High Court · Decided 27 November 2013

Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority

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[2013] SGHC 262Case no. Originating Summons No 457 of 2013

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Tay Yong Kwang J:
[1] This case concerns the judicial review of the Singapore Land Authority’s (“the SLA”) assessment of the differential premium (“DP”) payable for the lifting of title restrictions for two particular plots of land. The applicant alleges that the assessment of the DP was done without reference to the Development Charge Table of Rates (“the DC Table”) published by the Urban Redevelopment Authority (“the URA”). The applicant thus seeks a quashing order against the assessed DP and a mandatory order to direct the SLA to assess the DP in accordance with the DC Table. The Attorney-General, a non-party to the action, also made submissions during the hearing before me.
The facts leading to the application
[2] The applicant is a company in the business of property development. It is currently the lessee of adjoining plots of land identified as Lot Nos 1338M TS 17 (“Lot 1338M”) and 2818V TS 17 (“Lot 2818V”) (collectively referred to as “the Land”).
[3] The applicant acquired Lots 1338M and 2818V on 15 January 2010 and 25 March 2010 respectively through competitive tenders for the purpose of redevelopment. The SLA’s consent for the sale of both lots was needed and this was duly obtained.
[4] The lease documents for both lots contained two references to the payment of a differential premium. The first, which will henceforth be referred to as the DP Clause, states thus:
The second clause, henceforth referred to as the Land Return Clause, reads:
[5] Generally, state land is sold at a price based on the proposed use and intensity at the time of sale. State leases usually specify, as a condition in the lease, the permissible use of the land under the lease and the maximum gross floor area for the said permissible use. This ensures that the land is used in line with prevailing land policy, as evinced in the Master Plan (which is the statutory land use plan guiding Singapore’s development in the medium term over the next 10 to 15 years). The Master Plan shows the permissible land use and intensity for developments in Singapore. Each parcel of land is zoned for different categories of land use, which include commercial, residential and industrial use. Thus, state leases generally include a DP clause which stipulates that a DP shall be payable if there is a change in the use or an increase in the intensity of use beyond the permissible amount.
[6] The SLA published two circulars and maintained a website to provide the public with information on how the payable DP is computed. The material portions of the first circular, which was published sometime in 2000 (“the 2000 SLA Circular”), stated (with “PP” meaning Provisional Planning Permission):
[7] The second circular, published sometime in 2007 (“the 2007 SLA Circular”), is substantially similar to the 2000 SLA Circular:
[8] The material portions of the SLA website (as assessed on 20 January 2011) are reproduced below:
[9] The SLA website had a section entitled “Terms of Use”. Two clauses are relevant to this application:
[10] The first affidavit of Thong Wai Lin, the Director of the Land Sales and Acquisition Division of the SLA, explains (at [27], [86] and [87]) how the Table of Development Charge rates are determined. The DC Table is split across different categories of land use and different geographical sector areas in Singapore. There is a specific rate for each category of land use in each particular sector area. The rates are revised half-yearly in March and September. The rates are not spot valuations but are based on past transactional prices of a preceding six-month period and on the average of such prices in a particular sector area. As the DC Table is a snapshot of rates determined in advance, the DC Table does not necessarily reflect the actual prevailing value of land. In a rising market, the DC Table’s rates would be lower than spot valuations. In contrast, a spot valuation assesses the actual value of a piece of land at the time of assessment. A plot of land located in a more desirable location may have a much higher value than another plot of land in the same sector. The Chief Valuer takes into account various factors, including transactions involving similar developments (corrected for differences in time), the natural attributes of the land, its shape, and its accessibility.
[11] On or about 25 January 2010 (shortly after the applicant had acquired Lot 1338M), the applicant filed an application with the URA for the requisite planning permission for redevelopment. Provisional permission was granted on 2 July 2010. The applicant then submitted revised plans to comply with the requirements of the provisional permission. Planning permission was granted by the URA on 14 January 2011.
[12] On or about 25 January 2011, the applicant submitted an application to the SLA for the lifting of title restrictions on the Land for the purposes of redevelopment. On or about 21 February 2011, the applicant’s solicitors, Legal21 LLC, wrote to the SLA to seek the SLA’s written consent to sell units in the proposed redevelopment to individual purchasers and to align the lease tenures of Lots 1338M and 2818V (which had 67 and 64 years remaining respectively). By way of an email dated 4 March 2011, the SLA informed Legal21 LLC that “[a]pplications for consent for sale typically take approximately 4 weeks from the date of receipt to process” but that the SLA was “happy to expedite the case” and hoped to give a definite response by 9 March 2011.
[13] On 15 March 2011, the SLA sent an email to the applicants stating that the alignment of the tenures of both Lots 1338M and 2818V would involve a downgrading of the tenure of Lot 1338M which required a surrender and re-issue of the lease for the said lot. The email also stated that the SLA would process the application for the lifting of title restrictions upon approval for the downgrading of tenure; this would ensure that the calculation of the DP payable took into account the aligned tenure.
[14] The applicant made numerous telephone calls and sent many emails between March and November 2011 to rush the SLA into making a decision. In the meantime, the applicant obtained the requisite construction permit on 8 April 2011 and started construction work despite the lack of response. Finally, on 29 November 2011, the SLA wrote a letter to Legal21 LLC. The contents of this letter are set out below:
[15] The applicant accordingly applied for, and obtained on 4 January 2012, the URA’s permission for the requisite sub-division of Lot 2818V. This was forwarded to the SLA. On 13 January 2012, the SLA wrote to the applicant stating that it was prepared to recommend the surrender of the existing title to Lot 1338M and re-issue a fresh title to align the tenures of Lots 1338M and 2818V. The applicant accepted this offer on 8 February 2012. On 16 August 2012, the SLA informed the applicant that the surrender and the re-issue were approved. To that end, the SLA wrote to the applicant on 14 September 2012, attaching the re-issued lease for execution. The applicant duly executed the re-issued lease on 24 September 2012.
[16] On 20 February 2013, the SLA wrote to the applicant stating that it was prepared to lift the title restriction upon payment of $44,067,828.23. The breakdown of this sum is as follows:
(a) DP in respect of Lot 1338M $33,523,349.00
(b) GST on DP in respect of Lot 1338M $2,346,634.43
(c) DP in respect of Lot 2818V $7,660,640.00
(d) GST on DP in respect of Lot 2818V $536,244.80
(e) Processing fee for Lot 1338M $80.00
(f) Processing fee for Lot 2818V $880.00
(g) Total $44,067,828.23
[17] On 6 March 2013, the applicant wrote to the SLA seeking clarification on how the DPs payable were calculated. In its reply dated 13 March 2013, the SLA stated that the DPs were “assessed by the Chief Valuer based on 100% enhancement in land value for the lifting of title restrictions.” Legal21 LLC, in a letter to the SLA dated 2 April 2013, wrote:
[18] The SLA sent a letter on 3 April 2013, stating that the material date for the determination of the DP was 2 July 2010 (i.e., the date of provisional permission). More importantly, the SLA also stated that:
[19] On 9 April 2013, Legal21 LLC wrote a further letter to the SLA:
[20] The SLA replied to Legal21 LLC by way of a letter dated 11 April 2013 stating:
[21] In response, Legal21 LLC wrote to the SLA on 24 April 2013, seeking the following particulars:
