Muthukumaran s/o Varthan and another v Kwong Kai Chung and others and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 14 December 2015
• Neutral Citation: [2015] SGCA 69
• Date: 14 December 2015
• Docket Number: Civil Appeal No 111 of 2014 and Summons No 6264 of 2014
• Published date: 29 December 2015
• Plaintiff Counsel: George Barnabas Pereira and Keith Chua (Pereira & Tan LLC)
• Hearing Date: 30 September 2015
• Defendant Counsel: Adrian Wong Soon Peng, Yan Yijun and Ang Leong Hao (Rajah & Tann Singapore LLP),Choo Yean Lin and Rebecca Yeo (Tan Lee & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Rights of way,Land,Easements

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

The main issue presented in this appeal was whether the owners of a two-storey shophouse, who did not have a staircase built within their property, had an implied easement of a right of way over the staircase of an adjacent shophouse to gain access to the second floor of their own shophouse under s 99(1) read with s 99(1A) of the Land Titles Act (Cap 157, 2004 Rev Ed) (“the LTA”). The appeal raised issues concerning the proper scope and interpretation of those provisions − issues that our courts are likely to face in the future as Singapore becomes increasingly built-up, and disputes between neighbours over the creation or scope of easements become more frequent. Sections 99(1) and 99(1A) of the LTA read as follows:

Implied easements for right of way and other rights shown in subdivision plan

99.—(1) Where the competent authority has approved the development and subdivision of any land comprised in an estate before or after 1st March 1994 and the subdivision plan has been submitted to the competent authority, there shall be implied, in respect of each lot of the estate which is used or intended to be used as a separate tenement, in favour of the registered proprietor of the lot and as appurtenant thereto, all the easements referred to in subsection (1A).

(1A) The easements which shall be implied under subsection (1) are all such easements of way and drainage, for party wall purposes and for the supply of water, gas, electricity, sewerage and telephone and other services to the lot on, over or under the lands appropriated or set apart for those purposes respectively on the subdivision plan submitted to the competent authority relating to the estate, as may be necessary for the reasonable enjoyment of the lot and of any building or part of a building at any time thereon.

…

We heard and dismissed the appeal on 30 September 2015. These are the detailed grounds for our decision.

Background facts

The background facts have been sketched out by the learned Judicial Commissioner (“the Judge”) in his written grounds of decision reported in Muthukumaran s/o Varthan and another v Kwong Kai Chung and others [2014] 4 SLR 1248 (“the GD”). We do not propose to repeat them in their entirety, save to highlight the facts that are germane to this appeal.

The Appellants, Muthukumaran s/o Varthan (“the First Appellant”) and Indira d/o Srinivasa Naidu were the joint registered proprietors of a two-storey shophouse at No 21 Madras Street, Singapore 208416 (“No 21”). The first and second respondents, Kwong Kai Chung (“the First Respondent”) and Kwong Wing Yen Catherine (“the Second Respondent”) were the owners of No 23 Madras Street, Singapore 208418 (“No 23”), the two-storey shophouse adjoining No 21. The third respondent, Madras Investment Pte Ltd (“the Third Respondent”), was the previous owner of both No 21 and No 23.

No 21 and No 23 were part of a row of four two-storey conservation shophouses in the Little India area. The other two shophouses in that row were No 17 Madras Street, Singapore 208414 (“No 17”) and No 19 Madras Street, Singapore 208 415 (“No 19”). Each of the four shophouses stood on a separate lot of land, each with a separate certificate of title.

The four shophouses were purchased by the Third Respondent on 22 November 1993 following a tender concluded with the Singapore government on 27 August 1993. At that time, none of the shophouses had a permanent staircase; rather, each only had a bare ladder that allowed access to the second floor.

In 1995, the Third Respondent submitted a development plan to the Building and Construction Authority (“the BCA”) and the Urban Redevelopment Authority (“the URA”) for approval to carry out alteration and addition works (“the Works”) on the shophouses. The scope of the Works included: the removal of the ladders in each of the shophouses; the building of two new timber staircases, one being inside No 19 and the other being inside No 23; the demolition of a portion of the firewalls on the ground floor between No 17 and No 19, and on the ground floor between No 21 and No 23; and the demolition of a portion of the firewalls on the second floor between No 17 and No 19, and on the second floor between No 21 and No 23.

The plans were approved by the BCA and the URA on 4 May 1995 and 20 June 1995, respectively. After obtaining approval, the Third Respondent then proceeded to carry out the Works.

