The Management Corporation Strata Title Plan No 2405 v Choo Kok Lin and Another

• Jurisdiction: Singapore
• Judge: Kathryn Low Lye Fong
• Judgment Date: 28 October 2004
• Neutral Citation: [2004] SGDC 264
• Published date: 08 November 2004
• Court: District Court (Singapore)
• Plaintiff Counsel: Mr Andrew Tan and Ms Anna Png (Andrew Tan Tiong Gee and Co)
• Defendant Counsel: Mr Davinder Singh SC and Mr Adrian Tan (Drew and Napier LLC)

28 October 2004

District Judge Low Lye Fong Kathryn

Background

1 The plaintiff is the Management Corporation Strata Title Plan No. 2405 (hereinafter referred to as the “MCST”) of the development known as Kentish Lodge at Oxford Road, constituted under s 33(1) of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (hereinafter referred to as “LT(S)A”). The defendants Choo Kok Lin and Wee Irene, are the registered proprietors of two units at 3 Oxford Road #01-04 and #01-05, Kentish Lodge. The design of these ground floor units included areas marked “terrace” and a landscape/air-well area. These uncovered areas, which are within the strata lots for the units, are known as private enclosed areas or “private enclosed space” (‘PES’). The temporary occupation permit (‘TOP’) for the development was issued sometime in August 1998. The plaintiff claimed that the defendants had installed unauthorized additions and alterations to their units without seeking the prior approval of the plaintiff since March 1999 as follows:

a) roof covering over the private enclosed areas;

b) external window panels installed at the private enclosed areas;

c) roof covering the landscape/air-well area; and

d) 2 air-conditioning (‘air-con’) compressors installed above the roof-cover at the landscape/air-well area and 2 air-con compressors installed on the wall above the external landscaped planter bed.

2 The plaintiff claimed that the defendants had caused the installation of roofs over the private enclosed areas and landscape/air-well areas without the knowledge of the developers, who were then managing the condominium. The developers had by their letter of 23 March 1999, cautioned the defendants from installing the unauthorized additions and alterations and also advised them to consult the Urban Redevelopment Authority (hereinafter referred to as the “URA”) and the Building Control Division, PWD (hereinafter referred to as the “BCD”) before proceeding. By a letter dated 21 May 1999, the developers served a notice on the defendants to remove the unauthorized addition and alteration works, but the defendants refused to remove them. The defendants again installed additional air-conditioners without the prior approval of the plaintiff sometime on 8 September 2000.

3 The plaintiff claimed that the defendants were in breach of URA’s regulations on “Erection of shed to cover over private enclosed space (PES) areas”. They claimed that as PES areas are not computed as part of the overall gross floor area (‘GFA’) of the development, the covering of open PES areas thus generated additional GFA. The covering of PES without planning permission is also an offence under s 3 of the Planning Act (Cap 232, 1988 Rev Ed). They further claimed that the covered PES had increased the defendants’ GFA by 54.16 sq m and the area was being used by the defendants as part of their living room since March 1999. The plaintiff further claimed that it would be impossible for any scaffolding or gondola to be constructed, in the event painting is required on the common walls.

4 The plaintiff claimed that the defendants were in breach of by-law 11in Part II of the First Schedule to the LT(S)A, as the roof of the covered PES took support from the common parapet wall and the windows were installed at the openings of the common parapet wall. The plaintiff claimed that the defendants were also in breach of by-laws 12 and 13 of the said schedule, in that the unauthorized additions and alterations had substantially and adversely affected the external facade of the condominium. They alleged that the installation of the roofs and new window frames with glass gave an appearance that was substantially different from the other lots. The plaintiff also claimed that the roof over the air-well was constructed such that there was no access to clear any litters that may fall upon the roof. It would also not be possible for any scaffolding or gondola to be constructed, in the event painting is required on the common walls. The noise and heat from the air-con compressors also disturbed the enjoyment of the other occupiers. The defendants have also erected 2 air-con compressors on the walls above the external landscaped planter bed, which are common property and maintained by the plaintiff.