(a) Full details of the policy pertaining to the DP chargeable for directly alienated land (“the Policy”), including its rationale, when it was first established and applied and when the Policy will be applied and against whom;
(b) Whether the Policy applied to all lessees of directly alienated properties (including subsequent lessees);
(c) Details of whether the Policy had been established by the SLA, and details of where a copy of the Policy may be obtained; and
(d) Confirmation that the Policy had not been published by the SLA, if this was indeed the case.
[22] As an aside, the Policy was applied to the proposed redevelopment by CapitaLand of Market Street Car Park. This was widely reported in the Straits Times and the Business Times. In particular, in a news release dated 3 January 2008, it was stated:
[23] On 30 April 2013, Legal21 LLC wrote to the SLA stating that the applicant wished to appeal against the assessed DP on a without prejudice basis and enclosed a cheque for the $5,000 appeal fee. Legal21 LLC also stated:
[24] For the purposes of the appeal, the SLA met with the applicant on 8 May 2013. The SLA explained to the applicant the mechanism behind the computation of the DP (i.e., 100% of the enhancement in value of the land as assessed by the Chief Valuer in a spot valuation). A further meeting was held on 15 May 2013, where representatives of the applicant, SLA and the Chief Valuer’s Office (“CVO”) were present. The applicant brought valuers from Colliers International (Singapore) Pte Ltd (“Colliers”) along to the meeting. The CVO explained to Colliers that the CVO had adopted the comparison method, which involves using comparables with similar land use, for the spot valuation used to determine the DP payable. The applicant allegedly agreed at the meeting to submit a valuation report for CVO’s consideration. This originating summons was filed on 17 May 2013. In a letter dated 6 July 2013 (i.e., after this Originating Summons was filed) from Legal21 LLC to Allen & Gledhill (the SLA’s solicitors), the applicants denied that they had agreed to furnish the CVO with an alternative valuation report. The applicant has since withdrawn from the appeal process.
[25] At a pre-trial conference on 5 June 2013, the Attorney-General applied to be given the right to be heard at the substantive hearing before me. That was granted by the Assistant Registrar. At another pre-trial conference on 12 July 2013 before me, the parties agreed to address both the issue of leave and the substantive hearing in a consolidated hearing because of the urgency of the matter. Accordingly this judgment will deal with both the application for leave for judicial review and the merits of the case.
Leave and other preliminary issues
[26] An applicant seeking judicial review must meet three conditions for leave to be granted (Jeyaretnam Kenneth Andrew v Attorney-General [2013] 1 SLR 619 at [5] and affirmed by the Court of Appeal ([2013] SGCA 56 at [5])):
(a) The subject matter must be susceptible to judicial review;
(b) The applicant has sufficient interest (i.e., locus standi) in the matter;
(c) The material before the court discloses an arguable or prima facie case of reasonable suspicion in favour of granting the remedies sought by the applicant.
[27] The parties agreed that the subject matter was susceptible to judicial review and that the applicant had sufficient interest in the matter to apply for judicial review. Accordingly the only issue before me with regard to leave is whether the applicant could make out an arguable or prima facie case of reasonable suspicion. As the parties had agreed to consolidate the application for leave with the substantive application, the applicant’s case would therefore be decided on its merits.
[28] There are however two preliminary issues which have to be decided before the substantive issues can be addressed. The first issue pertains to whether the application for leave is out of time due to the operation of O 53 r 1(6) of the Rules of Court (Cap 322 R 5 2006 Rev Ed). The second relates to whether the applicant had exhausted all alternative remedies before seeking judicial review.
Was the application for leave out of time?
[29] O 53 r 1(6) of the Rules of Court reads:
[30] The applicant took the position that the SLA made its decision on 20 February 2013 as that was when the SLA informed the applicant of the amount of DP payable (see [16] above). It was only then that the applicant became aware of the SLA’s decision to assess the DP payable without reference to the DC Table. As the application for leave to apply for judicial review was filed on 17 May 2013, the application was made within the time prescribed by O 53 r 1(6) of the Rules of Court.
[31] The SLA argued that the effective date of the SLA’s decision was 29 November 2011 (see [14] above). That was the date the SLA first conveyed to the applicant that the DP levied in its case would be “equal to 100% of the enhancement in land value as assessed by the Chief Valuer” and not based on the DC Table rates. The application was therefore way out of time.
[32] The Attorney-General did not make any submissions on whether the application was out of time.
[33] The applicant made several arguments in support of its contention that the SLA decision was made on 20 February 2013:
(a) DP is assessed and imposed only after the SLA has made a decision to allow the lifting of title restrictions. As SLA only decided to lift title restrictions on 20 February 2013, the decision pertaining to the assessment of the DP could only have been made on or after 20 February 2013;
(b) The 29 November 2011 letter was wholly unclear and could not reasonably be construed to be a decision on the assessment of DP payable. The SLA stated that the application for lifting of title restrictions would be processed only after approval for subdivision for the lot now known as Lot 2818V. The DP payable would be assessed by the SLA only in the course of processing the application for lifting of title restrictions. The applicant also made several calls to the SLA to enquire about the amount of DP payable but received no response until 20 February 2013;
(c) The 29 November 2011 letter, while referring to DP being payable at 100% of the land enhancement value, did not indicate to the applicant that the SLA had decided to assess DP without reference to the DC Table. The applicant had understood the letter to mean that the DC Table would be adopted but that DP would be assessed at 100% of the applicable DC Table. This was buttressed by the 2007 SLA Circular in which the SLA wrote that it would “apply a factor of 5/7 to the new revised Table of DC Rates” with regard to remnant State land (see [7] above). The applicant reasonably expected that “100% land enhancement value” would be calculated in a similar way; and
(d) In a letter from the SLA to Legal21 LLC dated 30 April 2013, the SLA themselves wrote that “[i]n view of your appeal, we are pleased to grant to your client a further extension of time to accept the offer dated 20 Feb 13”.
[34] The SLA submitted that its decision was made on 29 November 2011. The method of DP assessment stated in the 29 November 2011 letter was not contingent on the sub-division of the lot now known as Lot 2818V. The only thing pending was the quantum of DP payable. It was clear that the letter informed the applicant of the SLA’s final decision on the methodology for assessing the DP payable.
[35] O 53 r 1(6) also allows a court to grant an extension of time where “the delay is accounted for to the satisfaction of the Judge” (see also UDL Marine (Singapore) Pte Ltd v Jurong Town Corp [2011] 3 SLR 94 at [49] and Teng Fuh Holdings Pte Ltd v Collector of Land Revenue [2007] 2 SLR(R) 568 at [18]). The applicant submitted that the circumstances justified the grant of an extension of time. The applicant at all material times believed that the SLA would assess the DP payable in accordance with the DC Table and only found out that the SLA would not be doing so on 20 February 2013. The SLA submitted that an extension of time should not be granted. The delay of more than 17 months was inordinately long. Further, as an established and experienced developer, the applicant should have understood the significance of the words “equal to 100% of the enhancement in land value as assessed by the Chief Valuer” to mean that the DC Table would not be used. Lastly, the applicant had proceeded with the redevelopment and had already received substantial payments from individual purchasers. It would therefore be unfair to the SLA for the applicant to take advantage of this and further delay the payment of the DP.
