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

• Jurisdiction: Singapore
• Judge: G P Selvam J
• Judgment Date: 06 August 1996
• Neutral Citation: [1996] SGHC 154
• Docket Number: Originating Summons No 687 of 1994
• Date: 06 August 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Alvin Yeo and Chris Wong (Wong Partnership)
• Citation: [1996] SGHC 154
• Defendant Counsel: Vangat Ramayah and Jerry Loo (Wee Ramayah & Partners)
• Court: High Court (Singapore)
• Subject Matter: Land,Natural right to support from adjacent and subjacent soil,Rights of support,Natural right of owner of higher land to let rain water flow naturally on to or into the adjacent lower land,Easements,Applicability of doctrine of lost modern grant in Singapore,Whether civil law doctrine of 'natural servitude' part of common law

Cur Adv Vult

The plaintiffs` property

The plaintiffs are owners of an asymmetrical parcel of property known as No 5 Oxley Rise, Singapore. The land area of the property is approximately 117,000 sq ft. The plaintiffs` property is the top part of a hillock. At the top of the property stands an imposing two-storey mansion. Entrance to the property is on its northern boundary. At the back of the mansion is an outhouse which is connected to the mansion by a covered passage. In addition, there are two roofed structures. One of them is near to the defendants` property and I shall call this `the shed`. The surface of land between the mansion and the defendants` property is an uneven slope with significant gradient and I shall refer to this as `the slope`. The area of the slope approximates one third of the entire area of the plaintiffs` property.

The defendants` property

The defendants own the property called Nos 35 and 41 Oxley Road, Singapore. The defendants` property is contiguous and approximately to the west of the plaintiffs` property. It is roughly rectangular. The defendants` property is at a level below the plaintiffs` property. In the natural state of the properties, rain falling on the slope must by the law of nature flow down from the plaintiffs` property on to the defendants` property. Furthermore, in its natural state the defendants` land-mass would have provided support to the plaintiffs` property. The defendants` property, however, is not in its natural state. It has been excavated and there are two houses built on it. The entrance to the property is from Oxley Road. Between the two houses is a garage facing the entrance to the property. The surface between Oxley Road and the garage is paved and slopes towards the road. One of the long boundaries of the defendants` property abuts Oxley Road. The other long boundary abuts the plaintiffs` property. There is a retaining wall of varying length approximately along the common boundary of the properties. The topography of the slope in the plaintiffs` property is such that near the middle of the common boundary, the plaintiffs` land is depressed with the result that rain falling at the ends of the boundary will flow toward the middle. In the fit of things, therefore, the plaintiffs` property is the dominant tenement and the defendants` the servient tenement.

Rain on plaintiffs` property

The properties, as they are now, are residential properties. After I made an inspection of the site it became obvious to me that in order to build the residential units on the defendants` property much earth had to be removed from that property. This created a cliff which is supported by a retaining wall. Without the retaining wall the defendant would not only risk a landslide but also live with an unsightly muddy mess on a rainy day. The retaining wall not only provides protection to the defendants but also affords lateral support to the plaintiffs` property. There are weep-holes in the retaining wall which ease the lateral water pressure on the retaining wall. There are two perimeter drains in the defendants` property providing drainage for the water from the weep-holes. They meet next to the garage with the result that the water will flow into Oxley Road at entrance to the property.

Rain water that falls on the mansion and the outhouse and their vicinity and the open surface on the eastern side of the mansion is drained out to the eastern side into the neighbour`s property. At all events no part of it flows towards the defendants` property or the slope. Accordingly, the defendants` property is not in the least affected by such water. The water that falls on the shed and its immediate vicinity is carried away by a drain which runs towards the defendant`s property and ends at a sump next to the retaining wall somewhere in the middle of the common boundary. There is a perimeter drain on the plaintiffs` property from the far end of the common boundary leading to the sump. Thus the two drains meet at the sump. Rain water flowing through the two drains into the sump is predominantly from the roof of the shed that stands at the top of the slope. Very little rain water would be collected by the perimeter drain in the plaintiffs` property. The shed is very small compared to the total area of the mansion and the outhouse.

