Ng Boo Tan v Collector of Land Revenue

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 31 July 2002
• Neutral Citation: [2002] SGCA 36
• Docket Number: Land Acquisition Appeals Board
• Date: 31 July 2002
• Year: 2002
• Published date: 19 September 2003
• Plaintiff Counsel: Michael Hwang SC, Shawn Chen and Sharon Lee (Allen & Gledhill)
• Citation: [2002] SGCA 36
• Defendant Counsel: Eric Chin and Tan Hee Joek (State Counsel)
• Court: Court of Appeal (Singapore)
• Subject Matter: Respondent's award of compensation reflecting drop in value,ss 33 & 34 Land Acquisition Act (Cap 152),Land,Whether to disregard drop in value in calculating compensation,Drop in market value of property as a result of road development,Compulsory acquisitions,Compulsory acquisition of appellant's property for road development

judgment delivered by Chao Hick Tin JA]

Judgment Curia Advisari Vult

GROUNDS OF DECISION

1 I have perused the judgment of the majority delivered by the learned Chief Justice. The facts of the case are clearly set out therein and I do not propose to restate them. While I entirely agree with the first part of the judgment where it held that the positive and negative Pointe Gourde principle is an established common law principle, I have to, with the utmost respect differ from my learned brothers where they proceeded to find that in the scheme of things under our Land Acquisition Act (the Act), the negative principle of Pointe Gourde can have no application. The effect of the positive and negative Pointe Gourde principle is that any appreciation or depreciation in the value of the acquired property that results from the scheme leading to the acquisition is to be ignored for the purpose of assessing the value of the property.

2 The provisions of the Act which are relevant to the case have been set out in the judgment of the majority. All I wish to do in this judgment is to set out my reasons why I find myself unable to take the approach which they have adopted.

3 For this purpose, it is necessary for me to set out the grounds upon which my learned brothers have held that the negative Pointe Gourde principle can have no application under the Act. First, they say that some provisions in the Act clearly conflict with the application of that principle, referring to s 33(1)(b) and s 33(5)(e). Second, relying on s 33(1) which provides that "in determining the amount of compensation to be awarded … the Board shall … take into consideration the following matters and no others", they say that the phrases "and no others" excludes the application of the negative Pointe Gourde principle. It would be noted that both grounds concern s 33.

Section 33

4 I shall deal with the two grounds in the same order. Section 33(1)(b) states that in determining the compensation payable, "any increase in the value of any other land of the person interested likely to accrue from the use of which the land acquired will be put" shall be taken into account. This provision overrides the decision in South Eastern Rly Co v London County Council [1915] 2 Ch 252 which held that the effect of the scheme on an adjoining property should be ignored when calculating the compensation for the acquired property. So South Eastern Rly would no longer apply. But I do not think anything more can or should be read into that.

5 In a sense, it can be argued that s 33(1)(b) strengthens the reverse argument: if Parliament had intended to do away with the negative principle of Pointe Gourde, it would have done so more clearly as it did in s 33(1)(b) in overriding South Eastern Rly, rather than leaving it to implications. In this regard, the second reading speech made by the then Minister for Law and National Development, Mr E W Barker, in Parliament when explaining the Land Acquisition Bill, 1966, which was intended to consolidate the law, is germane:-

(1) the assessment of compensation provisions have been re-drafted on the basis of two principles enunciated by the Prime Minister in December 1963. Firstly, that no landowner should benefit from development which has taken place at public expense and, secondly, that the price paid on acquisition of land for public purposes should not be higher than what the land would have been worth had the Government not carried out development generally in the area, and (2) provision has been made for the hearing of appeals by an Appeals Board instead of the Court as at present.