[36] I agree with the applicant. Time only started to run from 20 February 2013 and not 29 November 2011. The SLA’s decision was a multiple-step decision process. As a practical matter, the nub of the applicant’s complaint was not just the method that was used to compute the DP payable but also the outcome of that method. The applicant would have had no grievance if the outcome of the Chief Valuer’s assessment of the DP was similar to the DP payable under the DC Table. The 29 November 2011 letter did not specify the amount of money that was payable. The applicant therefore did not have the full picture before it and would not have been in a position to determine if an application for judicial review should be made (indeed, an application at that early stage would have been premature). This is strengthened by the SLA letter dated 30 April 2013 (see [33(d)] above) in which the SLA said that the offer to lift the title restrictions upon payment of the DP would run from 20 February 2013.
[37] If I am wrong on this point and time started running from 29 November 2011, I would hold that the delay in filing this originating summons is justified for the same reasons articulated in [36]. It would have been reasonable for the applicant in the circumstances of this case to have misapprehended which event was the final decision to challenge. In any case, O 53 r 1(6) of the Rules of Court only applies to quashing orders and not to mandatory orders. The applicant has sought both a quashing order against the SLA’s decision and a mandatory order requiring the SLA to assess the DP in accordance with the DC Table. O 53 r 1(6) would only operate against the former and not the latter.
[38] I therefore hold that the application for judicial review is not time-barred under O 53 r 1(6) of the Rules of Court.
Did the applicant exhaust all possible alternative remedies?
[39] As a general rule, a person seeking judicial review of a decision by a public body must exhaust all alternative remedies before invoking the courts’ jurisdiction in judicial review (Borissik Svetlana v Urban Redevelopment Authority [2009] 4 SLR(R) 92 at [25]). The applicant submitted that it was not caught by this general rule because the prescribed appeal process presupposes a developer which is not satisfied with a DP payable based on the DC Table (see [8] above). As the DP payable in this case was not based on the DC Table, the appeal process is inapplicable to the applicant. The SLA submitted that the crux of the inquiry is whether the alternative remedy is “equally effective and convenient” (citing Regina v Hillingdon London Borough Council, Ex parte Royco Homes Ltd [1974] QB 720 at 728) and the administrative appeal in this case was expedient and hassle-free and effective in that the SLA and the Chief Valuer would be prepared to hear and consider any alternative valuation that a developer puts forward.
[40] The appeal process contemplates an aggrieved developer who, disagreeing with the DP based on the DC Table, initiates an appeal process culminating in the SLA consulting the Chief Valuer for a spot valuation. The appeal process is not an alternative remedy for two reasons. First, as the applicant has pointed out, the DP payable in its case was not based on the DC Table and accordingly, the appeal process does not apply to the applicant. Second, and more fundamentally, the appeal process necessarily involves a spot valuation done by the Chief Valuer. This is precisely the outcome that the applicant seeks to impugn as the applicant argues that the DC Table should apply. There is simply no room in the prescribed process for the DP to be assessed based on DC Table rates. The foregoing also accords with Regina v Secretary of State for the Home Department, Ex parte Swati [1986] 1 WLR 477 at 485, where Sir John Donaldson MR held that the general rule does not apply where “the applicant can distinguish his case from the type of case for which the appeal procedure was provided.”
[41] I therefore hold that the applicant did not fail to comply with the general rule to exhaust all alternative remedies before invoking the courts’ jurisdiction in judicial review. There were no alternative remedies for the applicant to seek.
The substantive application for judicial review
Weight to be ascribed to Gaw Seng Suan’s affidavit
[42] The SLA disputed the admissibility of, and the weight to be ascribed to, an affidavit filed by a Gaw Seng Suan (“Gaw”), an ex-employee of the SLA. The applicant had requested Gaw to provide an expert opinion on the issue of whether the Land Return Clause in the leases for both lots (see [4] above) would have indicated to a reasonable property developer looking to purchase the Land that the DP payable for a change in use of the Land would be assessed at 100% of land enhancement value as assessed by the Chief Valuer through a spot valuation. Gaw opined that a reasonable developer in the applicant’s shoes would expect the DP payable to be assessed on the basis of the DC Table and that it was not market knowledge that the presence of a Land Return Clause in a lease would lead to a higher DP or the DP being assessed on a different basis.
[43] The SLA argued that Gaw’s expert evidence is inadmissible. The issue at stake is not a question of expert opinion because it does not pertain to any point of scientific, technical or other specialised knowledge. Mr Gaw was never a property developer. In any case, Gaw’s responsibilities at the SLA pertained to records management and administrative work. Gaw was not involved in any work relating to the DP Clause and/or the Land Return Clause or the policy of charging DP equal to 100% of the enhancement of land value as assessed by the Chief Valuer. Thus, Gaw had no basis to hold himself out as an expert nor did he have any particular insight into the issue.
[44] In response, the applicant pointed out that it was not disputed that Gaw had worked on the change in DP policy (i.e., from spot valuations for all cases to the DC Table-based system) which eventually resulted in the issue of the 2000 SLA Circular. Gaw also had significant experience providing specialist advice on land matters to private sector clients, including issues relating to the lifting of title restrictions and DP assessments. The fact that Gaw was not a property developer is not a reason to disregard his evidence. Further, s 47 of the Evidence Act (Cap 97, 1997 Rev Ed) states that expert evidence is admissible if the court is “likely to derive assistance from an opinion upon a point of scientific, technical or other specialised knowledge” and it was introduced in 2012 to broaden the categories of admissible expert evidence and to allow the Court to have the benefit of any expert opinion that may be useful and is in the interests of justice (citing the second reading of the Evidence (Amendment) Bill as reported in Singapore Parliamentary Debates, Official Report (14 February 2012) vol 88).
[45] The Attorney-General submitted that the question posed to Gaw — that is, whether the Land Return Clause would have put a reasonable property developer on notice — is a question for the court’s determination and not for expert opinion. As the Court of Appeal held in Pacific Recreation Pte Ltd v S Y Technology Inc and another appeal [2008] 2 SLR(R) 491 at [85] (in turn citing The H156 [1999] 2 SLR(R) 419 at [27]), an expert may not usurp the function of the court and present his finding. In other words, an expert may not answer the very question that is before the court (in this regard, see also Chen Siyuan, “Expert Evidence and the Ultimate Issue Rule” (2011) Research Collection School of Law, Paper 21 (<http://ink.library.smu.edu.sg/sol_research_smu/21>, accessed on 22 October 2013). Further, there was no explanation as to how Gaw’s experience equipped him to provide an opinion.
[46] In my view, Gaw’s evidence was admissible pursuant to s 47 of the Evidence Act. However, his evidence was of limited weight. The issue is not just about actual knowledge — the enquiry also touches on constructive knowledge (i.e., what a reasonable property developer would have known had he made the requisite enquiries, as shall be discussed below at [122] to [127]). Gaw was not a property developer and his opinion with regard to whether a reasonable property developer would have known that the Land Return Clause meant that the DP payable would be based on a spot valuation by the Chief Valuer at 100% of the enhancement value would be premised on, at best, second-hand knowledge based on his dealings with private sector developers. His second-hand knowledge would not be persuasive.
The arguments
