Medway Investments Pte Ltd v Trustees of the Estate of Cheong Eak Chong

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 14 May 1997
• Neutral Citation: [1997] SGCA 18
• Docket Number: Civil Appeal No 132 of 1996
• Date: 14 May 1997
• Published date: 19 September 2003
• Year: 1997
• Plaintiff Counsel: Vangat Ramayah (Wee Ramayah & Partners)
• Citation: [1997] SGCA 18
• Defendant Counsel: Alvin Yeo and Lena Chan (Wong Partnership)
• Court: Court of Appeal (Singapore)
• Subject Matter: Right of drainage as an adjunct right of naturalright of support,Whether use of drains to collect and discharge surface waters altered nature of right,Rights of water,Lower owner obliged to replace support removed in the development of his land,Easements,Rights and obligations of neighbouring landowners situated on different levels of slope,Land,Right of upper landowner to enter lower property to effect repairs to artificial support,Qualifications on right,Evidence required to establish existence of easement of drainage,Rights of support

Judgment:

LP THEAN JA

(delivering the grounds of decision of the court):

This was an appeal against the decision of the High Court and concerned a dispute between theowners of two neighbouring properties over the right of the higher property to drain rain water on to the lower property. The facts that gave rise to the appeal were as follows.

2. The facts

The respondents are the trustees of the estate of Cheong Eak Chong and they own a large property known as No 5 Oxley Rise (the `higher property`). The appellants are the owners of the adjoining property known as Nos 35 and 41 Oxley Road (the `lower property`). The higher property is on the summit of a part of a hillock and on it stands, among others, a large two-storey mansion. On the south, immediately adjoining the higher property, is the lower property. The rear of the mansion faces southwards in the direction of the lower property and is connected by a covered walkway to a smaller building, next to which is a roofed structure which from the evidence appears to be a car park. From that point southwards the ground slopes downwards unevenly towards the lower property (`the slope`). Nearer to the lower property on the eastern side is what may roughly be termed a terrace, on which stands another roofed structure which we shall refer to as `the shed`.

3.The natural incline of the slope on the side of the lower property has been altered by its owners. It had been excavated thereby creating a cliff at or near the common boundary, and retaining walls were constructed. At present, there are two roughly parallel retaining walls of differing lengths running along the common boundary, one along the top of the cliff and the other at the bottom. On the lower property are two houses known as Nos 35 and 41 Oxley Road and between them is the garage. The entrance to the property is from Oxley Road, and the surface of the land slopes towards Oxley Road.

4.In the ordinary course of nature, rain water which falls on the higher property will percolate through or flow over to the lower property. The learned judge who tried the case found that the rain which falls in the immediate vicinity of the mansion drains eastwards towards another neighbouring property known as No 43 Oxley Road (`the neighbouring property`). According to the learned judge, none of the rain water falling there flows towards the lower property. The water that would naturally drain towards the lower property is that which falls on the area of the slope. Most of it will run down the slope or percolate through the ground. A perimeter drain, `D1`, runs from the neighbouring property along the common boundary between the higher and lower properties. The topography of the area is such that the land is depressed towards the middle of the common boundary. Surface water caught by D1 therefore flows away from the neighbouring property. The water that falls on the shed and its immediate vicinity is collected by a drain, `D2` which runs towards the lower property and ends at a point where it meets D1 near the common boundary on the side of the higher property. At the point of their convergence is a sump.

5.The water that percolates through the ground would accumulate at or behind the retaining wall. The retaining walls have weep-holes to relieve the lateral pressure exerted by the accumulated water behind the walls. Water collected bythe drains D1 and D2 flows into the sump. Apparently, there is no outlet at the bottom of the sump for the water collected there to be discharged from the sump. As a result, where there is a heavy downpour, the water collected in the sump would overflow on to the lower property and also would percolate through the soil surrounding the sump. The water that percolates through the soil would then accumulate behind the retaining wall.

6. The dispute

In or just before 1992, part of the retaining wall collapsed. There also occurred a subsidence in the soil adjacent to this collapsed portion of the retaining wall. Officers from the Building Control Division (`BCD`) upon inspecting the site concluded that the slope in that state was dangerous. The BCD therefore issued an order dated 10 January 1992 under the Building Control Act (Cap 29) to the appellants and the respondents requiring them to take remedial measures to protect the slope from further erosion. As a result of this order, both the appellants and the respondents engaged professional engineers to advise them and to make proposals or recommendations to be submitted to the BCD for approval.