5 The plaintiff gave the defendants notice of 21 days to remove the unauthorized additions and alterations on 2 July 2001. The plaintiff by their letter dated 20 December 2001 to the defendants, expressed no objections to the unauthorized additions and alterations, subject to the rules and regulations of the URA and advised the defendants to submit a formal application to the URA. The defendants made formal application to the plaintiff on 4 December 2002 and the plaintiff rejected their application on 12 December 2002. The plaintiff then requested the defendants to remove the unauthorized additions and alterations, which the defendants had failed to do so.

6 The plaintiff prayed for:

a) an order that the defendants remove the unauthorized structures, namely: the roof covering over the PES, the external window panels installed at the PES, the roof covering the landscape/air-well area, the 2 air-con compressors installed above the roof covering the landscape/air-well area and 2 air-con compressors installed above the external landscaped planter bed at the defendants’ premises at 3 Oxford Road #01-04 and#01-05 Kentish Lodge;

b) an order to indemnify them against any claims, development charges and/or losses owing to the breaches committed by the defendants in contravention of the Land Titles (Strata) Act and s 3 of the Planning Act;

c) damages for trespass; and

d) costs on an indemnity basis.

7 The defendants stated in their amended defence and counterclaim that they had installed a roof over the PES, external window panels, a roof over the landscape/air-well area and the air-con compressor with the full knowledge of the developers of the Kentish Lodge. They had explained to the developers that the structures had to be erected to prevent objects falling into the PES, risking injury to the defendants and their family. Among the objects that had fallen into the PES were a knife and a pot. They claimed that they were reasonably in fear of their life and limb whenever they used the PES and the developers were unable to offer them any solution to the problem. The developers had assisted them in the erection of the structures by advising them on the type of materials and design of the structures. They had knowingly permitted the defendants’ workers to enter the condominium and construct the structures by issuing passes to them for the purpose. At a meeting of the management council (‘MC’) of the plaintiff held on 1 November 2001, the plaintiff informed the defendants that they had no objections to the structures over the defendants’ PES, so long as there was no breach of building regulations. They further claimed that the plaintiff had failed to forward written confirmation that they had no objections and thereby caused unnecessary delay to the defendants in making their applications to the authorities for approval of the structures. The defendants did not receive such confirmation from the plaintiff until 19 July 2002, even though the plaintiff’s letter was dated 20 December 2001.

8 The defendants had engaged a qualified architect to help them make the necessary submissions to the authorities to regularize the structures. The necessary forms were submitted to the MC for the required endorsement before they were to be forwarded to the URA. However, the plaintiff rejected the application on 12 December 2002, without giving any reasons. They claimed that the plaintiff had, by their refusal to endorse the application, deliberately prevented them from obtaining the URA’s approval for the regularization of the structures and use of the PES. The defendants also claimed that the developers’ representative was present when they installed the additional air-con compressors to their PES on 8 September 2000 and did not object to the same. The defendants also claimed that their structures did not take support from the common parapet wall but from the walls within the PES and their contractor had taken pains to ensure that the structures had a colour scheme and look that matched with the façade of the condominium. The defendants admitted that 2 air-con compressors on the wall of the structures were located above an external landscape area but claimed that they did not cause any obstruction or nuisance in relation to the maintenance or enjoyment of the external landscape area.

9 The defendants claimed that the plaintiff’s refusal to endorse the defendants’ planning application was entirely contrary to the MC’s position as communicated to the defendants on 1 November 2001, and as stated in their letter dated 20 December 2001. They alleged that the rejection was motivated by considerations related to the personal animosity towards the defendants by the then Chairman and Vice-Chairman of the MC, as well as by the then site supervisor of the managing agents. The personal animosity had resulted in several actions filed in the Subordinate Courts.

10 The defendants claimed that the plaintiff, having exercised their discretion to approve the structures as evidenced in the approval letter, were not empowered to or entitled to rescind their approval. They were also estopped from denying that the structures were approved. They claimed further and in the alternative, the plaintiff’s refusal to abide by the position they had taken in the approval letter was an exercise of discretion made on improper grounds and in bad faith, including the personal animosity between the defendants and the Chairman and Vice-Chairman of the MC. Further, the plaintiff’s refusal to endorse the defendants’ application to the URA was unreasonable and was an improper and capricious exercise of the plaintiff’s powers and constituted a failure of...