6 As regards s 33(5)(e), this provision in summary states that in determining market value no account shall be taken of the potential value of the land for any other more intensive use other than the purpose designated in the Development Baseline (previously the Master Plan). As far as I can see, s 33(5)(e) has nothing to do with either the positive or negative principle of Pointe Gourde. This is borne out by the second reading speech of Mr Barker made on 18 December 1973 when explaining the object behind s 33(5)(e):-

This will obviate the argument that is sometimes made where land has been zoned for a restrictive use, as for example, "public open space", that the land has got considerable potential for development for residential or other purposes. In future, such arguments based on the hypothetical consideration that a future change of zoning or use will be granted by the Planning Department will not be taken into consideration in determining the compensation payable upon acquisition. Thus, land zoned "Agriculture", "Rural", "Green Belt" or "Unclassified" at the time of acquisition, will be valued as such.

7 Finally, as regards the phrase "and no others" in s 33(1) it is true that the phrase was first introduced into the Land Acquisition Ordinance in 1932. The then Acting Commissioner of Lands, Mr WS Ebden, when speaking in the Legislative Council, made it clear that the phrase was inserted to limit the heads of compensation to only those enumerated in s 25 of the then Ordinance. Mr Ebden himself thought that even without the phrase, s 25 was clear enough and that owners whose lands had been acquired could only claim under those heads enumerated in s 25. But his predecessor had thought, in the light of a decision then, that what was listed in s 25 were merely guides and were not exhaustive and that an award could be given in respect of a matter which did not fall under any of those heads. So the phrase was inserted to remove any conceivable doubt.

8 At this moment, and for a better appreciation of the issue, it may be expedient if I set out the heads enumerated under the present s 33(1):-

(a) the market value -

(i) (A) …(inapplicable) …;

(B) … (inapplicable) …;

(C) as at 1^st January 1995 in respect of land acquired on or after 27^th September 1995;

(ii) as at the date of the publication of the notification under section 3(1) if the notification is, within 6 months from the date of its publication, followed by a declaration under section 5 in respect of the same land or part thereof; or

(iii) as at the date of the publication of the declaration made under section 5, whichever is the lowest.

(b) any increase in the value of any other land of the person interested likely to accrue from the use to which the land acquired will be put;

(c) the damage, if any, sustained by the person interested at the time of the Collector’s taking possession of the land by reason of severing that land from his other land;

(d) the damage, if any, sustained by the person interested at the time of the Collector’s taking possession of the land by reason of the acquisition injuriously affecting his other property, whether movable or immovable, in any other manner;

(e) if, in consequence of the acquisition, he is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to that change; and

(f) if, in consequence of the acquisition, any reissue of title is necessary, the fees or costs relating to survey, issue and registration of title, stamp duty and such other costs or fees which may reasonably be incurred.

9 In relation to the present case, heads (b) to (f) are not pertinent. Only head (a), which relates to how the market value is to be determined, is relevant. Under this head, the lowest of the market values on three different dates, namely, 1 January 1995, (the acquisition being after 27 September 1995), the date of publication of s 3(1) notification (in this case there was no such s 3(1) notification) and the date of publication of s 5 declaration, shall be taken to be the market value. This head really sets the valuation date and has nothing to do with the increase or decrease in value which is due to the scheme underlying the acquisition. It is common ground between the parties that in this case the applicable date is the date on which the s 5 declaration was published, the market being lowest at that point. So the market value on that date is determinative. It is vitally important to note that the Pointe Gourde principle relates to the determination of the market value and it does not add a new head of claim. In my view, there is nothing in head (a) nor in heads (b) to (f), which necessarily suggests that the Pointe Gourde principle should be disregarded in determining the market value of the acquired land.

10 If it were correct to hold that by virtue of the phrase "and no others" in s 33(1), the negative Pointe Gourde principle is excluded, then it should also be wholly unnecessary to provide in s 34(e) that the Board shall not take into consideration "any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired", this being the positive principle of Pointe Gourde. Why is there a need to have s 34(e) when such a claim or argument would not have been possible? Indeed, the enactment of s 34(e), which really relates to the determination of the market value, is...