7.The appellants engaged a firm of professional engineers called Fusion Strength & Associates sometime in June 1992 to inspect the site and to submit proposals to the BCD. Mr Lim Hung Tjung, the principal of the firm, inspected the site and put up a proposal to BCD for approval. According to Mr Lim, the function of the sump was to divert water flowing along D2 to D1. This was because D2 was narrower and shallower than D1. The sump was not intended to collect water flowing along both the drains, which apparently it did under the present circumstances. In his opinion, the sump was too small to serve such a function. Furthermore, the water collected there had to be discharged through the ground. This threatened the stability of the retaining walls, as the weep-holes in the walls were not meant to drain the extra quantity of water discharged from the sump. The weep-holes were only designed to relieve pore water pressure that was built up due to water percolating through the soil of the slope. His views on these matters were supported by another professional engineer consulted by the appellants, Mr Fong Weng Cheong.

8.Mr Lim proposed that the existing brick wall be reinforced. This involved the building of a second wall buttressing a length of the lower level retaining wall. His proposal was implemented by a contractor, Mr Wong Jin Fah.

9.The respondents on their part engaged an engineering firm called Messrs Tan Ee Ping & Partners. Mr Tan Ee Ping of the firm inspected the site and recommended remedial action. In his report dated 27 March 1992 submitted to BCD, Mr Tan stated, inter alia:

The failure [of the slope] was probably triggered by the retaining wall within 35 Oxley Road giving way resulting in a slip failure of the slope above.

It is also our considered opinion that some adjacent retaining walls within 35 Oxley Road are potentially unstable and could lead to further slope failures.

10.To remedy this, it was recommended that the slope on the higher property be excavated to create a gentler gradient, and the slopes be returfed to prevent further erosion. Further, the engineer recommended the `provision of drainage at both thetop and bottom of the slope to reduce both erosion as well as prevent the build up of pore water pressures.` This proposal would involve drainage work on both higher and lower properties with the drain at the bottom of the slope connected to the existing compound drains on the lower property.

11.The respondents` proposed remedial measures met with objection from the appellants. In the letter dated 27 March 1992 accompanying the proposals to the BCD, Mr Tan said:

Despite our efforts over the last few weeks, an amicable solution has yet to be reached between our clients and the owner of 35 Oxley Road over the questions of sharing of costs, connections to existing drains and future responsibilities including long term liability for the proposed works as well as provisions for maintenance. We are therefore unable to proceed on further at present.

The letter further requested BCD to convene a meeting of the owners for discussion with a view to resolving the dispute. In reply BCD, while finding the proposals acceptable, was of the opinion that the drainage connection on the lower property was a private matter and declined to have any involvement in the negotiations between the two parties.

12.The parties failed to resolve the matter amicably. In the event, BCD instituted proceedings against the respondents for not carrying out the proposed rectification works and failing to comply with the order. They were fined $7,000. The appellants were also prosecuted and fined a similar amount.

13.On 16 July 1994 the respondents commenced this originating summons seeking the following reliefs: (a). A declaration that the owners of the property, No 5 Oxley Rise, are entitled to a right to drain or discharge surface water from that property onto the adjacent properties of the appellants, namely, Nos 35 and 41 Oxley Road.

(b). A declaration that this right entitles the respondents to discharge such surface or rain water through a drainage connection to the existing compound drains of the appellants` property or through some other connection and to enter the latter`s property to effect, at their own cost and making good all damage to the lower property, the construction of such connection and all ancillary works; and

(c). An injunction restraining the appellants from interfering with this right.

The application was resisted, and was heard before G P Selvam J.

14. The decision below

In a reserved judgment (reported in [1997] 1 SLR 329) the learned judge allowed the application. First, he held that every landowner has a natural right of support from the adjacent and subjacent soil. The effect of this is that the adjoining landowner is under an obligation not to excavate his land in a manner which may cause a subsidence of his neighbour`s land. Consequently if the servient owner withdraws the natural support and substitutes it with an artificial support, such as a retaining wall, he must ensure that it is designed and constructed to be sound and strong to provide the support. Secondly, he held that the owner of land on a higher level has a right to let rain water flow naturally onto or into adjacent lower land, and that the owner of the lower land has an obligation to receive such water. Thirdly, he held in the alternative that...