[47] The applicant’s various arguments can essentially be divided into two strands: first, the SLA’s decision to assess DP via a spot valuation was irrational and unreasonable because no public authority would act so inconsistently, especially in the light of the unequivocal representations made. Second, the SLA’s decision deprived the applicant of its legitimate expectation of the DP being assessed in accordance with the DC Table.
[48] The SLA argued, firstly, that its decision was not irrational and unreasonable because the SLA has statutory duties and functions to discharge; in particular, the public interest in ensuring that the State realises the full value of State land. Secondly, the doctrine of substantive legitimate expectation has yet to be accepted as part of Singapore law. Even if it is part of the law, the applicant could not have had the legitimate expectation that the DP would be assessed in accordance with the DC Table. Even if the applicant had such a legitimate expectation, the disappointment of that expectation in this case was justified.
[49] The Attorney-General averred that the policy of assessing DP via a spot valuation cannot be impugned in court because this would be tantamount to a “merits review”. Moreover, the application of the policy to the applicant was not unreasonable because it was done after due deliberation with all stakeholders. The Attorney-General also argued that the doctrine of substantive legitimate expectation should not be adopted in Singapore. In any event, no substantive legitimate expectation could be said to have arisen on the facts. At most, any legitimate expectation would have pertained to procedure and this had already been given effect to.
The issues
[50] Accordingly two main issues arose for consideration in this case:
(a) Was the SLA’s decision to assess the DP through a spot valuation instead of abiding by the DC Table irrational and/or unreasonable?
(b) Should the doctrine of substantive legitimate expectation be recognised in Singapore law? If so, can the applicant avail itself of this doctrine?
Was the SLA’s decision to assess DP via a spot valuation irrational and/or unreasonable?
[51] The applicant’s first argument is that the SLA’s decision to assess the DP by means of a spot valuation was irrational and/or unreasonable. The assessment, it submitted, ought to have been in accordance with the DC Table.
[52] In Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”). Lord Greene MR, speaking for a unanimous Court of Appeal, held (at 229) that:
[53] In the House of Lords decision of Council of Civil Service Unions and others v Minister of the Civil Service [1985] 1 AC 374 (“the GCHQ case”), Lord Diplock equated Wednesbury unreasonableness with irrationality (at 410):
Lord Diplock’s comments were adopted in Singapore law by the Court of Appeal case of Chng Suan Tze v Minister for Home Affairs and others and other appeals [1988] 2 SLR(R) 525 (“Chng Suan Tze”) at [119].
[54] Both the SLA and the Attorney-General contended that Wednesbury unreasonableness is a high standard that is difficult to meet. The SLA cited the Court of Appeal case of Manjit Singh s/o Kirpal Singh and another v Attorney-General [2013] SGCA 45 at [7] where it was stated that “[t]he Wednesbury test sets a high bar”. The Attorney-General relied on Chee Siok Chin and others v Minister for Home Affairs and another [2006] 1 SLR(R) 582 where V K Rajah J (as he then was) (at [125]) held that the standard of unreasonableness “is from a jurisprudential perspective, pragmatically fixed at a very high level”.
[55] Before the analysis can proceed any further, it is useful to characterise the act that the applicant is seeking to impugn as being unreasonable.
[56] The SLA, in its first affidavit filed by Thong Wai Lin, Director of the Land Sales and Acquisition Division of the SLA, averred (at [36]) that:
The SLA thus characterised its decision as one that was made pursuant to an existing policy and not as a result of a change in policy. The SLA thus did not depart from the DC Table (a method that was spelt out in the SLA circulars and the SLA website, see [6] – [8] above). The Attorney-General essentially agreed with the respondent and pointed out that there were two operative policies: one concerning State leases without a Land Return Clause where the DP payable is calculated according to the DC Table and another concerning State leases with a Land Return Clause where, assuming that the Government chooses not to exercise its right to require the return of the land, the DP is charged based on 100% of the enhancement in land value as assessed by the Chief Valuer in a spot valuation. The applicant did not indicate clearly which characterisation it was relying on, presumably because its arguments would remain the same either way.
[57] At the outset, I would like to point out that there is an immense difference between, on the one hand, the implementation of a second extant policy (which was not discernible from the public statements put out by the SLA), and on the other hand, a change in policy (with there being only one policy applicable to start with) or a decision not to apply a policy to a particular case. In the former, the policy was already in operation at the time of the act in issue. In the latter, the change of policy or decision not to apply the policy is contemporaneous with the act in issue. The legal analysis that flows from each characterisation is markedly and necessarily different. This court’s analysis shall be premised on the former (see also [68] – [71] below).
[58] The applicant submitted that the plain wording of the SLA Circulars and the SLA website is clear, unambiguous and affirmative: the DP would be assessed by reference to the DC Table. No other policy or method for assessing DP is specified in the aforementioned sources or in any other publicly available document. The 2000 SLA Circular (see [6] above) explicitly states that the specified method for assessing DP is “a transparent system” which “provide[s] greater certainty to landowners who will now be able to compute the DP payable themselves.” The SLA Circulars and the SLA website are exhaustive and they only specify two exceptions: where the use stipulated in the title restriction does not fit into any of the use groups in the DC Table and where the lease tenure is upgraded. None of these exceptions applies here.
[59] The applicant argued that the SLA had acted unreasonably in the Wednesbury sense because a legitimate expectation arose that the “SLA will behave as it says it will”. This conflates the doctrine of substantive legitimate expectation with Wednesbury unreasonableness. The issue of whether substantive legitimate expectation is part of Singapore law and if so, whether it is a stand-alone head of judicial review or is in truth a subset of Wednesbury unreasonableness will be discussed subsequently (see [117] below).
[60] The essence of the applicant’s arguments was that it was unreasonable for the SLA not to adhere to its public promulgations. The applicant proceeded to point out that the existing policy of charging a DP based on 100% enhancement in value as assessed by the Chief Valuer in a spot valuation (see [56] above) is inconsistent with an earlier statement by the then Minister for National Development Mah Bow Tan (Singapore Parliamentary Debates, Official Report (19 July 2010) vol 87, at col 815):
In a similar vein, the 2000 SLA Circular (see [6] above) states that:
[61] Further, on its plain terms, the Land Return Clause only requires the lessee to inform the SLA if any part of the land is not being used for the purpose specified in the lease. When the applicant made its application for the lifting of title restrictions, the whole of the land was being used for the specified purposes. Thus the question of the State giving up its right to take back the land does not even arise and it would be wrong to assess the DP on the basis of compensating the state for giving up such a right. Additionally, the SLA has not been able to provide any explanation as to why the policy should apply to subsequent bona fide purchasers of directly alienated lands, where the subsequent purchaser obtained the land through a competitive tender process and derived no benefit from the earlier direct alienation. The subsequent purchaser would also have no way of finding out that the land was directly alienated to the former owner.
