) which was intended to serve as access to the two bungalows from Minbu Road. The approval was on a temporary basis until such time as redevelopment of the site containing the two bungalows or subdivision of Lot 331, whichever is earlier.

Lot 331 was brought under the Land Titles Act on 23 June 1980. On 24 September 1980, the competent authority under s 9 of the Planning Act (Cap 279, 1970 Ed) granted written permission for the subdivision of Lot 331 into three plots: plot (1), now Lot 544, on which stands the existing ten storey building, the Golden Tower, comprising 40 flats with provision for 40 open car parks and the said driveway, and plots (2) and (3), now Lots 545 and 546 respectively, on each of which then was a single storey bungalow. Strata subdivision of the existing ten storey building on plot (1) for the 40 separate residential flats was also approved. The approval was subject to the grant of a right of way over the said driveway on plot (1) to plots (2) and (3) until separate physical access from Minbu Road is available. This right of way was to be granted prior to the lodgment of a strata title plan with the Registrar of Titles. The said driveway was depicted on the approved subdivision plan and the legend of the plan stated that plots (2) and (3) were to have a right of way over the said driveway on plot (1).

In compliance with the requirements of the competent authority, a deed was executed on 16 January 1981 between (i) Oversea-Chinese Banking Corp Ltd as the mortgagee of the land, (ii) Hup Choon as the `servient` owners of plot (1), ie Lot 544, and (iii) Hup Choon as the `dominant` owners of plots (2) and (3), ie Lots 545 and 546 respectively, whereby a right of way over the said driveway on Lot 544 was purportedly granted to the `dominant` owners. However, having executed this deed, Hup Choon neither registered it in the Land Titles Registry nor had it notified subsequently in the certificate of title of Lot 544.

Upon completion of survey, plots (1), (2) and (3) were marked on the Government Re-survey Map as Lots 544, 545 and 546 respectively. On 13 October 1981, separate certificates of title for Lots 544, 545 and 546 and subsidiary strata certificates of title for the 40 apartments in the Golden Tower on Lot 544 were issued to Hup Choon.

On 15 October 1983, the shareholders of Hup Choon passed a special resolution to wind up the company voluntarily and to empower the liquidators to distribute to members in specie the assets of the company. Pursuant to this resolution, Lots 330 and 545 were distributed to Low Yok Kay and Lot 546 to one Low Geok Bian. The units in the Golden Tower on Lot 544 were distributed to members of the Low family including Low Yok Kay and Low Geok Bian.

On 6 July 1989, the respondents purchased Lot 545 (on which then stood a bungalow) from the executors of the estate of Low Yok Kay, deceased. Pursuant to the requests of the respondents` solicitors, the solicitors for the vendor requested the appellant to execute the grant of an easement in the form prescribed under the Land Titles Act before completion but the appellant failed to respond. The purchase was subsequently completed on 9 October 1989. On 1 November 1989, the respondents obtained provisional planning permission from the Urban Redevelopment Authority (URA) for the development of a seven storey building comprising 12 flats with a basement on Lot 545, subject to the condition that the respondents resolved `the alignment of common access with the management corporation of Lot 544 and the neighbouring Lot 546`. The respondents` solicitors wrote to the appellant repeatedly seeking the execution of the grant of an easement in the prescribed form, but the appellant disputed any obligation to do so.

On 22 March 1990, the respondents initiated proceedings against the appellant in OS 316/90 claiming a declaration of a right of way over the said driveway for all purposes connected with the use and enjoyment as a private residence until separate physical access to and from Minbu Road is available; and an order that the appellant execute the grant of an easement in the prescribed form granting the right of way. Even though the appellant disputed that the respondents had a right of way over the said driveway, the appellant had never prevented the owners of Lots 545 and 546 or any of their invitees from passing over the said driveway.

In the meantime, the respondents continued to...