The defendants say that all the rain water that falls on the plaintiffs` property flows into their property via the sump. This is an inept allegation for two reasons. First, most of the water that reaches the sump is from the roof of the shed and the short perimeter drain in the plaintiffs` property. If the shed had not been there the rain that falls on the ground where the shed stands would naturally flow towards the defendants` property. Part of the drain from the shed to the sump is underground. Only about one-third of the rain water that falls on the plaintiffs` property, that is the area of the slope, will run towards the defendants` property. Very little, if any, of the water that falls on the slope will find its way into the drains and the sump. Most of it will run down the slope and percolate through the slope. What happens to the water that percolates can only be a matter of conjecture. Part of it, however, will accumulate next to the retaining wall and exert pressure unless it can escape into the defendants` property through the weep-holes.

Overflow for water into the defendants` property

It was clear to me that the sump was intended to be an outlet for the water from the plaintiffs` property into the defendants` property. This sump is directly above the meeting point of the perimeter drains on the defendants` property that run along the retaining wall. It was clear to me that it was intended that the water from the plaintiffs` property collected in the sump and the water from the weep-holes would unite and flow towards on to Oxley Road. There is, however, no opening at the bottom of the sump. The water in sump, therefore, instead of underflowing at the bottom of the retaining wall, overflows on to the defendants` property. The defendants appeared to have accepted the overflow as they have not done anything to stop it. It was stated for the plaintiffs that there was in fact an outlet from the sump into the defendants` property at the bottom of the retaining wall at the point of the confluence of the perimeter drains in the defendants` property. While they dispute that there was an outlet at the bottom of the retaining wall, the defendants did not deny that there was a heavy overflow of rain water from the sump on to their property during a downpour.

The overflow is not the only problem the defendants encounter. A more serious problem is that the weep-holes do not provide sufficient outlet for the escape of all the rain water that falls on the substantial area of the slope and percolates through the soil. As the egress of such water through the weep-holes is limited, substantial lateral water pressure built and exerted on the retaining wall. In fact part of the retaining wall collapsed and there was a landslide or subsidence in the plaintiffs` property adjacent to where the retaining wall failed. This occurred in 1992. Following that incident the Building Control Division (BCD) said that there was a danger and required both parties to do the following :

(i) to immediately protect the slope from further erosion;

(ii) to engage a professional engineer (civil/structural) to inspect the conditions of the collapsed retaining walls and slope;

(iii) to submit the professional engineer`s inspection report and his recommendations on the remedial measures to be taken within four weeks from the date of the order;

(iv) to submit buildings/structural plans to the Building Authority for approval within three weeks after his recommendation had been accepted by the Building Authority;

(v) to execute such rectification works as recommended by the professional engineer within six weeks after his proposals had been approved by the Building Authority; and

(vi) to submit the professional engineer`s certification that the rectification works had been carried out under his supervision and that the slope was rendered stable upon completion of the rectification works.

The plaintiffs took immediate steps to comply with the BCD`s notice by submitting plans which were approved by the BCD. The plaintiffs` plans entailed the reconstruction of the drains that ended at a sump with an outlet into the defendants` property. Without such drains and an outlet, the rain water by the nature of things must flow on the defendants` property if not prevented by the retaining wall. As the weep-holes drain all the rain water that percolates through the soil there will be lateral water pressure on the retaining walls with potential danger of the collapse of the retaining wall - the precise danger envisaged by the BCD.

Plaintiffs` application

The plaintiffs approached the defendants for permission to enter the property to lay the drainage connection. The defendants flatly objected to the plaintiffs` plan and remedial measures. The defendants would not admit the flow of any rain water from the plaintiffs` property into the defendants`. The BCD declined to intervene in the dispute and took the view that draining connection was a private matter between the plaintiffs and the defendants. The plaintiffs therefore were unable to comply with the BCD`s notice and a charge was proferred against them.

The plaintiffs, in these circumstances, have taken out this originating summons seeking the following reliefs :

(1) a declaration that the plaintiffs are entitled to a right appurtenant to the property at Lot 164 Town Sub-division 20 known as No 5 Oxley Rise, Singapore 0923 (hereinafter referred to as the `estate`s property`) for an interest equivalent to a freehold estate and/or easement and/or perpetual licence to drain and/or discharge surface water from the estate`s...