[62] The SLA averred that it was not unreasonable for the DP to be assessed by a spot valuation at 100% value. It was in the interests of the public for the State to realise the full value of any land that it disposes of. Where directly alienated land is concerned, the State is in fact forfeiting its legal right to take back the land (pursuant to the Land Return Clause) and the chance to re-sell the land at a higher price in a competitive tender. The State must ensure that it obtains a DP that fully and accurately reflects the enhancement in value that the state is foregoing. Indeed, the SLA was merely discharging its statutory duties and functions. Section 6(1)(a) of the Singapore Land Authority Act (Cap 301, 2002 Rev Ed) (“the SLA Act”) states that it shall be the function and duty of the SLA “to optimise land resources”. This necessarily entails a duty on SLA’s part to obtain the full enhancement on land value where directly-alienated state lands are concerned.
[63] The Attorney-General argued that the reasonableness (or otherwise) of the policy to assess DP by a spot valuation at full value is a “polycentric” matter which is not suited to a “merits review” by the court. In assessing the DP, the SLA acts as the agent of the Government (s 6(1)(e)(iv) of the SLA Act). In carrying out this function, the SLA is involved in “polycentric” decision making; s 6(2) of the SLA Act stipulates:
[64] It is well-established that the courts will be slow to review such “polycentric” matters. In Lee Hsien Loong v Review Publishing Co Ltd and another and another suit [2007] 2 SLR(R) 453 (“Lee Hsien Loong”), Sundaresh Menon JC (as he then was) held (at [96] and [98]) that:
[65] The Attorney-General also cited Lord Woolf, et al, De Smith’s Judicial Review (Sweet & Maxwell, 7th Ed, 2013) at paras [1-042] and [1-043]:
[66] It was submitted that the formulation of the policy to assess the DP by a spot valuation was clearly a polycentric decision that was taken only after due deliberation and consultation with other relevant agencies and stakeholders on whether to exercise the right to take back the land. This policy is inextricably intertwined with the State’s macro-policy considerations of what is in Singapore’s economic, commercial, industrial and social interests.
[67] In order to satisfy the high threshold of Wednesbury unreasonableness, the applicant must show that the SLA had, on one formulation, taken into account extraneous considerations that it should not have taken into account or had not taken into account considerations which it should have taken into account. Alternatively, the applicant must show that the SLA’s decision was so outrageous in its defiance of logic that no sensible person who had applied his mind could have arrived at the same decision.
[68] There are three ways of characterising the SLA’s allegedly unreasonable conduct:
(a) Applying the policy of assessing the DP via a spot valuation at 100% of land enhancement value;
(b) Applying the policy of assessing DP via a spot valuation at 100% of land enhancement value but not disclosing the existence of such a policy beforehand;
(c) Applying the policy of assessing DP via a spot valuation and at 100% of land enhancement value, not disclosing the policy beforehand and not taking into account the applicant’s legitimate expectation.
[69] In the first characterisation, it is the policy alone that is being impugned. The SLA, in formulating policy, is statutorily obliged to have regard to “efficiency and economy and to the social, industrial, commercial and economic needs of Singapore” (s 6(2) of the SLA Act, see [63] above). The balancing of these competing interests is not within the institutional competence of the judiciary (Lee Hsien Loong (at [98(b)], see [64] above). Thus, the policy by itself cannot be said to be unreasonable in the Wednesbury sense.
[70] However, the applicant was not aggrieved by the SLA’s policy. The applicant’s complaint was that the policy was not publicised, giving it the impression that the publicised policy (that is, DP assessed at DC Table rates) would apply.
[71] At common law, there is no legal duty on the part of the Government to publicise the policies which it seeks to implement. In the context of administrative decisions, there is no general rule that reasons must be given (see e.g. Marta Stefan v General Medical Council [1999] 1 WLR 1293 at 1300G-H). It was therefore not unreasonable in the Wednesbury sense for the SLA not to publicise its policy of assessing DP via a spot valuation at 100% of the land enhancement value. In any case, the applicant’s contention was that it was led to believe that the said policy would refer to the DC Table anyway.
[72] This leaves me with the last characterisation — that it was unreasonable for the SLA to have applied an undisclosed policy to the applicant’s case and thereby neglecting unreasonably to take into account the applicant’s legitimate expectation. This issue will be dealt with in the discussion on the law pertaining to substantive legitimate expectations (see [118] – [128] below).
Should the doctrine of substantive legitimate expectations be recognised in Singapore law? If so, can the applicant avail itself of this doctrine?
[73] The term “legitimate expectation” was first used by Lord Denning MR in Schmidt and another v Secretary of State for Home Affairs [1969] 2 Ch 149 (“Schmidt”). The case concerned the Home Secretary’s decision to refuse an extension of a foreign student’s temporary permit to stay in the United Kingdom. Lord Denning MR rejected the foreign student’s contention that he ought to have been afforded a hearing. He held that:
[74] In the GCHQ case, a majority of the House of Lords held that the applicants there had a legitimate expectation that they would be consulted before their rights to unionise were taken away. This duty was however overridden by national security concerns. Lord Diplock held (at 408F – 409A):
In the same case, Lord Fraser of Tullybelton formulated the doctrine of legitimate expectations on a more general basis which could be construed to include substantive (as opposed to merely procedural) relief (at 401A-B):
[75] For the moment, I turn my attention to related cases which granted substantive relief on other grounds. The Court of Appeal case of Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496 (“Lever Finance”) granted relief on the ground of estoppel. In that case, developers applied for and obtained planning permission to build 14 houses on a particular tract of land. A month after this, the developers’ architect made some variations to the plan. One of the houses was to be sited 23 feet away from existing houses (as opposed to 40 feet under the original approved plan). The planning authority’s planning officer had lost the file containing the original approved plan and because of this mistakenly told the developer’s architect over the telephone that this variation was not material and that no further planning consent was required. The developers went ahead with construction. Sometime later, the planning authority said that planning permission was actually required (after complaints received by the existing residents) and permission was subsequently denied. The developers sought an injunction restraining the authority from serving an enforcement notice requiring them to demolish the half-built house. Lord Denning MR (at 500h–j) held that:
[76] The House of Lords case of In re Preston [1985] 1 AC 835 held that substantive relief could be granted on the basis of abuse of power where the conduct complained about is equivalent to a breach of contract or a breach of representation. The case concerned a taxpayer who alleged that an officer from the Inland Revenue Commissioners (“IRC”) had represented to him that the IRC would not raise further inquiries on his tax affairs if the taxpayer withdrew certain claims for interest relief and capital loss. The House of Lords found that no such representation was made. Nevertheless, Lord Templeman said (at 864G) that:
Lord Templeman continued (at 866H – 867B):
[77] Thus, with respect to substantive relief where no existing legal right was alleged to have been infringed, there were at least three doctrines (or variations thereof) at play: legitimate expectation, estoppel and abuse of power. I shall next consider how some common law jurisdictions have dealt with these doctrines.
England
[78] Regina v Secretary of State for the Home Department, Ex parte Ruddock and others [1987] 1 WLR 1482 (“Ex p Ruddock”) was the first case to state expressly that the doctrine of legitimate expectation could not be restricted to cases involving the right to be heard. An active and prominent member of the Campaign for Nuclear Disarmament had his phone tapped. He alleged that this was not done in accordance with the criteria for the interception of communications which had been published on six occasions. The court dismissed the application on the facts but relied on Lord Frasier’s speech in the GCHQ case (see [73] above) in stating (at 1497A – B):