The result of the Works was that No 17 and No 21 had no direct staircase access to their second floors. The only way to get to the second floors of No 17 and No 21 was through the staircases in No 19 and No 23, respectively. But that also meant that No 17 and No 21 retained relatively larger floor areas as compared to No 19 and No 23 as a result.

On 3 June 2004, the Appellants purchased No 21 from the Third Respondent for $435,000, subject to an existing tenancy agreement. The transfer of No 21 to the Appellants was registered on 10 November 2004.

The Third Respondent claimed that when the Appellants purchased No 21, they were informed that there would be no staircase access to the second floor of that shophouse, and that they would have to build their own staircase should they wish to access that floor to their shophouse. The Appellants denied being informed of this, and claimed that they were able to use the staircase in No 23 (“No 23 staircase”) to access the second floor of No 21 without incident until February 2010.

When the tenant in No 21 moved out in February 2010, the Appellants said that they discovered that the lock on the doorway to the No 23 staircase had been changed. The Appellants also claim that later in August 2010, the only entrance to the second floor of No 21 situated next to the upper stair landing of the No 23 staircase had been boarded up with wooden planks.

Between February 2010 and June 2010, the Appellants wrote to the Third Respondent asserting a right to use the No 23 staircase. The Third Respondent denied that the Appellants had such a right.

On 19 April 2010, the First and Second Respondents purchased No 23 from the Third Respondent for $640,000. The transfer of No 23 to the First and Second Respondents was registered on 16 July 2010.

Sometime between late July 2010 and early August 2010, the First and Second Respondents received a call from the Appellants. During that conversation, the Appellants alleged, amongst other things, that the No 23 staircase was a common staircase and meant to be shared by the registered proprietors of No 21 and No 23. The Appellants thus demanded that they be granted access to the No 23 staircase, but the First and Second Respondents refused.

On 2 August 2013, the First and Second Respondents received a letter from the Appellants’ solicitors informing them that the Appellants would be commencing proceedings against them.

On 24 September 2013, the Appellants filed Originating Summons No 896 of 2013 (“OS 896/2013”) against all three respondents (“the Respondents”). The prayers in OS 896/2013 were subsequently amended to eventually reflect the following relief claimed: A declaration that by reason of s 99(1) read with s 99(1A) of the LTA, the Appellants, as owners of No 21, were entitled to an easement of a right of way over the No 23 staircase to enable access to the second floor of No 21 for all purposes and reasons; An injunction restraining the First and Second Respondents from interfering with the Appellants’ reasonable enjoyment of the said right of way over the No 23 staircase; Damages for loss suffered by the Appellants by reason of the Respondents denying them use of the No 23 staircase to access the second floor of No 21; and An order that the First and Second Respondents reinstate the only entrance to No 21’s second floor.

Proceedings below and the Judge’s decision The respective parties’ arguments Appellants’ arguments below

In the court below, the Appellants’ counsel, Mr George Pereira (“Mr Pereira”), argued that the requirements of s 99(1) read with s 99(1A) of the LTA were satisfied, such that an implied easement of a right of way arose in his clients’ favour over the No 23 staircase.

In this regard, Mr Pereira tendered two documents to the court. The first of these was a Certified Plan No 30670 for Lot No TS-16-00881P, ie, the lot on which No 23 was situated, dated 19 June 1997 (“the 1997 CP”), which Mr Pereira contended was the “subdivision plan” within the meaning of ss 99(1) and 99(1A) of the LTA. The other document Mr Peirera tendered was the development plan that was submitted to the BCA and the URA, which we mentioned earlier (see above at [7]). Mr Pereira submitted that, on the authority of Cheng-Wong Mei Ling Theresa v Oei Hong Leong [2006] 2 SLR(R) 637 (“Oei Hong Leong”), a previous decision of this court, the court was entitled to have regard to other documents besides the subdivision plan, and indeed should look to the development plan in determining whether an easement should be implied under s 99(1) read with s 99(1A) of the LTA because the No 23 staircase was drawn on the development plan. We will say more on Oei Hong Leong later in the course of our grounds of decision as this decision was relied on considerably before us on appeal as well.

Mr Pereira also argued that an implied right of easement over the No 23 staircase was, pursuant to s 99(1A), “necessary for the reasonable enjoyment” of No 21 as there was no other way of gaining access to the second floor of No 21.

Respondents’ arguments below

At the court below, the Respondents argued that: The Appellants were aware that they had to build their own staircase in No 21 when they purchased No 21; The right of way over the No 23 staircase was a licence that had “expired” when No 23 was sold to the First and Second Respondents; and The requirements of ss...