[79] In the House of Lords decision of Regina (Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348, a purchaser of a waste treatment plant, with a view to using waste to generate electricity, consulted the county planning officer who said that generating electricity on the plant on a 24-hour basis would not amount to a material change of use requiring planning permission. Some years after the purchase, the purchaser was told that planning permission was actually required. Relief was denied on the facts. Lord Hoffman spoke for a unanimous House of Lords:
[80] The Court of Appeal, in the subsequent case of South Bucks District Council v Flanagan and another [2002] 1 WLR 2601 (decided later than the above case but reported earlier), construed the foregoing passage (at [16]) as the House of Lords deciding that “there is no longer a place for the private law doctrine of estoppel in public law or for the attendant problems which it brings with it.”
[81] The Queen on the application of, Bhatt Murphy (a firm) and others v The Independent Assessor [2008] EWCA Civ 755 concerned a group of individuals and solicitors who had been denied access to a compensation scheme run by the government. The Court of Appeal denied relief on the facts but Law LJ commented on the underlying basis of the doctrine of legitimate expectation (at [28]):
[82] There is no doubt that the doctrine of substantive legitimate expectation is part of English law. The Court of Appeal decision of Regina (Patel) v General Medical Council [2013] 1 WLR 2801 (“Patel v GMC”) is the latest pronouncement on the law as it currently stands in England. The case pertained to a medical doctor who received e-mail assurances that, upon completion of a distance learning pre-clinical course from a particular university, he would be provisionally registered as a doctor with the General Medical Council (“GMC”). The GMC subsequently told the claimant that his primary medical qualification was unacceptable and denied provisional registration. The Court of Appeal granted substantive relief on the ground of substantive legitimate expectation and declared that the GMC was compelled to recognise the claimant’s primary medical qualification for the purposes of registration. The court utilised the following framework:
(a) The statement or representation relied upon as giving rise to a legitimate expectations must be “clear, unambiguous and devoid of relevant qualification” (at [40]);
(b) The party seeking to rely on the statement or representation must have placed all his cards on the table (at [41]);
(c) While detrimental reliance is not a condition precedent, its presence may be an influential consideration in determining what weight should be given to the legitimate expectation (at [84]).
(d) The statement or representation must be pressing and focused. While in theory there is no limit to the number of beneficiaries, in reality the number is likely to be small as
(i) It is difficult to imagine a case in which government will be held legally bound by a representation or undertaking made generally or to a diverse class; and
(ii) The broader the class claiming the benefit of the expectation the more likely it is that a supervening public interest will be held to justify the change of position (at [50]).
(e) The burden of proof lies on the applicant to prove the legitimacy of his expectation. Once this is done the onus shifts to the respondent to justify the frustration of the legitimate expectation. It is for the authority to identify any overriding interest on which it relies to justify the frustration of the expectation (at [58]); and
(f) The court has to decide for itself whether there is a sufficient overriding interest to justify a departure from what has been previously promised (at [60]). In doing so the court must weigh the competing interests. The degree of intensity of review will vary from case to case, depending on the character of the decision challenged (at [61]).
[83] It is clear that the doctrine of substantive legitimate expectation is part of English law. It appears that the doctrine of estoppel has been subsumed under the doctrine of substantive legitimate expectation.
Australia
[84] Australia has hitherto not recognised the doctrine of estoppel in the context of public law (Annetts and another v McCann and others (1990) 97 ALR 177 at 184, cited with approval in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 72 ALD 613 (“Ex p Lam”) at [69])
[85] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 353 (“Teoh”) was a High Court of Australia case which held that a legitimate expectation arose from the ratification of an international treaty that had not been implemented by statute. The court held that ratification was not an ineffectual act. It was a positive statement by the executive that its agencies will act in accordance with the treaty.
[86] However, the subsequent High Court of Australia case of Ex p Lam has cast doubt on Teoh. In that case, the applicant was granted a transitional (permanent) visa. He was convicted of trafficking heroin. An officer from the Department of Immigration and Multicultural Affairs advised the applicant that his visa might be cancelled. The applicant was told that he would be provided with an opportunity to comment and was advised of the matters to be taken into account, including the best interests of any children with whom he was involved. The applicant responded and included a statement from the carer of the applicant’s children. An officer subsequently wrote to the applicant requesting contact details of the children’s carer and stating that the respondent wished to contact the carer in order to assess the applicant’s relationship with his children. The applicant duly provided the contact details. However, no further steps were taken to contact the carer and the applicant’s visa was subsequently cancelled by the respondent. In four concurring judgments, the applicant’s appeal for substantive relief was dismissed. Two of the speeches did not consider the doctrine of legitimate expectation but merely held that there was no denial of procedural fairness on the facts. I turn now to the two speeches which touched on the doctrine.
[87] McHugh and Gummow JJ observed that the notion of “abuse of power” as applied in England appeared to be concerned with the judicial supervision of administrative decision-making by the application of certain minimum standards and that it represented an attempted assimilation of doctrines derived from European civil systems (at [73]) into the English common law. However, civil systems are characterised by a close connection between the administrative and judicial functions, with administrative judges having administrative training and being alive to realities of administration (at [74]). Further, Australia has a written federal constitution with separation of power and judicial power does not extend to the executive function of administration (at [76]). In the light of developments in Australian case law of the requirements of procedural fairness, the doctrine of legitimate expectation does not have any distinct role (at [81]). The doctrine should be understood as being synonymous with natural justice as merely indicating “the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded”. If natural justice does not condition the exercise of power, the notion of legitimate expectation can have no role to play. Otherwise, the doctrine would “become a stalking horse for excesses of judicial power” (at [82]).
[88] Callinan J opined that the expression “legitimate expectation” is unfortunate and misleading. The necessity for the invention of the doctrine is questionable; the law of natural justice has evolved without the need for recourse to any fiction of “legitimate expectation” (at [140]). When Lord Denning MR first articulated the expression, he was doing no more than using it as a synonym for a right or interest. “Legitimate expectation” does not connote a freestanding or new right altogether (at [141]). If “legitimate expectation” were to remain part of Australian law, it would be better if it were applied only in cases where there is an actual expectation (at [145]). On any view, the doctrine of “legitimate expectation” gives rise to only procedural rights and cannot give rise to substantive rights (at [148]).
[89] A 3-2 majority of the judges in the High Court of Australia in Ex p Lam have thus held, albeit obiter, that the doctrine of legitimate expectation is of questionable legitimacy and utility. Rush v Commissioner of Police (2006) 150 FCR 165 (at [75] and [82]) and Habib v Commonwealth (No 2) (2009) 254 ALR 250 (at [70]) have subsequently confirmed that the doctrine of substantive legitimate expectation is not recognised in Australian law.
Canada
[90] The seminal case in Canada is the Supreme Court decision of Centre hospitalier Mont-Sinaï c Québec (Ministre de la Santé & des Services sociaux) [2001] 2 SCR 281 (“Mount Sinai”). The respondent, Mount Sinai Hospital, originally dealt primarily with tuberculosis patients and only had long-term care facilities. They decided to move from Quebec to Montreal. The hospital had, by that time, both short-term and long-term beds and wanted to alter its permit to reflect this. The ministry promised to alter the permit after the move to Montreal and this was reaffirmed by successive ministers. The hospital moved and applied for its permit to be amended. However, its application was denied on the basis that it was no longer in the public interest to have short-term beds. The court unanimously held that the Minister was compelled to issue the amended permit. There were two speeches. Bastarache J (with whom L'Heureux-Dubé, Gonthier, Iacobucci, and Major JJ concurred) did not touch on the doctrine of legitimate expectation. McLachlin CJC and Binnie J, in obiter, held that legitimate expectation cannot be used to ground substantive relief and that the doctrine of estoppel (which has more stringent requirements) should be used to ground substantive relief instead.
[91] McLachlin CJC and Binnie J opined that the doctrine of legitimate expectation, as applied in England, performs a number of functions that are kept distinct in Canada (at [24]). The doctrine has, in their view, developed into a comprehensive code that embraces the full gamut of administrative relief, from procedural fairness to estoppel (not properly so-called) (at [26]). At the high end, this represents a level of judicial intervention that the Canadian courts have considered inappropriate (unless constitutional rights are implicated) (at [27]). Canadian cases have differentiated procedural fairness and legitimate expectation (at [28]). If the courts are to grant substantial relief, more demanding conditions precedent must be fulfilled than are presently required by the doctrine of legitimate expectation (at [32]). There are two further limitations: first, a purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection unless there has been an abuse of discretion (at [33]); secondly, public bodies exercising legislative functions may not be amenable to judicial supervision (at [34]). However, estoppel may be available against a public authority in narrow circumstances (at [39]). In this respect (at [42]),
[92] The doctrine of estoppel in the public law milieu, however, requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped. Therefore, circumstances that might otherwise create an estoppel may have to yield to an overriding public interest expressed in the legislative text (at [47]).
[93] The latest pronouncement of the law as it currently stands in Canada is contained in the 2013 Supreme Court case of Agraira v Canada (Minster of Public Safety and Emergency Preparedness) (2013) CarswellNat 1983. In a unanimous judgment, the court reaffirmed the principle that the doctrine of legitimate expectation cannot give rise to substantive rights (at [97]).
[94] To sum up, Canadian law does not grant substantive relief via the doctrine of legitimate expectations. Instead, an applicant seeking substantive relief would have to rely on the doctrine of estoppel.
Hong Kong
[96] The Court of Final Appeal granted relief on the ground of substantive legitimate expectation but only for the applicants who received specific representations in pro forma replies that it was unnecessary for them to join in existing proceedings or commence fresh proceedings. The entire court agreed that the doctrine of substantive legitimate expectation was part of Hong Kong law.
[97] Li CJ, Chan and Riberio PJJ and Sir Anthony Mason NPJ, speaking for a 4-1 majority, utilised the following framework:
Singapore
[98] UDL Marine (Singapore) Pte Ltd v Jurong Town Corp [2011] 3 SLR 94 (“UDL Marine”) concerned a case where a tenant applied unsuccessfully to its landlord, a statutory board, for the renewal of a lease. The application for leave for judicial review was dismissed on the ground that the respondent’s act of not renewing the lease was not susceptible to judicial review because it was exercising its private contractual rights not to renew the lease. Lai Siu Chiu J commented, obiter, that both parties had not submitted on the issue of legitimate expectation. Nevertheless, she doubted that the doctrine of substantive legitimate expectation was part of Singapore law because of the presence of competing tensions and her concern that the need to check against inconsistent treatment must be balanced against the undesirable effects of excessively fettering administrative discretion (at [65] and [66]).
[99] In Borissik Svetlana v Urban Redevelopment Authority [2009] 4 SLR(R) 92 (“Borissik Svetlana”), the applicant was a joint owner of a semi-detached house who applied for leave for judicial review of the Urban Redevelopment Authority’s decision to deny the applicant’s application for the construction of a detached bungalow. Leave was denied on the ground that the applicant had not exhausted all her remedies before applying for judicial review. Tan Lee Meng J nevertheless found, obiter, that the applicant could not point to any promise made to her by a person with actual or ostensible authority. Tan J went on to state (at [49]):
It is unclear if Tan J was referring to a procedural or substantive legitimate expectation. However, at [46], Tan J said:
The above passage seems to suggest that Tan J had procedural, rather than substantive, legitimate expectation in mind.
[100] The Court of Appeal case of Yong Vui Kong v Attorney-General [2011] 2 SLR 1189 (“Yong Vui Kong”) concerned an appellant who was convicted of a drug trafficking offence and sentenced to death. In a concurring judgment, Andrew Phang and V K Rajah JJA addressed the appellant’s argument that a legitimate expectation had arisen that it is the President who would make the decision as to whether the appellant would be pardoned. Citing Regina v Director of Public Prosecutions, Ex parte Kebilene [2000] 2 AC 326, they held that such a legitimate expectation could not arise on the facts because clear statutory words will override any expectation. In this respect, Art 22P(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) clearly states that the President shall act “on the advice of the Cabinet”.
[101] Prior case law has thus not addressed, head-on, the issue of whether the doctrine of substantive legitimate expectation is part of Singapore law. Lai J in UDL Marine did not have any submissions on this issue before her and doubted that the doctrine existed. Tan J in Borissik Svetlana ostensibly had procedural, rather than substantive, legitimate expectation in mind when he cited a framework espoused in the sixth edition of De Smith. Andrew Phang and V K Rajah JJA in Yong Vui Kong did not address the issue of whether substantive legitimate expectation is part of Singapore law. They dismissed the appellant’s argument on the basis that no substantive legitimate expectation could have arisen on the facts.
Summary of respective submissions
[102] The applicant here relied chiefly on Borissik Svetlana for the proposition that the doctrine of substantive legitimate expectation has received implicit judicial recognition in Singapore. The applicant submitted that Tan J had in that case assumed that judicial review could be used to protection legitimate expectations of substantive benefit. The applicant further contended that a legitimate expectation arose on the facts. Firstly, the SLA Circulars and the SLA website constituted clear and unambiguous representations that the DP would be computed on the basis of the DC Table. Secondly, in deciding whether to acquire the Land and in determining the appropriate price it was willing to pay, the applicant was induced by the representations. Thirdly, the SLA Circulars and the SLA website were circulated by a person with actual or ostensible authority. Lastly, the applicant belonged to the class of persons to whom the representations were reasonably expected to apply. The applicant also argued that there was no way for it to discover that the SLA had considered directly-alienated land to be an exception to the prescribed method of assessment. There was no publicly available document which stated that directly-alienated land was an exception to the prescribed method of assessment. There was in fact no way for the applicant to find out that the Land was directly alienated to its former owner. The Land Return Clauses in the two lease documents merely state that the DP would be payable in accordance with the DP Clauses. The DP Clause is found in all state leases and there is therefore nothing to disturb the applicant’s understanding that the DP would be assessed in accordance with the DC Table.
[103] The SLA relied on UDL Marine for the proposition that the High Court had, in that case, doubted the existence of the doctrine of substantive legitimate expectation in our law. The SLA, however, conceded that local jurisprudence has not definitively pronounced whether the doctrine of substantive legitimate expectation is part of Singapore law. The SLA submitted that the reasons for and against the said doctrine are finely balanced. In England, the doctrine is hedged with qualifications. Even then, the English approach was categorically rejected by the Australian High Court in Ex p Lam, where the court found that the English position did not sit well with the Australian constitutional framework. The SLA also asserted that no expectations whatsoever arose in this case. The threshold for a representation that is clear, unambiguous and devoid of qualification is a high one. Further, the applicant in fact already knew or ought to have known that the DP in its case would be assessed via a spot valuation by the Chief Valuer at 100% in enhancement in land value. There were media releases concerning the redevelopment of a property located at Market Street. Any reasonable developer would have noticed that the leases contained a special covenant — the Land Return Clause — which is not ordinarily found in other State leases.
[104] The Attorney-General argued that the doctrine of substantive legitimate expectation should not be adopted in Singapore for three reasons. First, the doctrine was developed in England against the backdrop of the Human Rights Act 1998 and the pressure to assimilate European doctrine into the common law. Second, the underlying rationale of the doctrine is that of abuse of power, which is not principled. Third, the doctrine is inconsistent with the doctrine of separation of powers as enshrined in the Singapore Constitution. In any event, no legitimate expectation arose on the facts. There was no clear, unambiguous or unqualified representation. The SLA Circulars were directed to the general public and did not have the character of a contract. There was also no inducement.
My decision on the doctrine of legitimate expectation
[105] The above analysis (at [97] to [100]) shows that case law in Singapore has not addressed directly the issue of whether the doctrine of substantive legitimate expectations is part of Singapore law.
The separation of powers
[106] Both the SLA and the Attorney-General placed especial emphasis on the cases of Ex p Lam and Mount Sinai. I shall deal with both cases in turn.
[107] Both the SLA and the Attorney-General relied on Ex p Lam for the proposition that the doctrine of substantive legitimate expectation was influenced by European law and is inconsistent with the Australian Constitution and, more specifically, the separation of powers. As Singapore and Australia both have written constitutions, the reasoning in Ex p Lam also applies to Singapore.
[108] As a preliminary matter, I note that this line of reasoning was present in only McHugh and Gummow JJ’s speech and thus did not command the assent of the majority of the court. Gleeson CJ and Hayne J, in separate speeches, did not consider the question of whether the doctrine of substantive legitimate expectation ought to be part of Australian law. Callinan J opined that the said doctrine is not part of Australian law but did not cite the Australian Constitution and the separation of powers as a reason for this holding (see [87] above). This line of reasoning was also not adopted by the Canadian Supreme Court in Mount Sinai.
[109] Secondly, although European law may have influenced English law, is the English system of government, with its unwritten Constitution, fundamentally different from the Singaporean and Australian systems of government with their written Constitutions? Implicit in the SLA’s and the Attorney-General’s argument is that a written constitution is a pre-requisite for the separation of powers. According to this argument, the written constitutions of Australia and Singapore explicitly demarcate the powers that are to be allocated to the legislative, executive and judicial branches respectively and it would therefore tantamount to judicial overreach for the judiciary to enforce substantive legitimate expectations. However, it is clear that the UK system, despite the absence of a written constitution, also recognises the separation of powers. In the House of Lords decision of Regina v Secretary of State for the Home Department, Ex parte Fire Brigades Union and others [1995] 2 AC 513 (“Ex p Fire Brigades”), Lord Keith of Kinkel said (at 567D – E):
[110] As a side-note, this case was decided when the House of Lords was still functioning as a court of law, 14 years before the establishment of the Supreme Court of the United Kingdom in 2009 which formalized the separation of the legislative and the judicial functions of the House of Lords in order to comply with the European Convention on Human Rights. In this respect, I refer to a consultation paper entitled Constitutional Reform: A Supreme Court for the United Kingdom (July 2003, CP11/03) (available at http://webarchive.nationalarchives.gov.uk/+/http:/www.dca.gov.uk/consult/supremecourt/supreme.pdf, last accessed 28 October 2013) (at para 3):
[111] It cannot be argued, therefore, that the doctrine of substantive legitimate expectation should not be law in Singapore simply because Singapore has a written constitution while England, which recognises the doctrine, does not. Instead, this issue should be looked at from first principles.
[112] If private individuals are expected to fulfil what they have promised, why should a public authority be permitted to renege on its promises or ignore representations made by it? If an individual or a corporation makes plans in reliance on existing publicized representations made by a public authority, there appears no reason in principle why such reliance should not be protected.
[113] The upholding of legitimate expectations is eminently within the powers of the judiciary. In the context of private law, this is expressed through the enforcement of contracts (which upholds bargains freely made) and the equitable doctrine of estoppel (which upholds the reliance interest of a representee if a representor resiles from his representation inequitably). However, in the public law sphere, in deciding whether a legitimate expectation ought to be upheld, the court must remember that there are concerns and interests larger than the private expectation of an individual or a corporation. If there is a public interest which overrides the expectation, then the expectation ought not to be given effect to. In this way, I believe the judiciary can fulfil its constitutional role without arrogating to itself the unconstitutional position of being a super-legislature or a super-executive.
[114] In my view, there ought to be no difference in principle between procedural and substantive legitimate expectations. The reasons enumerated above do not distinguish between the procedural and the substantive and apply equally to both.
[115] In practice, it may be difficult to distinguish between the procedural and substantive. This was acknowledged in Mount Sinai (at [35]):
[116] The SLA and the Attorney-General referred, in particular, to [27] and [28] of Mount Sinai to buttress their argument that the doctrine of legitimate expectation should not be recognised in Singapore. The two paragraphs cited are as follow:

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Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority

Laws this judgment relies on

Grounds of decision

The facts leading to the application

(a) DP in respect of Lot 1338M $33,523,349.00

(b) GST on DP in respect of Lot 1338M $2,346,634.43

(c) DP in respect of Lot 2818V $7,660,640.00

(d) GST on DP in respect of Lot 2818V $536,244.80

(e) Processing fee for Lot 1338M $80.00

(f) Processing fee for Lot 2818V $880.00

(g) Total $44,067,828.23

Leave and other preliminary issues

Was the application for leave out of time?

Did the applicant exhaust all possible alternative remedies?

The substantive application for judicial review

Weight to be ascribed to Gaw Seng Suan’s affidavit

The arguments

The issues

Was the SLA’s decision to assess DP via a spot valuation irrational and/or unreasonable?

England

Australia

Canada

Hong Kong

Singapore

Summary of respective submissions

My decision on the doctrine of legitimate expectation

The separation of powers